In April 2012, PBS aired a damning documentary about Anastacio Hernández Rojas, a 42-year-old father of five U.S.-born children who had lived in the United States for more than two decades. In May 2010, he was deported. Unable to endure exile from his wife and children, he tried to cross back into the United States. At the border, at least a dozen Border Patrol agents surrounded Hernández Rojas and brutally beat him as he lay handcuffed and prone on the ground. The agents Tasered him at least five times, even as he pleaded for help.
Hernández Rojas suffered a heart attack and lost oxygen to his brain. He died in the hospital; the San Diego County coroner ruled his death a homicide.
After the PBS report aired, 16 members of Congress wrote to the secretary of Homeland Security, the Department of Homeland Security (DHS) inspector general, and the attorney general, seeking a thorough, public accounting of U.S. Customs and Border Protection's (CBP) use of force policies, training and disciplinary procedures, and investigations into misconduct. The congressmen observed that the federal agents involved in Hernández Rojas' murder had intimidated eyewitnesses to the beating and tried to delete bystanders' videos, and that the agency press release issued in the wake of the attack falsely claimed that Hernández Rojas had "become combative."
Last Tuesday, DHS's Office of Inspector General released its report on use-of-force incidents involving CBP personnel. (Read the OIG report here.) While the report has a small number of commendable recommendations regarding record-keeping and training, it is disappointing insofar as it fails to answer many of the public's most pressing questions. And, consistent with CBP's lack of transparency on uses of force, part of the report is redacted.
Still, the OIG report sheds some insight into the CBP black box that has thwarted public scrutiny of the agency's troublingly frequent use-of-force incidents. Perhaps most significantly, the report reveals that CBP, the largest law enforcement agency in the United States, lacks any reliable, agency-wide mechanism to track the total number of excessive force allegations and investigations involving agency employees.
Given the lack of complete and accurate data, OIG relied on a partial subset of available records to try to assess CBP's uses of force. It identified at least 1,187 records of possible uses of excessive force between 2007 and 2012, but does not address whether the uses of force were necessary or justified, and whether any CBP officers involved in these incidents were investigated or disciplined.
According to the report, a field audit team observed in 2012 that many Border Patrol agents and CBP officers "do not understand use of force and the extent to which they may or may not use force."
The OIG report also indicates that in November 2012, CBP initiated its own internal review of use-of-force issues following several deadly force incidents. This portion of the report, however, is heavily redacted. (U.S. Representative Raul Grijalva (D.-Ariz.), one of the 16 lawmakers who requested the OIG report, has expressed his disappointment about these deletions, adding that he "expected much more content.")
Since January 2010, at least 19 people have died at the hands of CBP officers and Border Patrol agents. Five of these victims were U.S. citizens; seven were under the age of 21; six were in Mexico when fatally shot. Change is urgently needed not only to hold the officers and agents involved in these tragedies publicly accountable, but also to increase transparency throughout the agency.
The United States will appear next month before the U.N. to answer questions related to the lack of accountability for border killings, and to explain how CBP's use-of-force policy complies with the International Covenant on Civil and Political Rights (ICCPR), a treaty that was ratified in 1992. The ACLU will be in Geneva to observe the session and advocate for greater transparency and accountability for human rights abuses at the border.
In a shadow report submitted to the United Nations Human Rights Committee earlier this month, the ACLU identifies five key recommendations designed to stop further killings along our borders:
- CBP should reform its use-of-force policies to conform with best practices recognized by the Department of Justice and other U.S. state and local law enforcement entities. For example, CBP enforcement officers should be required to wear body-worn cameras, accompanied by appropriate privacy protections for officers and the public; according to DOJ, the use of such cameras both improves the judicial process (by providing effective video evidence) and increases officer safety (both by deterring violent behavior and bringing individuals who attack officers to justice).
- Congress should establish meaningful oversight and accountability mechanisms to ensure that immigration officials, including CBP officers and BP agents, are held accountable for rights violations and abuses of authority.
- Congress should legislate measures to prevent the deaths and exploitation of migrants along the border.
- CBP should provide ongoing and improved training for personnel to prevent civil and human rights abuses.
- DHS should create enforceable standards applicable to all CBP short-term custody facilities and hold rooms.
The immediate implementation of these recommendations would provide a concrete starting point for a more just and humane border, and go a long way toward preventing any more tragic deaths at the hands of CBP or BP personnel.
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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.