ACLU Urges Federal Appeals Court to Uphold Two Rulings Blocking FBI's Use of Patriot Surveillance Power
FOR IMMEDIATE RELEASE
Contact: media@aclu.org
Hearing Comes as Congress Debates Patriot Act Reauthorization
NEW YORK - In the first federal appeals court argument addressing a surveillance provision of the Patriot Act, the American Civil Liberties Union today urged a three-judge panel to uphold two separate rulings: one which found the National Security Letter (NSL) authority of the Patriot Act unconstitutional and another that struck down a gag imposed under the same statute. The controversial NSL provision authorizes the FBI to demand a range of personal records without court approval, including records of Web site visits, e-mail addresses and library records.
""As two separate lower courts have found, the National Security Letter authority is both extreme and undemocratic,"" said ACLU Associate Legal Director Ann Beeson, one of the attorneys arguing before the panel today. ""The secrecy surrounding this law has prevented the public and even Congress from learning how the FBI is using its new powers. One of the ultimate ironies of these cases is that the Patriot Act has effectively gagged free speech about the Patriot Act.""
Beeson noted that the government had asked the court to close part of today's hearing to the press and the public, but the appeals court rejected that motion on Monday.
At issue in today's hearing are two challenges brought by the ACLU in New York and Connecticut to a surveillance provision that was dramatically expanded by Section 505 of the Patriot Act. The Patriot Act amended the existing NSL power by permitting the FBI to demand records of people who are not suspected of any wrongdoing. Anyone who receives an NSL is gagged -- forever -- from telling anyone that the FBI demanded records. Lower courts in both cases held that the NSL provision violates the Constitution.
In the first case, brought by the ACLU on behalf of an anonymous Internet Service Provider, Judge Victor Marrero struck down the entire NSL statute on September 29, 2004, saying, ""democracy abhors undue secrecy."" In that landmark ruling, the court held that the unlimited gag imposed by the NSL law violates free speech rights under the First Amendment. The court also held that the statutory authority conferred upon the FBI to demand records without any judicial supervision violates the Fourth Amendment's protection against unreasonable searches and seizures. Judge Marrero stayed his injunction against the law to give the government an opportunity to appeal.
In the Connecticut case, the ACLU is representing a member of the American Library Association that possesses sensitive information about library patrons, including circulation records and records relating to Internet usage. In her September 9, 2005 decision in that case, U.S. District Court Judge Janet Hall issued a preliminary injunction that would allow the ACLU's client to disclose its identity without fear of violating the gag provision. The court held that the ""John Doe"" organization has a First Amendment right to engage in the ""current and lively debate in this country over the renewal of the Patriot Act.""
Judge Hall also stayed her ruling pending the government's appeal, but the ACLU asked the appeals court to vacate the stay, saying that Congress should be able to hear from individuals who have been directly affected by the powers currently being debated. The ACLU's emergency motion to vacate the stay ultimately went to Justice Ruth Bader Ginsburg, who declined to lift the stay at that time but issued an unusually detailed opinion in which she noted the merits of the ACLU's arguments.
""In its defense of this new surveillance power, the government is proposing a wholesale redefinition of our basic rights to free speech and privacy,"" said ACLU attorney Jameel Jaffer, who is also appearing before the court today. ""The lower courts properly rejected the government's radical arguments and we urge the appeals court to do the same.""
A great deal of information about both cases remains under seal due to the gag order. If the appeals court upholds the lower court rulings, the entire Patriot Act provision will be invalidated and the ACLU's clients will be allowed -- for the first time -- to speak publicly about their cases, Jaffer said.
The combined cases are being heard before Judges Richard J. Cardamone, Joseph M. McLaughlin and Barrington D. Parker, Jr. of the Second Circuit Court of Appeals in lower Manhattan.
Attorneys in the case are Beeson, Jaffer and Melissa Goodman of the National ACLU and Arthur Eisenberg, Legal Director of the New York Civil Liberties Union.
The ACLU has created a special Web page on its National Security Letter litigation, which includes links to legal papers in both cases, online at www.aclu.org/nsl. Further information about government secrecy and gag orders is available at
National Security
Doe v. Holder
National Security
Doe v. Holder
Learn More About the Issues in This Press Release
-
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.