This week ACLU Immigrants' Rights Project Deputy Director Lee Gelernt argued in the Supreme Court what some are calling "." In , we seek to hold former Attorney General John Ashcroft responsible for the detention of Abdullah al-Kidd, an innocent American citizen who was wrongfully imprisoned under the . The material witness statute is meant only to allow the government to briefly detain a witness to make sure he or she testifies in court. But in the wake of 9/11, Ashcroft enacted a widespread policy of abusing this limited power in order to arrest, jail, and interrogate citizens and non-citizens the government deemed suspicious, but against whom they had no evidence of wrongdoing. Al-Kidd is a victim of Ashcroft's unlawful policy.
Arrested in Dulles International Airport in 2003 and detained for more than two weeks in harsh conditions, al-Kidd was never asked to testify in the case for which his testimony was supposedly needed. Instead, he was kept under restrictive conditions for months that forced him to abandon an educational scholarship and led to the breakdown of his marriage and career. The 9th Circuit Court of Appeals found the Justice Department's position in this case to be "repugnant to the Constitution" and a "painful reminder of some of the most ignominious chapters of our national history." The Supreme Court, however, offered Ashcroft one more shot when it announced it would hear his appeal, and thus the ACLU appeared before the court on Wednesday.
Although the case before the Supreme Court does not specifically involve al-Kidd's conditions of confinement, they are relevant to whether al-Kidd was genuinely viewed as a witness. Justice Wednesday that al-Kidd was kept under extremely harsh conditions during his 16-day detention. He was kept awake for hours on end, with a bright light shining in his cell 24/7. Whenever he was let out of his cell – usually only for one hour a day – he was shackled at the wrists, ankles, and waist. At one point, he was left naked for hours in plain view of other clothed prisoners and guards. , he was detained with convicts and federal inmates– who were still treated better than he was. Turning to Neal Katyal, the government attorney defending Ashcroft, Justice Ruth Bader Ginsburg said: "Now that doesn't sound like the way one would treat someone whose testimony you want." We don't think so either.
While the facts of the case make obvious that al-Kidd deserves justice for the undue hardship he suffered at the hands of Ashcroft's directive, the Supreme Court yesterday was considering the government's argument that Ashcroft, a former attorney general, cannot even be sued. Ashcroft argues that no matter what happened, he cannot legally be held liable and he deserves full immunity from this lawsuit.
According to Ashcroft's attorney, it apparently does not matter if our client was arrested as a witness and detained solely for the purpose of being investigated as a suspect. Nor does it matter that the government had no probable cause to believe al-Kidd was guilty of a crime. Katyal argued that the motives behind the arrest and detention of al-Kidd are irrelevant, and the courts have no business looking into an official's intentions. "Allowing such suits to proceed would result in burdensome litigation and interfere with the ability of prosecutors to do their jobs," .
But should we let fear of "burdensome litigation" stand in the way of justice for an American citizen? Don't we want the courts to "interfere" with government officials when they are violating the Constitution? In the case of al-Kidd, the facts make clear that an innocent citizen faced extreme hardship under an illegal government policy. But the government doesn't have to worry about any of those facts if the court awards immunity and such atrocious treatment of a man like al-Kidd becomes justified, because the attorney general was "."
Immunity from being sued is an extraordinary protection; it stops a case before it even begins, before a person even has a chance to prove the allegations. If Ashcroft receives immunity for his actions against al-Kidd, officials in the future will feel free to distort the law to serve unconstitutional purposes, safe in the knowledge that there will be no consequences for doing so. To allow such an egregious misuse of the material witness statute will only reinforce the atmosphere of impunity that exists whenever a government official invokes "national security" as a justification for his or her actions.
Lee summed it up best in his argument:
The [Fourth Amendment] is fundamental to our traditions, is widely viewed as a defining feature of our country, and has been steadfastly protected by this court for more than two centuries in both good and bad times. The material witness statute represents a dramatic departure to the rule, allowing the arrest of uncharged, innocent, even cooperative people. […] What we're talking about here is a statute that has enormous consequences […] and to say that there is going to be absolute immunity is very dangerous.
Hopefully, the court will agree.
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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.