An invasive spying law is set to expire at the end of this year, and Congress is gearing up for a fight over what will replace it. As lawmakers weigh to reform that law, they would do well to consider the sordid history of warrantless surveillance in this country, and the people who have most suffered from it.
Under Section 702 of the Foreign Intelligence Surveillance Act, the National Security Agency collects vast amounts of phone calls, emails, text messages, and more from Americans communicating with people overseas, often sweeping up domestic communications in the process — all without individualized warrants from a court. Government agencies can then search through that data for information about anyone, in a subversion of judicial protections meant to prevent abuse of government powers.
The threat that these protections guard against isn’t theoretical. Recent history clearly shows that the burden of overzealous surveillances falls on disfavored communities who powerful actors believe threaten the status quo. While 20th century reforms were designed to curtail precisely these abuses, surveillance hawks continue to fight tooth and nail to retain their ability to use Section 702 to search for information about American residents without ever needing to make a case before a judge.
To inform their debate, the lawmakers now considering surveillance reform should J. Edgar Hoover’s half-century tenure at the FBI, where he reigned over an aggressive, decades-long campaign against “radical” and “subversive” groups. In 1956, Hoover approved arguably the FBI’s most infamous and lawless program, known as COINTELPRO. The program targeted a diverse array of activists, inflating a Communist threat to justify the agency’s dirty tactics. Most famous among the FBI’s targets was Martin Luther King, Jr., who the agency stalked through wiretaps, bugs, spies, and informants, collecting embarrassing information about his sex life and possibly even to commit suicide. Hoover personally spearheaded this harassment campaign on the that King was a Communist who posed a particularly “dangerous” threat to “national security.”
Hoover’s FBI didn’t stop there. Invoking Black nationalist and communist bogeymen, it pursued the Black Panthers, socialist organizations, anti-war activists, and many other groups associated with the movements of the day. Legendary labor leader Cesar Chavez, whose farm workers’ movement was by hundreds of FBI agents, was selected for scrutiny because, in the words of one informant, he "possibly has a subversive background." The NSA also jumped aboard the cause, of an esteemed list of Vietnam War critics, among them journalists, sitting senators, Muhammad Ali, and Jane Fonda.
But we don’t need to go quite so far back to find people of color and dissidents targeted for First Amendment-protected beliefs and activities. The post-9/11 expansion of the surveillance state brought with it plenty of examples.
After the attacks of September 11, Congress and various attorneys general loosened many of long-standing safeguards constraining the FBI, enabling large-scale, nationwide discriminatory profiling. Among other practices, the FBI undertook a program mapping America’s racial and ethnic communities for intelligence purposes, based on crass stereotypes assuming criminal proclivities. FBI documents applied increased scrutiny on groups across the country, including Chinese Americans in San Francisco on grounds that “[w]ithin this community there has been organized crime for generations,” and on Detroit’s Muslim population because “it is prime territory for attempted radicalization and recruitment.”
More recently, the ACLU has demanded information about the FBI’s newly invented category of “Black Identity Extremists,” which raises concerns of increased surveillance against Black people for no reason except their outspoken objection to racial injustice in America. There’s plenty of precedent for this concern. In 2015, the Intercept that the Department of Homeland Security had been monitoring Black Lives Matter activists involved in planning protests — activity, it should go without saying, that is squarely protected by the First Amendment.
COINTELPRO was exposed thanks to a group of peace activists who broke into an FBI office in 1971, stole documents detailing the program, and mailed them to reporters. Their bravery led to the formation of the Church Committee, which undertook one of the of intelligence abuses in U.S. history, resulting in major reforms to ensure they weren’t repeated. Among those reforms was the legislation in 1978 of the Foreign Intelligence Surveillance Act, which added a layer of judicial oversight between the intelligence agencies and individuals they sought to target.
Those protections were significantly undermined by the , which created Section 702 to retroactively authorize and expand a Bush-era warrantless wiretapping program conducted by the NSA. Today, under Section 702, the FBI and other intelligence agencies again have the power to comb through reams of private communications flowing into and out of the United States without a court order. Journalists and human rights activists all over the world have cause for concern. Immigrant communities in the U.S. who are in contact with family and others abroad may well be disproportionately affected, given the program’s focus on international communications.
Considering our history, we should apply skepticism whenever the government cries “national security” to flout our system of checks and balances. And especially considering the fact that our new FBI director has refused to take a stand against suspicionless surveillance of mosques in America, no one should rest easy knowing that our intelligence agencies have these powers and are using them.
Right now, we have an opportunity to restore some critical checks on our intelligence agencies’ most egregious excesses. Congress should see those reforms through.
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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.