Patrick Toomey, Staff Attorney, ACLU National Security Project & Asma Peracha, Fellow, ACLU National Security Project

President Trump holds the keys to some of the most powerful spying programs in the world — surveillance that gives the government warrantless access to a sea of digital data moving around the planet.

Emails, web browsing activities, and chats that you thought were private instead end up under the government’s digital microscope, and the National Security Agency saves those of interest in searchable databases for years to come. That includes countless communications of Americans and foreigners alike.

No president should wield these powers, and certainly not one who has called for expanded spying on minorities and hacking the emails of his political rival. That’s why, well before President Trump took office, the ACLU filed a challenge to expansive and unlawful surveillance on behalf of our client, the Wikimedia Foundation.

On Friday, we will be in court with our co-counsel at the Knight First Amendment Institute and the law firm Cooley LLP for oral argument in the case, Wikimedia v. NSA, challenging one of the most egregious forms of government spying, known as “Upstream.”

Upstream surveillance involves the NSA’s mass interception and searching of Americans’ international internet communications. The NSA conducts this surveillance by tapping into the internet backbone inside the United States — the physical infrastructure that carries our domestic and international online communications. This spying occurs under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the NSA to engage in warrantless surveillance of Americans who communicate with targets located abroad. Although the NSA has conducted Upstream surveillance in one form or another for more than a decade, no public court has ever decided whether this spying regime is constitutional.

The Wikimedia Foundation runs Wikipedia — one of the most popular websites in the world, with hundreds of millions of visitors each month. Wikimedia has sued to stop the government from searching its internet communications, which it relies on to exchange information with its many far-flung contributors and readers. Web-browsing activities like these can reveal deeply personal information about what people are reading or writing online, including their political views, religious beliefs, medical questions, and other private information.

Wikipedia is a library for the digital age. The government should not be continuously looking over people’s shoulders, monitoring what individuals are privately reading online. 

The government has fought every step of the way to prevent Wikimedia from challenging the ongoing surveillance of communications with Wikipedia readers and contributors. The NSA argued Wikimedia’s claims weren’t “plausible” because the NSA hadn’t admitted to the surveillance, but the government failed in its effort to get the case dismissed when a federal court of appeals ruled against it. The case then proceeded to the discovery phase, where Wikimedia sought information that would build on the extensive public record and deposed an NSA official.

Friday’s hearing is focused on the NSA’s use of a legal tactic called the “state secrets privilege” to hide basic facts about Upstream surveillance from Wikimedia and the court, despite all that has been disclosed in public reports, official government testimony, and news stories. Although the government has touted its commitment to transparency since Edward Snowden helped reveal a vast NSA spying apparatus five years ago, it has stonewalled Wikimedia’s requests for information in court.

The NSA has invoked the state secrets privilege in response to dozens of questions, baselessly refusing to provide a shred of new information about Upstream surveillance. For example, while the NSA has admitted systematically scanning traffic on the internet’s major arteries, it refuses even to confirm that it has searched a single one of Wikimedia’s trillions of communications with its users around the world.

But as we’ll be arguing Friday, the government can’t use the state secrets privilege to withhold evidence in the case. When Congress set out to reform our surveillance laws after the abuses of the 1960s and 70s, it recognized the conflict between absolute secrecy and accountability — and it created a new procedure in FISA to ensure challenges to surveillance would be able to go forward. That procedure requires the government to provide sensitive information to the court in the first instance — with appropriate security precautions — so that the court can rule on claims of unlawful government surveillance.

As a result, the government’s invocation of secrecy is unjustified. Congress recognized the dangers of allowing the executive branch to hide behind unilateral claims of secrecy, and it adopted a starkly different approach in FISA. Given the grave threat this spying poses for privacy and free expression online, it’s time our public courts reckoned with the real-time, automated searching of internet communications. This week’s hearing will hopefully bring us one step closer to that reckoning.

BROWNSVILLE, TEXAS – Over a thousand people marched to a federal courthouse in Brownsville, Texas on Thursday, after a rally organized by the ACLU, its Texas affiliate, and other partner organizations to protest the Trump administration’s policy of criminally prosecuting anyone who crosses the border without authorization. Demonstrators from across Texas converged on the courthouse early Thursday afternoon, yelling “shut it down” and demanding access to hearings being held inside. Brownsville lies directly along the U.S.-Mexico border, and in recent months the courthouse has been the site of hearings for immigrants whose children were forcibly taken away from them by Border Patrol agents.

Under the blazing 90-degree South Texas sun, rally attendees listened as immigrant rights advocates and grassroots volunteers described the human cost of the Trump administration’s policies, urging sustained resistance and civil disobedience to counter them. At one point a group of young children sat on stage, wrapped in space blankets similar to those that immigrant children have been photographed sleeping under in nearby detention facilities, as speakers read accounts of families being separated by immigration authorities.

“Somebody asked me this morning why we were here today, and I told them there were two big reasons,” said Lupita Sanchez of Proyecto Juan Diego, a Brownsville-based community empowerment group. “We wanted to show support to all these families being separated, and second, we want to catch political attention. We want to let them know that we’re here, and that each and every one of you are potential voters. Remember this in November when you go out and vote!”

