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WASHINGTON – The American Civil Liberties Union mourns the passing of Sen. Frank Lautenberg (D-N.J.) and sends its condolences to his family, friends, staff and the people of New Jersey.
"Our country lost a true civil liberties titan today," said Laura W. Murphy, director of the ACLU Washington Legislative Office. "From his service during World War II to his final months in the Senate, Sen. Lautenberg understood the importance of fighting for the rights of every American. He was a champion for religious liberty and leaves behind a legacy of fighting for women's rights and reproductive freedom. We will sorely miss his voice and passion."
FOR IMMEDIATE RELEASE
CONTACT: 212-549-2666, firstname.lastname@example.org
The following can be attributed to Steven R. Shapiro, legal director of the American Civil Liberties Union, in response to the Supreme Court's 5-4 decision upholding the DNA testing of arrestees in Maryland v. King:
"Today's decision creates a gaping new exception to the Fourth Amendment. As Justice Scalia's dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. Today's decision eliminates that crucial safeguard. At the same time, it's important to recognize that other state laws on DNA testing are even broader than Maryland’s and may present issues that were not resolved by today's ruling."
In which state did the ACLU file a lawsuit challenging dangerous and abusive conditions in a private prison?
Which house of the legislature will consider the immigration reform bill proposed last month?
Which social media platform is reviewing its hate speech policy in an effort to balance respect for free speech and pressure to censure misogynistic material?
Women of what ethnicities are unfairly targeted by an Arizona anti-abortion law?
What group of veterans is often not remembered on Memorial Day?
NEW LAWSUIT: Massive Human Rights Violations at Mississippi Prison
Yesterday, the American Civil Liberties Union, the Southern Poverty Law Center, and the Law Offices of Elizabeth Alexander filed a federal lawsuit on behalf of prisoners at East Mississippi Correctional Facility (EMCF). EMCF is a cesspool. Prisoners are underfed and often held in rat-infested cells without working toilets or lights. The prison is dangerously understaffed, and prisoners routinely set fires to attract the attention of officers to respond to emergencies. Without sufficient staff to protect prisoners, rapes, beatings, and stabbings are rampant. And some of the most sadistic violence is inflicted on prisoners by security staff.
Immigration Reform: Where Things Stand Now and What's Next
As the immigration reform bill that has emerged from the Senate Judiciary Committee moves to the full Senate for further consideration next week, we can find clues of upcoming changes in what just occurred in the Committee. Dozens of amendments were withdrawn before they could be voted upon – many of them will return on the floor where the numbers are less certain and more malleable. There will be attempts to further narrow the breadth of the path to citizenship – some will want to exclude those with minor offenses. But rest assured that the fight will continue to broaden the reach of the bill, too.
Should Facebook Censor Misogynistic Material?
The New York Times ran an article this week about pressure that is mounting on Facebook to censor websites full of awful misogynistic material. The company said it was reviewing its processes for dealing with content under its hate speech policy.
As free speech and internet freedom advocates, what are we to make of this story? It seems that part of the ambiguity that arises in these cases is that there are two separate, incommensurable frames or paradigms through which we can interpret the situation.
Reproductive Health Restrictions Hurt Asian-American Women
The American Civil Liberties Union and the ACLU of Arizona filed a lawsuit this week on behalf of the NAACP of Maricopa County and the National Asian Pacific American Women's Forum (NAPAWF) challenging a state law that relies on harmful racial stereotypes to shame and discriminate against Black and Asian and Pacific Islander (API) women who decide to end their pregnancies.
Remembering Executed Veterans
Memorial Day is over, with its picnics, parades, and poignant remembrances of the veterans who gave their lives in America's wars. But there is one group of vets few want to remember: the ones who went to war, came back tragically changed, committed a crime and were executed.
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.
In May, a number of states either passed laws or are advancing bills that could safely reduce state adult correctional populations. You can review recent activity in state legislatures to reduce prison populations, with contextual information about each state, at our new map. Below are some highlights:
- Alabama’s legislature sent the governor HB 494, which authorizes district attorneys to establish pretrial diversion programs within their judicial circuits or within any county within their judicial circuit.
- Alaska’s House is still considering SB 56, which would classify drug possession as a misdemeanor. Also under consideration is SB 64, which would create a sentencing commission and allow for earned penalty reductions.
- California’s Senate passed SB 649, which would give prosecutors the discretion to charge possession of any drug as a misdemeanor rather than a felony.
- Colorado’s legislature passed a number of important bills. SB 250 makes a number of revisions to drug-offense sentencing. HB 1156 creates a pretrial diversion program for adults. HB 1160 reduces the punishment for theft. For a full, detailed list, see CCJRC’s legislative wrap-up.
- Connecticut’s HB 6511, which would reduce the “school zone” area within which drug offenses carry stiffer sentences, is still before the House.
