The has been surrounded by a cloud of fear-mongering since it was reintroduced almost immediately after the 9/11 attacks and rushed through Congress, without any finding that the sweeping new powers granted by the act had anything to do with the problems and failures that contributed to that attack.
At the heart of the issue has been confusion between giving the authorities surveillance powers, and giving them unchecked surveillance powers. Much of what the Patriot Act did was to remove independent judges from oversight over invasions of privacy conducted in the name of law enforcement and national security.
Two Bush administration officials, former National Security Administration (NSA) director and former CIA director Michael V. Hayden and former Attorney General Michael B. Mukasey, continued that tradition of inaccuracy and fear-mongering in an . In their piece, they target a modest piece of legislation proposed by Sen. Patrick Leahy (D-Vt.) that would insert some much-needed oversight mechanisms into the Patriot Act. Hayden and Mukasey warn that the legislation "threatens key anti-terrorism tools." But, acting fully in the tradition of government rhetoric around the power-grab Patriot Act, Hayden and Mukasey's piece is rife with errors, distortions and inaccuracies:
- They state that under the bill, some tools will be "eliminated," but this is false: all three sunsetting provisions are reauthorized, while all others are left in place.
- They state that "The Obama administration initially supported leaving these authorities in place but has backtracked" We're not sure where this comes from, and we wish it were true, but it is not. The administration has endorsed the Leahy bill and its modest oversight provisions, but as the administration and Sen. Leahy have said repeatedly, it does not affect intelligence operations.
- They repeat the same tired old rationale for the Patriot Act's "lone wolf" provision, which permits surveillance of "non-U.S." persons who are not affiliated with a terrorist group. Mukasey and Hayden assert the "20th hijacker Zacarias Moussaoui's" computer could not have been examined without lone wolf. But independent and congressional investigations after 9/11 all found the same thing: the FBI absolutely had the factual basis to get a Foreign Intelligence Surveillance Act (FISA) warrant for Moussaoui — the only problem was that FBI agents just didn't understand how FISA worked! And, if the power is so crucial, why have documents revealed that the FBI has never used the provision?
- They misstate the law by stating that "the current law permitting an intelligence agency to get information through a national security letter (NSL) requires a certification that the information relates to an agent of a foreign power." In fact, it does not, and that's precisely what the problem is. What they describe was the law before the Patriot Act; since its passage the government needs only to certify that information is "relevant" to an investigation. This loose standard is a recipe for fishing expeditions, which probably explains why the . We're not even getting to the policy disagreements here — just a basic understanding of what the law does and does not say.
Hayden and Mukasey also include two howlers that are not directly related to the Patriot Act:
- They write: "It bears emphasis here that such business and telephone records are information already in the hands of a third party, such as a bank or phone company, so the privacy interest of the subject is weak at best." It would come as news to most Americans that they have only a "weak" privacy interest in their financial records, medical records, correspondence, and other information, just because they're held in the hands of third parties. (It is true that the courts have to some extent followed that logic, but that is a major failure of our jurisprudence at the moment that needs to be fixed, not logic that Congress should confirm or embrace).
- They write that "The legislation imposes, for NSLs, additional after-the-fact administrative and judicial review, as well as evaluations by the Justice Department inspector general.... these functions to some extent duplicate oversight already conducted by the Privacy and Civil Liberties Oversight Board." It's hard to believe they would cite the PCLOB; no oversight is "already conducted" by the Privacy and Civil Liberties Oversight Board since the PCLOB does not actually exist. That is because neither Bush nor Obama have appointed a quorum to the board. The PCLOB, if activated, could be an important privacy oversight mechanism — but are we to see it used as an excuse for inaction on privacy oversight, even as the government leaves it empty?
The inaccuracies in the Hayden-Mukasey piece did not escape the attention of Sen. Leahy, who was moved to write a with Sen. Dianne Feinstein (D-Calif.).
We certainly applaud Sen. Leahy for trying to put some modest but important oversight and accountability mechanisms into the Patriot Act, a law that runs counter to long-established Anglo-American traditions of privacy and due process. But this bill certainly doesn't go as far as is needed, and is unlikely to reduce the number of people caught in government spying programs. To say that the bill will hamper intelligence activities at all is laughably unfounded.
The Hayden-Mukasey piece continues the Bush administration's tradition of distorting the truth and fear-mongering. It's time we cleared the air.
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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.