President Obama’s New, Long-Promised Drone 'Transparency' Is Not Nearly Enough
The Obama administration released a today of the numbers of “non-combatants” it has killed outside actual war zones primarily through targeted killing strikes, as well as a new aimed at creating new transparency and accountability rules for such strikes.
Unfortunately, both the release and the new order fall far short of the standards for transparency and accountability needed to ensure that the government’s targeted killing program is lawful under domestic and international law.
While the ACLU will continue to digest the new information and react to the government’s new statements, a few points are worth emphasizing right off the bat:
First, the government’s very use of the term “non-combatant,” rather than “civilian,” in reporting its numbers exposes one of its most dangerous and far-reaching premises: That even “outside areas of active hostilities,” it need only apply the looser, law-of-war standards that govern conduct in war, rather than the more protective rules that apply under international human rights law. In short, the government continues to insist — unlike virtually every other nation on Earth — that even outside of a war zone, it is still at war. For an administration that came to power on the strength of promises to unwind the Bush administration’s “Global War on Terror,” this remains a significant policy failure and disappointment.
Second, the released by the government today — specifically, that it has killed between 64 and 116 “non-combatants” in lethal-force strikes between January 20, 2009 and December 31, 2015 — are dramatically lower than those documented by independent journalists and human rights groups. Those groups’ estimates have from 200 to 1000 civilians killed during President Obama’s two terms. As my colleague Hina Shamsi explained today, “it’s hard to credit the government’s death count.”
The government claims that it has taken into account credible reports of civilian deaths from such groups, but its explanation for the vast discrepancy — that it has “information that is generally unavailable to non-governmental organizations” — boils down to “trust us.” The government should not only take credible outside reports into account when releasing summarized statistics, it should investigate and publicly explain such strikes to the fullest extent possible. (For example, indicate that a U.S. drone killed 12 members of a wedding party in Yemen in 2013, and that the government paid compensation to the families of the victims — but the government has never publicly acknowledged responsibility for the strike, nor offered an explanation for it.)
Third, the government’s newly released information continues to conceal the specific definitions that guide its judgments about who it can kill, where, and why. In a May 2013 “,” the government explained that before it uses lethal force, it must determine that a target “poses a continuing, imminent threat to U.S. persons”; that there is a “[n]ear certainty that non-combatants will not be injured or killed”; and that capture of the target is not “feasible,” among other requirements. But it has never provided definitions of these terms, or the evidentiary standards required to meet them, making it all but impossible to evaluate whether they are sufficient under the law.
To its credit, the government’s new release does mention some of the broad criteria it evaluates to determine whether someone is a “combatant.” But it continues to keep secret the most important aspects of its legal and policy positions. (In response to an ACLU lawsuit, a district court in New York will soon publish a redacted version of the secret document summarized by the “fact sheet,” known as the Presidential Policy Guidance. Whether the release of the PPG will help answer these questions, or raise even more, is unknown, as my colleague Jameel Jaffer earlier this week.)
Finally, the government that its release is intended to “institutionalize and enhance best practices regarding U.S. counterterrorism operations and other U.S. operations involving the use of force, as well as to provide greater transparency and accountability regarding these operations.” The new , for example, requires an annual report summarizing numbers of “non-combatants” killed in “areas outside active hostilities.” As explained above, the newly released statistics are insufficiently detailed and nearly impossible to evaluate — as Shamsi put it, “virtually meaningless.” And because they are enshrined in an executive order, and not legislation, the government’s new “rules” can be wiped away with the mere stroke of the next president’s pen. (In a clear example of do-as-I-say-and-not-as-I-do, the order commits future administrations to reporting death counts on an annual basis, even though President Obama’s report aggregates data from seven full years of his administration.)
To be sure, today’s disclosures were a positive step, especially considering that for years the administration insisted that releasing even the most basic information about the targeted killing program would harm national security. But the new statistics are but an inch deep, and the new promises sound more than a bit hollow.
This administration still has time to make the kind of meaningful disclosures about targeted killings that Americans deserve — but that time is running out.
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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.