This piece originally ran at .
Discussing the origins of the FBI’s Russia investigation, Attorney General William Barr recently claimed that “.” He went on to say, “I can’t imagine any world where we wouldn’t take a look and make sure that was done properly.”
As some were , the comments were rich coming from an architect of our government’s modern spying apparatus: As attorney general during the George H.W. Bush administration, Barr played a key role in developing a secret program that served as the for the NSA’s mass surveillance of Americans’ phone records.
But the hypocrisy of Barr’s comments goes well beyond his past. On Thursday, lawyers from Barr’s Justice Department tried to block a federal court from taking a look at the government’s surveillance of Americans.
The case—brought by the Wikimedia Foundation, which runs Wikipedia, one of the world’s most-visited websites—challenges the constitutionality of the U.S. government’s warrantless spying on Americans’ international internet communications, known as “Upstream” surveillance. (The American Civil Liberties Union, Knight First Amendment Institute, and Cooley LLP are representing Wikimedia in this challenge.)
With the help of companies like AT&T and Verizon, the National Security Agency conducts surveillance on U.S. soil by tapping directly into the internet’s backbone—the physical infrastructure that carries our emails, photos, personal chats, and web browsing. The agency then copies and searches a vast pool of internet communications flowing into and out of the United States. It does all of this without a warrant, in violation of the Fourth Amendment.
Wikimedia’s case could mark the first time a public court weighs in on the constitutionality of this decade-old spying operation. But in stark contrast to Barr’s public expressions of concern over the privacy of Americans, his Justice Department has thrown up a series of litigation roadblocks in an effort to prevent the court from ruling on the legality of this surveillance dragnet.
In fact, on Thursday, Justice Department lawyers argued that Wikimedia’s case should be dismissed outright. They contend that Wikimedia cannot prove with sufficient certainty that its communications are surveilled, and that it therefore lacks “standing” to sue.
But Wikimedia is plainly subject to warrantless surveillance. Wikimedia engages in more than 1 trillion international internet communications per year, with users in every country on earth. Because those communications are so numerous and so broadly dispersed across the globe, they travel every path carrying internet traffic into and out of the U.S. Even if the NSA is monitoring just one of those paths, it is monitoring Wikimedia’s communications. The government’s own disclosures about the scope of its surveillance make this clear.
In response to Wikimedia’s lawsuit, the Justice Department is relying on a legal tactic called the “state secrets privilege” to try to block the court from considering several of the government’s official disclosures. The Justice Department’s argument rests on the theory that the court’s consideration of this information would harm national security—even though the government has already declassified and released the same information to the public.
Incredibly, the Justice Department also asserts that the court cannot even rule on Wikimedia’s standing without harming national security, despite the fact that Congress created a special procedure in the Foreign Intelligence Surveillance Act to address this concern. The procedure is designed to account for any conflict between legitimate secrecy and accountability, and it allows lawsuits like this one to go forward.
If the court in Wikimedia’s suit accepts the Justice Department’s state secrets arguments, it would have far-reaching implications. In essence, it would mean that only the executive branch can decide how and when lawsuits challenging government surveillance may proceed—and that the government could unilaterally block courts from taking the very “look” that Barr says is necessary. That view of executive branch power is completely at odds with what Congress intended when it enacted FISA, and it could eviscerate the possibility of meaningful accountability for unlawful spying.
Wikimedia’s communications with its users are sensitive and private. They can reveal intimate information about users’ political affiliations, religious beliefs, medical questions, and personal interests. Just as the government shouldn’t be monitoring the reading habits of ordinary library patrons, it shouldn’t be monitoring what Wikimedia’s users are privately reading online.
If Barr really wants to champion accountability for violations of Americans’ privacy, he should stop trying to shut the courthouse doors on Wikimedia. It’s past time for the public courts to review the legality of the NSA’s surveillance of our internet communications.
Learn More About the Issues on This Page
-
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.