- Georgia’s governor signed HB 349, which gives judges the option to issue a sentence below the mandatory minimum for drug trafficking and some other offenses if certain conditions are met. You can read more about the bill here.
- Hawaii’s SB 68, which would allow judges to impose a sentence below the mandatory minimum for most drug offenses, is on the governor’s desk.
- Indiana passed Act 1006, a broad criminal code revision. Among many other things, the law creates a felony threshold for theft, reduces sentences for low-level drug offenses, reduces the “school zone” for drug-offense enhancements from 1000 to 500 feet, limits the application of the habitual offender statute, and expands judges’ discretion to suspend sentences. You can read more about the bill here.
- Maryland’s governor signed HB 1396, which increases the felony theft threshold and creates tiers for sentencing felony theft.
- Massachusetts is considering S. 667, which would repeal mandatory minimum sentences for nonviolent drug offenses, as well as H. 1645, which would reduce the “school zone” area within which drug offenses carry stiffer sentences.
- Missouri’s House passed HB 210, a rewrite of the criminal code that includes some sentencing reform, such as raising the felony theft threshold, reducing some drug penalties and reducing the “school zone” for drug-offense enhancements. The Senate did not pass the measure, however, and it is tabled until next year.
- Nevada’s governor signed SB 71, which will allow prisoners serving consecutive sentences to earn more time off their sentences.
- North Carolina is considering S. 537, which would allow judges to issue a sentence below the mandatory minimum for drug trafficking if certain conditions are met.
- Oregon is considering a broad reform bill, HB 3194, which among other things would eliminate mandatory minimum sentences for Robbery II, Assault II, and Sexual Abuse I.
- Texas’ legislature passed SB 1790, which authorizes judges to reduce certain eligible state-jail felonies to a Class A misdemeanor after a successful probation period. For more, see TCJC’s legislative wrap-up.
- Vermont’s legislature passed H. 200, which will decriminalize possession of up to an ounce of marijuana. The House and Senate passed an amended version of S. 1, which would originally have required judges to consider the financial costs of sentencing options, but in its current version would reduce penalties for minor embezzlement and create two working groups: one to review the state’s criminal code and another to develop a model with which to estimate the costs and benefits of Vermont’s criminal justice policies.
The ACLU welcomes Mishi Faruqee, our new Juvenile Justice Policy Strategist, who will be ramping up our efforts to reduce the incarceration of youth. Mishi comes to us with a long career in juvenile justice that includes leading advocacy coalitions and designing and implementing policy reforms in New York State. We’re excited to have her on board.
Highlights of Recent Efforts to Improve Juvenile Justice:
Georgia’s governor signed HB 242, comprehensive reform legislation that bans the placement of status offenders, limits the placement of youth convicted of misdemeanors, creates a two-tier system for designated felonies so that sentences vary according to the severity of the offense, and creates incentive funding program for community-based alternatives to placement.
Illinois’ legislature passed HB 2404, which will treat 17-year-old youth charged with non-violent offenses as juveniles, not adults. The bill now awaits the signature of Governor Pat Quinn.
Maryland’s governor signed HB 916, which restricts the placement of youth for low-level offenses.
Massachusetts is considering SB 26, which would raise the age of criminal court jurisdiction from age 17 to 18.
Nebraska’s governor signed LB 561, which will overhaul its juvenile justice system to send more youth to community-based programs as alternatives to state confinement. The legislation appropriates $10 million to fund alternatives to incarceration.
Washington’s governor signed HB 1524, which provides mental health diversion services in lieu of formal processing in the juvenile justice or criminal justice systems for youth arrested of certain nonserious offenses. In addition, Washington is considering HB 1651, which would make official juvenile court files confidential except for adjudications of serious violent offenses.
New Research on Juvenile Justice:
- The National Juvenile Defender Center released "Missouri: Justice Rationed: An Assessment of Access to Counsel and Quality of Representation in Juvenile Delinquency Court." The report identifies key barriers that prevent Missouri youth from accessing quality legal representation in Missouri.
- The Campaign for Youth Justice published "Family Comes First: A Workbook to Transform the Justice System by Partnering with Families," which provides practical tools and resources for juvenile justice system practitioners invested in undertaking a family-driven approach to juvenile justice.
- Nicole Pittman, a Senior Soros Fellow at Human Rights Watch, authored "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the U.S." The report details the harm that sex offender registration laws cause for young people convicted of sex offenses.
States are advancing bills that could reduce the number of prisoners held in solitary confinement. Here are some promising developments from the last month:
- California‘s SB 61, which would impose strict limits on the solitary confinement of youth, was passed by its initial committee.
- Massachusetts is considering S. 1133, which would restrict the use and duration of solitary confinement.
- Nevada’s House passed an amended version of SB 107, which would restrict the use of solitary confinement for youth.
- Texas’ legislature passed SB 1003, which would require the state to closely examine its use of solitary confinement.
