The public overflowed the courtroom and late-comers filed into an adjoining video room, members of the press hovered around the courthouse, and oral argument lasted an hour and forty five minutes- that was the scene this afternoon as the Ninth Circuit Court of Appeals heard the government's appeal in Hepting v. AT&T.
Hepting is one of several cases, including two filed by the and one by the ACLU of Illinois, alleging that telecom companies assisted the NSA in illegally spying on the American people. For the purposes of judicial efficiency, all similar cases from around the country were transferred from their original states and assigned to Judge Vaughn Walker in the Northern District of California (district where the Hepting case was originally filed).
Prior to the consolidation of the cases, the government had already filed a motion to dismiss the Hepting case on the basis that the spying program cannot be challenged in court without violating the "state-secrets" privilege and exposing sensitive information. Walker rejected this argument and ruled that the case could continue. The government promptly appealed his decision to the Ninth Circuit.
The outcome of today's hearing will determine not only whether the Hepting case will go forward, but it will also impact all of the NSA cases, including the ACLU cases that are now consolidated before Judge Walker.
Today's Ninth Circuit panel, consisting of Harry Pregerson, Michael Hawkins, and Margaret McKeown, questioned the government and AT&T attorney extensively during oral argument. The probe focused on two major themes: (1) the role of the judiciary in determining what is a state secret; and (2) what is a state secret.
The government contended that while FISA regulates wiretapping and admitted that the law was enacted as a response to intelligence abuses in the 1960s and 1970s, it still asserted that state secrets should stop litigation such as this that seeks to expose illegal violations of FISA. The government stated several times that "FISA is not a FOIA provision" - meaning that lawsuits to enforce the FISA law should not be allowed to reveal information to the public that otherwise would not be available and that the government claims is a state secret.
Judge Pregerson expressed considerable concern that there was no check on the government's actions and that the judiciary was being asked to simply "rubber stamp" the determination of the Executive Branch that certain activities or facts were state secrets and an issue as a whole was not justiciable. He continued later in the argument by asking, so "once the Executive declares that a certain activity is a state secret, then it is over? The King can do no wrong?" Judge Pregerson did not appear convinced with the government's response that there is a check because the judiciary is in the position to review affidavits of the Executive Branch claiming the existence of a state secret.
Judge Hawkins also probed the government about state secrets, noting that Judge Walker had already reviewed all of the information and determined that state secrets did not preclude the case from continuing.
Judge McKeown was particularly interested in determining what constituted a state secret and peppered the attorneys with hypotheticals. For example, if the President has already claimed that American citizens are not being spied upon without a warrant, then how could a denial by AT&T that it has disclosed any information to the NSA about American citizens be a state secret?
A particularly humorous moment in the argument came when Judge Pregerson asked the government attorney to answer some questions about electronic surveillance law. The government attorney said that the law was too complicated to answer in a simple manner. Judge Pregerson responded, "it can't be any more complicated than my phone bill."
One potentially troubling aspect of today's hearing was the distinction made by Judge McKeown between the claims in the Hepting case regarding the disclosure of telecommunications content and communications records to the NSA. Judge McKeown seemed to intimate that the state secrets privilege concerned her more in relation to the communications records portion. The government also dedicated a portion of its rebuttal time to asking the court at a minimum to reverse Walker's decision on the communications records and dismiss that portion of the case. Several of the consolidated cases, including that filed by the ACLU of California affiliates, focus on the disclosure of millions of telephone calling records to the NSA, and could be adversely affected if the Ninth Circuit were to dismiss the records portion of the Hepting case.
C-SPAN television recorded today's hearing and said it would air later in the day. The Ninth Circuit did not rule today. The decision will be released at a later date.
For more information about the Hepting case, please click here.
For more information about the California cases, please click .
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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
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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
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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.