Since its inception, the United States’ targeted killing program has been shrouded in secrecy. For years, the ACLU has sought basic facts about the way the program operates, as well as its legal and policy justifications, through multiple Freedom of Information Act lawsuits. Today, we’re back in front of the Second Circuit Court of Appeals in New York for the third time in three years, again asking for records that will yield a more complete public picture of the government’s law and policy governing the program.
At stake are 59 documents that the Central Intelligence Agency, the Department of Defense, and the OLC identified in response to our 2011 FOIA request. Last summer, the district court ordered the government to release at least part of seven documents, finding that the government could not reasonably claim that the information was still a secret. It permitted the government to withhold the rest.
The origins of today’s argument came five years ago, when the ACLU submitted a FOIA request asking the government for information about one particular aspect of the program: the legal and factual basis for the government’s use of lethal force abroad against American citizens far from any recognized battlefield.
In 2011, the United States targeted and killed Anwar al-Aulaqi, an American citizen, in a drone strike in Yemen. That same strike also killed Samir Khan, another U.S. citizen who was in al-Aulaqi’s vehicle when the United States targeted it. Two weeks later, another U.S. drone strike in Yemen killed al-Aulaqi’s 16-year-old American son, Abdulrahman — the government later claimed that he was not specifically targeted.
These kinds of strikes were shocking and unprecedented, yet the government refused to publicly account for its reasons. In our FOIA request, we asked the government the most basic of questions: Based on what facts did it decide to target and kill an American citizen, and why did it think that this action was legally justified?
In response, the government insisted on extreme secrecy. It first asserted that it could neither “confirm nor deny” whether it even had records related to targeted killing. Later, it gave up an inch, conceding that it did possess responsive records but claiming that it could not identify them without damaging national security.
The first time the ACLU argued before the Second Circuit in 2013, the court held that because the government had publicly acknowledged key information about the targeted killing program, it could no longer claim that the documents warranted complete secrecy. The court also ordered the government to release one document: a Justice Department Office of Legal Counsel memo that contained some of the legal reasoning that the government relies on when deciding whether to target and kill a U.S. citizen.
Although that memo provided the public with some insight into the government’s decision-making process, it left us with as many questions as answers. For example: How, exactly, does the government decide it isn’t “feasible” to capture a target? What does the government mean when it decides that the target poses a “continuing, imminent threat”—a term without precedent in U.S. or international law?
Two years later in 2015, after the district court considered whether the government could withhold some of the other relevant documents, we again argued before the Second Circuit. This time, we sought 11 OLC documents that addressed the targeted killing program. The court ordered the government to disclose one document but permitted the withholding of 10 others on the basis that their contexts and contents had never been officially disclosed by the government.
Flash forward to today. The government has revealed very little about the documents at issue, so it is difficult for us to say with any certainty what they cover. Indeed, one of our arguments to the Second Circuit today is that it should provide guidance to the government and lower courts to prevent excessive secrecy from crippling meaningful FOIA litigation and transparency.
From what we do know, however, we think it is likely that at least some of the documents contain legal and policy guidance that the agencies rely upon when they determine whether a particular targeted killing attempt is lawful. If this is the case, the American public has a right to this information so it can judge the lawfulness of the government’s actions and hold our decision-makers accountable.
Of course, that’s not to say that there are no secrets that the government can legitimately keep. But when the administration invokes “national security” to withhold the legal justification for killing people — even with all sensitive facts redacted — it’s relying upon “secret law.”
If the idea of secret law used to justify government killing makes you uneasy, you’re in good company — this kind of secrecy is entirely at odds with foundational principles of our democracy, and it is exactly what the FOIA is designed to prevent. And that’s what we’ll be telling the appeals court in New York today, as we move another step forward in our quest for answers.
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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.