ACLU Files Civil Rights Suit Charging Massive Human Rights Violations at East Mississippi Correctional Facility: On May 30, the ACLU along with the Southern Poverty Law Center and the Law Offices of Elizabeth Alexander filed a federal lawsuit on behalf of prisoners at East Mississippi Correctional Facility (EMCF). The suit challenges the isolation of mentally ill prisoners; inadequate mental health and medical care; abuse and excessive force by staff; failure to protect prisoners from violence; pervasive filth and unsafe environmental conditions; and inadequate nutrition and food safety. Although designated as a facility to care for prisoners with special needs and serious mental illness, EMCF denies prisoners even the most rudimentary mental health care services. Prison officials have known of these conditions for years but failed to protect the health and safety of prisoners. For more on Dockery v. Epps, read our press release and blog. Also, read one EMCF prisoner’s gut-wrenching account of the sort of violence that is rampant at the understaffed facility.
An amendment to the Senate’s immigration reform bill passed that would establish a framework for the use of solitary confinement in housing immigration detainees, place presumptive limits on the use of such confinement in non-disciplinary settings, and require the Department of Homeland Security to develop effective oversight mechanisms.
OTHER NEWS AND RESOURCES
- ACLU Victory! A federal judge ruled that Maricopa County Sheriff Joe Arpaio has repeatedly violated the Constitution, relying on racial profiling and illegal detentions to target Latinos. Judge G. Murray Snow’s ruling prohibits the sheriff’s office from using “race or Latino ancestry” as a factor in deciding to stop any vehicle with Latino occupants, or as a factor in deciding whether they may be in the country without authorization. Read our press release, our blog, and coverage by the New York Times.
- A task force in the U.S. House of Representatives will take aim at the sprawling federal criminal code. The Over-Criminalization Task Force of 2013, led by Reps. Jim Sensenbrenner (R-WI) and Bobby Scott (D-VA), will investigate whether the federal code over-criminalizes minor offenses.
- A second House task force, led by Reps. Frank Wolf (R-VA) and Chaka Fattah (D-PA), will look at ways to curb the rapidly expanding and overcrowded federal prison system.
- The National Association of Criminal Defense Lawyers (NACDL) presents the Restoration of Rights Project, a collection of the laws and practices in each U.S. jurisdiction relating to relief from the collateral consequences of conviction. In addition to the full profiles, there is a set of charts covering all 50 states (plus territories and the federal system) that provides a side-by-side comparison and make it possible to see national patterns in restoration laws and policies. These materials will help lawyers minimize the collateral consequences suffered by clients and restore their rights and status.
- In other news related to collateral consequences, Virginia Governor Bob McDonnell announced that later this year, people with nonviolent felony convictions will be able to have their voting rights individually restored. Characterizing the issue as one of “fairness and forgiveness,” Governor McDonnell said that this move will help former prisoners integrate back into society.
- The American Bar Association is in the process of compiling a database of the collateral consequences of a criminal conviction in every state—15 states are currently available.
- The NACDL also released Excessive Sentencing: NACDL’s Proportionality Litigation Project, a collection of each state’s key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences.
- In U.S. v. Blewett, a three-judge panel of the Sixth Circuit ruled that “the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage.” Read the opinion, and coverage of the ruling.
- The Corrections Corporation of America turned 30 years old, an ignominious occasion that is nothing to celebrate. Read our take at our blog, and thanks to all those who joined the protests of CCA’s shameful anniversary.
Washington Post national security reporter Walter Pincus has recently written several columns criticizing the press and First Amendment advocates, like the ACLU, for their concern over the recent revelations of aggressive national security leak investigations and calls for a federal reporter shield law to protect the identity of anonymous sources. (Those columns ran on May 29, May 27 and May 20.)
Given the ACLU's ongoing concern with the leaks inquiries, and our support for a shield law, I should respond to a couple of points.
In his May 27 column, Pincus addresses the James Rosen investigation, in which the government obtained the Fox News reporter's email and phone records following a report based on classified information about North Korea's nuclear program. (Read more about the case here.)
Pincus writes that when "First Amendment advocates say Rosen was ‘falsely' characterized as a co-conspirator, they do not understand the law." That mischaracterizes the objection. It doesn't matter if Mr. Rosen were "falsely" or "truly" accused of being a co-conspirator. Under the plain language of 18 U.S.C. § 793(g), encouraging someone to disclose classified information could constitute conspiracy to violate the Espionage Act. Applying that law to reporters engaged in newsgathering (i.e., encouraging somebody to tell you things), makes every media inquiry designed to elicit the disclosure of classified information a potential criminal act. That's the problem, and it's one of constitutional scope.
