The United States’ war with al-Qaida has gone on so long, and has metastasized into so many different uses of U.S. armed forces around the globe, that it may be surprising to learn that the federal courts have only addressed the legality of a very small piece of it.
After the 9/11 attacks, Congress passed a statute authorizing the executive branch to use military force against those groups directly connected to the attacks: al-Qaida and the Taliban. But today, the United States claims the authority to use armed force under that statute not just in Afghanistan, but also in Iraq, Yemen, Somalia, Pakistan, and Syria — against not just al-Qaida and the Taliban, but also al-Qaida in the Arabian Peninsula, al-Shabab in Somalia, and now the Islamic State in Iraq and Syria, or ISIS.
But no court has ever addressed the government’s legal justifications for military action in so many different parts of the world. Now, in a case brought by the ACLU, one court will. The federal district court in Washington, D.C., will address whether the executive branch can use its elastic and open-ended assertion of wartime authority to imprison indefinitely an American citizen with no connection to 9/11.
In September 2017, Kurdish forces detained an American citizen in Syria and quickly transferred him to U.S. custody. On Sept. 14, the Daily Beast the detention, and the government confirmed it was holding the citizen as a “known enemy combatant” for ISIS. For weeks, the government refused to reveal any public details about the detention, to bring that person before a judge, or charge him with a crime. The ACLU went to court on the unnamed citizen’s behalf, demanding that the government justify his detention to a federal court. Since the court ruled in December that the government must allow the ACLU to meet with the citizen, we have represented him as our client.
Weeks ago, the government filed — under seal, and not available to the public — its legal and factual reasons for holding the citizen without charge or trial. (It will be filing a public, partially redacted version soon.) Today, the ACLU filed a response, explaining why under the Constitution and laws of the United States, the government lacks the authority to continue holding our client as a military detainee.
At this stage, our client is challenging only the government’s arguments concerning its legal authority to detain him assuming that he was a member of ISIS at the time of his detention. While that accusation is simply wrong — our client was actually kidnapped and imprisoned by ISIS, tried to escape, and never took up arms against the U.S. or anyone else — a detailed refutation of the government’s allegations will come at a later stage, if necessary. At this stage, because the government has not filed any criminal charges against him, litigating the government’s accusations would prolong his unlawful detention and strip him of the safeguards afforded by criminal court proceedings.
The government’s arguments regarding its legal authority to detain our client are breathtaking in their scope.
First, the government claims that a 2001 statute, the Authorization for Use of Military Force, gives it the power to detain our client. But that statute, which was passed in the days following 9/11, expressly limited its authorization of force to those responsible for the attacks — in other words, al-Qaida and the Taliban. Moreover, when Congress gave that authority to President Bush, it the executive branch’s attempts to convince Congress to grant it open-ended authority to take military action against future threats without returning to the legislative branch.
Even so, the government now claims that the 16-year-old AUMF authorizes the detention of a U.S. citizen who is totally unconnected to the 9/11 attacks, al-Qaida, or the Taliban. It does so by attempting to draw a daisy-chain of connections between al-Qaida in Afghanistan and a terrorist group founded in 2003 in Iraq called Jam’at al-Tawhid wa’al Jihad, which later renamed itself al-Qaida in Iraq. The government says that the Iraqi group was started by an “associate” of Osama bin Laden, “aligned” with al-Qaida sometime after 2003, and then effectively morphed into ISIS around 2006. According to the government, the 2001 AUMF covers ISIS because, more or less, ISIS is al-Qaida.
The government’s argument falls apart on examination. In determining whether detention is lawful under the 2001 AUMF, the courts have thus far looked only to whether that detention was lawful at the time of capture. Whatever relationship al-Qaida had with ISIS was torn asunder in 2014, and now the two groups are in open armed conflict with each other in Syria. The government’s allegations against our client, who was captured in September 2017, thus fall nowhere near the scope of the 2001 AUMF.
The government also claims two other sources for its detention authority. First, it construes a 2002 Authorization for Use of Military Force against the Saddam Hussein regime in Iraq as authorizing detention to combat any and every threat emanating from Iraq, effectively indefinitely. But the 2002 statute does not remotely allow such an extension — and in 2014, the government all reliance on it.
Second, the government reprises one of the most extreme arguments of the Bush administration: that the president has inherent authority as commander-in-chief to detain U.S. citizens, anywhere and everywhere, as he sees fit. No court has ever suggested, let alone held, that the president has unilateral authority to imprison an American citizen without trial — unless Congress suspends habeas corpus (the legal right to be brought before a judge to challenge the legality of one’s detention) which, of course, it has not done.
Our client’s case will be the first time the government’s theory concerning its ability to use force against ISIS gets tested in court. When the Obama administration first that it claimed such authority in 2014, responses across the political spectrum were scathing. Jennifer Daskal, who had served in the Justice Department in that administration, that “re-interpretation of laws in totally implausible ways shakes the principles of legality at its core.” Jack Goldsmith, who worked in the Bush Defense and Justice Departments, the theory “breathtaking,” explaining that if ISIS’s “remarkably loose affiliation with al Qaeda brings a terrorist organization under the 2001 law, then Congress has authorized the President to use force endlessly against practically any ambitious jihadist terrorist group that fights against the United States.”
As the Supreme Court has famously , Congress does not “hide elephants in mouseholes.” It certainly did not hide an extraordinary authority to engage in indefinite and limitless global war in legislation explicitly tied to a single terrorist attack 16 years ago.
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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.