Weeks after 9/11, Alan Dershowitz notoriously that judges be empowered to issue warrants authorizing interrogators to use torture against suspected terrorists. His theory was that government interrogators would torture prisoners whether or not we authorized them to, and that, given this "fact," it would be better to regulate torture than to leave it unregulated. He argued that allowing interrogators to apply for "torture warrants" before using methods that would otherwise be illegal would make the practice of torture more "visible" to the public, allow interrogators to use torture without fear of criminal prosecution, and limit the use of torture to state-sanctioned methods. ("A sterilized needle underneath the nail might be one such approved method," Professor Dershowitz suggested, helpfully.)
Professor Dershowitz provoked many people but persuaded few, and the ACLU was among the civil liberties organizations that criticized his proposal. But now Professor Dershowitz in the ACLU's argument that the Obama administration's "targeted killing" program should be subject to judicial review. How can "killing warrants" be a good idea, he asks, if torture warrants aren't?
Professor Dershowitz quite clearly hasn't read our complaint or legal briefs, because we don't in fact endorse killing warrants (a point I'll return to in a minute), but more basically he misunderstands why we rejected his torture warrant proposal. We didn't reject it because we oppose judicial supervision of torture, though that practice has a sordid history. We rejected it because we oppose torture, period. In our view, torture should be proscribed categorically — and, under existing law, it is. Torture is outlawed by the Geneva Conventions and by the Convention Against Torture, which the United States ratified in 1994. Under domestic law it's a crime punishable by life in prison. The existing law reflects a judgment (which we share) that torture is always inhumane — that it denies the humanity of the prisoner and erodes the humanity of the torturer — and that there are means that even the most laudable ends can never justify.
But while torture is categorically prohibited, the use of lethal force isn't. In wartime, states can permissibly use lethal force against enemy soldiers. Outside the context of armed conflict, government agents — and the rest of us — can permissibly use lethal force in self-defense or defense of others. (Some jurisdictions also allow the death penalty, but of course the legitimacy of that practice is contested, including by the ACLU.) It's true that the circumstances in which the government can permissibly use lethal force without charge or trial are narrow: Except in zones of armed conflict, lethal force can be used only as a last resort, and only to address threats that are imminent. But the point is that the government's use of lethal force — unlike its use of torture — is not always unlawful. Professor Dershowitz acknowledges this distinction but misses its import.
Because the government is not categorically prohibited from using lethal force, it makes sense to ask what standards will control the use of lethal force, and who will decide whether the standards are satisfied in any particular instance. The central claim of our ongoing lawsuit is that the courts have a role to play in articulating the standards under which lethal force is used, and in ensuring that the government actually complies with those standards. We reject the Obama administration's argument that the president's authority to order the targeted killing of suspected terrorists — including American citizens — is entirely unreviewable.
To say that the courts have a role to play, though, is not to say that judges should be empowered to issue "killing warrants," and while have that judges oversee the government's real-time targeting decisions, we haven't. The reason we haven't is that, except in zones of armed conflict, the government's authority to use lethal force is limited to circumstances in which a prior warrant requirement would be unworkable — circumstances in which there isn't time for a court to weigh the evidence. A warrant requirement might make sense if the government had sweeping authority to carry out the targeted killing of anyone, anywhere, who might at some point in the future present a threat to the country. But it doesn't have this kind of authority, and it shouldn't. (Indeed, if the government had that authority, it could dispense with criminal trials altogether by summarily executing criminal suspects instead.)
Professor Dershowitz is right about one thing: The courts should play a role in overseeing the targeted killing program. They should do this by articulating the legal standards under which the government can permissibly use lethal force against individuals who haven't been charged with crimes, and by reviewing, after lethal force has been used, whether the government has complied with the legal standards. (American courts are already familiar with this framework, because it's the framework whenever an individual alleges that government agents used "excessive force.") Empowering courts to issue killing warrants is neither necessary nor advisable — which is why we haven't proposed it.
(Cross-posted to and .)
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.