In the May 29 column, Mr. Pincus criticizes proposed reporter shield laws, which would require a judge to sign off on government requests for information from reporters, and would provide special protection for anonymous sources. He argues that because it's tricky to define who qualifies as a journalist, the government could selectively apply the law to disadvantage certain disfavored groups. That is absolutely a legitimate concern, one The Washington Times also made well. The answer, however, is not blanket opposition to a bill, but support for a law that covers everyone collecting information for dissemination to the public, period, including the proverbial "lonely pamphleteer."
The fact is, even under the existing, and weak, qualified reporters' privilege that is recognized in some courts, judges already wrestle with this difficult question. Now, if the shield bill that ends up passing contains a crabbed definition of journalist, we'll have to have another conversation. Until that point, however, we should support a strong bill with a broad definition.
Mr. Pincus also argues that shield laws result in "media lobbyists going to Congress to seek a privilege from the lawmakers journalists cover," and that the priest-penitent, therapist-patient and other privileges are court-made and thus less susceptible to politicization. Again, this is a legitimate concern. Unfortunately, especially on a federal level, a qualified reporter privilege is a tough sell to a judge for exactly the reason Pincus points out: a federal reporter shield implicates spies and drones, and judges are highly deferential to the executive branch in national security cases. Unlike the priest-penitent privilege, which is an easy sell to the courts, Congress is the only hope for a uniform federal rule.
Finally, Pincus echoes the common refrain among those who defend the Justice Department's leaks inquiries: that the unauthorized disclosures here did not involve "whistleblowing." In the case of the James Rosen story, Pincus argues that there was real national security harm when the story "alerted the North Koreans that the United States had penetrated their leadership circle." With the AP story, Pincus says, the leaker "caused the abrupt end to a secret, joint U.S./Saudi/British operation in Yemen that offered valuable intelligence against al-Qaeda in the Arabian Peninsula."
First, we can't say one way or the other whether these claims of harm are true, because everything else about the investigation and the two stories is classified. That's a problem. But, second, the leaks themselves are almost beside the point. (Now, I grant that disclosing the identity of an undercover agent is one of those narrow categories of information that can and should be classified, but the AP story never mentioned a mole.)
Under First Amendment law, there's the concept of "breathing room." That is, otherwise "low-value" speech (like garden variety lies) must be protected to avoid censorship of socially valuable speech. A similar notion should apply here. The vast majority of "leaks"—and they happen every day in Washington—are self-serving. It's an agency fighting for turf, a public official trying to frame a policy dispute or somebody sending up a trial balloon. But, leaks that are indisputably in the public interest—like the disclosure of the president's targeted killing program or the existence of CIA secret prisons under the Bush administration, known as "black sites"—are sprinkled in here and there, and it's often difficult to distinguish the "good" from the "bad."
The only answer in a free country is to maximize public disclosure by giving reporters the benefit of the legal doubt. That means reporters should be absolutely privileged from being forced to disclose the identity of their anonymous sources in all but the narrowest of circumstances. The Justice Department's subpoena in The Associated Press case and search warrant in the James Rosen case simply went too far.
When Georgia death-row prisoner Warren Hill was young, his sister remembers their mother and grandfather calling him "stupid retard," "dumb ass," and "stupid child." She remembers them routinely beating Warren until he was unconscious.
All experts who have evaluated Warren Hill agree that he fits the diagnostic classification of intellectually disabled (formerly called mentally retarded).
More than a decade ago, the Supreme Court of the United States ruled that executing the intellectually disabled violates the Eighth Amendment's ban on cruel and unusual punishment. Nevertheless, Warren sits on Georgia's death row, waiting to die.
We've previously discussed how we came to this point. In brief, the Georgia courts found Warren to be intellectually disabled, but that he could still be executed because he had not proven that fact beyond a reasonable doubt (a high burden applied by Georgia alone amongst executing states). The federal courts reviewed these rulings and found no Eighth Amendment problem.
Part of the reason the courts found Warren had not met this high burden is that three experts for the State originally had found that Warren fell just short of the requirements of intellectual disability. That, however, has now changed. The three experts now unanimously agree with experts working with the defense that Warren is intellectually disabled and ineligible for execution.
The three experts cite previously un-reviewed information about Warren's limitations, but they also rely on changing science. For example, as Dr. James Gary Carter wrote in his affidavit, "Twelve years after Warren's  hearing, we in the psychiatric community know much more about developmental disabilities such as mental retardation." Dr. Carter and the other experts explain that science has advanced, particularly in its ability to identify people, such as Warren, who fall close to the boundary line between intellectually disabled and not.
This case teaches that the law sometimes fails to keep pace with science. Developments in science teach, as the experts acknowledge, that they were wrong in their original opinions that Warren was not intellectually disabled. Science teaches that, on the contrary, Warren is intellectually disabled, within the class of prisoners the Supreme Court has stated cannot be executed.
