Originally posted on The Huffington Post.
With controversy still swirling around the film Zero Dark Thirty and its misleading suggestion that torture put the CIA on the trail of Osama bin Laden, it's time to take the tools of filmmaking into our own hands to refocus the discussion on why torture is always wrong.
Many in the intelligence community - including former CIA and FBI agents with firsthand experience with interrogations - have spoken out about the film's inaccuracies, the fact that real intelligence is better produced through humane and lawful interrogations, and the fact that torture almost always leads to false information. But that's a message that is likely lost among most viewers, especially because the film opens with the words, "Based on Firsthand Accounts of Actual Events."
Of course, it isn't Hollywood's job to get history right. But, the reality is that some of the truth about torture is already out there: in declassified government documents, in prisoners' testimonies, and in the words and actions of courageous American service men and women who have spoken out against the so-called "enhanced interrogation program."
And as citizens of conscience, setting straight our country's legacy of torture is a responsibility we should all want to share.
The good news is that all Americans can be part of another Hollywood film that seeks to shed a light on the truth about torture after 9/11: Reckoning With Torture.
We're asking all American to join us and do what our government has failed to do so far: to tell the truth about the scope and the human cost of American torture after 9/11.
And all you need is your smart phone or a webcam.
To participate, visit www.ReckoningWithTorture.org and choose a document to read from our script. The readings range from Department of Justice legal memos that purport to justify torture to a prisoner's firsthand account of abusive treatment in a CIA black site prison overseas.
Hundreds of Americans - from California to Florida and everywhere in between - have already joined our movement. Each American who adds his or her voice to the project provides another opportunity to reflect on our country's own legacy of torture, and the need for accountability to ensure that torture is never again repeated in America's name. The final film will feature the faces and voices of Americans from all walks of life, alongside high-profile cultural figures, reading from the documentary record. These individual acts of reckoning will be spliced together with exclusive interviews with those who know the torture program best: the prisoners who were subjected to it, and the brave American men and women in the intelligence community and the military who resisted it. Our film will tell a story about torture that you won't see in Zero Dark Thirty, or anywhere else.
Now more than ever, Americans must come together and send a message once and for all that torture is immoral, illegal and ineffective. We hope you'll join us.
ACLU Commends FAU Decision to Publicly Discuss Naming Rights
February 27, 2013
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WASHINGTON – While commending the Florida Atlantic University President Mary Jo Saunders for her decision to publicly discuss the school’s decision to sell the naming rights to its stadium to GEO Group, the American Civil Liberties Union in a letter to President Saunders clarified the chronology of the case of GEO’s Mississippi for-profit youth prison. The ACLU called on FAU to rethink its decision to sell the naming rights to its football stadium to the for-profit prison company.
The ACLU has called on FAU to rethink its decision to sell the naming rights to its football stadium to the for-profit prison company.
Media reports state that in response to Monday’s protest, President Saunders will conduct a public meeting on campus this Friday to discuss the school’s recent decision to accept a $6 million donation to its athletic program from for-profit prison corporation GEO Group.
In response to Monday’s protest, GEO vice president for corporate relations, Pablo Paez, issued a statement characterizing the criticisms of GEO as "unfair." He singled out statements about GEO’s Walnut Grove Youth Correctional Facility as a particular example of this unfairness. He stated: "For instance, a number of media reports cite problems at a facility formerly operated by GEO in Mississippi, the Walnut Grove Correctional Facility, quoting a report by the Department of Justice issued in November 2010. What those media reports fail to disclose is that our company only assumed management of the facility in late August 2010, and the findings related to problems that preceded GEO’s involvement at the facility, when it was operated by different private operator."
Carl Takei, staff attorney at the ACLU National Prison Project said, "As to GEO’s statements about Walnut Grove, we’d like to set the record straight."
Takei continued, "GEO cannot escape responsibility for what happened at Walnut Grove on its watch. It is important for the public and President Saunders to understand the accurate chronology of the Walnut Grove case."
That chronology is as follows:
- In August 2010, GEO took over operation of the Walnut Grove Youth Correctional Facility.
- A few months later, in October 2010, the U.S. Department of Justice notified the State of Mississippi that it had opened an investigation into conditions at Walnut Grove.
- In November 2010, the ACLU and the Southern Poverty Law Center jointly filed suit against GEO and others responsible for the facility, alleging that conditions in the facility violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
- Beginning with site visits Jan. 10-13, 2011, and throughout 2011, the DOJ continued its investigation of Walnut Grove. During the same time period, the ACLU continued to litigate its case in federal court.
- On March 20, 2012, the DOJ issued a report to the Governor of Mississippi describing the "systematic, egregious, and dangerous practices exacerbated by a lack of accountability and controls" at Walnut Grove and stating that the sexual misconduct they found there was "among the worst that we have seen in any facility anywhere in the nation." See more: Investigation of the Walnut Grove Youth Correctional Facility, Walnut Grove, Mississippi
- On March 26, 2012, Judge Carlton W. Reeves, the Mississippi federal judge overseeing the litigation, presided over a hearing in which he heard evidence of the ongoing abuse and neglect at Walnut Grove.
- On March 26, 2012, Judge Reeves entered a consent decree in the ACLU’s Walnut Grove litigation, stating that the prison was “a picture of such horror as should be unrealized anywhere in the civilized world.” See more: C.B. et al. v. Walnut Grove Correctional Authority, et al., No. 3:10-cv-00663-CWR-FKB
- On April 20, 2012, Mississippi Commissioner of Corrections Christopher Epps announced that Mississippi was ending all of its contracts with GEO.
Significantly, the DOJ investigation did not conclude in November 2010. Nor did the unconstitutional conditions which precipitated both the ACLU lawsuit and the DOJ investigation. As Judge Reeves stated in his order dated March 26, 2012:
Nothing has curtailed actions of the staff and indifference of management officials to the constant violations, even though the parties and their experts have been monitoring, investigating and conducting on-site visits constantly since before the lawsuit was filed and during the pendency of this action. Moreover, the fact that the DOJ dared to begin its investigation in October 2010 has not caused the defendants to transform the facility into one that complies with the United States Constitution. But even more astounding is the fact that the notice of the fairness hearing itself did not cause the defendants to change course. The testimony established that only two days before the hearing, the facility remained so understaffed that a teenage offender was brutally attacked by several other offenders while only one staffer was on site. As of the date of the [March 22, 2012] hearing, according to testimony, management has done nothing to address staffing issues. WGYCF [Walnut Grove Youth Correctional Facility] has allowed a cesspool of unconstitutional and inhuman acts and conditions to germinate, the sum of which places the offenders at substantial ongoing risk.
The ACLU has criticized the operations of prisons for profit, arguing that they unjustifiably reap lucrative rewards from mass incarceration. In some cases, states agree to guarantee minimum occupancy levels that benefit the private prisons but make it harder to change criminal justice policies. Prison profiteering enables and depends upon America’s overincarceration epidemic. The United States is the world’s largest jailer, with 5 percent of the global population but 25 percent of its prisoners.
Read a blog by Carl Takei of the ACLU National Prison Project & Julie Ebenstein of ACLU of Florida titled: Sponsoring a Florida College Football Team Can’t Whitewash a Private Prison Company’s Atrocious Record
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WASHINGTON – The Supreme Court heard arguments today in Shelby County v. Holder over the constitutionality of Section 5 of the Voting Rights Act, a civil rights law that has protected the right to vote for people of color since 1965.
The American Civil Liberties Union intervened in the case on behalf of the Alabama State Conference of the NAACP and several Shelby County residents in order to help uphold the law.
