Almost ten years after 9/11, in May of this year, a majority of the US House of Representatives voted to give President Obama — and all future presidents — more war authority than Congress gave to President Bush two days after the 9/11 attacks: a president would no longer have to show a connection to 9/11, or even any specific threat to America, before using military force anywhere in the world that a terrorism suspect may be found, including within the .
The House vote sought to place the nation on a permanent war footing at a time when responsible policy-making called for the opposite. Osama bin Laden had been killed days before the vote. , we were "within reach of strategically defeating ". The had threatened to veto the bill, telling the House that the executive branch already had all the war powers it needed. And America is exhausted by the high cost in blood and treasure of two wars begun with the stated goal of combating terrorism. Yet, instead of pausing to consider whether the time had come to ratchet down the nation's war against terrorism, the House voted to expand it. If the House bill is approved by the full Congress (so far, the Senate has not gone along with the House), it would be the single largest handover of unchecked war power to the executive branch in American history.
"The unique danger inherent in trying to articulate a war against terrorism, or even a war against Al-Qaeda, is that the “end” of such a conflict is a distant abstraction, not an actual event."
Why would so many in the House be so willing to give such vast and undefined war powers to the executive?
The answer lies in the unrelenting drumbeat by some of our political leaders to force America into a military response to any act or even threat of terrorism anywhere in the world, including far from any actual battlefield. But it is not only some in Congress who have embraced a worldwide war against terrorism. Since 9/11, both the Bush and Obama administrations have contended that the United States is engaged in a global armed conflict against loosely defined terrorist entities and undefined "associated forces". The most concrete policies that have followed are the indefinite military detention and lethal targeting of civilians far from any conventional theatre of war.
, which from its inception was a laboratory for unlawful military interrogation, detention and trials, remains an enduring symbol of indefinite military detention. And President Obama's pledge to close Guantánamo on his second day in office has been enshrining at Guantánamo the principle of indefinite military detention without charge or trial.
Indefinite detention is unnecessary: federal "material support" statutes allow the government to secure convictions without having to show that any specific act of terrorism has taken place, or is being planned, or even that a defendant intended to further terrorism. If the government does not have evidence that a person meets even these minimal standards, it is hard to imagine any possible justification for indefinitely detaining that person.
But the real danger of the Guantánamo indefinite detention principle is that its underlying rationale has no definable limits. Military detention may be legitimate for those captured on an actual battlefield, as our . But in the context of a war against terrorism without specified enemies and geographic or temporal limitations, it is simply not possible, let alone lawful, for us to detain indefinitely everyone who we suppose may, at some point, present a danger.
Targeted killing poses an even graver threat to human rights and the international rule of law because the government claims the unchecked authority to impose an extrajudicial death sentence on people located far from any battlefield. In an actual war, the government's use of lethal force may be lawful, of course, but outside that context, the intentional killing of a civilian without prior judicial process is illegal, except in the narrowest and most extraordinary circumstances — as a last resort to prevent concrete, specific and imminent threats that are likely to cause death or serious physical injury.
Under the targeted killing programme begun by the Bush administration and vastly expanded by the Obama administration, the government now compiles secret "kill lists" of people who remain on those lists for months at a time — and so, by definition, cannot always pose "imminent" threats. And it has refused to disclose the legal criteria it uses to make its targeted killing decisions. There is no way for the American public or the world to know whether the targeted killing programme is lawful, let alone whether the people our government kills truly present an imminent threat to our nation. We do know, though, that in the decade since 9/11, the government has repeatedly labelled people as terrorists — including at Guantánamo — only for us to find out later, or for a court to find, that the government's evidence was exaggerated, wrong, or nonexistent.
In the last ten years, America has become an international legal outlier in invoking the right to use lethal force and indefinite detention against suspected terrorists outside battle zones. If we further entrench the militarisation of our counter-terrorism efforts, our nation risks becoming a legal pariah, to the detriment of those efforts. Abiding by their own international and domestic law obligations, key allies have rightly refused to extradite suspected terrorists to the United States for military detention or military prosecution, requiring assurances that prosecution will take place only in our criminal justice system.
In the name of national security, our leaders are also undermining our more enduring security: the international legal framework that protects our long-term interests. Political leaders who insist that the laws of war permit our executive to treat as a battlefield any location where a terrorism suspect is found are giving a green light to other nations — including those with less respect for international legal institutions — to do the same.
For Congress and our executive branch to commit us to an "everywhere and forever" war undermines values that define us in our own eyes and in the eyes of the world, and it sends the dangerous message that we are willing to give terrorists what they seek — the status of military warriors, not common criminals. Such a global war approach to counter-terrorism does not make us safer. It is not too late to chart a different course, but the American people, and our political leaders, now need to show the courage, and the will, to do so.
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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.