Revelations about the NSA's secret surveillance activities continue to make headlines both at home and abroad. In the last week alone, Brazil expressed concern about recent reports of NSA spying on millions of Brazilian citizens, the European Parliament adopted a resolution authorizing its Civil Liberties Committee to launch an "in-depth inquiry" into U.S. surveillance programs, and Germany made clear that EU concerns over U.S. spying would not be ignored. In addition to outrage over the NSA's activities, much attention has been paid to Edward Snowden's whereabouts. (He continues to be stranded in the transit area of the Moscow airport from where he reportedly has sought asylum in at least 21 countries.)
While it remains unclear where Mr. Snowden will ultimately end up and how he will be able to leave Russia, U.S. actions to secure his extradition must take place within an acceptable legal framework protecting his right to seek asylum.
Article 14 of the Universal Declaration of Human Rights (UDHR) states that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations." The American Convention on Human Rights explicitly provides for a right of an individual "to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes."
In the case of Mr. Snowden, the United States has interfered with his right to seek asylum in two significant ways. First, the U.S. revoked Mr. Snowden's passport. While this action does not render Mr. Snowden "stateless" (because he is still a U.S. citizen), it does make it extremely difficult for him to travel or seek asylum, especially in countries that require asylees to be present in their territory at the time of the request. Second, while the United States is within its rights to seek Mr. Snowden's extradition to face charges in the United States, diplomatic and law enforcement efforts to extradite him must be consistent with international law. It appears that U.S. efforts have prevented Mr. Snowden from receiving fair and impartial consideration of his application for asylum in many of the countries to which he reportedly applied. These efforts allegedly led to an unprecedented event last week when Bolivian President Evo Morales' plane was denied the use of airspace by several European countries and forced to land in Austria. Once on the ground, the plane was reportedly searched because American intelligence officials believed that Mr. Snowden was on board.
Last Saturday the Nicaraguan government released Mr. Snowden's formal asylum request, which states in part that he seeks asylum:
because of the risk of being persecuted by the government of the United States and its agents in relation to my decision to make public serious violations on the part of the government of the United States of its Constitution, specifically of its Fourth and Fifth Amendments, and of various treaties of the United Nations that are binding on my country. As a result of my political opinions, and my desire to exercise my freedom of speech, through which I've shown that the government of the United States is intercepting the majority of communications in the world, the government of the United States has publicly announced a criminal investigation against me…I believe that, given these circumstances, it is unlikely that I would receive a fair trial or proper treatment prior to that trial, and face the possibility of life in prison or even death.
Mr. Snowden asserts that he acted on his political belief that the U.S. government violated the rights of its citizens and others through massive surveillance and spying operations. While the White House refused to comment on the asylum offers so far made by Venezuela, Nicaragua and Bolivia, earlier last week the Obama administration asked the Venezuelan government to arrest Mr. Snowden for the purpose of extradition to face Espionage Act charges, among others. Mr. Snowden has serious claims for asylum and has a legitimate right to seek asylum irrespective of the human rights record of the country that he ultimately ends up in. As the ACLU, Human Rights Watch, and Amnesty International have stated, U.S. law provides insufficient protections for whistleblowers. Any consideration of his asylum claims must take into account that Mr. Snowden could be at risk of facing an unfair trial, a very harsh sentence, and pre-trial and post-conviction solitary confinement, which can amount to cruel, inhuman or degrading treatment or punishment. Moreover, the ACLU has long held the view that leaks to the press in the public interest should not be prosecutable under the nation's espionage laws.
Ironically, U.S. actions (including whatever role the United States played in the incident involving President Morales' plane) have arguably strengthened Mr. Snowden's claims for asylum based on political persecution. In addition to infringing on Mr. Snowden's right to asylum, U.S. actions also create the risk of providing cover for other countries to crack down on whistleblowers and deny asylum to individuals who have exposed illegal activity or human rights violations.
That's a very dangerous precedent to set.
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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.