The Justice Department is considering revised racial profiling guidance that, if issued, could set back race relations and basic fairness in this country. We hope that it does not make that mistake.
The New York Times on Thursday reported that “long-awaited revisions to the Justice Department’s racial profiling rules would allow the F.B.I. to continue many, if not all, of the tactics opposed by civil rights groups, such as mapping ethnic populations and using that data to recruit informants and open investigations.” In light of the Obama administration’s recent and deservedly lauded criminal justice policy reforms, we had expected it would take a far different approach to racial profiling than this. After all, revisions to racial profiling rules that retain loopholes permitting racial, religious, and national origin profiling are not the reforms that Americans need and deserve.
The Justice Department guidance that urgently needs revision was issued in 2003 by Attorney General John Ashcroft. The Ashcroft Guidance bans racial profiling, which it condemns as discriminatory, “not merely wrong, but also ineffective,” and “patently unacceptable.” Despite these strong words, the Ashcroft Guidance contains gaping holes: It does not prohibit profiling based on religion or national origin and permits racial, religious, and ethnic profiling in national security investigations and at the nation’s borders.
The Ashcroft Guidance’s loopholes thus gave federal law enforcement express permission to discriminate against America’s minorities. And wrongful discrimination in the national security and border contexts quickly spread to others. Government records obtained by the ACLU showed the FBI mapped minority communities around the country based on crude and false stereotypes about their propensity to commit crime. The targeted communities include Arab Americans in Michigan, African Americans in Georgia, Chinese and Russian Americans in California, and Latino Americans in multiple states.
Mapping is just one part of the problem.
Using expanded authorities that permit investigations without actual evidence of wrongdoing, the FBI has also targeted minority communities for interviews based on race, ethnicity, national origin, and religion. It has used informants to conduct surveillance in community centers, mosques, and other public gathering places and against people exercising their First Amendment right to worship or to engage in political advocacy. And among America’s minority communities, “flying while brown” soon joined “driving while black” as a truism of government-sanctioned discrimination and stigma. It’s hard to overstate the damage done to the FBI’s relationship with minorities, particularly American Muslims.
The damage, however, has spread further.
When federal law enforcement leads in discriminatory profiling, state and local law enforcement will follow. Nowhere is that clearer than in New York City, where the NYPD – which is twice the size of the FBI – launched a massive program of discriminatory surveillance and investigation of American Muslims, mapping the places where they carry out daily activities and sending informants to spy on mosques and Muslim community organizations, student groups, and businesses. After the Associated Press broke a series of stories describing this program in stark and shocking detail, the NYPD defended itself, arguing that it was only doing what the FBI was permitted to do. Again, it’s hard to overstate the harm.
From the ACLU’s work with New York’s Muslim communities, we know that a generation of youth is growing up fearful of its local police force, scared to exercise the rights to freedom of worship, speech, and association.
Fortunately, the issuance of the revised Guidance on Race has been delayed and both the Justice Department and the civil rights community have a crucial opportunity to put a spotlight on the FBI, which vigorously opposes those fighting for equality. According to the New York Times, the FBI’s argument seems to be that it needs to identify where Somalis live to investigate potential Somali terrorism suspects.
But that argument must be rejected for the same reason that we reject it in other contexts.
Many mass shooters are young white males, yet we rightly don’t map where whites live or send informants to majority white communities to ferret out potential mass shooters. Put another way, the FBI’s argument presumes what the Ashcroft Guidance “emphatically rejects”: that crime can be prevented by the mass stereotyping of entire communities. Not only is that wrong, it is a ham-handed approach that squanders resources that should properly be devoted to investigating actual wrongdoing.
Most importantly, President Obama needs to step in. He has the ultimate authority to make the FBI stand down and to ensure that his administration does not issue racial profiling guidance that permits bias-based policing. As a coalition of 225 groups from across America’s civil rights and minority communities , the guidance must:
- prohibit profiling based religion, national origin, or sexual orientation;
- close the loopholes for the border and national security;
- apply to state and local law enforcement agencies who work in partnership with the federal government or receive federal funding;
- cover surveillance activities; and
- contain enforceable standards.
If these crucial changes are not made, the civil rights legacy of President Obama and Attorney General Holder will be forever marred by discrimination.
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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.