"The court heard a powerful argument today about why Section 5 of the Voting Rights Act is one of the most important tools we have against discriminatory voting laws," said Steven R. Shapiro, ACLU legal director. "The recent wave of restrictive voting laws has again demonstrated why the need for Section 5 of the Voting Rights Act is as great as ever in order to preserve our democracy's fundamental right to vote. No law in American history has been as vital for ensuring that every American has a full and fair right to participate in the political process. We hope the court continues to uphold this critical civil rights legislation, as it has already done four times since its enactment."
For more information about Shelby County v. Holder and other Voting Rights Act cases, an interactive timeline on the Voting Rights Act, and a list of the ACLU's voting rights experts: www.aclu.org/press-room-voting-rights-0
NOTE: A telephone briefing will be held at 1:30 p.m. ET today on Shelby v. Holder. Participants will include Debo Adegbile, special counsel, NAACP Legal Defense Fund, Laughlin McDonald, director, ACLU Voting Rights Project, Jon Greenbaum, chief counsel, Lawyers’ Committee for Civil Rights Under Law, and Pastor Harold Jones from Shelby County, Ala., who is a defendant in the case. Laura W. Murphy, director of the ACLU Washington Legislative Office, and Barbara Arnwine, president and executive director, Lawyers’ Committee for Civil Rights Under Law, will also be available for questions. Members of the media should call 866-952-1907 and enter passcode Shelby to participate.
Software Unconstitutionally Blocks Students from Sites Labeled "Sexuality" or "Intolerance"
February 27, 2013
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SHILLINGTON, Pa. – The American Civil Liberties Union and the ACLU of Pennsylvania have sent a letter requesting that school officials at Governor Mifflin School District in Berks County stop using Internet filters that violate students’ First Amendment free speech rights. The district uses a "sexuality" filter that blocks sites that express support of lesbian, gay, bisexual, and transgender (LGBT) people, and an "intolerance" filter that blocks political advocacy sites that are labeled as intolerant.
Junior Maison Fioravante discovered that Governor Mifflin Senior High School was blocking access to web content geared toward LGBT communities while researching for a class project on social issues. However, sites for organizations that condemn homosexuality were not blocked. Fioravante circulated a petition and online video asking the school to stop blocking these sites, which has over 3,200 signatures.
"It’s not only important for support for LGBT students and those questioning their sexual identities to be able to access these sites, but also for students who simply want information for school projects," said Fioravante. "It’s wrong for my school to determine that this kind of information is too sensitive for the student body."
Fioravante was unable to access websites for organizations like the Gay, Lesbian & Straight Education Network (GLSEN), Safe Schools Coalition, Freedom to Marry, the Equality Federation and Lambda Legal. Those sites were blocked for falling into the commercial filtering software’s "sexuality" filter.
"Being able to access information on the Internet at the school library is not only critical for academic purposes, it can also be a lifeline for LGBT students in crisis who don’t feel safe seeking support on their home computers," said Reggie Shuford, executive director of the ACLU of Pennsylvania. "Blocking these sites not only violates the First Amendment, but it does a disservice to students trying to learn about themselves and the world around them."
Although the "sexuality" filter blocks only websites that express an LGBT-supportive viewpoint, a separate filter called "intolerance" blocks some websites from organizations like the National Organization for Marriage and the Family Research Council, which oppose legal protections for LGBT people.
"Regardless of whether you support or oppose legal protections for LGBT people, these sorts of viewpoint-based filters puts everyone’s First Amendment rights at risk," said Joshua Block, staff attorney with the ACLU LGBT Project. "If you give school officials the power to censor viewpoints they don’t like, they may use that power to block your own viewpoint too."
Governor Mifflin School District uses filtering software from Smoothwall, Ltd. Last year, a federal judge ruled against a school district in Camdenton, Missouri, that refused to remove a similar discriminatory filter.
The letter asks the district to advise the ACLU by March 14 whether and how it will address the filtering problem.
More information, including a copy of today’s letter to the school district, can be found here: www.aclu.org/free-speech-lgbt-rights/governor-mifflin-school-district-and-filtering-lgbt-online-content
More information on the ACLU’s work on LGBT school issues can be found here: www.aclu.org/safeschools
Every parent should be able to send their child off to school knowing that he or she will spend the day in a safe environment. For many parents across the nation, however, that peace of mind was shattered by the unthinkable tragedy that took place at Sandy Hook Elementary School in December. Today, the House of Representatives will take up the issue of school safety with a hearing in the House Education and Workforce Committee. The ACLU has submitted a statement suggesting ways to ensure that schools are safe places for students to learn, grow, and thrive.
There is no question that school safety is a significant issue that needs to be effectively addressed. However, the ACLU is concerned that many of the solutions being proposed across the country involve increasing police presence in schools. Sadly, we have been down this road before, and history has proven that this approach is not only ineffective when it comes to preventing violence, but can actually harm kids in ways that lawmakers didn’t contemplate—by pushing them into the school to prison pipeline. When more police or Safety Resource Officers (SROs), are stationed in schools, they assume a disciplinary role that was once reserved for school administrators and teachers. As a result, students face criminal repercussions for minor misbehavior like playground fights or talking out of turn in class. For example, in New York City, which employs a school security force of over 5,000, 77% of incidents that the police were involved in during the 2004-2005 school year were classified as “non-criminal.” By putting these kids in contact with the criminal justice system at even younger ages, schools are sending them down a path that is often difficult to reverse. Moreover, a nationwide survey showed that SROs generally did not receive appropriate training before their placement in schools, making their increased involvement in school discipline even more worrisome.
Rather than resorting to the same failed approach—putting more police in schools—it is time to seek real reform that makes schools safe, welcoming, nurturing environments for all students. At the federal level, Congress can support legislation to proactively improve learning opportunities and school climate, such as the Positive Behavior for Safe and Effective Schools Act. This bill would provide schools with the resources to implement positive behavior support systems – evidence—based practices demonstrated to reduce overly punitive disciplinary practices like suspensions and expulsions. Just recently, an organization committed to the well-being of our nation’s children—the American Academy of Pediatrics—voiced its opposition to these overly punitive discipline policies that remove children from the learning environment.
Many school districts are already realizing that increasing the presence of law enforcement in schools is not the answer. Denver, Colorado, which sharply increased police presence in its schools following the Columbine massacre, has been limiting the role of law enforcement in its schools for the past two years, and as a result, has cut suspensions in half and expulsions by two-thirds. More than a decade later, Denver schools have found that turning schools into fortresses by increasing police presence is not the way to make our children safer. The price of the unintended consequences of putting police in schools has been too high, and has negatively affected our students. Our nation’s parents, students, and teachers need new ideas to curb violence while continuing to nurture students, and not turn their schools into police-run entities, if we are to truly move forward.
The school to prison pipeline is one of the many civil liberties issues implicated by the tragedy at Newtown. To learn more about the ACLU’s broader concerns, including First Amendment rights, privacy, or the rights of individuals with mental health issues, please read this blog post from last week.
New Documents Reveal U.S. Marshals’ Drones Experiment, Underscoring Need for Government Transparency
The use of surveillance drones is growing rapidly in the United States, but we know little about how the federal government employs this new technology. Now, new information obtained by the ACLU shows for the first time that the U.S. Marshals Service has experimented with using drones for domestic surveillance.
We learned this through documents we released today, received in response to a Freedom of Information Act request. The documents are available here. (We also released a short log of drone accidents from the Federal Aviation Administration as well as accident reports and other documents from the U.S. Air Force.) This revelation comes a week after a bipartisan bill to protect Americans’ privacy from domestic drones was introduced in the House.
Although the Marshals Service told us it found 30 pages about its drones program in response to our FOIA request, it turned over only two of those pages—and even they were heavily redacted.
