This piece was originally published in Just Security. 

For more than three years, the American Civil Liberties Union and the Knight First Amendment Institute at Columbia University have been litigating a series of Freedom of Information Act requests relating to “prepublication review.” Under this far-reaching censorship system, millions of current and former government employees, contractors, and even interns must submit their manuscripts for official review prior to publication. Virtually everyone seems to agree that the system is broken.

The thousands of documents that have been released in response to our FOIA litigation paint a picture of a system that is fractured and incoherent. Because there is no executive- branch–wide policy on the review process, each agency has its own. Agency regimes comprise a tangle of regulations, policies, and nondisclosure agreements. Submission and review standards, review timelines, and appeals processes are vague and confusing.

Today, we’re releasing an interactive chart that reflects our effort to make sense of this system. We’re hoping that the chart will enable users to study and compare the key features of the prepublication review regimes of the seventeen intelligence agencies, and of three of the standard agreements those agencies typically require individuals to sign as a condition of access to classified information. The chart also includes links to annotated versions of the underlying regulations, policies, and agreements. Many of these were not available publicly until we sued for their release.

While we hope the chart goes some way towards clarifying the system, we can’t claim to have it all figured out. (In fact, the incoherence of the system is one of the things we pointed to in arguing, in a complaint filed a few months ago, that the system is unconstitutional.)

Ramya Krishnan, Staff Attorney, Knight First Amendment Institute at Columbia University

In March 2011, a tactical team of guards at a state prison in Lincoln, Illinois gathered 200 women and ushered them into a gymnasium, where they were brought in small groups into a separate room nearby. Inside that room, they were told to strip naked in plain view of other guards, cadets, and civilians, without any explanation. Women on their periods were ordered to remove their tampons and sanitary pads. One-by-one, each woman was ordered to lift her breasts, cough and squat, and display her vaginal and anal cavities. Those who refused were threatened with punishment. In total, the ordeal lasted nearly four hours.

When used by combatants in war and armed conflict, these tactics are a strategy used to assert control and instill fear in communities. In this case, the mass strip search was purportedly carried out as part of a cadet training exercise, meaning that the women were subjected to this humiliating violation without even the pretext of an immediate safety need.

Being forced to strip naked or expose oneself to others would traumatize anyone. But for most incarcerated women, that trauma can be even more severe because so many are survivors of and witnesses to abuse and violence. In Illinois alone, one report found that that 75% of women in prison had histories of sexual abuse and 98% had histories of physical abuse. Studies show that when survivors are revictimized, the harm to their emotional and mental health is greater than that to others. Practices like these perpetuate the devaluation and compound trauma that most women behind bars are already dealing with.

Nevertheless, strip and cavity searches like those endured by the women in Lincoln are not uncommon. In 2016, thirty-one women—including 14 transgender women—in immigration detention in Santa Ana filed a federal complaint challenging the use of strip searches that involved a “labia lift.” Earlier this year, the San Francisco Public Defender’s Office submitted a complaint to the county sheriff alleging that women in County Jail No. 2 were similarly made to strip in view of others and directed to expose their genitals. And only a few months later, Los Angeles County entered into a $53 million settlement to resolve a 2010 lawsuit brought by women subjected to strip searches that also involved a “labia lift,” after a federal court ruled that the practice violated the women’s constitutional rights.  

In the wake of being subjected to the strip search in Lincoln, the women filed suit in 2014 to end the practice, alleging it violated the Eighth Amendment’s prohibition against cruel and unusual punishment as well as their Fourth Amendment right to privacy. While the Supreme Court has held that strip searches and visual body cavity searches by prison officials are permissible, they can only be used if they are reasonably related to some legitimate penological interest, such as preventing contraband from being smuggled in the prison or protecting people’s safety.

In this case, the district court threw out the women’s Fourth Amendment claim, and a jury later ruled against their Eighth Amendment claim. In a divided 2-1 decision, an appellate court affirmed dismissal of the Fourth Amendment claim on the grounds that corrections officials conducted only a “visual inspection, not a physical intrusion,” and visual searches are permitted. The dissenting judge pointed out that, “it seems odd ... to make the question of whether a prisoner has a reasonable expectation of privacy under the Fourth Amendment in the integrity of his or her intimate body cavities dependent on who it is that does the probing or penetrating.”

