This piece was originally published by .
In an executive order last week, President Trump a requirement for the government to tell the public its official count of civilians killed by U.S. military and CIA lethal strikes in countries where we are not at war. The effect is that our government will continue killing people abroad with less oversight and no accountability.
The reporting requirement, put in place by President Barack Obama, had many shortcomings, but it was still valuable. We know, for example, that the government says by strikes in noncombat zones between 2011 and 2015, though credible media and human rights groups say the actual number is likely much higher. Trump has now also ended the government’s commitment to explaining these discrepancies.
Trump administration justified its decision to end such reporting by arguing that transparency reports are duplicative because the military is required to issue similar reports. But that’s not completely true, as military figures won’t include civilian deaths from CIA strikes.
Some in Congress reacted with alarm to Trump’s order, and Rep. Adam B. Schiff (D-Calif.) announced that he will seek to reimpose the transparency requirement with legislation. This is a necessary step but only an initial one, because this country desperately needs to reckon with and seek an end to the president’s claimed unilateral authority to kill terrorism suspects in parts of the world where we are not at war.
Proponents argue that these airstrikes reduce risk to U.S. forces and keep the United States from being drawn into actual or worsening wars. But without public accountability about the costs and consequences of the program, we can’t take that at face value. Nor can we accept an equation that minimizes the deaths of civilians or ignores perspectives from people in .
It’s encouraging that some and recognize that the U.S. lethal program is morally and legally fraught. Yet virtually all policy to fix it start with a desire to maintain the president’s authority to order the killings, and they are always defined by counterterrorism, even though what’s happening on the ground is often domestic or regional conflicts unrelated to terrorism against the United States.
When the U.S. drone program began with a , it was supposed to be exceptional and limited, with “kill lists” targeting alleged high-level militants. But as lethal strikes expanded in intensity and geographic scope, so, too, did the categories of people who could be killed. Our government’s desire to maintain the option of lethal force resulted in more killings based on suspicion and without any judicial process. And the CIA essentially morphed into a paramilitary killing organization, without even the imperfect oversight that is in place for the military.
Those affected by these strikes may be faceless to the American public, but they are not to the victims and their families. Most of them reside in majority-Muslim countries, where the programs are understandably resented and contribute to destabilization.
Any reckoning for a lethal program must focus on such costs in human life, taxpayer money and the rule of law. But the government intentionally makes this difficult by limiting information to the public.
We know lethal strikes have taken place in Yemen, Pakistan, Libya, Somalia, and elsewhere — all without congressional authorization or adequate oversight. But we do not know exactly how many civilians and terrorism suspects have been killed since 2002, though independent groups that many thousands have died, including many hundreds of civilians — at least.
Nor do we know the secret rules Trump uses to determine who will die. By the end of the Obama administration, which vastly expanded the lethal program, lawsuits the government to disclose the legal and bureaucratic infrastructure that it “outside areas of active hostilities.”
International law prohibits the use of lethal force against civilians outside of armed conflict, except in very narrow circumstances: as a last resort to prevent an imminent attack. And the Constitution prohibits killing citizens without due process. But the Obama administration its lethal program under a cherry-picked mishmash of legal frameworks with a gloss of policy safeguards aimed at limiting harm to civilians.
The Trump era has made clear just how vulnerable policy limits are and how dangerous it is when a president claims legal authority to kill in secret. In 2017, Trump a key policy constraint limiting lethal strikes to “high-level militants” who pose “a continuing and imminent threat to Americans.” He also reportedly declared that parts of Yemen and Somalia were exempt from the meager remaining limits. The result? The United States is , regardless of whether the government has reason to believe they pose a threat to the United States.
The president also gave the CIA more authority to carry out strikes, and the agency embraced it by building a for drones in Niger.
This is exactly the opposite of what should be happening. Trump may have to end “endless wars,” but he and other politicians have instead doubled down on armed actions and have diplomatic solutions. As a result, more civilians will die, and the instability and violence our government claims to abhor will continue.
Now, more than ever, we need Congress to act. Only with greater pressure can we end our nation’s deadly addiction to a war-based foreign policy.
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.