Leading yesterday’s New York Times op-ed page is a column by Bill Keller, . It supports the faulty claim that we can solve our nation’s immigration woes if we just create a national ID system, and it specifically lauds a 2010 proposal by Sens. Schumer and Graham to create a biometric social security card that would function as a national ID for every American.
This idea is so painfully wrong and would do so much harm to Americans’ freedom that it’s hard to know where to begin to take it apart. Let’s start with the fact that a national ID won’t stop the numerous employers who actually undocumented workers because they can threaten such workers with deportation for reporting underpayment or terrible working conditions. They are already violating the law and existing rules and they don’t care about identification at all.
Additionally, it does little for employers who do pay attention to documentation—it just . But even if we put that aside for a moment and accept that there might be some small sliver of employers who will be dissuaded from hiring undocumented workers by a new biometric ID system, it’s not clear why we should take such a drastic step for minimal effect.
In order to get at that very small number of employers, America would need to pay a very high price - about $40 billion (yes with a “b,” and that’s just to get the system running). That is the that researchers at the University of California Berkeley Law School put on the Schumer/Graham proposal. It’s not hard to understand why that number is so huge when you think about everything that a national ID entails. A system must be built whereby everyone reports to a Social Security office, lines up with a birth certificate and other paperwork, is fingerprinted and photographed and then issued a biometric card (yes, a biometric ID requires the fingerprinting of every American). Now add the cost to employers for readers to check the cards and connect with the ID system to make sure they are accurate. It’s an enormous undertaking. Imagine a combination of the Department of Motor Vehicles and the Transportation Security Administration.
Once the country builds this mammoth system, do we really believe it will remain limited to employment? The history of the social security number strongly suggests it will not. For years, those cards stated on their face “for Social Security and tax purposes -- .” That has not stopped anyone -- from credit card companies to employers to government -- from asking for that magic nine-digit number in order to verify identity.
Social security numbers are also a prime target for identity thieves and it’s safe to assume that your national ID would be an even more inviting target. If you’ve ever had to recover from having your identity stolen, imagine how bad it would be if a thief stole your national ID, perhaps by paying a to issue a real card with someone else’s biometrics. If a national ID card were the central identity document in a person’s life, imagine how hard that would be to recover from that type of ID theft.
Worse, building a national ID system creates enormous potential for legal mischief. America already has a terrorist watch list that contains more than a million names, including many people who are barred from enjoying basic freedoms including the right to fly. Imagine government watch lists combined with inevitable mission creep. The pieces already exist to create a system where Americans would not be able to work, fly, vote or carry a gun unless their national ID is in order.
And as Arizona’s SB 1070 law demonstrates, some legislators are itching to expand that even further in service of an anti-immigrant agenda. If these legislators got their way, every aspect of life, including wholly innocent interactions with government officials and police officers, would require you to produce your national ID and prove your identity to avoid being treated as an “illegal alien.” One example of how this policy has already started to take shape: under Alabama’s anti-immigrant law, a passenger in a car who was not suspected of any wrongdoing was arrested (and charged, absurdly, with “driving without a license”) because he did not have acceptable ID.
This isn’t a partisan issue. In 1981, at the outset of the Reagan administration, then-Attorney General William French Smith argued that a national worker ID would be necessary to stop illegal immigration. At a cabinet meeting another member jokingly suggested that it would be easier simply to tattoo an identification number on everyone. President Reagan then exclaimed, “My God! That’s the mark of the beast,” effectively .
The idea surfaced again within the Clinton administration’s ill-fated national health care system proposal, in the form of a national medical ID card for every American. Critics at the time feared the plan would create a comprehensive database of everyone’s medical history. Invoking George Orwell, President Clinton himself acknowledged that “any kind of identification card like that sort of .”
Keller quotes me as calling a national ID “a tool of social control,” and that’s what it is. It has been rejected by the right and the left because at its heart it’s a permission slip. A requirement that each of us gain approval from the government before enjoying what should be our fundamental right to work, to travel and to participate in American life. Ultimately a national ID card’s failure as an immigration control measure is beside the point. Its potential success—in curtailing our liberties and controlling our movements—is why it must be rejected.
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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.