Appeals Court Rules Government Can't Have It Both Ways on Targeted Killing
In an important opinion issued today in the ACLU's ongoing litigation surrounding the government's targeted killing program, the U.S. Court of Appeals for the Second Circuit roundly rejected the government's extreme claims of official secrecy over information about the program. In ordering the release of a 2010 legal memorandum by the Office of Legal Counsel analyzing the potential targeted killing of an American citizen, as well as other information about records the government has previously refused to describe at all, the Second Circuit became the first court to order the release of a document related to the government's targeted killing program. It also became the second federal appeals court in the last 13 months to hold that the government has pushed its secrecy claims surrounding the targeted killing program past their breaking point.
In today's opinion, the Second Circuit panel held that the government's repeated public assurances that the targeted killing program is lawful, and its disclosure of a "white paper" that summarized its legal conclusions, had waived its right under the Freedom of Information Act to keep secret its legal analysis authorizing the killing of U.S. citizens. This is a victory for common sense, and a reminder that the courts have an important role to play in scrutinizing government claims about national security. As the ACLU's Jameel Jaffer, who argued the case before the Second Circuit panel in October 2013, said today, "This is a resounding rejection of the government's effort to use secrecy and selective disclosure to manipulate public opinion about the targeted killing program."
In January 2013, the district court agreed with the government that it could keep secret all of its documents related to the targeted killing program. But even as it denied the ACLU's claims, the district court expressed extreme misgivings about the result, referencing Alice in Wonderland before writing:
I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.
Today's ruling from the appeals court reversed that decision, ruling that the government itself had effectively made that thicket irrelevant by officially disclosing information about the program and its legal basis. The panel concluded that "[w]hatever protection the legal analysis might once have had has been lost by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper." The panel sent the case back to the district court, where the government will have to defend its withholdings of many specific documents that it has thus far refused to publicly describe in any way. (The memorandum itself will remain under seal as the government contemplates its options to appeal the ruling to the entire Second Circuit or, perhaps, to seek review by the Supreme Court.)
In the bigger picture, it is clear that the ACLU's efforts to remove the veil of secrecy surrounding the government's targeted killing program are paying off. In March 2013, the D.C. Circuit Court of Appeals held that the CIA could no longer hide behind a so-called "Glomar" response to information requests about targeted killing by refusing to confirm or deny whether it held records about the program. In that opinion, the D.C. Circuit ruled that the courts would no longer "give their imprimatur to a fiction of deniability that no reasonable person would regard as plausible." Today's opinion from the Second Circuit is cut from the same cloth, affirming the public's right to understand and evaluate the government's defense of its killing program for itself.
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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
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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
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VirginiaDec 2024
National Security
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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.