Meanwhile, the law has tied Warren's science-based claims in a procedural straight jacket. Originally he could not prove he was intellectually disabled beyond a reasonable doubt because three State experts disagreed. Now that they have changed their mind (based on developing science), the law (as interpreted by a recent controversial federal appellate decision) says that this claim has been raised before and cannot be raised anew. It's heads you lose, and tails we execute you.
Warren has gone through the traditional capital appeals, state and federal. But outside of that system, the Supreme Court holds the keys to its own courtroom, which it opens infrequently to hear cases in exceptional circumstances (relying on what is called "original habeas jurisdiction," which can involve remand to a lower court for fact finding).
When all other courthouse doors remain locked, the government and law refuse to bend to science, and a man who all agree is intellectually disabled awaits the gurney, the Supreme Court should open its own doors.
This week saw an unprecedented advance in state campaigns expanding driving privileges to immigrants. Nevada's legislature started things off on Monday, passing a bill which will be signed into law today by Republican Governor Brian Sandoval. On Thursday, Connecticut's legislature passed a bill that Democratic Governor Dan Malloy has pledged to sign. Meanwhile, California's Assembly passed its own bill this week, which now heads to the state Senate for consideration.
This builds on a remarkable trend – which I think we now must rightly recognize as a movement. Illinois, Maryland, and Oregon had already enacted 2013 laws granting undocumented immigrants the right to drive, and bills passed by legislatures in Vermont and Colorado are awaiting signature. That makes seven states, in less than five months.
Granting driving privileges to undocumented immigrants had for some time been regarded as a political loser. In fact for years, states have passed restriction on top of restriction barring undocumented immigrants from access to driver licenses or state IDs. In the mid 2000's, efforts to expand driving rights to undocumented drivers in places like NY and CA went down in flames, leading politicians of both parties to consider the issue toxic.
The tide has turned. The public has grown tired of demagoguery over the issue, allowing for a clearer eyed acceptance that highway safety is served by ensuring that all drivers are trained, tested, licensed, and insured. Lawmakers in a rapidly growing number of states (and in an increasingly bipartisan fashion) are heeding the surging political power of Latino and immigrant constituents, which have always viewed the right to drive as essential to the well-being and equal protection of their communities. The success of this movement demonstrates a recognition that undocumented immigrants are an integral part of our communities, and that states should promote their integration.
None of these new state laws expanding access to driving privileges are perfect; all of them involved political compromises. The ACLU will be closely monitoring developments, to ensure that the laws are implemented in a non-discriminatory manner. But never have we seen so many states act so rapidly in a so positive a direction on an issue that had only moments ago been considered so tough. This is what political progress looks like. It's a trend Congress should heed and build upon as the debate over federal immigration reform moves forward.
On January 24, 2013, we saw a great victory for U.S. servicewomen when the Department of Defense announced it was ending the ban on women serving in combat units and occupational specialties. As the Pentagon and the armed services begin implementing the change in policy, there are many issues that must be resolved, and we'll be keeping a close eye on the process. In an ongoing blog series, we will bring you voices of military experts, veterans, and other stakeholders who will discuss these issues and the need to fully integrate women in the armed forces.
During my 25-year career as a Navy officer and helicopter pilot, I was fortunate to witness firsthand the genuine skills and capabilities of U.S. servicewomen. But at the same time, these brave women were limited in their opportunities by arbitrary rules that had nothing to do with their abilities and, if anything, hurt the readiness of our military. I also saw women rise to the occasion when the policies that excluded them from certain positions yielded to the realities of modern warfare and the challenges of maintaining an effective fighting force.
I first had the chance to observe women break new ground in the military when I was stationed with the Navy's first female helicopter pilot (in the interest of full disclosure, I have to admit she happens to be my wife of 35 years).
When Joellen Drag first reported to her helicopter squadron in 1974, she was not allowed to hover over the fantail or flight deck of a Navy seagoing ship. She had the same training and abilities as her male counterparts, but she did not have the same opportunities to develop advanced qualifications and experience needed to compete for higher rank. But the law didn't just hurt Joellen's career—it also prevented our Navy from utilizing a skilled pilot.
To fight this unfair policy, Joellen joined a lawsuit challenging the federal law that stood in the way of her dream of following the footsteps of her father who was a career naval officer. Fortunately, the judge declared the law unconstitutional in 1978, and Joellen went on to have a successful career in the Navy, eventually retiring as a captain.
The legal battle was won. But the war was not. Fast-forward to 1991 and the first Gulf War. Women were everywhere in theater, doing just about everything they had been trained to do. I don't recall many questions about whether the law allowed them to be there, but I did know that women were essential to our preparation for combat operations. And I'm certain no commanding officer would want to lose a fully-qualified crew member just because she was, well, a she.
With the buildup essentially complete and Saddam Hussein not withdrawing from Kuwait, suddenly the lights went out in Bagdad. We were in a combat situation, complete with scud missiles fired at coalition forces and planes shot down. And again, no one questioned the presence of women doing what they were trained to do…or so I thought.