Here’s what we know from the two short paragraphs of text we were able to see. Under a header entitled “Unmanned Aerial Vehicle, Man-Portable (UAV) Program,” an agency document overview begins:
USMS Technical Operations Group's UAV Program provides a highly portable, rapidly deployable overhead collection device that will provide a multi-role surveillance platform to assist in [redacted] detection of targets.
Another document reads:
This developmental program is designed to provide [redacted] in support of TOG [presumably the agency’s Technical Operations Group] investigations and operations. This surveillance solution can be deployed during [multiple redactions] to support ongoing tactical operations.
These heavily redacted documents reveal almost no information about the nature of the Marshals’ drone program. However, the Marshals Service explained to the Los Angeles Times that they tested two small drones in 2004 and 2005. The experimental program ended after both drones crashed.
It is surprising that what seems like a small-scale experiment remained hidden from the public until our FOIA unearthed it. Even more surprising is that seven years after the program was discontinued, the Marshals still refuse to disclose almost any records about it.
As drone use becomes more and more common, it is crucial that the government’s use of these spying machines be transparent and accountable to the American people. All too often, though, it is unclear which law enforcement agencies are using these tools, and how they are doing so.
We should not have to guess whether our government is using these eyes in the sky to spy on us. As my colleague ACLU staff attorney Catherine Crump told me,
Americans have the right to know if and how the government is using drones to spy on them. Drones are too invasive a tool for it to be unclear when the public will be subjected to them. The government needs to respect Americans’ privacy while using this invasive technology, and the laws on the books need to be brought up to date to ensure that America does not turn into a drone surveillance state.
All over the U.S., states and localities are trying to figure out through the democratic political process exactly what kind of protections we should put in place in light of the growing use of what Time Magazine called “the most powerful surveillance tool ever devised, on- or offline.” These debates are essential to a healthy democracy, and are heartening to see. However, this production from the Marshals Service underscores the need for a federal law to ensure that the government’s use of drones remains open and transparent.
A number of federal lawmakers are already pushing to bring the law up to date. Representatives Ted Poe (R-Texas) and Zoe Lofgren (D-Calif.) recently introduced the first bipartisan legislation to regulate the government’s use of drones. The proposed legislation, which is supported by the ACLU, would enact judicial and Congressional oversight mechanisms, require government agencies to register all drones and get a warrant when using them for surveillance (except in emergency situations), and prohibit the domestic use of armed drones.
We believe this bill—and hopefully a future companion bill in the Senate—will provide a strong foundation for future legislation protecting our privacy rights in the face of proliferating drone surveillance and government secrecy.
This post has been updated and slightly modified from the original, which appeared on Feb. 1, 2013 here.
The U.S. Supreme Court heard oral arguments today in Maryland v. King, a case that raises the question of whether the police can take DNA from everybody they arrest, without a search warrant or any reason to think that the DNA sample will be helpful in solving a crime. The ACLU filed an amicus brief in this case to stop the government from invading the genetic privacy of hundreds of thousands of Americans every year. We argue that the government cannot do this: under our Constitution, every one of us is presumed innocent unless we are actually convicted of a crime, either by a jury of our peers or because we admit to a judge that we are guilty.
And the mere fact that a single police officer has arrested somebody because he thinks that he might have committed a crime does not change this. In California alone, nearly 100,000 people every year are arrested on suspicion of a felony but then never convicted of any sort of crime. More than 50,000 of these Californians are released without even being charged with a crime. Nevertheless, they still have to give their DNA to the police, even when they are arrested for even minor crimes—such as simple drug possession or illegally subleasing a car.
Three of the plaintiffs in the ACLU of Northern California's challenge to our state's law were arrested at political protests (none was ever convicted of anything and two weren't even charged). Other DNA collection laws are even broader: the federal government, for example, can require you to give a DNA sample if you are arrested for walking your pet off-leash (or with a leash more than 6 feet long), or even parking violations on federal land. The government should not be able to seize, analyze, and permanently databank your DNA just because you took your dog to the park with a 7-foot leash. More worrisome, California and the federal government don't automatically destroy your sample if you are released without charges or found not guilty.
Our brief also points out that there is no need for the government to collect DNA from so many innocent people. First, in any case where there is DNA evidence left at the crime scene, the same probable cause that the police need to arrest somebody will allow them to get a warrant to take that person's DNA. Second, the law allows them to take DNA from people who are actually convicted of a crime. And, as research from the RAND Corporation and the United Kingdom has shown, taking DNA from innocent people doesn't help solve crimes (this obvious point is apparently lost on the proponents of this type of DNA testing).
To the contrary, it just wastes money and lab resources that could better be used to test the huge backlog of crime-scene samples that are sitting in evidence lockers and crime labs around the nation. Testing these backlogs, mostly taken from the scenes of very serious crimes such as murder and rapes, is much more likely to result in the identification and arrest of a dangerous criminal than testing the DNA of parking violators or protestors.
Despite Legal Obligations, Over Half of Indian Health Services Facilities Reportedly Offer No Emergency Contraception
ACLU and Native American Community Board File Request for Information on Official Policies
February 26, 2013
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NEW YORK – The American Civil Liberties Union and the Native American Community Board (NACB) filed a Freedom of Information Act (FOIA) request today with Indian Health Services (IHS) seeking information on policies governing access to emergency contraception at IHS facilities. The NACB reports that over half of IHS facilities do not offer any kind of emergency contraception despite laws requiring IHS provide "all necessary health care" to Native Americans. Only a small percentage of the facilities offer emergency contraception over-the-counter as mandated by FDA guidelines.
"A woman who gets her health care from IHS has the same right as anyone else to access the medication she needs to make her own decisions about whether and when to start a family," said Charon Asetoyer, CEO of the NACB. "By failing to ensure that IHS facilities adequately stock or provide emergency contraception, the federal government is not living up to its legal obligations to Native American women."
If used within 120 hours, emergency contraception can safely prevent pregnancy after contraceptive failure, unprotected sex or a sexual assault. It is most effective the sooner it is taken, with effectiveness decreasing every 12 hours.
However, a 2009 NACB report found that only 10 percent of IHS pharmacies made emergency contraception available over-the-counter, 37.5 percent of pharmacies only offered an alternative contraceptive that requires a prescription, and approximately 53 percent offered no form of emergency contraception at all.
For some Native American women, if emergency contraception is unavailable at their IHS facility, the next alternative may be hundreds of miles away. The distance and potentially insurmountable transportation costs make timely access to emergency contraception difficult, if not impossible, for many women.
In addition, statistics show that more than one in three Native women will be raped in their lifetime -- more than double the rate reported by women of all other races. A woman who is sexually assaulted and relies on IHS may not be able to take necessary steps to prevent a pregnancy that occurs as the result of rape.
"In light of our country's long and unfortunate record of violating Indian women's reproductive rights and autonomy, these reports are particularly alarming," said Alexa Kolbi-Molinas, staff attorney with the ACLU Reproductive Freedom Project. "The federal government must explain what steps it is taking to ensure that the status quo does not continue."
The request can be viewed at www.aclu.org/reproductive-freedom/ihs-emergency-contraception-foia-request
ACLU Lawsuit Representing Navy Vet Resulted in Injunction Against Unconstitutional 2011 Law
February 26, 2013
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ATLANTA – Today, the Eleventh Circuit Court of Appeals in Atlanta unanimously affirmed a lower court's injunction that halted enforcement of Florida's 2011 law mandating drug tests for all applicants for the state's Temporary Assistance for Needy Families (TANF) program. The enforcement of the law had previously been halted by a district judge within months of its going into effect as the result of a lawsuit brought by the American Civil Liberties Union of Florida. The appeals court today concluded that "[t]he simple act of seeking public assistance does not deprive a TANF applicant of the same constitutional protection from unreasonable searches that all other citizens enjoy."
