Despite evidence to the contrary, the government continues to embrace a theory that adopting radical ideas is a first step toward terrorist violence. Based on this discredited model, "preventive" policies are being pursued, resulting in discrimination, suspicionless surveillance of entire communities, and selective law enforcement against belief communities and political activists. The following is the third installment in the ACLU blog series "Radically Wrong," which highlights counterterrorism policies that are not only ineffective, but also undermine our constitutional rights.
Earlier this month, the White House blogged about its commitment to empower "members of the public to protect themselves against the full range of online threats, including online radicalization to violence," and announced the creation of a new interagency working group for that purpose. The working group will coordinate the government's efforts and develop plans—alongside private industry—to "implement an Internet safety approach to address online extremism."
The White House initiative raises a basic question: Is it appropriate for the government (in cahoots with private industry) to repurpose programs that, for instance, urge consumers to install anti-virus software and protect their credit card information into something that warns them against "bad" ideas?
My colleagues Mike German and Dena Sher have written at length about how "radicalization" models assume, falsely, that you can predict future violence from present sympathies for "radical" or "extreme" beliefs. As they point out, numerous studies have shown that (1) there is no simple link between the adoption of an ideology and violent action; and (2) that it's exceedingly difficult to craft a coherent model of the kinds of ideologies or beliefs that could be expected to lead to violence (largely because of the manifold and ever-shifting nature of ideas themselves).
By ignoring these studies, efforts to identify a "radicalization" process focus on normal, everyday speech and association, generally with an ethnic or religious flavor. They do so because the whole purpose of a radicalization model is to provide a non-psychic "minority report"—a way to see into the future under the false presumption that thoughts lead directly to action. So, mosques, hookah bars and book stores become alleged "terrorist incubators." Wearing Islamic clothes, growing a beard, joining community groups all become supposed indicators of future terrorist activity—even though thousands of people do these things and never commit a single criminal or violent act.
Dollars to donuts, the same thing is going to happen here. The White House announced that the federal consumer protection portal OnGuard Online as well as the Department of Homeland Security's website titled "countering violent extremism" (which the government refers to by the catchy acronym "CVE") would begin carrying precautionary "CVE information." Crucially, even though CVE includes the word "violent," the initiative has little to do with stopping actual conduct, and much more to do with urging the public to be alert for and report purely expressive or associational activity. The White House also announced that it will work with industry to adapt internet safety measures that help prevent fraud and identity theft to likewise address "online extremism"—whatever that means. There is no detail on what information will be posted to the government's sites, or how these industry partnerships would work.
The problem, of course, is that countering "extremism" is a completely different animal than consumer protection. OnGuard Online, right now, hosts innocuous tips for getting rid of malware, keeping your kids safe from online fraud and securing your home network. It's a radically different proposition—no pun intended—to use the site to prevent someone from developing sympathies for Communist Party USA (slogan: "Radical Ideas. Real Politics."). For the latter, you literally have to warn consumers to be wary of exposure to particular ideas, arguments and opinions.
Accordingly, any government move to use consumer education tools to counter violent extremism will involve very uncomfortable judgment calls about particular groups, individuals, ideas and internet phenomena. Will it warn against people who link to certain blogs? What about people who retweet messages from a group like Hamas, which the U.S. has designated a "foreign terrorist organization" with a "paramilitary arm" and which is also a political organization? What about an individual who "friends" a conservative organization that refuses to recognize the legitimacy of the federal government? Will the program follow the hopelessly amorphous and debunked approach of a New York Police Department report, "Radicalization in the West," where, for instance, the second supposedly "distinct" stage in the so-called process of "radicalization" involves "a cognitive opening, or crisis, which shakes one's certitude in previously held beliefs and opens an individual to be receptive to new worldviews"? How would the government even draft that as language for OnGuard Online? Attention America: watch out for people with open minds?
The simple fact is that we all have a First Amendment right to think "dangerous" thoughts. We do not have a First Amendment right to do violent things. Many people have dangerous thoughts, but never do violent things, and it's virtually impossible to systematically predict which "dangerous" thinkers are going to end up engaging in violence or criminal activity. The Constitution strictly limits restrictions on "radical" speech, and even speech that advocates violence, for precisely this reason. As the Supreme Court explained at another point in our history when the government sought to suppress and literally criminalize ideas:
[T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.
By dressing up the CVE initiatives as consumer education and internet safety programs, the government is trying to indirectly suppress speech that it can't directly censor. It should, once and for all, reject these misguided programs.
Previous posts in the "Radically Wrong" series:
Part 1: A Counterproductive Approach to Counterterrorism
Part 2: Misstated Threats - Terrorism isn't an American-Muslim Problem
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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.