Victor Ricardo Plua, a slight 9-year-old from Brownsville who organized a campaign to donate stuffed animals to children in immigration detention facilities in 2015, told the crowd, “so many people and children are being hurt by people who only care about themselves.” His appeal that children separated from their families should know they are “not alone” was met with a roar of applause.

Buses organized by the ACLU brought demonstrators to Brownsville from as far as Fort Worth – a 10 -hour journey in both directions – but many attendees were residents of nearby towns. Holding a sign that said, “Children Are Not GOP Pawns,” Erica Martinez of La Blanca said the growing cruelty of border enforcement practices was an issue that felt personal to her. “Using children as a pawn is probably the lowest thing a political party can do,” she said.

On Tuesday, a federal judge ruled that any children affected by the Trump administration’s family separation policy must be reunified with their parents within 14 to 30 days, but ACLU advocates say they’re concerned by the absence of a coherent federal plan to comply with the order.

At Liberty: Listen to the ACLU lawyer fighting family separation

“We have to continue the pressure to make sure the families are in fact reunited,” said Astrid Dominguez, director of the Border Rights Center at the ACLU of Texas. “We can’t back off from that.”

As the speakers wound down, the large crowd gathered in the park, chanting and singing as they marched across the street towards the nearby courthouse. Placards reading “Abolish ICE,” and “Stop Separating Families” waved in the air as passing cars honked their horns in support. At the entrance, uniformed Department of Homeland Security officers explained that there wasn’t room inside to accommodate the entire crowd, and that only five people would be admitted.

In response, some members of the crowd began to chant loudly, refusing to leave the courthouse steps. “Those are our people in there, they deserve to be out,” yelled Norna Garcia-Lopez, of Fort Worth. For over an hour, hundreds of protesters remained in front of the court, sharing water with one another to cope with the mid-day heat before boarding their buses and heading home.

“I feel more empowered than ever to continue doing the work and raising our voices for the community,” said Garcia-Lopez. “I couldn’t bear to hear the crying of the children, it breaks me. I don’t understand why other human beings don’t feel the same way. It makes me feel down, but also mad, and I convert that energy into action.”

Let’s say you came to this country as a 3-year-old with your parents and overstayed your visa. You felt American. You graduated from high school and college, and you fell in love with a U.S. citizen and got married. But upon applying for legal status, through your spouse, you got stopped by immigration authorities, arrested, and told you’d be deported.

In the past, a mechanism called “administrative closure” could have helped. Until about a month ago, it would have allowed an immigration judge in one arm of this country’s sprawling immigration apparatus to pause the deportation process in order to allow another arm of the government to process the petition for legal permanent residency. This crucial tool has for decades helped judges to ensure fairness and efficiency in deportation cases, allowing them to temporarily take certain cases off the docket. 

But now Attorney General Jeff Sessions is restricting this critical power. On May 17, he issued a decision that severely limits administrative closure. Now, instead of having the discretion to close cases whenever it makes sense in light of relevant circumstances, judges are restricted to granting administrative closure only in narrow situations that largely apply to a small and dwindling universe of immigrants from select countries — a small fraction of the total number of cases currently administratively closed.

Advocates, lawyers, and many immigration judges agree that curtailing administrative closure will have an enormously negative impact on immigrants in removal proceedings — something Sessions knew well when he chose unilaterally to end the practice in nearly all cases.

Sessions’ ban on administrative closure means that husbands and wives of U.S. citizens awaiting permanent residency could be ripped away from their spouses before they can complete the process. It could mean people not mentally competent to participate in their deportation proceedings could be forced to move forward anyway. And unaccompanied children seeking special protective status could be sent back to dangerous situations before their backlogged visas are available. 

The attorney general’s decision to wipe out administrative closure will also contribute to the already massive backlog of more than 700,000 immigration cases, further squeezing the courts and undercutting immigrants’ opportunities to fairly present their claims. Immigration courts are already overburdened and lack important procedural protections. But they have to make critical, sometimes life-or-death decisions about whether immigrants — many of them asylum seekers fleeing persecution or Dreamers with deep roots in their communities — will be admitted or exiled.  As Immigration Judge Dana Leigh Marks has put it, immigration courts are already “doing death-penalty cases in a traffic-court setting.” But with this administration’s policy changes, even that traffic court is turning into a kangaroo court. Mistakes and due process violations will inevitably result. It’s not hard to see how people who legally qualify to remain in the U.S. could be deported.

This is just one of many changes Sessions is imposing to make immigration procedures less fair. He is planning to weigh in on an immigration case that could make it much harder to get a “continuance” — another important tool in immigration judges’ toolkit that allows immigrants more time to get a lawyer, prepare their case, or await the outcome of an immigration application. And earlier this year, Sessions’ Department of Justice announced that it would be putting in place ambitious case completion goals on immigration courts and imposing quotas on individual immigration judges, both of which increase the pressure on judges to push cases through quickly and limit delays of any kind.

We’ve partnered with the American Immigration Council to put out a practice advisory that helps immigrants and their lawyers navigate this latest attempt by the administration to further undermine basic fairness in the removal system. As we explain, although Sessions is ruling out administrative closure in most cases, immigration judges continue to have valuable tools that they can and should use to bring some reason and fairness to the deportation system. And whether the attorney general likes it or not, our Constitution guarantees the right to due process — including when it comes to deportation.