The ACLU of Florida, with co-counsel Florida Justice Institute (FJI), challenged Florida's 2011 law requiring all applicants for the TANF program to submit to a suspicionless drug test in a lawsuit filed on September 6, 2011 in the Middle District of Florida on behalf of Luis Lebron of Orlando. That court ruled that the compelled drug testing is a search under the Fourth Amendment, and issued an injunction barring the state from enforcing the unconstitutional law. The state of Florida appealed that injunction, and today a three judge panel of the 11th Circuit Court of Appeals held that the lower court was right to halt the law as unconstitutional.
"I am thrilled for Luis and his family, and for the thousands of class members he represents, that yet another court has affirmed that all of us are protected from unreasonable, invasive, suspicionless searches," stated Maria Kayanan, Associate Legal Director for the ACLU of Florida and lead counsel in the case. "The court's decision clearly states that the Fourth Amendment's protection against being subjected to these kinds of invasive searches protects us all, including those of us who are struggling to make ends meet in this tough economy. The state of Florida can't treat an entire segment of our community like suspected criminals simply because they are poor and are trying to get temporary assistance from the government to support their families."
Luis Lebron, a Navy veteran and single father who is also the sole caretaker of his disabled mother, was a 35-year-old full-time student at the University of Central Florida when he applied for temporary assistance in July 2011 to support his 4-year-old son. When informed that he would be subjected to a humiliating and invasive search without cause or suspicion, Lebron refused to waive his Fourth Amendment rights against unreasonable search and seizure and submit to the newly-required drug test.
"I'm really happy that today's decision confirms what I had believed from the beginning," stated Lebron. "The state can't do what it wanted to do to me and my family without reason or suspicion. I'm glad that the court agreed and proud that other families like mine will still be protected."
In today's unanimous decision, authored by Judge Rosemary Barkett, the court held that not only had the lower court not overstepped its bounds in issuing the injunction, but that the state had failed to prove that there was any reason to treat poor families in Florida as any more likely to be drug users. "[T]here is nothing inherent to the condition of being impoverished that supports the conclusion that there is a "concrete danger" that impoverished individuals are prone to drug use," Barkett wrote for the court. In a concurring opinion, Judge Adalberto Jordan stated that, "[c]onstitutionally speaking, the state's position is simply a bridge too far."
"The Court today affirmed that the Fourth Amendment protects everyone, including those who need temporary assistance from the government," stated Randall Berg of the Florida Justice Institute and co-counsel with the ACLU. "Requiring suspicionless drug testing of TANF recipients is a slippery slope toward requiring drug testing for the receipt of any kind of government benefit, including social security, farm subsidies, and student scholarships. The line must be drawn, and the 11th Circuit did so today."
"By upholding the lower court's decision to strike down Florida's drug testing scheme as an unconstitutional violation of 4th Amendment protections against unreasonable searches and seizures, the 11th Circuit has prohibited the state from subjecting law-abiding TANF applicants to the indignity of an invasive and unjustified search of their bodily fluids," said Jason Williamson, staff attorney for the ACLU Criminal Law Reform Project and co-counsel in the lawsuit. The Criminal Law Reform Project also provided legal assistance in the case. "The 11th Circuit's decision makes it clear that the state of Florida must respect the constitutional rights of the most vulnerable among us, and may not substitute wholesale, unsupported, and mean-spirited misconceptions of the poor for the individualized suspicion normally required under the 4th Amendment. This case sends a message to all states that, while it may be politically expedient, they may not trample upon the rights of the poor."
"This is now the second Federal Court that has delivered the news to Governor Scott that shaping public policies on an ugly stereotype that he was so willing to exploit when he was a candidate is unconstitutional," stated Howard Simon, Executive Director of the ACLU of Florida. "You would have thought that an allegedly-conservative governor would be protecting innocent people from unreasonable government searches – not inflicting them on the people of Florida."
Since the passage of Florida's law, Arizona, Missouri, Georgia, Utah and Tennessee have passed laws subjecting citizens applying for government assistance to suspicionless searches. Additional states have passed similar laws, and legislatures in many other states are considering similar laws. In 2011, Governor Scott issued an executive order requiring state employees to be subjected to suspicionless drug tests as well, a decision that was also enjoined by a federal court.
The opinion from the 11th Circuit Court of Appeals is available here: www.ca11.uscourts.gov/opinions/ops/201115258.pdf
More information on this issue is available at: www.aclu.org/drug-testing-benefits
Ruling Shields Surveillance Program from Judicial Review
February 26, 2013
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WASHINGTON – In a 5-4 decision, the Supreme Court ruled today that clients of the American Civil Liberties Union lack standing to challenge a broad surveillance law enacted by Congress in 2008 because they cannot prove that surveillance of their communications is "certainly impending." The lawsuit challenged the FISA Amendments Act, which authorizes the National Security Agency to conduct dragnet surveillance of Americans' international emails and phone calls without identifying its targets to any court.
"It's a disturbing decision. The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans' privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans' privacy rights to the mercy of the political branches," said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the justices on October 29, when the court stayed open despite the approach of Hurricane Sandy, which shut down the rest of the federal government.
"Justice Alito's opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn't ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values," Jaffer said.
The ACLU filed the lawsuit in July 2008 on behalf of a coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive telephone and email communications with people outside the U.S. They include colleagues, clients, sources and victims of human rights abuses. The plaintiffs include Amnesty International USA, Human Rights Watch, The Nation, PEN American Center, and the Service Employees International Union. The government claimed that the plaintiffs should not be able to sue without first showing they have actually been monitored under the program. The government had previously argued that for national security reasons it could not disclose the identities of those who had been monitored.
In March 2011, a three-judge panel of the U.S. Court of Appeals for the Second Circuit rejected the government's argument. The government's request for reconsideration by the full Second Circuit was rejected the following September, and the government then asked the Supreme Court to consider the case. Although the case was filed by the ACLU during the Bush administration, the Obama administration defended the Bush administration's positions at the Supreme Court.
Little is known about how the FISA Amendments Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the act had identified "compliance incidents," suggesting either an inability or an unwillingness to properly safeguard Americans' privacy rights. The government has withheld the details of those "compliance incidents," however, including statistics relating to abuses of the act.
Attorneys on the case are Jaffer, Steven R. Shapiro, Alex Abdo and Mitra Ebadolahi of the ACLU; Arthur N. Eisenberg, Christopher T. Dunn and Melissa Goodman of the New York Civil Liberties Union; and Charles S. Sims and Matthew J. Morris of Proskauer Rose LLP.
Today's opinion is at: www.aclu.org/files/assets/amnesty_v_clapper_scotus_opinion.pdf
More information on the case is at: www.aclu.org/national-security/amnesty-et-al-v-clapper
Exactly one year ago today, a 17-year-old boy named Trayvon Martin was gunned down in his quiet Florida suburb in a tragedy that left our country shocked and ashamed. The incident set off a national conversation about racial profiling and the role race played in his death and subsequent police action.
Racial profiling violates the Constitution by denying equal protection under the law, as well as freedom from unreasonable searches and seizures. Furthermore, the Constitution requires treaties to be treated as the "supreme law of the land," and racial profiling runs afoul of America's human rights treaty obligations.
While the court proceedings around Trayvon's death are still ongoing, Washington D.C. seems to be treading water on the issue of racial profiling. The 112th Congress concluded without a vote on the End Racial Profiling Act (ERPA), a crucial piece of legislation that would, among other things, provide training to help police avoid responses based on stereotypes and unreliable assumptions about minorities. It did, however, see the first Senate hearing on profiling in over a decade, since before 9/11. The hearing included testimony from police representatives and civil rights advocates, including ACLU Executive Director Anthony Romero.