But the women aren’t dropping their case. Last week, they filed a brief asking for a review of the appeals court’s decision by a larger panel of judges. The ACLU and the MacArthur Justice Center, along with partner organizations including the Women’s Prison Association, Just Detention International, Uptown People’s Law Center, as well as scholars of gender-based violence, have submitted an amicus brief in support of the women. The brief argues that, in addition to being protected against cruel and unusual punishment, people’s right to be free of government overreach doesn’t end at a prison’s gates. Preserving the right to privacy enshrined in the Fourth Amendment means placing limits on government power. Neither incarceration nor the operational needs of any prison should override those limits.

Anjana Samant, Senior Staff Attorney, Women’s Rights Project
& Sarah Andrea Esteban, Paralegal, Women's Rights Project

The budget for Trump’s turbo-charged immigration enforcement and border militarization is now larger than ever. And just last week, we learned that ICE plans to redirect even more money to further expand immigration detention and enforcement. The plan is currently being reviewed by congressional appropriators. This comes on the heels of the Mississippi ICE raid — the largest single-state raid in history. Children were separated from their families on the first day of school and nearly 700 people were detained by ICE. 

Worse still, Senate Appropriations Committee Chairman Richard C. Shelby (R-AL) has signaled a plan to use $5 billion in funding meant for healthcare and education to pay for Trump’s border wall. Congress has already given Trump more than $3 billion for his harmful, wasteful, and unnecessary wall.

Over the last two years, the U.S. Department of Homeland Security and its sub-agencies, Immigration Customs and Enforcement and Customs and Border Protection, have exploited the budget process to sharply increase their funds. But Congress has the power to put a stop to it — and curb, rather than fuel, Trump’s anti-immigrant agenda. 

The Constitution gives Congress the “power of the purse” — the ability to set the budgets of federal agencies. The power to allocate money can limit and direct how the executive branch acts. In other words, Congress’s power to appropriate money acts as a necessary check on President Trump’s ability to carry out his xenophobic policies. 

Under the Trump administration, however, DHS is repeatedly ignoring Congress’s budgetary authority. ICE and CBP are now regularly and boldly using funds from other parts of the federal government. Last year, ICE raided nearly $10 million from FEMA during hurricane season to expand the detention of immigrants. Trump even declared a national emergency to build his border wall. By stealthily increasing their budgets beyond what Congress has approved, DHS is completely disregarding congressional authority and reducing funding for critical programs.

As we approach the end of this fiscal year (on September 30th), Congress is unlikely to agree on how to fund the government for the Fiscal Year 2020 (which begins on October 1st). To avoid a shutdown, Members will likely settle on temporarily keeping all agencies operating at the same funding levels from the previous year. This is known as a “continuing resolution.” 

However, we expect DHS to keep exploiting budget loopholes to get more funding than it received the previous fiscal year. In fact, the agency has been consistently manipulating the budget process — and will continue to do so unless Congress explicitly puts a stop to it.  

Congress gave ICE funding to detain an unprecedented number of immigrants this fiscal year, but directed it to ramp down detention to a yearly average of 45,274 people. Congress explicitly told ICE that it must decrease its detention of immigrants to no more than 40,520 people by the end of the year. Yet with just six weeks to go, ICE is jailing more than 55,000 people daily. The Trump administration has not only expanded the immigration detention system by more than 60 percent over its first two years, but it‌ ‌has also ignored the checks and balances at the foundation of our nation’s democracy. 

So what should Congress do? Any continuing resolution must include guardrails to keep DHS in check. And in the DHS funding bill, Congress must restrict the agency’s ability to manipulate the budget process by explicitly limiting ICE and CBP’s authority to continually overspend. Members of Congress must also be transparent about how and from where DHS is raiding money. Will ICE once again be taking funds from FEMA during this hurricane season? The public has a right to know.

Congress continues to reward the Trump administration and DHS for refusing to follow the Constitution’s edict of checks and balances. An agency that cannot be trusted to maintain its spending within the bounds set by Congress, that consistently disregards congressional authority, and continues to inflict pain and suffering in our communities should not be rewarded. Congress has had numerous chances to meaningfully restrict DHS’ funding and has refused to do so. We need to demand they cut funding for ICE and CBP.

Madhuri Grewal, Federal Immigration Policy Counsel, ACLU National Political Advocacy Department
& Yesenia Chavez, Policy Analyst, ACLU National Political Advocacy Department