Newly sworn in FBI Director James Comey has ordered all new FBI agent trainees to visit the Martin Luther King, Jr. Memorial in Washington, DC, so they can reflect on the FBI's infamous history of hounding the civil rights leader and recognize "the dangers in becoming untethered to oversight and accountability."
It is an interesting choice of words, given that just last month the ACLU published Unleashed and Unaccountable: The FBI's Unchecked Abuse of Authority, which describes the myriad ways the FBI is currently using its broad post-9/11 authorities to violate Americans' constitutional rights based on race, religion, and ethnicity. Comey's nod to the past is certainly appropriate and appreciated, but he can do much more to rein in real-time, ongoing FBI practices that infringe on the rights of a new generation of political activists and religious groups modeled on the advocacy tactics of Martin Luther King, Jr.
First, Director Comey can end the FBI's racial and ethnic mapping program, which relies on crude racial stereotypes about what types of crimes people of different races and ethnic backgrounds commit to justify collecting demographic information to identify and map these communities so they can be targeted for further investigation and intelligence collection. The ACLU obtained FBI documents showing agents mapped Chinese and Russian communities in San Francisco on the theory that Chinese and Russians were sometimes involved in organized crime; Latino communities in New Jersey and Alabama because the street gang MS-13 had Latino members; Muslim and Middle Eastern-Americans in Michigan because there were terrorist groups in the Middle East and Southeast Asia; and the African-American population in Georgia to assess the "Black Separatist" threat. The FBI has refused to release the actual maps, despite ACLU Freedom of Information Act litigation, but even the redacted versions paint an ugly picture of official discrimination against innocent communities based entirely on their race, ethnicity and religion.
This ongoing FBI program is as antithetical to Dr. King's message of respect for the dignity of all people as was J. Edgar Hoover's misguided surveillance. Attorney General Eric Holder has the power to simply ban this practice and all other forms of unconstitutional profiling by amending the Justice Department Guidance Regarding the Use of Race in Federal Law Enforcement, as the ACLU and others have long requested. Attorney General Holder, President Obama, and FBI Directors Robert Mueller and James Comey have all repudiated racial profiling as wrong and unconstitutional, but so far none of them have taken the steps necessary to reform the Bush-era racial profiling guidance that affirmatively allows it.
Second, the FBI can stop spying on political activists and conducting aggressive raids and grand jury investigations aimed at suppressing political activity. The easiest way to accomplish this is for Director Comey to work with Attorney General Holder to amend the Attorney General Guidelines to require reasonable, articulable suspicion of criminal activity before the FBI can initiate investigations. These guidelines were first established after the FBI surveillance of Dr. King was exposed, but they have been eviscerated after 9/11, opening the door for renewed spying on domestic advocacy groups, as documented by the ACLU and confirmed by the Justice Department Inspector General. After the 2002 changes to the guidelines, the FBI was caught spying on groups like People for the Ethical Treatment of Animals, Greenpeace, Catholic Worker and the Thomas Merton Center for Peace and Justice. The rules were significantly loosened again in 2008, and the new authorities were employed to intimidate American Indian Movement activists opposing a local bear hunt. Requiring reasonable evidentiary standards to justify FBI investigations will reduce the chances that such wasteful and unconstitutional investigations take place.
Third, the FBI can stop treating American Muslims as a suspect community, infiltrating them with informants and agents provocateur and spying on Mosques and community groups through faux outreach programs. Community groups deserve to meet with the FBI to air grievances without worrying whether their personal information will be collected in intelligence databases. It should also end its unconstitutional policy of publicly disparaging and selectively ostracizing the largest American Muslim civil rights organization, the Council on American-Islamic Relations, in violation of its First and Fifth Amendment rights. Finally, the FBI can stop its increasing misuse of the No Fly list to pressure people into becoming informants in Muslim communities.
We have many other examples of abuse and recommendations to reform FBI practices in our report. We wish to commend Director Comey for at least acknowledging that the FBI has a history of overstepping the law and violating the rights of Americans who dare to challenge the status quo. But recognizing that there is new generation of advocates out there agitating for social change who need to be protected from unwarranted surveillance and investigation is essential for preserving a robust democracy. They are continuing Martin Luther King's struggle for a more just and equal society. Honoring his legacy requires more than remembering FBI's history of "abuse and overreach," it requires ending current practices that have the same effect.
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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.