This piece originally appeared at .
Not long after the Patriot Act was passed in 2001, I had dinner with the late Senator Paul Wellstone in Washington, who was a stalwart defender of civil liberties throughout his career. I asked him how he could have possibly voted for a law that so vastly expanded the government’s spying powers. He told me that he was facing a tough election, but as soon as it was over he’d invite my organization, the American Civil Liberties Union, to testify before Congress about the Patriot Act’s flaws and the threats it presented to privacy and civil liberties. “We’ll work together to get this repealed,” he promised. Unfortunately, that day never came, as the senator tragically died in a plane crash in October of 2002.
Almost 13 years later, the most egregious part of the Patriot Act, Section 215 – which underlies the National Security Agency’s call-records program – is scheduled to expire on June 1. Some legislators want Congress to reauthorize it in its current form – Senate Majority Leader Mitch McConnell has just introduced a bill that would do exactly that, extending it for another five years. Others want to make relatively minor changes. Congress shouldn’t do either of these things. Unless Congress can coalesce around far-reaching reform, it should simply let the provision expire.
Almost 13 years later, the most egregious part of the Patriot Act, Section 215 – which underlies the NSA’s call-records program – is scheduled to expire on June 1. Unless Congress can coalesce around far-reaching reform, it should simply let the provision expire.
Congress hurriedly enacted the Patriot Act just weeks after the September 2001 attacks. Few legislators read the 321 pages of proposed legislation; many simply concluded that the political climate necessitated that they vote for the bill, even if they didn’t understand it.
Predictably, the Patriot Act has been at the root of many of the most serious abuses of government spying powers. It was the Patriot Act the FBI relied on to vastly expand its use of “national security letters,” which the FBI now issues thousands of times every year to obtain information about innocent Americans who have no connection to terrorism. It was the Patriot Act the government relied on to conduct clandestine searches in investigations having nothing to do with terrorism. It was the Patriot Act the government invoked to permit the FBI to disregard the Fourth Amendment’s usual requirements – criminal probable cause, a particularized warrant – in ordinary law enforcement investigations. And it’s the Patriot Act the government is now using to justify the NSA’s call-records program.
mass surveillance under the Patriot Act
The NSA uses Section 215 of the Patriot Act to collect information – who called whom, when, and for how long – about most phone calls made or received on U.S. telephone networks. The surveillance is staggering in its scope and many, including the legislator who wrote the Patriot Act, believe the surveillance is unlawful. The surveillance is also, apparently, ineffective. Both a review group appointed by the president as well as the Privacy and Civil Liberties Oversight Board concluded, after analysis of classified files, that there was no evidence at all that the NSA’s massive surveillance program had ever played a pivotal role in any investigation.
Allowing Section 215 to sunset is a crucial first step if we want to ensure that this unlawful and ineffective surveillance finally ends.
The current sunset debate is our first opportunity as a society to grapple with the mass-surveillance programs revealed by Edward Snowden, and we can’t afford to let this opportunity pass us by. The whole point of including sunset provisions in the original Patriot Act was to force Congress – and the country – to reconsider the government’s surveillance powers once more was known about their implications for civil liberties. Now we understand at least some of these implications – and they’re chilling. If we don’t allow Section 215 to sunset, we risk making permanent a “new normal” of government surveillance and extending surveillance programs that haven’t yet been – and may never be – disclosed to the public.
The Patriot Act’s upcoming expiration date gives us a new opportunity to make good on Senator Wellstone’s promise. Letting the provisions sunset would protect Americans’ privacy without compromising security. It would also be a first step towards the kind of systemic reform we desperately need – reform that would end the government’s dragnet surveillance practices, foreclose warrantless surveillance of Americans’ communications, require a degree of transparency about programs that haven’t yet been disclosed, and subject those as-yet-undisclosed programs to judicial review.
Equally important, letting the provisions sunset would send a broader message that, after more than a decade in which national security could be invoked to justify the unconstrained expansion of virtually any government power, Americans are committed to restoring common-sense limits on the government’s national security powers and requiring that our intelligence agencies operate without disregard for privacy and civil liberties.
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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.