At a time when the Snowden revelations have focused new attention on the question of oversight over our giant national security establishment, many are closely watching the Privacy and Civil Liberties Oversight Board (PCLOB). The PCLOB is a brand new organization and still quite small, but it holds great promise as a truly independent mechanism for much-needed oversight over the national security state. In coming months and years, we will see whether it is able to live up to that potential.
So far the PCLOB seems to be doing a commendable job with limited resources in tackling the biggest privacy issue confronting us today, NSA surveillance. Today they’re holding a on NSA and FBI spying that will feature officials from those agencies and the Justice Department, as well as some outside experts.
What powers does the PCLOB have? We issued a in late 2009 about how the United States needs institutions equivalent to the privacy commissioners that nearly every other advanced-industrial democratic nation has. In writing that report, we evaluated this new institution (as reconstituted by Congress in 2007; see ) and its powers (which are set out in Section 801 of ).
Like many independent federal commissions (FCC, FTC, etc), the PCLOB consists of a chairman and four additional members appointed by the President and confirmed by the Senate. They serve for overlapping six-year terms with no more than three members being from the same party.
Mandate
The board’s mandate is to “analyze and review actions the executive branch takes to protect the Nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties” and to “ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations, and policies related to efforts to protect the Nation against terrorism.”
Note that this mandate appears to restrict the board’s oversight powers to the government’s anti-terrorism programs, and that its oversight role does not extend to other areas that can raise civil liberties issues such as the War on Drugs, crime prevention, or benefits programs.
Functions
The PCLOB is directed by Congress to fulfill five primary functions:
- Provide “advice and counsel on policy development and implementation” by reviewing proposed legislation, regulations and policies.
- Provide oversight by “continually review[ing]” implementation of the regulations, policies, and procedures, “information sharing practices,” and “other actions” of the executive branch.
- Work with the privacy officers and civil liberties officers of federal agencies—receive reports from, make recommendations to, and “when appropriate,” “coordinate the activities” of those officers.
- Submit semiannual reports to Congress and the President.
- Inform the public by releasing its reports “in unclassified form to the greatest extent possible,” by holding public hearings, or through other methods.
Powers and limitations
Congress gave the board significant powers to access information. The statute directs that “If determined by the Board to be necessary” to carry out its functions, the PCLOB “is authorized to”
- “Have access from any department, agency, or element of the executive branch” to “all relevant” records or material, “including classified information consistent with applicable law. “
- “Interview, take statements from, or take public testimony from personnel” of any element of the executive branch.
- “Request information or assistance from any State, tribal, or local government.”
- Compel testimony by subpoena from persons “other than departments, agencies, and elements of the executive branch,” a majority of the board can submit a written request to the Attorney General to issue a subpoena on behalf of the board. Within 30 days, the AG must either comply or provide a written explanation for a denial to the board and to the House and Senate Judiciary Committees. This is a strangely contorted way of giving the board subpoena power, and inserts a powerful executive branch official whose agency may be a subject of the board’s oversight into the process—but at least it only applies to subpoenas directed outside government.
What Congress did not give the PCLOB the power to do, unfortunately, is challenge agencies’ secrecy powers when it finds those powers have been abused to cover up wrongdoing or incompetence or to prevent legitimate public debate. At a time when such abuses of secrecy powers are widespread, it is not clear how the PCLOB would or could proceed if, for example, it uncovers brazen violations of the law that are classified (as they most likely would be).
The PCLOB also has no enforcement power. Other than by going to court like anyone else, it cannot order any government agency to change its practices or otherwise enforce the law. Other countries give their privacy commissioners such powers; in 2008, for example, the Italian government decided to publish the income tax returns of all Italian citizens on the Internet. The Italian data protection authority did not just condemn the action, or hold hearings, or file a court case—it ordered the information taken down, and it was. In some countries, such as , the data protection commissioner also has the power to unilaterally declassify information.
Ultimately, as we laid out in our 2009 , we would like to see Congress bolster those powers—broadening its mandate, giving it powers against overclassification, and giving it enforcement powers. It’s also, as I’ve said , crucial that the board be given resources to grow into its giant task of overseeing our $80 billion national security establishment. But for now we are glad to see the PCLOB off to such a promising start in making use of the powers it has been given.
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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.