What President Obama Can Do to Stop US Dragnet Surveillance Around the World
President Obama has not been shy about taking executive action. From immigration to gun control, we have seen the president implement bold — and sometimes controversial — policies on issues that will likely define his legacy.
In the wake of the Snowden revelations, President Obama to review and bring NSA surveillance in line with the Constitution. The clock is now ticking for the president to fulfill this promise by making sweeping reforms to electronic surveillance programs that are operated at his direction under Executive Order (EO) 12333.
This week, the ACLU sent a letter to the Privacy and Civil Liberties Board, which is currently conducting a review of certain EO 12333 programs. In our letter, we outline what we know about EO 12333 electronic surveillance, why we believe it is unconstitutional, and the policy changes we believe will better protect the rights of individuals.
EO 12333 is a Reagan-era order, subsequently updated, that we now know has been used to, among other things, , , and . Unfortunately, it reflects the improper distinction our government has for too long placed between surveillance that occurs within the U.S. and abroad.
Electronic surveillance within the United States is regulated by the Foreign Intelligence Surveillance Act (FISA), subject to certain restrictions, and generally requires approval from the intelligence courts. In contrast, surveillance that takes place abroad under EO 12333 has limited oversight and requires no court approval, even when it regularly the communications of U.S. citizens.
Such a legal distinction makes no sense in today’s world, where our communications often traverse the globe whether we realize it or not.
Google and Yahoo routinely store the information of U.S. citizens on foreign servers. Emails of foreign citizens who live next door to each other may be routed through the U.S. before reaching their destination. U.S. citizens call and email with people abroad simply to conduct day-to-day business, such as booking a plane ticket. In other words, the artificial line drawn between domestic and foreign surveillance is being erased by technology and globalization.
To address this reality, Congress should pass legislation regulating surveillance abroad that would apply to all future administrations. Until that legislation lands on the Oval Office’s desk, however, President Obama must overhaul EO 12333 policies to make them consistent with the Constitution and international law.
First, President Obama should prohibit dragnet surveillance under EO 12333. If there are any exceptions to this prohibition, they should contain clear time, purpose, and geographic limitations. The right to privacy is a human right that the U.S. should respect abroad as well as domestically.
Second, President Obama should reform the way that EO 12333 information is kept and used. For example, the government should be prohibited from using the fruits of warrantless EO 12333 collection as evidence against Americans. In addition, the default retention period for data collected under EO 12333 should be limited to three years, consistent with recommendations that the PCLOB has made with other programs.
Third, President Obama should take steps to ensure that EO 12333 information is not used to perpetrate human rights abuses. The U.S. shares information with a wide variety of intelligence partners with , including . The U.S. should limit the sharing of information with foreign governments unless it is for narrow national security purposes, and it should not share information if there is a reason to believe it can be used to commit human rights abuses.
Finally, the President Obama should increase transparency of EO 12333 programs. We deserve to know how many Americans and individuals abroad have their information collected under EO 12333 programs. In addition, the government should release relevant policies that explain the rules for collecting, retaining, and using EO 12333 gathered information.
The reforms outlined above would go a long way towards addressing concerns with EO 12333 electronic surveillance. President Obama certainly is not the first president who has had to grapple with these issues. He can, however, be the first to directly tackle these problems by instituting sweeping changes that enhance the rights of citizens around the world.
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Press ReleaseDec 2024
Free Speech
National Security
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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
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.