Trump, Hypocritically, Moves to Make Temporary Surveillance Powers Permanent
President Trump thinks surveillance is just “terrible.”
“You look at the extent of surveillance,” he “Me and so many other people, it’s terrible.”
Given these statements, and Vice President’s Pence’s that the “American people have a right to know if there was surveillance of any private citizen in this country,” you would think that the Trump administration would want to get to the bottom of NSA reform. You would also think that they would demand that the NSA stop its warrantless spying on Americans and figure out how many Americans have been swept up in the agency’s dragnet.
But just this morning, the Trump administration doubled down on surveillance.
In an penned in The New York Times, the White House said it supports not just an extension but a permanent reauthorization of Section 702 — a surveillance authority that purports to authorize the surveillance of foreigners likely to communicate “foreign intelligence information” but actually surveils millions of Americans without a warrant.
After the op-ed was published, the new administration brazenly thumbed its nose at congressional overseers, Democrats and Republicans alike, reversing its commitment to provide Congress with an estimate of how many Americans have their information collected under Section 702. In a Senate Intelligence Committee , Director of National Intelligence Dan Coats unequivocally stated that such information would not be forthcoming, providing no information on what has changed since last year when the intelligence agencies to providing it to Congress.
Congress should not take such disdain for its oversight role lightly, and we should not be fooled by the Trump administration’s justifications for its new position. Let’s start with the op-ed, authored by Thomas Bossert, a homeland security adviser to the president. The piece was riddled with errors and attempts to obfuscate.
Bossert fundamentally misconstrues the authority’s impact on Americans’ constitutional rights. One of his main contentions is that:
“…it does not permit the targeting of Americans. The authority expressly forbids intentional targeting of a United States person for surveillance.”
That might be comforting if it told the whole story about Section 702. The reality is that Section 702 was expressly designed to gather information about Americans. Indeed, Bossert admits that the existing law permits the FBI and other federal agencies to search through Section 702 information specifically looking for information about Americans. What he leaves out is that the FBI does this as a routine matter — no warrant or formal investigation required — in cases that have nothing to do with national security or terrorism.
A declassified FISA court opinion from 2011 that the government collected over 250 million internet communications alone under Section 702, the vast majority retained for five years by default. That means that the government likely retains over a billion communications under Section 702 at any given time — and there are that roughly half of these files contain information about an American (which, again, are accessible to law enforcement agencies without a warrant). In light of this, Bossert’s claim that the authority is not about “targeting Americans” rings hollow.
For further effect, he adds a whopper:
“Over nearly a decade of rigorous oversight, no intentional abuse of the Section 702 authority has ever been identified, and the government has quickly taken action to rectify unintentional mistakes.”
In fact, a litany of cases have revealed unlawful activity under Section 702. Just last month, a declassified from the secretive Foreign Intelligence Surveillance Court revealed a series of violations in complying with the law, including of Americans’ information, improper sharing of information with , and a failure to appropriately handle communications. The court did not know about many of these problems for years due to what it referred to as an “institutional” lack of candor.
Bossert’s claims are even more unbelievable given that he points to the executive branch’s Privacy and Civil Liberties Oversight Board as a source of oversight. Currently, the PCLOB has no chair, lacks a quorum, and for all intents and purposes has lain dormant due to the failure of President Trump — and before him, Obama — to appoint nominees.
The next exaggeration:
“…Section 702, allows a federal court to approve and supervise, under specific conditions, the collection of information on foreign persons, in foreign countries, who happen to use American communications services and internet technology.”
The reality is that federal court oversight of Section 702 bears no resemblance to the court oversight applied to criminal investigations or even other forms of surveillance. Under Section 702, the Foreign Intelligence Surveillance Court approves — in secret proceedings — the entire Section 702 program annually. The court never probes whether there is individual cause to surveil a specific person. This is akin to a judge signing off on thousands of wiretaps at once, based simply on an examination of the general procedures law enforcement commits to follow.
Finally, Bossert tries to comfort the American people by suggesting that the Trump administration has voluntarily curbed its own surveillance activities.
“Under President Trump’s leadership, we have refined the application of this authority to target only those internet communications sent directly to or from a lawful foreign intelligence target. This smart choice will reduce incidental collection on Americans without sacrificing our security. We proposed, and the Foreign Intelligence Surveillance Court approved, the new procedures, which achieve this goal and protect Americans’ privacy.”
It is true that the intelligence agencies recently adopted a policy limiting their Section 702 Upstream program — in which the government taps into the internet backbone and combs through Americans’ internet traffic for information associated with over 100,000 targets. But what Bossert omits is even more important: The administration has expressly said that it retains the right to restart this program and continues to perform other collection under Upstream.
We cannot rely on President Trump’s NSA to police itself. Members of Congress should reject attempts, such as those contained in Senator Cotton’s most recent bill, to extend or make Section 702 permanent. And we should all raise our voices in demanding meaningful Section 702 reform now.
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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
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Press ReleaseDec 2024
National Security
Religious Liberty
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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
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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.