Never before in history has the United States had such a huge, and increasingly powerful security establishment. This behemoth has tens of thousands of employees and a budget of at least $60 billion, and though first established to protect our country from outside threats, it is increasingly turning its eye inward upon the people of America. It is vital that we have strong checks and balances in place to counterbalance this growing, secretive center of government power. Unfortunately, in many ways Congress has been weakening, rather than strengthening, those checks and balances in recent years.
But in 2007, Congress did create one little-noticed, but significant new institution for protecting American liberty: an independent Privacy and Civil Liberties Oversight Board (PCLOB). The PCLOB, as I wrote about in this report on privacy oversight, does not quite have all the powers it should have, but it will provide a significant and badly needed dose of oversight for our vast national security establishment.
There's only one problem: President Obama hasn't appointed anyone to fill the five seats on the PCLOB.
After Congress created the new PCLOB (not to be confused with the old PCLOB, which was an arm of the White House and lacked independence) in 2007, President George W. Bush refused to nominate one of the candidates put forth by leaders in Congress, who traditionally select the commissioners from the opposite party from the president. In retaliation, the Senate refused to confirm any of Bush's GOP nominees.
Once President Obama came into office, we figured, that particular standoff would end and we would see the board filled. Right? Wrong. There's no longer any standoff with Congress — just a complete lack of action by the White House. In November 2009, the ACLU and other groups asked Obama (PDF) to take action. On March 1, 2010, we sent a second letter (PDF). On March 8, Senate Judiciary Chairman Patrick Leahy sent a (PDF). And just yesterday, 22 members of the House of Representatives sent a similar (PDF) to the president.
So far, the new PCLOB still exists only on paper.
Has President Obama been kinda busy since he was inaugurated a year ago January? Yes. And we have been patient about the PCLOB as a result. But take a look at just a few of the positions that the president has (PDF) the (PDF) to fill since coming into office 14 months ago:
- The Ronald Reagan Centennial Commission. The appointment of five members was announced on Nov. 9, 2009.
- The U.S. Commission for the Preservation of America's Heritage Abroad. Two members' appointments announced on Nov. 10, 2009.
- The President's Advisory Council on Faith-Based and Neighborhood Partnerships. Nine people appointed on April 6, 2009.
- International Boundary and Water Commission, United States and Mexico. Commissioner appointed on Jan. 15, 2010.
- The Marine Mammal Commission. Vacancy filled on Jan. 19, 2010.
- American Battle Monuments Commission. Secretary appointed on May 21, 2009.
- District of Columbia Judicial Nomination Commission. Vacancy filled on March 2, 2010.
- The President's Commission on White House Fellowships. Twenty-eight people named on June 17, 2009.
- Federal Service Impasses Panel. Six people named on Sept. 14, 2009.
- The President's Committee on the Arts and Humanities. Three people named on Sept. 16, 2009.
- The Commission To Study the Potential Creation of a National Museum of the American Latino. Five members named on Sept. 23, 2009.
And the list goes on and on.
The point is not that these panels and commissions are unimportant; many of them surely are. But few address an issue as core to American freedom as does the PCLOB.
It could be argued that a lot of these positions were easier to fill than the PCLOB precisely because they might not be as important. Well, maybe. But it has been 14 months. More likely, this White House, like any White House, has no appetite for activating an independent body not under its control, a potential thorn in its side that might step on their "message of the day" and distract from its agenda.
That's just too bad; independent oversight is painful. And President Obama took an oath to "faithfully execute" the laws of the United States. Congress has passed the PCLOB into law. Time for some faithful executing, Mr. President.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.