In pushing for ever-expanding and unaccountable surveillance authority, the Bush Administration has assured the public that it aims its spying capabilities at serious security threats. But as two government whistleblowers recently revealed to ABC News, surveillance programs touted as critical to protect national security have in fact been used to monitor the private communications of innocent Americans abroad, including humanitarian workers and U.S. service-members. While disturbing, ABC's report confirms a core contention of the ACLU's lawsuit challenging Congress's recent expansion of governmental spying powers: unchecked surveillance authority invades the privacy of innocent Americans, and in doing so, fundamentally undermines the efforts of human rights workers, journalists, and attorneys doing important work around the globe.
Two former military intercept operators — the people who actually intercept, monitor, and collect international telephone and email communications — that "hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home." The operators worked for the National Security Agency ("NSA"), the spy agency chiefly responsible for international surveillance. They report that NSA routinely listened in on the innocent, and sometimes intimate, conversations of Americans abroad. There were apparently no effective procedures in place to filter out these kinds of communications.
The NSA program went beyond invading the personal privacy of Americans abroad (and their friends and family on the other end of the line). NSA also directed its surveillance powers at well-established humanitarian organizations, like the International Red Cross and Doctors Without Borders. As one whistleblower told ABC News: "We knew they were working for these aid organizations. . . . And yet, instead of blocking these phone numbers we continued to collect on them."
The ACLU's lawsuit challenging Congress's recent expansion of surveillance authority, Amnesty International v. McConnell, shines a spotlight on the devastating effect of unchecked spy power on Americans doing indispensable work around the globe. The lawsuit challenges the FISA Amendment Act, which gives the government nearly unfettered access to Americans' international communications (and in some instances, purely domestic communications) without any of the judicial oversight normally required under the Constitution. Unleashing surveillance authority from basic procedures designed to ensure oversight violates constitutional guarantees. But as the plaintiffs in the lawsuit demonstrate, it also damages the ability of Americans to conduct important international work.
The plaintiffs' stories illustrate what's at stake. For example, Joanne Mariner is a Program Director for Human Rights Watch, an organization renowned for its influential reporting on human rights abuses. Her areas of research require her to correspond with people all over the world, including people who have been imprisoned by the U.S. or other countries, relatives of detainees, political activist, and journalists. Many of these sources will only communicate confidentially, and for good reason: some are victims of human rights abuses, and others reasonably fear reprisals if their governments learn they are cooperating with a human rights group. If such sources believe their correspondences are likely to be intercepted by the United States — despite having no relation to terrorism or national security — those communications will simply evaporate.
Journalists face similar obstacles. Another ACLU plaintiff, Naomi Klein, is an award-winning journalist who reports on international affairs. In order to obtain comprehensive and accurate information about her subjects, she communicates with sources around the world, including foreign political activist who have been critical of the United States or their own governments. Like Mariner, Klein must guarantee her sources confidentiality because, for them, communicating honestly with a journalist brings real risks, including imprisonment or violence. When engaging in international communications with an American means the U.S. government is likely to listen in, vulnerable sources become far less forthcoming. This means that Americans lose access to fully informative journalism about world affairs.
Unfortunately, the ABC News report confirms that the concerns of Mariner and Klein, as well as other ACLU plaintiffs, are justified. In fact, international aid groups and others may face even greater exposure to illegitimate surveillance than the whistleblowers describe. The challenged surveillance law, enacted in July 2008, actually sanctions the NSA's program of spying on Americans' international communications; before the law passed, the Bush Administration was conducting such surveillance unilaterally and in violation of statutory law.
The ABC News report reaffirms another important point: the choice between ensuring safety and adhering to the Constitution is a false one. According to one of the whistleblowers — a U.S. Army Reservist who won the NSA Joint Service Achievement Medal in 2003 — over-reaching surveillance programs undermine security: "By casting the net so wide and continuing to collect on Americans and aid organizations, it's almost like they're making the haystack bigger and it's harder to find that piece of information that might actually be useful to somebody."
By confirming the abusive and harmful reach of such surveillance policies, the NSA whistleblowers illustrate the urgency of bringing the government's surveillance powers back into line with core constitutional principles. Unchecked and unaccountable, the power of surveillance quickly runs amok.
Learn More About the Issues on This Page
-
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.