In the 1993 film Groundhog Day, Bill Murray's character finds himself repeating the same miserable day over and over again. For Indian film star Shahrukh Khan, last week was Groundhog Day for racial and religious profiling. In 2009, Khan — a huge global celebrity whose likeness is immortalized in wax at Madame Tussaud's — was traveling to the United States to celebrate Indian independence day and to promote a movie about a Muslim man who is the victim of profiling called My Name is Khan. , Khan who is also Muslim, was detained and questioned at Newark airport.
Last week, Khan was again visiting the U.S., this time to speak at Yale, and he was again inexplicably detained at the airport. After this most recent incident, Khan made light of the situation, , "Whenever I start feeling too arrogant about myself, I always take a trip to America — the immigration guys kick the 'star' out of 'stardom.'"
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The continued profiling of Khan and of other prominent Indian travelers to America (including former Indian President Abdul Kalam, who is Muslim, and former Indian Ambassador Meera Shankar, who is Hindu) is no laughing matter, however. It is part and parcel of the broader epidemic of law enforcement agents treating racial and ethnic minorities unfairly based upon perceived race or religion, rather than based on evidence of wrongdoing. Indeed, all over this country, racial profiling remains a widespread and pervasive problem impacting the lives of millions of people in black, Asian, Latino, South Asian, Arab and Muslim communities.
We have seen the tragic impact of preconceived notions of criminality in the senseless death of African-American teenager Trayvon Martin, who was thought by his killer George Zimmerman to look "like he is up to no good." We have also seen the devastating impact of laws like Arizona's notorious S.B. 1070 and Alabama's H.B. 56, which require police to engage in racial profiling based upon perceived immigration status. A also indicates widespread racial profiling along the Canadian border.
Earlier this week, a Senate panel took up the issue of racial profiling and an essential piece of legislation called the End Racial Profiling Act (ERPA). The bill would prohibit racial profiling by police and train officers to respond to situations based on specific evidence, as opposed to stereotyped notions about the identity of a suspected wrongdoer. The hearing saw testimony from police representatives and civil rights advocates, including ACLU Executive Director Anthony Romero.
Passing ERPA would send the strong message that our law requires that people be judged by what they do, not by what they look like or what God they pray to. From a moral standpoint, the case is clear: racial profiling is unfair and unjust.
From a legal standpoint, racial profiling violates the Constitution by denying equal protection under the law, as well as freedom from unreasonable searches and seizures. The Constitution also requires treaties to be treated as the "supreme law of the land," and racial profiling runs afoul of America's human rights treaty obligations.
Several international human rights bodies have raised concerns about the persistence of racial and ethnic profiling by U.S. law enforcement. In 2008, the U.N. Committee on the Elimination of Racial Discrimination "note[d] with concern that despite the measures adopted at the federal and state levels to combat racial profiling…such practice continues to be widespread." It repeated reiterated its recommendation for the U.S. to "make all efforts to pass the End Racial Profiling Act."
Last year, during a broad U.N. evaluation of America's domestic human rights performance, the U.S. government formally committed to take a number of concrete steps to improve human rights performance at home, including committing to "prohibit and punish the use of racial profiling in all programs that enable local authorities with the enforcement of immigration legislation."
By passing ERPA, strengthening the Department of Justice Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, and taking significant steps to implement its human rights commitments at the national, state, and local levels, Congress and the Obama administration can improve the our global reputation, restore fundamental Constitutional protections, and take a public stand in support of equality — irrespective of race or religion.
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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.