But the hearing was just a first step in what looks to be a long road to eliminating the practice of racial profiling. If the current Congress were to take up and pass ERPA, it would send the strong message that the Constitution requires that people be judged by what they do, not by what they look like or what God they pray to. Looking to our past, the case is clear: racial profiling is unfair, unjust, and ineffective.
This isn't an issue that's new to President Obama. As a state senator, he sponsored and helped pass a bill that effectively ended racial profiling by law enforcement in Illinois. Obama even promised during his 2008 campaign to pass a ban on the practice, but he's been very quiet on the issue during his time in the White House. The ACLU has repeatedly called on President Obama to address racial profiling on the federal level, just as his predecessor did. President Bush vowed to end the practice, and then-Attorney General John Ashcroft called racial profiling "unconstitutional" and said it "[undermines] the confidence that people can have in law enforcement."
When the state condones racial profiling, it implicitly sanctions that kind of behavior among private citizens. Washington D.C. must find a way to ensure that young men like Trayvon are not the victims of vigilante justice and racial profiling. Beyond that, our country has to recognize that this incident raises concerns that go beyond the actions of one man in Florida. Failing to take a real look at the ongoing association of young men of color with crime ensures that stories like Trayvon's will continue leaving us to ask how many young people must die before we address the serious underlying problem of racial denigration and bias in the United States.
Laura Murphy, Director of the ACLU Washington Legislative Office, said it best in her blog post last year about the fears she has for her son: "We cannot be satisfied with legal equality when for many of us, it is of limited value in the face of our actual day-to-day experience. Unless Americans work together to end the practice of racial profiling – not just in law enforcement but in the larger social fabric – the precautions I and many other parents of color take may never be enough."
During the signing ceremony of the Voting Rights Act, President Lyndon B. Johnson characterized the law as "one of the most monumental laws in the entire history of American freedom." Since that day, this landmark civil rights law has steadily and surely defeated and deterred countless discriminatory and varied barriers to the ballot.
Under constant review since its passage in 1965, the Voting Rights Act has continued to be found relevant and necessary to protect minority voting rights by the highest courts and lawmakers across the country. In 2006, Congress voted to re-authorize the VRA, extending its authority for the fourth time since its enactment. Before doing so, Congress held 21 hearings, heard from more than 90 witnesses, and compiled more than 15,000 pages of evidence. Support was overwhelming and the message clear; the VRA is still relevant and necessary to protect minority voting rights. Congress renewed it for another 25 years by a vote of 390 to 33 in the House and unanimously in the Senate. And in invoking its authority under both the Fourteenth and Fifteenth Amendments to combat racial discrimination in voting, the D.C. Circuit Court just recently found that Congress had acted at "the apex of its power."
When he signed this extension into law, President George W. Bush reminded Americans why we fight so vigorously to preserve the right to vote: "Eighty-one year old Willie Bolden was the grandson of slaves, and in the spring of 1966, he cast his first ballot in Alabama's Democratic primary. He told a reporter, ‘It felt good to me. It made me think I was sort of somebody.'"
Voting matters. Its power lies not only in the practical, in giving people an opportunity to elect candidates of their choosing, but also through the sense of dignity that it gives to those who are able to exercise it. Withholding the right to vote was a reminder to those excluded that they were not whole; they were un-American; they were nobodies. Indeed, throughout our country's history, the right to vote was denied to white men without property, African-Americans, women, Native Americans, Chinese Americans, and adults under twenty-one-years of age.
But that's all history, some claim today, saying that we're no longer plagued by the racial injustice of the civil rights era. Yes, Bull Connor is dead and our nation has elected a black president. But unfortunately, Connor's legacy still lingers in modern day, less overt strategies to block African Americans, Latinos, and other minorities from the ballot.
Why we still need Section 5
Section 5 remains relevant in big ways and small. Throughout the jurisdictions to which Section 5 applies, voting remains divided along racial lines. Congress found that in 2000, only 8 percent of African Americans were elected from districts where white voters comprise the majority. At the same time, no Native Americans or Hispanics had been elected to office from a majority white district.
Knowing this, those in power not only attack the right to vote, but also diminish the value of each vote through all kinds of creative methods, including drawing boundaries of an election district to ensure that minority voters cannot constitute a majority, by "packing" minorities to insure they are a majority in only one or a limited number of districts, and by implementing majority vote and numbered post requirements which maximize the power of the white vote.
Leading up to the 2012 presidential election, politicians attempted to chip away at our fundamental right to vote – and overwhelmingly, people of color were the target. The Department of Justice recently rejected Texas' congressional and senate redistricting plans because the legislature acted deliberately to ignore the dramatic growth in the Hispanic population. After failing to receive preclearance from the DOJ, South Carolina went to court to receive approval for its law to require photo ID for voting. Through the course of the trial, the state agreed to modify the law to comply with Section 5 and insure that it would not have had a disproportionate impact on that state's African-American voters. And the preclearance process helped reshape Florida's early voting period and defeat its restrictions on registration drives.
No less significant was the recent example of a Texas county that attempted to move a polling place from a school to a private club—one which had been historically segregated. After the DOJ sought more information before approving the change, the county withdrew its request.
To beat back this relentless desire to restrict minority voting rights, we need a robust law, one that doesn't just allow piecemeal litigation as a remedy. And Section 5 provides this. Lest you think that all jurisdictions covered under this critical law are chafing under its purview, Mississippi, which has the largest portion of African-American voters of any state in the country, and North Carolina, which has the seventh largest, joined California and New York in voicing their steadfast support of the law. In their amicus brief to the Supreme Court, these states characterized the burdens Section 5 imposes as "minimal" and lauded the provision for helping their states move closer to their "goal of eliminating racial discrimination and inequities in voting."
And jurisdictions that believe Section 5 should no longer apply to them already have a remedy. They can "bail out" from the statute's coverage if they can demonstrate that they've remained free of discriminatory voting laws or policies within the preceding 10 years, have complied with the VRA, and have made efforts to ensure equal access to the ballot. Since 1984, the Attorney General has consented to every bail out application, including New Hampshire's, in December 2012.
Why we fight
The Voting Rights Act remains an indispensable tool in our fight to preserve the right to vote; this law brings us one step closer to our dream of achieving our ideal of true egalitarian citizenship. It must be preserved.
Cell phone searches are a common law enforcement tool, but up until now, the public has largely been in the dark regarding how much sensitive information the government can get with this invasive surveillance technique. A document submitted to court in connection with a drug investigation, which we recently discovered, provides a rare inventory of the types of data that federal agents are able to obtain from a seized iPhone using advanced forensic analysis tools. The list, available here, starkly demonstrates just how invasive cell phone searches are—and why law enforcement should be required to obtain a warrant before conducting them.
Last fall, officers from Immigration and Customs Enforcement (ICE) seized an iPhone from the bedroom of a suspect in a drug investigation. In a single data extraction session, ICE collected a huge array of personal data from the phone. Among other information, ICE obtained:
- call activity
- phone book directory information
- stored voicemails and text messages
- photos and videos
- eight different passwords
- 659 geolocation points, including 227 cell towers and 403 WiFi networks with which the cell phone had previously connected.
Before the age of smartphones, it was impossible for police to gather this much private information about a person’s communications, historical movements, and private life during an arrest. Our pockets and bags simply aren’t big enough to carry paper records revealing that much data. We would have never carried around several years’ worth of correspondence, for example—but today, five-year-old emails are just a few clicks away using the smartphone in your pocket. The fact that we now carry this much private, sensitive information around with us means that the government is able to get this information, too.