I was assigned to the staff of the Navy's logistics support force in Bahrain where I oversaw the operations of 32 shore-based planes and helicopters. One morning the officer-in-charge of one of the helicopter detachments appeared at my office door along with one of the female pilots assigned to the unit. They asked to speak with me, then stepped into my office and closed the door.
"Uh-oh," I thought. "This must not be good."
Turns out the night before, the female pilot was diverted from a routine ship resupply mission and ordered to fly to an oil platform off Kuwait City to pick up Iraqi soldiers who had been captured. Apparently word got back to the Wing Commander in Virginia that a female crewmember had flown into the combat zone, which was not permitted.
I assured the pilot she had done the right thing. As she departed my office, I also reminded the pilot to log combat flight time on her flight reports. My small actions may not have influenced what is the norm today, but it meant a lot to the women pilots for whom I felt a responsibility to treat with fairness and equality. After I passed this situation along to my admiral, I never heard another word. Rules aren't necessarily made to be broken, but this one was out of date.
In large part because of the Desert Shield/Desert Storm experiences, most restrictions on women serving on combatant vessels and aircraft were lifted in 1994, the same year the direct ground combat exclusion policy was put in place. Since then we've become very aware of what our servicewomen have done in combat in Iraq and Afghanistan, despite this policy. They've been decorated for heroism and have died for their country.
And so Joellen and I were elated when we learned that the Pentagon was finally rescinding the policy, knowing full-well what that meant to the thousands of women who are currently serving our country or who aspire to do so. From our own experience, we know that women have the ability to serve in combat roles and, in doing so, have made important contributions to our military readiness and capabilities. That's why, when the Pentagon works through the details in implementing the change in policy, it should open all occupations and units to women, allowing them to compete and serve in positions for which they are qualified and affording them opportunities to be promoted to the highest levels of leadership.
It's time to do away with the brass ceiling once and for all.
Captain Dwayne Oslund, USN (Ret.) served 25 years in the U.S. Navy. He was a helicopter pilot who commanded a primary training squadron in Corpus Christi, TX, with 90 male and female instructor pilots from a wide range of naval aviation communities. During that tour, his squadron trained over 250 men and women from the Navy and Marine Corps. He holds a Master of Science degree in Management with a specialty in Manpower, Personnel and Training Analysis from the Naval Postgraduate School, and also served as the Navy's Officer Promotion Planner on the staff of the Chief of Naval Operations. Shortly after the Iraqi invasion of Kuwait in August 1990, CAPT Oslund was among the first Navy personnel to forward deploy to Riyadh, Saudi Arabia, when he led a small contingent to standup a Navy liaison element to US Central Command. He was subsequently assigned to the Navy logistics support force staff in Bahrain.
My name is ______ and I am 23 years old and although my past criminal record isn't at its best, at heart I'm still a great kid!
After being locked up for about six months, I suffered from something many young males would hate to speak on and that's rape. I was raped at Eastern Mississippi Correctional Facility in Meridian, MS. I was beat brutally and faced several facial and rectum injuries from this attack. I was raped, robbed, and assaulted by several other prisoners.
I was held hostage due to the attack in a cell. I was threatened with knives and tormented by these inmates for several hours.
I was raped from 11:30pm @nite until 3:30am in the morning by one other prisoner. As he raped me continuously all I could do was cry because one false move and I knew this guy would take my life. After being a victim of rape by another male I am suffering still from anxiety, depression and stress issues because of this attack.
I fault the reason that I'm in prison today. If I had one wish I would wish that I never violated the law and shoplifting, which is what got me in prison. I've always wanted to live a normal life and hang out with friends and enjoy.
But due to this tragic incident that happened to me all I want to do is speak out to others that are suffering from what I went through and let them know it's okay to speak up and tell someone because no one should be violated of their sexual personal space.
I was hurt very badly and sometimes I feel like it's my fault but at the end of the day I know it wasn't.
Again my name is ______ and I too was a victim of rape.
This blog post was adapted from a handwritten letter the victim sent to the ACLU. Click here to read the complete letter.
Today, the ACLU, the Southern Poverty Law Center, and the Law Offices of Elizabeth Alexander filed a federal lawsuit on behalf of prisoners at the East Mississippi Correctional Facility (EMCF), describing the for-profit prison as hyper-violent, grotesquely filthy and dangerous. Without sufficient staff to protect prisoners, rapes, beatings, and stabbings are rampant.
Court rulings unsealed last week in Washington show for the first time a behind-the-scenes legal battle over when the government should have to tell you that it's tracking your location and reading your email. These documents—which came to light only as the public learned more about the government's controversial investigation of Fox News journalist James Rosen—reveal significant new details about the government's obligation to provide notice, after the fact, when it obtains geolocation data or obtains stored email messages. Indeed, the court orders bring to light a striking contrast: federal prosecutors in Washington routinely provide notice to individuals they track using cell-phone geolocation data, even if that notice is delayed, yet the government strenuously resists giving any notice to individuals when searching and reading their emails.
