At the ACLU we’ve warned regularly about the dangers of our gigantic national security establishment — whether in calling for increased oversight, fixes for runaway government secrecy, in our report on the emerging public-private “Surveillance-Industrial Complex,” and in many other places.
Now the Washington Post has issued a major new investigative report on what it calls “” — a geographically sprawling network of secret government agencies with a budget of $75 billion. Based on the Post’s reporting, it is no exaggeration to say that our secret intelligence establishment has spun out of control.
The report — the first in a series of three to be published this week — contains amazing new hard reporting that confirms what has long been known to those who pay attention.
The national security establishment is out of control.
The fact is, bureaucracies almost always seek to expand their own power and budgets. Add secrecy powers that protect them from independent public oversight, ineffective oversight by Congress and even from within the executive branch, and mix in ever-expanding budgets, and you’ve got a recipe for an out-of-control security establishment:
- The Post reports that 1,271 government organizations and 1,931 private companies work on counterterrorism, homeland security and intelligence at 10,000 locations across the United States.
- Two-thirds of the intelligence programs reside in the Department of Defense — a worrisome militarization of our intelligence capabilities, especially at a time when those capabilities are increasingly being turned inward upon the American people.
- The $75 billion intelligence budget is 2 ½ times its size before 9/11. The budget of the NSA doubled between 2002 and today.
- There is no person or agency with the “authority, responsibility or a process in place to coordinate all these activities,” in the words of one official. “There's only one entity in the entire universe that has visibility on all” secret programs, the Obama administration's nominee to be the next director of national intelligence told the Post. “That’s God.” However, since , as James Madison wrote, checks and balances on government power are crucial, and that state of affairs is frightening and unacceptable.
- Since there is no one overseeing all this, there is also no way of knowing how effective it all is. One top general complained to the Post, for example, that the National Counterterrorism Center “never produced one shred of information that helped me prosecute three wars!”
The government is drowning in information.
As I’ve written before, computers are the dominant metaphor of our age and everyone thinks we can stop evil in the world if we can just collect enough data. But the Post paints a stark portrait of hundreds of government agencies drowning in data, as government systems vacuum up vast quantities of information about daily activities across the planet in the unlikely hope of discovering useful information. Unsurprisingly, the government cannot possibly make sense of all that data:
- The National Security Agency is intercepting 1.7 billion emails, phone calls and other communications per day.
- Analysts publish 50,000 intelligence reports each year.
- “The overload of hourly, daily, weekly, monthly and annual reports is actually counterproductive, say people who receive them,” the Post reports.
Out-of-control secrecy is counterproductive.
The United States created a system for allowing government workers to hide information from the public that is supposed to be their ultimate boss, and from the beginning, that power has been misused by bureaucracies to increase their power and hide waste and abuse. The Post reports examples showing how:
- Secrecy means that different organizations throughout the government often work on the same issues, creating enormous redundancy.
- Secrecy undermines the chain of command, as bureaucrats abuse it to keep rivals out of the loop, and subordinates find they are required to keep secrets from their bosses or commanders.
- Secrecy is abused to protect ineffective projects and evade oversight. The CIA reclassified information at a higher level of classification than it had previously thought necessary, the Post reports, in order to prevent officials at the Office of the Director of National Intelligence (ODNI) from seeing it.
The Washington Post and the authors of this piece have not only done some very good investigative reporting, but they also do what the media too seldom does: use that reporting to take a step back from the day-to-day details of life inside government and show the big picture.
A civil liberties issue
It’s important to recognize that is not just a question of whether the redundant, ineffective, in-fighting bureaucracies described by the Post represent a good use of our nation’s treasure. The growth of the secret security state is a civil liberties issue.
The presence of what the Post (in an online video accompanying its article) calls a “Fourth Branch of Government” outside those created by our Founders should give all Americans pause. The fact that this “branch” is one that operates under a veil of secrecy and with little oversight makes it all the worse. And above all, we should not forget that a lot of these agencies’ activities are harming innocent people. Travel and financial watchlists are created. Names are added (often for obscure reasons) but not subtracted. Americans are spied upon for political reasons. Personal communications are eavesdropped upon on a stunning scale. And the bureaucratic curtain of secrecy often gives individuals no way to defend their rights.
Action needed
The ACLU is doing everything we can to raise awareness of these problems. Most recently, we announced the launch of a new “Spyfiles” web page focused on political spying.
But unless Congress takes action, this problem is only going to get worse. Congress needs to sharply increase its oversight of “Top Secret America” — in particular by:
- Taking a close look at the individual programs it’s funding
- Whether those programs are delivering value commensurate with their budgets
- Whether management of the national security establishment as a whole needs to be reevaluated
- Whether that establishment as a whole makes sense in its current size and shape
Of course, Congress isn’t entirely to blame — in 2007 it did create an independent Privacy and Civil Liberties Oversight Board with some significant powers for overseeing anti-terrorism efforts. But, the Obama administration has failed to appoint anybody to that board. Like Congress, the administration too must recognize the importance of solving these problems, lest its legacy for future generations of Americans be a secret security establishment that continues to waste money and violate individual rights.
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.