The type of data stored on a smartphone can paint a near-complete picture of even the most private details of someone’s personal life. Call history, voicemails, text messages and photographs can provide a catalogue of how—and with whom—a person spends his or her time, exposing everything from intimate photographs to 2 AM text messages. Web browsing history may include Google searches for Alcoholics Anonymous or local gay bars. Apps can expose what you’re reading and listening to. Location information might uncover a visit to an abortion clinic, a political protest, or a psychiatrist.
In this particular case, ICE obtained a warrant to search the house, and seized the iPhone during that search. They then obtained a second, separate warrant based on probable cause before conducting a detailed search of the phone. However, even though ICE obtained a warrant for this cell phone search, courts are divided about whether a warrant is necessary in these circumstances, and no statute requires one. As a result, there are many circumstances where police contend they do not need a warrant at all, such as searches incident to arrest and at the U.S. border.
The police should not be free to copy the contents of your phone without a warrant absent extraordinary circumstances. However, that is exactly what is happening. Last year in California, for example, Governor Jerry Brown vetoed a common-sense bill that would have required the police to obtain a warrant before searching seized phones, despite the bill’s broad bipartisan support in the state legislature.
Intrusive cell phone searches are becoming ever easier for law enforcement officers to conduct. Companies such as Cellebrite produce portable forensics machines that can download copies of an iPhone’s “existing, hidden, and deleted phone data, including call history, text messages, contacts, images, and geotags” in minutes. This type of equipment, which allows the government to conduct quick, easy phone searches, is widely available to law enforcement agencies—and not just to federal agents.
While the law does not sufficiently protect the private data on smartphones, technology can at least provide some protection. All modern smartphones can be locked with a PIN or password, which can slow down, or in some cases, completely thwart forensic analysis by the police (as well as a phone thief or a prying partner). Make sure to pick a sufficiently long password: a 4 character numeric PIN can be cracked in a few minutes, and the pattern-based unlock screen offered by Android can be bypassed by Google if forced to by the government. Finally, if your mobile operating system offers a disk encryption option (such as with Android 4.0 and above), it is important to turn it on.
Talk about worrying about the symptom instead of the cause: Attorney General Eric Holder recently sent a letter to Sen. Barbara Mikulski (D-MD), Chair of the Senate Appropriations Committee, warning of the devastating effect budget cuts will have on the Federal Bureau of Prisons (BOP) if sequestration moves forward. If no deal is reached by March 1, the BOP will face a 5% reduction in staffing levels. His letter paints a scary picture:
[The cuts] would endanger the safety of staff and over 218,000 inmates. As a consequence, BOP would need to implement full or partial lockdowns and significantly reduce inmate reentry and training programs. This would leave inmates idle, increasing the likelihood of inmate misconduct, violence, and other risks to correctional workers and inmates.
Holder’s concerns are legitimate, but he’s not talking about the real problem: our federal prison population is completely out of control.
How did we get to this point? At a time of historically low rates of crime, our federal prison system is operating at almost 40% over capacity. We’ve seen the federal prison population balloon by nearly 800% since 1980. Meanwhile, many states have enacted innovative criminal justice reforms that contributed to the first decline in overall prison population in 40 years.
Testifying before the House of Representatives, Charles Samuels, Director of the BOP, attributed the explosion of the prison population to excessively harsh sentencing and the increasing prosecutions of drug offenses. Samuels explained during his testimony that “drug offenders comprise the largest single offender group admitted to federal prison, and sentences for drug offenses are much longer than those for most other offense categories.”
We also know that immigration enforcement programs like Operation Streamline contribute to this unsustainable prison growth. Operation Streamline is a “zero-tolerance” program that requires the federal criminal prosecution and imprisonment of all unlawful border crossers in designated sectors. The program annually sweeps in tens of thousands of migrant workers with no criminal history and is a major contributor to prison overcrowding, privatization and the soaring federal rate of Hispanic and Latino incarceration.
We have focused so much on locking people up in this country that we have ignored viable and fiscally sound alternatives to prison. It’s time for our elected officials to seriously consider criminal justice reforms that will maintain public safety while reducing the federal prison population. These reforms include eliminating mandatory minimum sentences drug sentences, expanding time credits for good behavior, enhancing elderly prisoner early and compassionate release programs, and making the Fair Sentencing Act retroactive. We also need to eliminate programs like Operation Streamline that have added immigration prisoners to BOP who would need to be housed in new facilities, which would likely be privately operated.
Sending people to prison should be the option of last resort, not the first. We did not have to get to this point, but fortunately we have an opportunity over the next few years to adopt sensible reforms to the federal criminal justice system while maintaining public safety. While Congress is debating how to prevent the sequestration, it’s time for a real discussion about how we can stop wasting money by incarcerating people who pose little risk to our communities for long periods of time for non-violent drug crimes.
If Congress is serious about trimming the budget, the answer is simple: reduce the federal prison population.
I, like most Americans, watched in horror as the tragedy at Sandy Hook Elementary School unfurled last December. As a former elementary school teacher, I could not stop seeing my former students as possible victims, and I was angry, confused, and eager for change to prevent another incident like this one.
Since the shooting, there’s been a lot of discussion about how to keep kids safe and how to prevent more violence. The tragedy in Newtown has sparked a national conversation about guns, mental illness, violence in the media and school safety, and over the past several weeks, there have been a number of Congressional hearings on these issues. In fact, the Senate Judiciary Committee will hold a hearing Wednesday on a proposed assault weapons ban and the House Education and Workforce Committee will meet later this week for a hearing on school safety. Restricting access to certain types of firearms is one thing. But while some well-meaning policymakers might assume that putting more police in schools will make students safer, experience demonstrates otherwise. Censoring violent media or stigmatizing those with a mental illness as unusually violent won’t fix the problem either.
Research shows that those living with a mental illness are far more likely to be the victims of violent attacks than to be the perpetrators. Stigmatizing the mentally ill as violent infringes on their freedoms while doing nothing to improve safety, but it may deter those who need help from seeking it. As a nation, we have advanced too far in our understanding and treatment of the mentally ill to succumb to panic and misinformation. Now is the time to instead open a dialogue between the government and the public at large about the accessibility and benefits of psychological treatment.
Censoring violence in the media also isn’t the answer. Study after study–not to mention the Supreme Court–has found nothing in violent material to override the freedoms of the First Amendment. Congress should not place themselves in the shoes of parents by deciding what children can see, read, play or hear. In times of national tragedy or fear, our nation often finds itself headed down the road towards censorship, but our focus should be on what we know to be impactful and what we know to be harmful.
Putting police in our schools is another solution that’s been proposed, but the unforeseen consequence of introducing a significant police presence in schools is that it transforms them into the very places education is meant to keep children away from–prison–and provides a more direct avenue to it. Most school police spend a significant portion of their time responding to minor, non-violent infractions like truancy rather than on issues that seriously threaten the safety and security of students. Criminalizing minor misbehavior that should be handled by a teacher, school administrator or parent has serious consequences for kids and contributes to the school-to-prison pipeline – policies that push kids out of the classroom and into jail cells.
This is not the first time this nation has reacted to violence with proposals for increased law enforcement in schools. After the Columbine High School massacre in 1999, Denver increased funding for police in schools, and as a result, the city saw during the first five years the number of students referred to the justice system increase by 71% and the number of suspensions and expulsion increase by nearly half, with no reduction in incidents at schools. After almost a decade of seeing little benefit, high costs and negative consequences of police in schools, Denver is transitioning to proactive approaches that keep schools safe.
I know we can’t lose sight of providing all students a quality education in a safe environment. Looking to the future, we need to find a balanced approach that establishes a safe and academically focused environment without further spreading the negative consequences of past policies.
