The Trump Administration Is Looking to Make It Easier to Kill More People in More Places
The Trump administration is reportedly poised to kill more people in more countries around the world, from Nigeria to the Philippines.
, the administration is considering loosening Obama administration policy on drone killings and other lethal operations in places where the United States is not at war. The changes will result in more unlawful and secret killings, alienate our allies, and make the world less safe.
To understand what these changes would mean, it helps to remember what the Obama administration did. Soon after coming to office, President Obama began to expand and normalize what had been a Bush administration aberration: a policy of invoking war-based legal rationales to kill terrorism suspects in places where the U.S. was not at war, usually through CIA drone strikes.
In the early years, Obama’s killing rules were largely secret, even as a range of Obama officials gave speeches claiming — but not explaining how — they were lawful, necessary, and wise. Those government claims were repeatedly undercut by the facts.
U.S. citizens and non-citizens alike were placed on kill lists without any due process. The CIA turned into more of a paramilitary killing organization without the oversight or accountability we traditionally expect of the military. The number of lethal strikes — by the CIA and by secretive special forces — rose dramatically, eventually spreading to Pakistan, Yemen, Somalia, Libya, and elsewhere.
Tragically, hundreds of civilians or more — , grandmothers, children, , people at funerals — were killed. and rights activists in impacted countries described the devastation caused by U.S. strikes. Virtually none of these killings, except for those of American citizens or Western hostages, have ever been officially acknowledged. This lethal American program, which started out as “limited,” contributed to increasing instability, war, and hostility towards America.
Through leaks and Freedom of Information Act litigation brought by the ACLU, the broad contours of the Obama rules were revealed over time. They were eventually formalized in what’s called the Presidential Policy Guidance, or PPG, a document released in response to ACLU FOIA litigation in 2016. We’ve described the PPG elsewhere, but in brief, it is a made-up legal and bureaucratic infrastructure that justifies killings outside war zones — the PPG uses the invented and undefined term, “areas outside of active hostilities” — without any due process. Both the Constitution and international law prohibit the use of lethal force against civilians outside of armed conflict except in very narrow circumstances: as a last resort to prevent an imminent attack that is likely to cause death or serious physical injury. But by borrowing from a mish-mash of legal frameworks, the PPG entrenches a different, more permissive set of killing rules, with a gloss of policy safeguards aimed at limiting harm to civilians.
In short, the Obama administration claimed extraordinary powers to kill people largely in secret, through a distortion of the domestic and international law that limits the use of lethal force and prohibits extrajudicial killing.
And now we come to the Trump administration. The new White House is apparently claiming the exact same legal authority the Obama administration claimed, but lifting policy constraints.
According to The New York Times, Trump’s advisors propose to lift “bureaucratic hurdles” to killing decisions, expand CIA authority to kill in Afghanistan, and relax a key Obama-era requirement limiting lethal strikes to “high-level militants” who pose “a continuing and imminent threat to Americans.” If the rules are relaxed, the policy would permit lethal force against what the Times — apparently itself accepting the war paradigm outside the context of war — refers to as “foot-soldiers.”
Each of these is a step in exactly the wrong direction.
Take the last, for example. The “continuing, imminent threat” requirement was itself a malleable, made-up limit, and rather a nonsensical one, as the administration’s interpretation of imminent meant anything but imminent. But look what’s being considered now — killing low-level suspects, far from any battlefield, who don’t actually pose a threat to Americans.
What meaningful basis is there to decide who lives or dies? What limit is left to the government’s claimed killing authority?
It does not seem that the new rules will impose any meaningful geographic or temporal constraints. It appears that the Trump administration proposes to kill people engaged in so-called Islamist insurgencies in many parts of the world. If so, how does this not turn America into the world’s military, acting at the behest of or to protect notorious rights-violating regimes like the one in the Philippines? As we have warned, under Trump, the limits of war as we know it could virtually dissolve.
Trump’s advisors apparently propose to keep in place a requirement of “near certainty” that no civilians will be harmed in strikes. However, that provides little comfort because we don’t know who the Trump administration defines as a civilian. Moreover, lowering the threshold for who is killed and removing even internal layers of executive branch oversight surely increases the risk of wrongful killing and abuse, as well as the likelihood that no one will be held accountable when things go wrong.
Unfortunately, that wouldn’t be new, for there has been no accountability for any alleged wrongful strike under the Obama administration, limited transparency, and no meaningful public assessment of the human and strategic costs of lethal strikes. This is the killing program the Trump administration is seeking to expand.
During the Obama years, we argued that the administration’s claims of meaningful limits on killing authority essentially boiled down to “trust us.” Many Americans did. Now, the Trump administration wants the same trust. And more people will die.
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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.