No one disputes that Bashar al-Assad’s use of chemical weapons on Syrian civilians is illegal, immoral, and unacceptable. But Assad’s illegality does not excuse illegality in response.
In the face of constitutional law barring hostile use of force without congressional authorization, and international law forbidding unilateral use of force except in self-defense, President Trump has unilaterally launched strikes against a country that has not attacked us, and without any authorization from Congress. Doing so violates some of the most important legal constraints on the use of force.
In order to ensure that war powers are exercised with wisdom, restraint, and popular approval, our Constitution assigns to Congress its most important and fundamental responsibility: to “declare War” by specifying enemies, defining clear objectives, and setting limits that keep the executive’s power as commander in chief within bounds. This fundamental principle of separation of powers lies at the core of the Constitution and is the foundation of our democratic form of government. That is why, although the ACLU does not take positions on whether military force should be used, we have been steadfast in insisting, from the Vietnam War through the wars in Iraq and strikes in Libya and Syria by the Obama administration, that the decision to use military force requires Congress’ specific, advance authorization.
Yet last night, after the U.S. government used military force against the Syrian government for the first time since the civil war broke out in 2011, the Trump administration , “No authorization from Congress is necessary.” It pointed to “several factors, including promoting regional stability, discouraging the use of chemical weapons, and protecting a civilian population from humanitarian atrocities.” Those arguments do not provide justification for the president to do an end run around the Constitution. As an initial matter, the hypocrisy of this rationale is galling. President Trump is invoking the Syrian government’s killing of helpless men, women, and children — beautiful babies, as he says — when his own Muslim travel ban would exclude those very people from the refuge of the United States.
According to reports, the Trump administration claims that its justification for strikes in Syria is similar to that used by the Obama administration in justifying strikes in Libya in 2011. But invoking the Obama administration’s wrongful precedent — which we and many others criticized as illegal at the time — does not justify still more lawlessness. Absent a sudden attack on the United States that requires a president to take immediate action to repel the attack, no president has the power under the Constitution to decide unilaterally to take the United States into war. Unilateral military action was unlawful when President Obama did it, and it’s unlawful now.
The Trump administration’s strikes also contravene the , which is a binding treaty obligation for the United States, and helps preserve international peace and security. of the U.N. Charter prohibits the use of force in the territory of another state unless authorized by the Security Council or in self-defense in response to a sudden attack. Neither condition was met before yesterday’s strike.
These requirements exist for critically important reasons, as history shows. Our nation has a very long and painful history of civil liberties and human rights being jeopardized and violated during war. Under the Bush administration, claims of broad war authority were cited as legal justification for wrongs ranging from torture to indefinite detention without charge or trial to dragnet surveillance. More recently, the Obama administration’s claims of war authority were also used to justify keeping Guantánamo open and killing thousands of people in drone strikes in countries in which and with which the United States is not at war. President Trump has already claimed some of these powers to launch in other countries already devastated by war — Yemen and Somalia — resulting in a sharp increase in civilian deaths and suffering.
For all these reasons, we call on Congress to act swiftly and do its job by taking up the monumental question of whether President Trump may continue to use military force in Syria. To do otherwise would be an abdication by Congress of the war powers reserved for it under Article I of the Constitution. And because these monumental decisions must be informed by meaningful public debate, we are also filing a Freedom of Information Act request with the Trump administration seeking its full domestic and international law justification for the strikes in Syria.
President Trump has unilaterally undertaken an act of war. If we are to be a country of laws, we must demand his legal justifications and our representatives in Congress need to ensure that his actions are properly debated and constrained.
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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.