The safety of our country’s children should remain a topic for discussion, and action must be taken to limit the violence that is ravaging our schools, streets and homes. Yet, as our past has shown, restrictive and reactionary measures only serve as temporary pain relievers with little effect on the actual problems.
As Congress continues to fight for an end to this violence, it is important not to lose sight of what works and what doesn’t.
New York Court Decision Highlights Yet Another Shortcoming In Nation’s Outdated Electronic Privacy Laws
A recent cell phone tracking case from New York is both a win and loss for privacy. In People v. Moorer, police officers submitted an emergency or “exigent circumstances” request to a phone company asking it to ping (locate) a cell phone—but the court concluded that the circumstances were not exigent at all. The Stored Communications Act (18 USC 2702) permits the voluntary disclosure (without any kind of court order) of customer records to the government, but only if “the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.”
While the police knew the address at which a homicide suspect was likely located, the court noted, the police “did not try to arrest him, hoping to develop a better case, which, in part, included obtaining information from defendant’s cell phone and historical cell site location information.” The court wrote,
The People claim that pinging was permissible under the Stored Communications Act because exigent circumstances existed. This Court rejects that argument. To justify a need for GPS information as an exigent circumstances, there must be an ‘immediate danger of death or serious bodily injury.’ . . . The pinging here was sought to permit the investigators to locate defendant’s cell phone; under these facts, clearly not an exigent circumstances.
This is good news. If the government is going to rely on an exception to the law that permits the government to locate people without court orders, then there needs to be an actual emergency.
Unfortunately, the Court then went on to conclude that the police officers’ misuse of the Stored Communications Act was irrelevant because that Act provides no statutory suppression remedy prohibiting the evidence gathered through that misuse from being used in court. And, the court held, neither the federal Fourth Amendment nor its New York State analog (Art 1, Sec. 2) provide protections against cell phone tracking—meaning that a constitutional violation could not be the basis for suppressing the improperly collected tracking data, either.
The importance of this case is that it highlights the problems caused by the lack of any statutory suppression remedy at all in one of our nation’s principal electronic privacy laws, the Stored Communications Act. The lack of a suppression remedy weakens the SCA’s legal protections to the point of meaningless.
There ought to be some penalty for the police when they misrepresent the facts to a phone company in order to skip judicial oversight of this invasive surveillance power. The SCA is supposed to protect privacy by requiring the government to go to a judge to get approval to access customer data, a process that was completely circumvented by the police in this case. The SCA should forbid the police from relying on evidence they gather based on unsubstantiated claims of exigency, and should additionally provide for suppression whenever the police gather evidence in violation of the SCA.
As policymakers in Washington consider updating the nation’s electronic privacy laws, this lack of a suppression remedy is an important flaw that they should include as part of that modernization process.
None. Zero. That’s the number of fatalities or injuries from terrorist acts by American Muslims over the last two years, according to a recent report from the Triangle Center on Terrorism and Homeland Security. Here are some other numbers from the report worth noting: In the United States in 2012, there were nine “terrorist plots” by American Muslims—only one of which led to violence. Of those nine plots, only 14 suspects were indicted. Separately, six suspects were indicted for support of terrorism.
Terrorism is not a “Muslim” phenomenon. Indeed, last year, the author of the report called terrorism by American Muslims “a minuscule threat to public safety.” Yet far too many policymakers assume the opposite is true, and too many policies are predicated on the false and bigoted assumption that Muslims are more likely to engage in terrorism than other Americans. The numbers above show how false the premise is. So why are we willing to undermine civil liberties, target an entire religious community, and devote countless resources to this “minuscule threat?”
The answer: a widely debunked “theory” on describing the “process” that drives people to become terrorists. This “theory” is based on the mistaken notion that adopting “radical” ideas (which, under the theory, includes religious beliefs) is a dangerous first step toward committing terrorist acts. Countering terrorism, the thinking goes, begins with countering “radicalization.”
Although it’s been refuted, the “theory” continues to drive policy. Recent Congressional Research Service reports cite it, and the White House issued a plan to counter violent extremism based on it. While the White House deserves some credit for using more careful language and for emphasizing the need for community engagement, it still perpetuates the notion that “how individuals are radicalized to violence” is something we can and should study and understand. And the number of agencies, task forces, working groups, and committees across government that are engaged in the White House’s plan is, well, staggeringly high.
Not surprisingly, when flawed theory drives policy, implementation of the policy is flawed too. If counterterrorism officials believe that adopting radical beliefs is a necessary first stage to terrorism, they will obviously target religious communities and political activists with their enforcement measures.
Take for example, the practice of “preventive policing” by which law enforcement doesn’t focus on crime, but rather tracks legal activities. It has a real and negative impact on individuals: the FBI conducts “assessments” or uses informants, conducts interviews, and surveils people based on their ideas or religious beliefs, or whether they are a certain religion, race, or ethnicity rather than information suggesting they might be involved in criminal activity. Preventive policing also affects entire communities. Through “domain management,” the FBI monitors and tracks entire religious, ethnic, and racial communities based on false stereotypes that ascribe certain types of crimes to entire minority communities. Targeted groups include Muslim- and Arab-Americans in Michigan, and also African-Americans in Georgia, Chinese- and Russian-Americans in California, and broad swaths of Latino-American communities in multiple states.
The FBI has increasingly relied on another tactic based on this flawed theory: the agent provocateur. Remarkably, most of the nine terrorist plots carried out by American Muslims uncovered in 2012 involved informants and undercover agents. According to a recent investigation, undercover agents and informants have targeted “Muslims who espouse radical beliefs, are vocal about their disapproval of American foreign policy, or have expressed sympathy for international terrorist groups”—otherwise known as First Amendment-protected activity. The investigation shows that these targets are fairly unsophisticated and “clearly pose little real threat” on their own. With all essential materials (like money and weapons) coming from government agents and informants, these plots are more manufactured by the government than interdicted.
It’s also clear that preventive policing won’t be tied to an empirical analysis of where significant violence occurs. According to West Point's Combating Terrorism Center, violent acts by far-right extremists significantly outnumber those by American Muslims, but have been virtually ignored by policy makers (though the report has its own problems). While there have been multiple congressional hearings on so-called radicalization of Muslims, there have been none on political violence emanating from the Far Right.
When we implement law enforcement practices that say those who hold “radical” political ideas or religious beliefs, for instance, are dangerous, we could all be in danger. What’s a “radical” idea or belief? It’s one that “reject[s] the status quo.” It’s not hard to imagine that almost all of us hold some “radical” beliefs, which is why it’s not surprising that so many groups come under government suspicion. Anti-government militiamen, misfit anarchists, PETA, Greenpeace, and the Catholic Worker have already been targeted. Who’s to say the group you belong to won’t be next.
Today, the U.S. has the highest incarceration rate of any country in the world. With over 2.3 million men and women living behind bars, our imprisonment rate is the highest it’s ever been in U.S. history. And yet, our criminal justice system has failed on every count: public safety, fairness and cost-effectiveness. Across the country, the criminal justice reform conversation is heating up. Each week, we feature our some of the most exciting and relevant news in overincarceration discourse that we’ve spotted from the previous week. Check back weekly for our top picks.
Powerful Commentary and Interesting Scholarship from the Past Week
- In the Washington Post this week, columnist George Will penned a strong critique of solitary confinement. Will correctly recognizes solitary confinement as torture, and recalls Charles Dickens’ impression of the practice in 1842:
Will’s excellent column is worth a read in its entirety. Meanwhile, California continues to release prisoners from solitary confinement following its decision to amend the criteria for what constitutes gang involvement that will land a prisoner in an isolation unit.
- This American Life aired Part One of its series about Harper High School in Chicago, where last year alone 29 current and recent students were shot. In the piece, local youth describe neighborhoods in which gang activity is practically inescapable, and in which guns and violence surround the lives of even those who try to avoid it. For more, see NPR’s interview with one of the reporters.
