Once the shock subsided, we set out to determine what new powers the government would seek in response to the 9/11 terrorist attacks. The smoke billowing from the Pentagon was visible over Washington as I met with several ACLU colleagues from around the country in a Dupont Circle hotel. We watched the tragedy unfold on television, looking out on streams of frightened pedestrians uncertain the attacks were over.
"Ten years later, as we remember and mourn those who died on Sepetember 11th, our nation still faces the challenge of remaining both safe and free."
We listed those new powers, realizing our government would react quickly to determine who committed these monstrous acts and to prevent future attacks. Based on our country’s reactions to previous acts of terrorism, such as the Antiterrorism Act passed in response to the Oklahoma City bombing, we worried government might sweep too broadly, targeting the innocent along with the guilty based upon their race, religion, immigration status, and political views. We knew the ACLU would serve a crucial role protecting constitutional rights and American values over the following months. None of us imagined we’d be waging that battle 10 years later, or that policy priorities moving forward then, such as immigration reform and a ban on racial profiling, would be thwarted because some lawmakers would use fear of terrorism to manipulate public policy.
The list we created barely scratched the surface. The unprecedented powers granted to the government created an insatiable security machine blurring the lines between national security, policing, and intelligence work at home and abroad. In the process, a dramatic transformation of privacy, surveillance, our concept of war, and government took place. This monstrous security apparatus uses fear to justify its ever-expanding, and largely secret, budget.
While the threat was new, racial and religious discrimination and political oppression are not. The Red Scare of the 20th century saw a wave of terrorist violence leading to thousands of warrantless raids, arrests, and the improper deportation of innocent immigrants based on national origin, speech, associations and political views. Japanese internment in the 1940’s and McCarthy-era investigations in the 1950’s all demonstrated what government is capable of when turned against its citizens. In the 1970s, abuses of intelligence and law enforcement powers saw the government routinely spying on anti-war and civil rights organizations.
Each era of civil liberties abuses was followed by courageous Americans reclaiming their rights, establishing legal precedents that protected political speech and non-violent political organizing. We passed civil rights laws ensuring equal access to voting and equal protection under the law. We even made great strides in exposing the injustice of racial profiling, proving it is as ineffective as it is illegal and immoral. Before 9/11 we were frustratingly close to obtaining a nationwide ban. Even President George W. Bush had declared, racial profiling “is wrong and we will end it in America.”
Unfortunately, after 9/11 our government opted to violate the constitutional and legal limits designed to protect the rights of the innocent. The guidance the Justice Department produced in response to President Bush’s call to ban racial profiling contained loopholes for national security and border integrity investigations. The loopholes made the rule ineffective, as tactics originally justified as necessary and temporary infringements on liberty to ensure security from foreign terrorists are now, predictably, used to address ordinary crime. Law enforcement agencies now identify behaviors as innocuous as public photography and note-taking as precursors of terrorism and crime, and have developed formal programs to collect reports of this behavior, leading to improper police stops and detentions.
Once again, the FBI and other law enforcement agencies are using race and ethnicity as primary factors in deciding whom to investigate. The FBI has a racial and ethnic mapping program directing investigations on an array of criminal activity and potential national security threats to communities identified by race, ethnicity and national origin. This is racial profiling on steroids. The FBI is not alone: the Los Angeles Police Department started a “Muslim mapping” program, but shut it down as a result of public outrage, and recent reports indicate the NYPD has teamed with the CIA, potentially in violation of its legal prohibition against domestic spying, to engage in broad surveillance targeting the Muslim community.
Americans know racial discrimination is wrong. We must summon our courage and push back on fear and the erosion of civil liberties, turning our attention again to the promise of America by ending racial profiling, reforming disastrous immigration policies, and ensuring Americans are treated equally under the law. America can be both safe and free.
On Thursday, September 15 at 4 p.m. EDT, we’ll be hosting a live chat on Facebook. We hope you’ll join us; send your questions to @ACLU with #ACLUchat and #911 hashtags, or leave them in the comments section below.
Learn more about racial profiling: Sign up for breaking news alerts, follow us on Twitter, and like us on Facebook.
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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.