The ACLU’s new report on the FBI, “Unleashed and Unaccountable,” details how the bureau’s investigative and intelligence collection authorities have changed since the terrorist attacks of September 11, 2001, and how these changes have opened the door to a new era of abuse. Among the most troubling of these abuses are programs and policies that appear to show the FBI continues to harbor disturbing attitudes.
For many Americans, the FBI will always be infamous for its aggressive efforts to suppress the civil rights movement, most notably wiretapping Dr. Martin Luther King, Jr., and even trying to pressure him into committing suicide. One would think that with a history like this to overcome, the FBI would be particularly eager to avoid the appearance of targeting Americans for investigation based on race ever again. Which is what made it all the more shocking when in December 2008 the Justice Department and FBI adopted new policies that included the initiation of a racial and ethnic mapping program throughout the United States. The program authorized FBI agents to collect demographic information from the U.S. Census to map American communities by race and ethnicity, to identify racial and ethnic “facilities,” and track certain racial “behaviors.”
We hoped that the incoming Obama administration would revoke these policies before they could be implemented, but during Attorney General Eric Holder’s nomination hearing the following month he said he wanted instead “to see how these guidelines work in operation.”
We wanted to see how they worked as well, so the following year 34 ACLU affiliates across the country issued Freedom of Information Act requests to obtain FBI documents and maps regarding these programs. What we found confirmed some of our worst fears, even though the FBI has so far refused to turn over unredacted maps or the kind of racial “behaviors” they are tracking.
The documents we did obtain show the FBI has justified the identification and mapping of racial and ethnic communities based on crass stereotypes about what types of crimes the different ethnic groups commit. So it mapped Chinese-American communities in San Francisco based on the argument that Chinese people had been involved in organized crime; identified Latino-American communities in New Jersey because the street gang MS-13 was largely made up of Latinos; located Muslim-Americans in Michigan because a number of foreign terrorist organizations were Muslim; and tracked the growth of the African-American community in Georgia to measure the threat of “Black Separatists.” If the mapping’s rationale is disturbing, then its purpose and likely use is equally, if not more, disturbing. The FBI’s identification of these communities increases the risk that they will be targeted for disparate treatment in future investigative and intelligence collection efforts.
We also obtained shockingly biased and factually flawed counterterrorism training materials that presented Muslim and Arabs as backward and violent and alleged an ongoing threat from “Black Separatists,” based on violent acts committed decades ago by groups that no longer exist. It is astonishing to see such materials produced by an agency that has been given billions of dollars to transform into a domestic intelligence agency. It’s not just morally and legally suspect, but factually incorrect and misleading. How could an agency charged with defending all Americans’ rights produce such biased and erroneous materials?
The lack of leadership from the top of the FBI and Department of Justice, combined with faulty training, is not the only problem. Members of Congress and advocates should look at the racial demographics of the FBI, which continues to struggle to diversify its ranks decades after pervasive racial animosity in the FBI leadership led them to actively undermine the civil rights movement. In 2012, less than 5 percent of the FBI Special Agents were black, and just over 7 percent were Latinos. By comparison, 13 percent of the U.S. population is black and 17 percent Latino. Overall, minorities make up 37 percent of the U.S. population, but only 17 percent of FBI agents.
This lack of diversity could be a real factor impeding the FBI, our premier national law enforcement agency, from enforcing the law equally—especially our U.S. civil rights laws. In fact, the lack of African Americans, Latinos, and other minorities can be crippling for an agency that is expected to understand the needs and challenges of America’s diverse communities. The president and the attorney general must insist that the FBI leadership change the messages it sends to its workforce (it could start by reissuing improved guidance on the use of race in federal law enforcement), rid itself of its deeply flawed training, and improve the FBI’s demographics. Otherwise, it will be much more likely continue to view non-white communities throughout the U.S. with undeserved suspicion, making our entire nation weaker, not stronger.
It is long past time for Attorney General Holder to end the FBI’s racial mapping program and to enact Justice Department policies that ensure law enforcement profiling based on race, ethnicity, religion, or national origin is relegated to just another ugly remnant from an unenlightened past.
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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.