White Supremacist Violence Is On the Rise. Expanding the FBI’s Powers Isn't the Answer.
In response to the increase in white supremacist violence, Congress has been holding hearings — including one today — on the urgent need to address it. But rather than getting to the bottom of why our law enforcement agencies have failed to address white supremacist violence, some lawmakers are rushing to give law enforcement agencies harmful additional powers and creating new crimes. That approach ignores the way power, racism, and national security laws work in America. It will harm the communities of color that white supremacist violence targets — and undermine the constitutional rights that protect all of us.
As we made clear to Congress, it needs to investigate why law enforcement agencies have repeatedly failed to focus resources on white supremacist violence — and hold them accountable for this failure. It needs to ask why the FBI has not even publicly reported on domestic terrorism and white supremacist violence since 2005. It needs to clarify why, earlier this year, the FBI its tracking of white supremacist violence investigations, hiding them in a broader category of “racially-motivated violent extremism.” And Congress needs to ask whether agencies have the proper training to address white supremacist violence effectively and in a manner that is consistent with the Constitution. Without first getting the answers to these questions, Congress — and the public — cannot know what needs fixing here.
But one fact is clear: Law enforcement agencies already have all the authority they need to investigate, prosecute, and punish white supremacist violence effectively. Congress has passed that cover white supremacist violence, credible and direct threats of violence, conspiracies, and attempts. It has enacted more than 50 federal domestic terrorism-related crimes, and a related prohibition on “material support” for domestic terrorism. Congress has also provided an entire framework of hate crimes that law enforcement can use to address violence targeting marginalized communities. The FBI has also asserted expansive powers to investigate “domestic terrorism” under the Patriot Act.
Indeed, we have significant concerns about how the FBI and other law enforcement agencies have already used these authorities, particularly against communities of color, in ways that undermine and violate equal protection, due process, and First Amendment rights. It is Black civil rights activists, Muslim, Arab, Middle Eastern, and South Asian communities, animal and environmental rights activists, or others that the government views as having “unpopular” or controversial beliefs who are disproportionately harmed.
For instance, the FBI has collected, analyzed, and “mapped” racial and ethnic demographic information and the locations of ethnic-oriented businesses and facilities based on . It has relied on domestic terrorism authorities to on Muslim communities, including by infiltrating their places of worship. It is targeting individuals engaged in immigration advocacy, including border groups’ activities and family separation protests. Echoing its abuses in the civil rights era, the FBI has categorized Black people as threats and has recently run a new program, titled “,” to spy on and investigate Black activists who call out white supremacy, including through undercover agents.
These rights-violating and discriminatory harms flow from the expansive nature of existing domestic terrorism authorities and a lack of safeguards. Under the Patriot Act’s vague, overbroad, and malleable definition of “domestic terrorism,” the FBI asserts the power to investigate individuals even when it doesn’t have a factual basis for suspicion, and often for engaging in First Amendment-protected activities. And it claims it can do so using intrusive techniques such as physical surveillance, suspicionless interviews, informants, and searches of law enforcement and commercial databases.
The Department of Justice has eliminated safeguards that were put in place in the 1970s to guard against the abusive surveillance and investigation practices that were a defining feature of the FBI’s response to the civil rights and Vietnam-era anti-war movements. The Departments of Justice and Homeland Security that bias-based profiling is unfair, ineffective, and harmful. Yet, they have permitted its use for national security — terrorism — investigations and at U.S. borders, over the of communities of color, and civil and human rights organizations.
Despite these facts, some members of Congress and former law enforcement officials insist on new and unnecessary domestic terrorism authorities and crimes, arguing that oversight alone will cure problems. But that hasn’t proven true, either in the last 18 years or at any time before that. Racial disparities in the criminal justice system are one of the most severe forms of discrimination against people of color. New domestic terrorism-related crimes and penalties would worsen the over-criminalization of Black and Brown communities and incorporate more abusive powers into a discriminatory criminal justice system.
Congress can make our communities safer, but that requires protecting the rights of the communities that white supremacist perpetrators attack, and reforming — not doubling down on — failed strategies.
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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.