The frenzy over "Operation Fast and Furious" has been hard to avoid. It's been the subject of a massive DOJ , Congressional , contempt , subpoena in federal court, and relentless . But if there's one telling the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) would love to rectify, it's the "thoughtcrime" account of Agent John Dodson, one of the ATF insiders who helped bring the operation to public light.
The ACLU sent a letter today to the ATF, which has refused to allow Agent Dodson to publish a manuscript about Fast and Furious. Our letter explains why the denial violates his First Amendment rights, and undermines the importance that whistleblowers and public employee speech play in revealing wrongdoing and contributing to public debate.
If "Fast and Furious" makes you think of Vin Diesel, and "gunwalking" of vigorous calisthenics, let's back up a bit. The Phoenix field division of the ATF launched a gun smuggling investigation in late 2009, in which they deliberately let straw buyers get their hands on assault rifles, which agents hoped to follow south to their ultimate consumers – drug traffickers in Mexico. But the ATF lost track of some 2,000 weapons, later implicated in hundreds of murders in Mexico.
Agent Dodson on the decision to "walk" the guns – alerting Congress after it appeared that two were used in a shootout that killed a U.S. border patrol agent. But when he recently asked to publish his own first-hand account of these events, ATF censorship was fast, and it was furious.
Foregoing redactions, they nixed his entire manuscript. Claiming a right to refuse publication requests "for any reason" (the ATF's emphasis), the ATF explained to Agent Dodson that his book would have "a negative impact on morale in the Phoenix [Field Division] and would have a detremental [sic] effect on our relationships with DEA and FBI." Agent Dodson doesn't deny that his book could add to the ATF scrutiny, or even its three-year streak of bad press as a result of the affair. But these reasons just don't cut it when it comes to a whistleblower's right to speak – and the public's right to hear what he has to say.
We decided to send the ATF a friendly reminder that we don't lose our rights to speak, write, and teach when we accept government employment. Forty-five years ago, the ACLU stood up for Marvin Pickering, a high school teacher whose name marks the first Supreme Court case recognizing public employees' speech rights. In 2009, we defended U.S. Air Force Col. Morris Davis, the former chief prosecutor for the Guantánamo military commissions, who was fired from his job at the Library of Congress's Congressional Research Service because of opinion pieces he wrote about the military commissions system. Just last year, we sent a letter to the State Department on behalf of Peter Van Buren, a State Department employee who is being punished for publicly criticizing the U.S. reconstruction effort in Iraq. And rest assured we will continue to remind government employers of those rights as the need arises.
Marvin Pickering was fired after the local school board determined that his unauthorized letter to the editor criticizing school board policies was " to the efficient operation and administration of the schools of the district." In the case that bears his name, the Supreme Court that the"public interest in having free and unhindered debate" was "so great" that government could not shut down employee speech simply because it tarnishes agencies, embarrasses officials, or generates "controversy, conflict and dissension" among the ranks. The court decreed the "Pickering balancing test" to protect speech unless and until a government employer's concerns at stake.
While it's undoubtedly an time to be the ATF, speaking truth to power just isn't an injury the Constitution recognizes, much less seeks to prevent. And it's not just Agent Dodson's Constitutional rights on the line. The American public has a stake in this fight too.
That's because protecting employees' speech is especially crucial when it informs deliberation on matters of public policy. Fast and Furious ignited national debates over gun policy, border security, , and the "gunwalking" techniques deployed in the operation. These debates address matters of public concern at the heart of the First Amendment.
Public employee speech is even more valuable when it shares critical views of our government agencies we wouldn't otherwise see. The Supreme Court has that government employees are often in the best position to know "what ails the agencies for which they work." We couldn't agree more.
"Americans need and deserve truthful information about what the government is doing, particularly where the activity infringes on individual rights," said ACLU Policy Counsel Mike German, who – – endured years of internal retaliation after blowing the whistle on dangerous federal law enforcement policy.
That's why protecting Agent Dodson's right to speak should be a priority issue for civil libertarians, regardless of political stripe. "I don't care if you're on the left or the right. At the end of the day, we have a right to know and talk about what law enforcement agencies do in our name," said Agent Dodson.
Given the national importance of both the Fast and Furious operation and ATF practices more broadly, the ATF should correct its mistake by approving Agent Dodson's publication request, and by changing its policy to reflect the Constitutional principle that government needs a damn good reason to shut down employee speech.
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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.