The government is required to tell you when it listens in on your phone calls or searches your home. Now, it appears that at least some prosecutors provide delayed notice when they use cell-phone data to track your location in real-time. If prosecutors in Washington can provide such notice, then prosecutors elsewhere should be doing it too. Last year, the public learned that the phone companies receive a staggering 1.3 million surveillance requests per year, many of which are likely for geolocation data. Although notification is apparently the norm in Washington we're not aware of similar practices anywhere else in the country.
As for government searches of your personal email account, you will likely never know—unless you are ultimately charged with a crime or your email service provider voluntarily tells you about the search (something few do, often because the government obtains a gag order). The lack of notice for email searches appears to be a central question in court documents unsealed last week, which show the government trying to convince at least three judges that it has no duty to provide notice to email subscribers.
The new details emerged in a series of court opinions debating whether the government was ever required to tell Rosen that it had obtained a warrant to search his Gmail account. Relying on the convoluted and outdated federal statute governing email searches—the Electronic Communications Privacy Act (ECPA)—the government argued that it was excused from providing notice. U.S. Magistrate Judge John Facciola of the D.C. District Court rejected the government's argument and highlighted the perverse consequences of its position. Pointing out that federal prosecutors in Washington typically provide notice when tracking a person's movements using cell-phone data, Judge Facciola wrote:
[T]he user of a cell phone whose telecommunications data has been intercepted and captured pursuant to a warrant would ultimately learn that the government has been surveilling her, even though a portion of that surveillance may have occurred when she was in a public place. The e-mail account holder, on the other hand, would never learn of the search of the entire contents of her email account. Thus, as the government would have it, while it would have to tell a person that it followed his movements one day as he walked from K Street to Connecticut Avenue, it would never have to tell him that it has read and copied the entire contents of the e-mail account that he opened when he arrived at his office on K Street.
While the government was unable to convince Magistrate Judge Facciola, it appealed and ultimately persuaded Chief Judge Royce Lamberth that it had no obligation to notify Rosen of the email search. In particular, Chief Judge Lamberth held that the government's duty to provide notice was satisfied when investigators presented the warrant to the email service provider—in this case, Google. Magistrate Judge Facciola had previously rejected the government's interpretation of the notification statute, describing it as a "meaningless act of telling the ISP what it already knows." Facciola also observed that "[i]t is irrational to think that Congress would . . . grant the government a perpetual dispensation from ever notifying a person of the remarkable intrusion that a search of his email account creates."
These court opinions and filings tell us a great deal about how the government interprets its authority to obtain highly personal information, and the extent to which it interprets the law to avoid informing individuals when they have been spied upon. The documents also prompt further questions and significant concerns. For instance, we learned for the first time that federal prosecutors in Washington generally give delayed notice to the targets of cell-phone geolocation tracking—but what about prosecutors in other parts of the country, at the federal, state, and local level? Is this practice the result of a specific court ruling confined to our nation's capital, or does it reflect a national policy adopted nation-wide by the Department of Justice?
Even more, the documents show that the government seeks to access ever-greater quantities of our personal information with even less protection for individuals. Our email accounts contain vast amounts of private information, including personal communications, financial records, and other sensitive material. Yet courts do not even mandate the kind of notice that would be required if the government wanted to rifle through the letters we keep at home. Our laws have not caught up to the reality of today's electronic communications. The government should be required to notify individuals it targets for searches, whether electronic or physical, even if that notice is delayed for a time. Currently, individuals will only learn of these electronic searches if and when they are charged with a crime. The strange result of this policy: innocent people who are never charged will never learn that they were the subject of government surveillance and this type of intrusive search.
The Department of Justice has long kept the public in the dark about the scale of its surveillance activities. Such secrecy over surveillance powers is simply not appropriate in a democracy.
We announced some excellent news last night: the U.S. has agreed to settle a lawsuit brought by David House over the government's 2010 search and seizure of his laptop and other electronics at the airport as he was coming back from a vacation in Mexico. House was at that time involved in the Bradley Manning Support Network, an organization dedicated to raising funds for the legal defense of the soldier who has since admitted providing classified documents to WikiLeaks. You can read the settlement here.
When he was stopped, House's electronics stored the identities of members and supporters of the Bradley Manning Support Network. Given the controversial nature of that cause, House and others were deeply concerned that the government seizure of this material would frighten others from lending their time and money to the organization. The ACLU and the ACLU of Massachusetts brought the lawsuit on House's behalf, charging that the government targeted House solely on the basis of his lawful association with the group, and doing so violated his First Amendment right to freedom of association as well as his Fourth Amendment right to be free from unreasonable search and seizure.
