This was originally posted on .
Many others have already weighed in about the significance of last week’s ruling in ACLU v. Clapper. Here are my own quick thoughts. As regular readers of this blog already know, I’m counsel to the plaintiffs in the litigation.
- The ruling is a major victory for the many advocates from across the political spectrum, outside the government and inside, who have been arguing that some of the government’s surveillance activities are overbroad and unlawful and that the system of oversight that Congress established in 1978 ľ±˛ő˛Ô’t working. The FISA court signed off on the call records program dozens of times after hearing argument only from the government. Now the first appeals court to have considered the issue after adversarial presentation has concluded, in an opinion that no one could characterize as anything other than meticulous and comprehensive, that the program is illegal. The Second Circuit’s opinion is respectful towards the FISA court and the congressional intelligence committees, but there is no doubt that the opinion is an indictment of the oversight system.
- The ruling means that even if Congress reauthorizes Section 215 by June 1, the government will have to discontinue bulk collection under that provision unless Congress adds language expressly authorizing bulk collection or the government prevails on the Supreme Court to vacate the ruling. That the Second Circuit declined to enjoin the call records program is immaterial. If Congress reauthorizes Section 215 in its current form, the district court will likely issue an injunction. Even without an injunction, telecommunications providers may begin to resist compliance with production demands.
- The ruling means that the government will have to reconsider other bulk collection programs that are operated under other authorities but predicated on the same now-discredited theory of “relevance.” We know the DEA had a bulk call records program until 2013. We know the NSA was collecting Internet metadata in bulk until 2011. In what contexts the government is engaging in bulk collection now is not entirely clear, but news reports indicate that there are that haven’t yet been officially acknowledged. If the government is operating other bulk collection programs — or even “bulky” collection programs — it will now have to reconsider them. Even if it doesn’t reconsider them of its own accord, private entities whose assistance the government needs (telecommunications companies, financial companies, technology companies) may resist demands that they might not have resisted before last week. I suspect that general counsels of corporations that hold large volumes of third-party records will read the Second Circuit’s decision especially closely.
- The ruling will change the dynamics on the Hill — and to some extent it . The Senate majority leader was already struggling to marshal support for a straight reauthorization of Section 215. Now his task is harder, first, because the Second Circuit’s ruling makes it even clearer that the Patriot Act’s surveillance provisions are being abused; and, second, because, again, even a straight reauthorization won’t enable the government to continue bulk collection under Section 215 unless the Supreme Court vacates the Second Circuit’s decision. The flipside is that the leverage of the USA Freedom Act’s supporters has increased, and they may be able to use that leverage to strengthen the Act — for example, to tighten the restriction against bulk collection under Section 215, to impose stronger minimization requirements, to require greater transparency about the government’s surveillance activities, and to prohibit “backdoor” searches under the FISA Amendments Act. If the USA Freedom Act ľ±˛ő˛Ô’t strengthened, some who previously supported it may ask whether it accomplishes significantly more than what the Second Circuit has already accomplished, and they may begin to wonder why Section 215 shouldn’t simply be . On the other hand, if the reform bill is significantly strengthened, it may attract support from organizations and individuals that haven’t until now been willing to support it. (Currently, the ACLU is neither supporting the bill nor opposing it.)
It will be easier to say in three years, or perhaps even three months, precisely how significant the Second Circuit’s decision was. But the decision has already shaken things up, and it could change the government’s surveillance practices quite dramatically. I that the Snowden disclosures should spark reform, and I that they would. It’s too early to know whether I was right, but I’m more optimistic today than I was a week ago.
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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.