- In “Prison and the Poverty Trap”, The New York Times’ John Tierney looks at the social consequences of crime and imprisonment. Through the story of a family whose father who spent 20 years in prison, the article asks the reader to consider the balance between reducing crime and impairing the social mobility of poor communities.
- Santa Clara School of Law’s W. David Ball discusses a structural driver of prison populations: who picks up the check. Mr. Ball observes that local officials—police, prosecutors, and district judges—drive criminal justice policy, but that states ultimately pay for policy choices that result in state imprisonment. He argues that this “free lunch problem” causes local officials to overuse prisons because they don’t internalize the costs.
Two Minor but Noteworthy Items from the Past Week
- Illinois prisoners at the Shawnee Correctional Center and five other state prisons will be bunking in gyms in the coming weeks as part of the state’s ongoing struggle with overcrowding. Illinois prisons are currently at 148 percent of rated capacity, meaning that roughly half of its cells have more prisoners than they are designed to hold.
- An Indiana woman was fired by Wal-Mart after stealing and eating a bag of Oreos on her shift, for which she was later charged with felony theft. The cookies only cost a few dollars, but because Indiana is the only state for which theft of any value is a felony, she is eligible to receive prison time for her crime. If the Indiana legislature passes HB 1006, theft of property valued at less than $750 will be classified as a misdemeanor offense.
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NEW YORK – Asserting the public’s First Amendment right to open trials, the American Civil Liberties Union sought to reverse the parts of a Guantánamo military judge’s order granting the government’s request to censor any testimony from the 9/11 defendants relating to their torture and other abuse in U.S. custody. The ACLU filed a petition with the U.S. Court of Military Commissions Review late yesterday, and it was made public this afternoon after undergoing a security review by the government.
In December, Military Judge Col. James Pohl issued a protective order containing provisions that categorically censored the defendants’ testimony concerning their personal experiences and memories of CIA “enhanced interrogation techniques,” rendition, and detention on the grounds that it was classified. The protective order also upheld the continued use of a 40-second delay audio feed of the proceedings.
“The judge’s decision to keep testimony about torture secret did not even mention the American public’s First Amendment right of access to the Guantánamo commissions, let alone apply the high standard that must be met before testimony is suppressed,” said Hina Shamsi, director of the ACLU's National Security Project. “The government’s claim that it can classify and censor from the public a criminal defendant’s personal experience and memories of CIA-imposed torture is legally untenable and morally abhorrent. Even if the government somehow had that Orwellian classification authority, copious details about the CIA’s torture and black-site detention program are already public knowledge, and the government has no legitimate reason to censor the defendants’ testimony about their own memories of it.”
In the government’s request last year to classify the testimony, it contended that any statements by the defendants concerning their “exposure” to the CIA’s detention and interrogation program are classified as “sources, methods and activities” of the U.S. and can be withheld from the public.
In May 2012, the ACLU filed a motion asking the commission to deny the government’s request and to bar a delayed audio feed of the proceedings, or, in the alternative, promptly release an uncensored transcript. A group of 14 press organizations also filed a motion in support of the media’s right to access the commission's proceedings, which was denied by the judge as well, and they have also challenged the protective order. The government’s response in both cases is due March 6.
The ACLU’s appeal is at: www.aclu.org/files/assets/gitmo_public_access_appeal.pdf
More information and documents are at: www.aclu.org/national-security/motion-public-access-guantanamo-bay-military-commission-trial
How did President Obama respond when asked whether or not his administration can kill a United States citizen - while on U. S. soil - suspected of terrorist activities?
What new drone-based surveillance technology can track a car or pedestrian in high definition anywhere in the U.S.?
Which Florida university has granted sports stadium naming rights to a notorious private prison company?
Where might you come face-to-face with an immigration official if pulled over at "seatbelt" checkpoints?
Which states are weighing legislation to regulate the use of domestic surveillance drones?
The Softball Question That Wasn’t
During a Google+ Hangout event last week, President Obama was asked whether he claims the authority to kill a U.S. citizen suspected of being associated with al Qaeda on U.S. soil. Notice the question was restricted to only a U.S. citizen on U.S. soil. The answer should have been a quick and categorical “no,” but instead President Obama echoed his nominee for CIA director, John Brennan, in stating that no drone attacks have been carried out inside the U.S. President Obama must disclose his administration’s full legal justification of the drones program. Secret rules for killing people, citizens and non-citizens alike, are neither compatible with transparency nor the rule of law.
Drone ‘Nightmare Scenario’ Now Has a Name: ARGUS
The PBS series NOVA recently aired a segment detailing the capabilities of a powerful aerial surveillance system known as ARGUS-IS, a super-high, 1.8 gigapixel resolution camera that can be mounted on a drone. ARGUS, which produces a high-resolution video image that covers 15 square miles and can be zoomed in upon any small area, is the culmination of the trend towards ever-more-pervasive surveillance cameras in American life, and makes real a key threat that drones pose to privacy: the ability to do location tracking. Part of the program remains classified, including whether it has yet been deployed.
Sponsoring Florida College Football Team Can’t Whitewash a Private Prison Company’s Atrocious Record
The GEO Group, a for-profit prison corporation headquartered in Boca Raton, Florida, announced on Tuesday that it had secured the naming rights to Florida Atlantic University's football stadium in exchange for a $6 million donation to the university's athletic program. Of all states, Florida imprisons the second-highest number of prisoners – over 11,000, or approximately 11% of the state prison population – in private facilities, and only about 10 miles from the FAU stadium, GEO operates the Broward Transition Center, a U.S. Immigration and Customs Enforcement detention center reserved for immigrants who have committed either no crime or a nonviolent offense.
The GEO Group has a horrific, well-publicized record of abuse and neglect. Last year, a federal judge issued a blistering order in a joint ACLU/Southern Poverty Law Center lawsuit against a GEO prison that held children and teenaged prisoners in Mississippi, calling the facility a "cesspool of unconstitutional and inhuman acts and conditions.” The $6 million that FAU accepted from GEO this week should not be viewed as a philanthropic gift, but as an effort to improve the company's image after its highly publicized improper treatment of detainees. Meanwhile, 58% of the people in prison nationwide are African-American or Latino, and 30.3% are between the ages of 18 and 29. The FAU Owls football team will be sponsored by a company whose core business depends on the continued overincarceration of young people who look much like themselves.
Federal Government Set Deportation Quota – USA Today Reports on Records First Uncovered by ACLU
In a front-page story, USA Today made public the results of the ACLU of North Carolina’s investigation of the comingling of local law enforcement agencies and U.S. Immigration and Customs Enforcement (“ICE”) in the southeast. ICE officials participated in “seatbelt” checkpoints set up by state and local law enforcement, using the opportunity make sure their yearly criminal deportations measured up to last year’s numbers by interrogating drivers about their immigration status. Accounts of the Jackson County, North Carolina checkpoints suggest that sheriff’s deputies stopped only Latino drivers during the checkpoint and that drivers who were wearing their seatbelts were also pulled aside. This system promotes racial profiling by ICE officers and local law enforcement agencies and violates the right guaranteed by our Constitution to be treated equally under the law.
Status of Domestic Drone Legislation in the States
We’re currently seeing an unprecedented surge of activity in state legislatures across the country aimed at regulating domestic surveillance drones. Nineteen states have introduced such privacy protection bills, and almost all of the bills require law enforcement to get a probable cause warrant before using a drone in an investigation. If Virginia Governor Bob McDonnell signs a bill that is on his desk now, his state will be the first in the country to enact this type of legislation, and place a moratorium on the use of drones until July 1, 2015.