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The Obama administration this week announced new guidance on how federal law enforcement agents may use race and other characteristics, such as religion and national origin, in their work. This was a historic opportunity, at a critical moment, for the president to take a dramatic step forward on civil rights by completely banning racial, religious and other forms of profiling by law enforcement at all levels. Instead, the new guidance offers only modest improvements.
Our Constitution guarantees the law's protection in equal measure to everyone. Yet for too many people this promise is still a fantasy. True, the new rules will prohibit profiling based on national origin, religion, gender, sexual orientation, and gender identity, in addition to race and ethnicity. That's a signal of progress and should be celebrated. However, the new rules remain riddled with exceptions and loopholes that leave many vulnerable to continued biased profiling. As a Latino at a border checkpoint or a Muslim trying to catch a flight, you will be no more protected from the continued insult of unjustified questioning and searches or the routine violation of your constitutional rights today than you were yesterday.
It is deeply unfortunate that the president stopped short of a full ban. The costs of such a move are high and without any real benefits. For, although we live in a world in which law enforcement agencies constantly identify security concerns, we must not forget the lesson that recent history teaches us all too clearly: racial profiling won't save us.
In fact, instead of helping, racial profiling hurts. It harms the relationships between law enforcement and the communities they are sworn to protect, sowing suspicion where trust is urgently needed. And the impacts on targeted communities can be catastrophic.
Take the war on drugs. ACLU ran the numbers on marijuana arrests between 2001 and 2010. We found that, despite roughly equal usage rates, blacks were almost four times more likely than whites to be arrested for marijuana. People of color were disproportionately arrested and imprisoned, and those arrests doubtless shaped their lives long after, making it harder to find work, to vote, to participate fully in society.
Yet we never did win the war on drugs. We haven't even come close. Racial profiling failed, but we kept right on doing it, heedless of the very real costs. Perhaps because those costs were largely borne by people of color and by disempowered communities, they were easier to ignore. But spoken or unspoken, the effects remained.
It's an ugly thing, knowing your country finds you suspicious not because of what you've done but because of crude stereotypes about who you are. As Obama himself noted, "there are very few African-American men in this country who haven't had the experience of being followed when they were shopping in a department store. That includes me."
We have long known that racial profiling is ineffective. That's why Attorney General John Ashcroft banned it back in 2003, albeit with enormous carve outs. He said that, "using race… as a proxy for potential criminal behavior is unconstitutional, and it undermines law enforcement by undermining the confidence that people can have in law enforcement." This left the government, then and now, in the contradictory position of asserting that racial profiling is abhorrent and unacceptable — except in special cases, where it is suddenly fine.
Racial profiling is wrong. It's wrong whether it's based on race or on other characteristics like sexual orientation, religion or national origin. Racial profiling didn't help us win the war on drugs, and other forms of profiling won't help us address national security concerns.
A national security loophole in the 2003 Ashcroft Guidance allowed federal law enforcement officers to discriminate against America's minorities. And discriminate they did. The FBI, for example, has mapped minority communities around the country based on biased stereotypes, as the ACLU has documented. The FBI has also targeted American Muslim communities based not on evidence of wrongdoing, but because of their ethnicity, national origin, and religion. Law abiding citizens are selected for "voluntary" interviews, pressured by the FBI into becoming informants, or placed on Kafka-esque watchlists without meaningful recourse. The FBI has used informants at community centers, mosques, and other public gathering places and against people exercising their First Amendment right to worship or to engage in political advocacy.
The "border integrity" exception has likewise encouraged Customs and Border Protection to profile all along our borders. CBP refuses to release data that would measure profiling, so local residents in Arivaca, Arizona, decided to monitor a checkpoint themselves. After more than 100 hours of observation over two months, they found that a Latino-occupied vehicle is more than 26 times more likely to be required to show identification than a White-occupied vehicle. And Latino-occupied vehicles were nearly 20 times more likely to be ordered to secondary inspection. A local business owner in Olympia, Washington, said he's "never seen anything like" Border Patrol's racial profiling: "Why don't they do it to the white people, to see if they're from Canada or something?"
The Constitution demands that all citizens, regardless of race, religion or national origin, receive the same legal protections. That is a key part of who we are as Americans. That's why the ACLU and other rights-focused organizations objected so strenuously back in 2003 when the government, while declaring boldly that "racial profiling is wrong and will not be tolerated," insisted on national security and border integrity exceptions to the ban. We continue to object to such carveouts in the context of profiling based on religion, national origin, gender and sexual orientation.
There are no loopholes in the Constitution, and there shouldn't be any in the federal government's rules about racial profiling, either. That's what makes the Justice Department's new guidance so badly incomplete. With this announcement, the Obama administration passed up a chance to finally and fully close the oft-abused loopholes by which the abhorrent practice of biased profiling is allowed to continue so long as national security or border integrity can be invoked in some way. That's a real loss, both for civil rights and for public safety.
The truth is, racial profiling isn't an effective tool. It's a bad, lazy, and an offensive habit. It leaves certain communities feeling constantly victimized, demoralized, and alienated. And it won't protect us. We'll be a better and a safer nation once we fully acknowledge that simple fact.
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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.