On Wednesday evening, the New York Times that for five years the Department of Justice had a policy that deprived criminal defendants of notice that they had been surveilled under the FISA Amendments Act (FAA) — the 2008 law that authorized the NSA's warrantless wiretapping of Americans' international communications. This policy contradicted assurances made by the government in our constitutional challenge to the FAA, that it would notify criminal defendants if it ever intended to use evidence derived from FAA surveillance against them. (The Supreme Court repeated that argument in its opinion dismissing our challenge on standing grounds.) According to the article, after the Solicitor General learned this summer of the DOJ's policy, he concluded that it "could not be legally justified" and pushed to have it reversed.
Now that the government reportedly intends to comply with its legal obligation to notify criminal defendants of FAA surveillance, an obvious question arises: In which cases did the government use FAA surveillance? We're hoping that a Freedom of Information Act (FOIA) request we filed in March will help answer that question.
Yesterday, we filed a lawsuit to enforce that FOIA request, which sought policy guidance and legal memoranda related to the DOJ's provision of notice in criminal prosecutions, as well as records identifying the criminal prosecutions in which the government has used evidence derived from surveillance authorized by the FAA. The lawsuit aims to reveal how the government has, for years, justified keeping criminal defendants in the dark about evidence derived from NSA surveillance and what the government's policy is today.
Importantly, while the DOJ's no-notice policy has apparently been reversed (some five years too late), the government still has not told a single defendant that he or she was surveilled under the FAA. But, according to the New York Times, the DOJ intends to provide notice of FAA surveillance to a criminal defendant in the coming weeks — thereby setting up a potential constitutional challenge to the law. That challenge, of course, would come in a case handpicked by the DOJ to suit its interests, but it would be the first case to test the legality of the government's warrantless wiretapping program.
It is difficult to predict which pending prosecution the government might choose — and even more difficult to understand why the DOJ still has not provided notice of FAA surveillance to every defendant who is entitled to it by law — but a number of pending cases are likely candidates. Government officials have specifically referenced at least a dozen prosecutions in connection with testimony defending the FAA, and some of those cases remain underway. Likewise, the DOJ has filed notices of traditional foreign-intelligence surveillance in a number of other ongoing prosecutions, one of which might now be supplemented with the first-ever notice of FAA-derived evidence. While the first chart below is not meant to be exhaustive, it reflects the prosecutions we've been able to identify as possibilities.
Beyond the impending constitutional challenge, the revelation that the DOJ has for five years deprived criminal defendants of notice to which they were legally entitled is sure to have other consequences. For one, it will almost certainly set off a series of post-conviction challenges — brought by criminal defendants who never had the opportunity to test whether the government's surveillance evidence was obtained in violation of the Constitution. To understand where these motions for a new trial or habeas petitions might appear, we have also compiled a list of closed cases mentioned by officials in connection with the FAA, as reflected in the second chart below.
The DOJ's no-notice policy has been a failure on many fronts. It has systematically violated the rights of criminal defendants, leaving behind a mess for the federal courts. It has put the Solicitor General in a difficult position, one where it is incumbent on him to in the Supreme Court. And it has prevented any court from publicly reviewing the constitutionality of a surveillance law that affects millions of Americans.
PENDING CASES:
Prosecution
Status/Notes
United States v. Zazi
E.D.N.Y.
No. 09-00663
Referenced by FBI Deputy Director Sean Joyce in June 18, 2013 testimony. Zazi has pled guilty, but has not yet been sentenced. He has entered into a cooperation agreement with the government.
United States v. Daoud
N.D. Ill.
No. 12-00723
Referenced by Senator Feinstein in Dec. 27, 2012 testimony. FISA notice filed.
United States v. Qazi
S.D. Fla.
No. 12-60298
Referenced by Senator Feinstein in Dec. 27, 2012 testimony. FISA notice filed.
United States v. Gojali
C.D. Cal.
No. 12-00092
Referenced by Senator Feinstein in Dec. 27, 2012 testimony. FISA notice filed.
United States v. Osmakac
M.D. Fla.
No. 12-00045
Referenced by Senator Feinstein in Dec. 27, 2012 testimony. FISA notice filed.
United States v. Muhtorov
D. Colo.
No. 12-00033
Referenced by Senator Feinstein in Dec. 27, 2012 testimony. FISA notice filed.
United States v. Khan
D. Ore.
No. 12-00659
FISA notice filed.
United States v. Hussein
S.D. Cal.
No. 13-01514
FISA notice filed.
United States v. Kurbanov
D. Idaho
No. 13-00120
FISA notice filed.
United States v. Tounisi
N.D. Ill.
No. 13-00328
FISA notice filed. Related to United States v. Daoud.
United States v. Fishenko
E.D.N.Y.
No. 12-00626
FISA notice filed.
CLOSED CASES:
Prosecution
Status/Notes
United States v. Headley
N.D. Ill.
No. 09-00830
Referenced by FBI Deputy Director Sean Joyce in June 18, 2013 testimony.
United States v. Ouazzani
W.D. Mo.
No. 10-00025
Referenced by FBI Deputy Director Sean Joyce in June 18, 2013 testimony. No FISA notice filed.
United States v. El Khalifi
E.D. Va.
No. 12-00037
Referenced by Senator Feinstein in Dec. 27, 2012 testimony.
United States v. Nafis
E.D.N.Y.
No. 12-00965
Referenced by Senator Feinstein in Dec. 27, 2012 testimony.
United States v. Arbabsiar
S.D.N.Y.
No. 11-00897
Referenced by Senator Feinstein in Dec. 27, 2012 testimony.
United States v. El-Hanafi
S.D.N.Y.
No. 10-00162
Related to United States v. Ouazzani. No FISA notice filed. Defendant Wesam El-Hanafi has pled guilty but is appealing his sentence.
United States v. Khan
S.D. Fla.
No. 11-20331
FISA notice filed. Defendant Hafiz Muhammad Sher Ali Khan convicted at trial; appeal pending.
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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
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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.