What This American Family Went Through at the Border Was Clearly Unconstitutional
Increasing border detentions and a ballooning American watchlisting system are two major drivers of government abuse. A lawsuit the ACLU filed last week challenges both.
We represent Abdisalam Wilwal, Sagal Abdigani, and their four young children — all U.S. citizens whose experience at the border represents much of what’s wrong with the government’s approach to border security.
The family lives in the Minneapolis area and was returning from a trip to visit relatives in Saskatchewan, Canada, on March 30, 2015. After they pulled their minivan up to the border checkpoint at Portal, North Dakota, U.S. Customs and Border Protection officers appeared with their guns drawn and pointed at the van, yelling at Abdisalam to come out with his hands in the air. They handcuffed him in front of his family as his children screamed and cried from fear.
The officers held Abdisalam for almost 11 hours, which he spent handcuffed alone in a room in the border station. At one point during the detention, having been denied food or water for hours, he passed out and required medical attention.
The officers detained Sagal and the four children elsewhere in the border station. They denied her requests to use the phone or have someone pick up the children, saying, “You’re all the same. You’re all detainees, including the children.” At one point hours into the detention, Sagal — extremely anxious about her family’s safety — used her son’s phone to call 911 and report what was happening. A CBP officer grabbed the phone and spoke to the dispatcher. Help never arrived.
Two officers then took Sagal’s son, who was 14 years old at the time, into a separate room and patted him down. They told him to remove his clothes for a strip search, which he refused to do.
About nine hours into the detention, two Homeland Security Investigations agents arrived at the border station. They questioned Abdisalam for about 45 minutes about his religious practices, travel, family, and job. They then told him he was free to go. The whole family left immediately.
Read more about the family’s harrowing experience
Abdisalam later learned that he and his family were detained because he is on the government’s terrorism watchlist. He doesn’t know why he’s been watchlisted, and the government won’t tell him.
This much is clear, though: The officers’ treatment of the family violated the Constitution. The Fourth Amendment protects against unreasonable searches and seizures, and what happened to this family was anything but reasonable.
The fact that it happened at the border doesn’t matter. We frequently hear that CBP officers tell travelers, including U.S. citizens, that they don’t have rights at the border. That’s flat wrong. CBP officers do have the authority to conduct what are called “routine searches” — they can stop people at border crossings and search their belongings without a warrant or suspicion that they’re engaged in wrongdoing. But officers can’t use unreasonable force, and a lawful border stop can become an unlawful seizure or arrest if the officers have no valid reason to prolong the stop.
The CBP officers who detained Sagal and the kids had no basis to believe that they were either inadmissible to the United States or carrying contraband, but the officers nonetheless held them captive for nearly 11 hours. That’s an unlawful seizure. And what the officers did to Abdisalam amounted to an arrest without a warrant or probable cause: They displayed and used force to handcuff him, hold him alone and against his will, and interrogate him without advising him of his right to remain silent or contact an attorney.
The fact that Abdisalam was on a government watchlist doesn’t provide cause for the officers’ treatment of him or his family. show that the government uses vague criteria and a very low threshold to place people on the terrorism watchlist, which has ballooned to approximately . According to the government’s own watchlisting rules, “concrete facts are not necessary” to meet the standard for placement on the watchlist, and uncorroborated information of questionable or even doubtful reliability can suffice. Such lax criteria open the door to relying on rumor, innuendo, or false statements to place people on the watchlist.
That leads to the second major constitutional issue that this border detention raises: violation of the Fifth Amendment’s due process guarantee. The government denies people due process when it places them on a secret blacklist and then harasses, abuses, or detains them on that basis, without giving them notice of the reasons why and a meaningful opportunity to contest those reasons. Abdisalam learned he’s on the watchlist from a government document that the ACLU obtained through the Privacy Act, but the government has refused to tell him why he’s been watchlisted or give him a chance to clear his name and get off the list.
Returning to America from abroad should not mean forfeiting our constitutional rights. The government must adopt policies to ensure that what happened to Abdisalam, Sagal, and their children doesn’t happen again.
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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.