When the TSA in 2010 introduced the swabbing of some passengers’ hands to detect for explosive residue, we got a call from CNN asking if we’d tell them on camera what we thought of it from a privacy standpoint. It seemed to us that particle sniffers particularly tuned to detect explosives were not a significant invasion of privacy, and that the intrusion of having a government agent swab one’s hand was not significant. Especially in comparison to many of the other airline security measures then (and still) being pushed by the TSA, this was a measure that seemed to represent a good balance between effectiveness and intrusiveness.
But we have learned all too well that if something can be abused, it probably will be abused, so in our role as watchdogs we tried to anticipate any problems that might arise. As CNN in their story (the video is ):
The American Civil Liberties Union has "always supported explosive detection as a good form of security that doesn't really invade privacy," said Jay Stanley….
Stanley said the ACLU is chiefly concerned that the TSA does not discriminate when selecting people for enhanced screening—something the agency said it does not do—and that it treat people with dignity.
"We would not want to see it implemented in a discriminatory fashion, for example, in a disproportionate way against Muslims and Arabs or, for example, people with red hair or anything else. Security experts from across the spectrum will tell you that that's not just unfair and unjust and not the American way, it's also a terrible way to do security," Stanley said.
Swabbing also should not be used to test for nonsecurity-related contraband, such as drugs, he said. "Under the Constitution, searches in airports are only for the purpose of protecting the security of airline transportation; they are not general law enforcement stops. And so it wouldn't be permissible for the government to use these trace portal detectors to look for drugs," Stanley said.
In short, we added three caveats to our endorsement: no discrimination, only test for explosives, and don’t treat people like criminals just because the machine says they’re a positive. What I said on that third point is that these machines are known to generate false positives when detecting traces of certain everyday substances such as heart medicines and fertilizers, that positive results of these tests are likely in almost all cases to be false positives, and that travelers who are the subject of such positive results should not be treated as presumptive terrorists or otherwise treated poorly. (CNN summed up this point as “treat people with dignity.”)
Now, via , comes an account (laid out in an ) that suggests at least two of our fears were not misplaced.
According to Aditya Mukerjee, a New York City scientist, he was traveling to Los Angeles for a vacation with his family when a TSA swab of his hand turned up positive (later conjectured to be due to contact he’d had with some bed-bug spray). As a result, he was detained for four hours; interrogated repetitively throughout that time by agents from the TSA, the NYPD, DHS, the FBI, and JetBlue security, among others; interrogated about his religious beliefs and practices; and denied access to food or water, despite repeated requests for water.
Of course, unlike many incidents we’ve seen, in which people are questioned on no basis whatsoever, Mukerjee did trip up a particle detector, and so it may have been reasonable that he was subjected to some additional search.
But reporters should ask the TSA whether the average American who happens to trip up a swab because they’ve come into contact with particles of one kind or another that generate false-positives should expect to undergo this kind of treatment.
If the answer is yes, that’s bad news and Americans need to know it. If the answer is no, then that just confirms what seems clear according to Mukerjee’s account: he was the victim of discrimination because of his ethnicity. Although he is a Hindu, some of his interrogators made clear they thought he was Muslim. He writes that an FBI agent told him,
“You’ll have to understand, when a person of your… background walks into here, travelling alone, and sets off our alarms, people start to get a bit nervous. I’m sure you’ve been following what’s been going on in the news recently. You’ve got people from five different branches of government all in here—we don’t do this just for fun.”
Invasive questioning of perceived Muslims about their religious beliefs and practices is an abuse we have long seen at the border.
As in more depth, although Mukerjee was eventually cleared by the government agents, he was also denied boarding by JetBlue and had to book an expensive last-minute flight on another airline.
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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.