In the settlement, the government agreed to destroy all copies of House's devices, and to turn over documents related to its investigation of him and his devices. The government also admitted that House was on the Department of Homeland Security's "Lookout" list used by agents at border checkpoints, which is why he was stopped and searched in the first place. Our hope is that these documents will shed light on what happens after an individual's electronics are taken at the border, a process that unfortunately has been largely shrouded in secrecy so far.
Through the lawsuit, House learned that even after the government returned his electronic devices, it kept copies of the data they contained. And not only did the Immigration and Customs Enforcement (ICE) agents who seized his devices search them, they also provided a copy to the Army's Criminal Investigative Division (Army CID), which they asked for "technical and subject matter assistance." Army CID has played a central role in the investigation of Bradley Manning. The agency ultimately determined that it would not use the information on House's electronics, and destroyed its copy, but ICE retained its copies.
This illustrates one of the ways in which electronics border searches are so concerning: once border agents have a copy of your data, it can easily be copied many more times and shared with other government agencies, increasing the possibility of individual or institutional abuse of the information as well as data breaches.
The government assertion of power at the border is vast and intimidating: it claims it can search or confiscate any person's laptop, cell phone, or other electronic device for any reason, and keep these devices for as long as it takes to search them.
In March 2012, the U.S. district court judge in the case rejected the government's effort to dismiss the lawsuit, ruling that even if the government does not need suspicion or a warrant to search a laptop at the border, that power is not unlimited and First Amendment rights remain intact. The settlement announced today is the result of months of negotiations following that decision.
David House has explained the significance of the settlement in a statement:
When my laptop was seized on American soil, I made a pledge to the everyday working people, clergy, and U.S. service members who make up the heart of Mr. Manning's financial contributors: that their generosity would not be met with retaliation from corrupt elements within our government, and that their personally identifying information, placed at risk by the seizure, would be reclaimed from those who had ordered it seized
Today, with a settlement to reclaim this data realized through the pressure of the courts and the hard work of the ACLU, I have made good on my pledge. The government's surrender of this data is a victory through vital action not only for the citizens put at risk, but also for anyone who believes that Americans should be free to support political causes without fearing retaliation from Washington.
East Mississippi Correctional Facility is hyper-violent, grotesquely filthy and dangerous. Patients with severe psychiatric disabilities go without basic mental health care. Many prisoners attempt suicide. This video is the story of a young man who succeeded.
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EMCF is a cesspool. Prisoners are underfed and often held in rat-infested cells without working toilets or lights. The prison is dangerously understaffed, and prisoners routinely set fires to attract the attention of officers to respond to emergencies. Without sufficient staff to protect prisoners, rapes, beatings, and stabbings are rampant. And some of the most sadistic violence is inflicted on prisoners by security staff.
EMCF is supposed to provide intensive treatment to the state's prisoners with severe psychiatric disabilities, but instead locks many in prolonged long-term solitary confinement – often for years – and denies prisoners even the most rudimentary mental health care services. Medical care is grossly substandard. One prisoner is now legally blind after EMCF failed to provide his glaucoma medications and take him to a specialist; another had part of his finger amputated after he was stabbed and developed gangrene.
The Mississippi Department of Corrections (MDOC), which ultimately bears responsibility, has known about these conditions for years but failed to protect the health and safety of prisoners. In 2012, the American Civil Liberties Union and the Southern Poverty Law Center offered to pay for an assessment of the system, but the Mississippi Department of Corrections rejected the offer.
Today, the American Civil Liberties Union, the Southern Poverty Law Center, and the Law Offices of Elizabeth Alexander filed a federal lawsuit on behalf of prisoners at EMCF. The conditions at EMCF are blatantly unconstitutional and we fully expect to prevail in the lawsuit. We hope that MDOC Commissioner Epps will meet us at the negotiating table very soon to finally end the horrors and suffering at EMCF.
Plaintiffs have established that the MCSO had sufficient intent to discriminate against Latino occupants of motor vehicles. Further, the Court concludes that the MCSO had and continues to have a facially discriminatory policy of considering Hispanic appearance probative of whether a person is legally present in the country in violation of the Equal Protection Clause. The MCSO is thus permanently enjoined from using race, or allowing its deputies and other agents to use race as a criteria in making law enforcement decisions with respect to Latino occupants of vehicles in Maricopa County.
These findings—taken from a federal district court's 142-page decision issued May 24—represent a monumental victory for the people of Maricopa County who have fought for years against Sheriff Joe Arpaio's and his deputies' oppressive regime. For the first time, a court has found what the community had long been protesting—that the Maricopa County Sheriff's Office has a pervasive history of racially profiling Latinos and has continued to engage in that conduct.
Sheriff Arpaio considered himself to be above the law, able to do as he pleased. In his book, Joe's Law, Sheriff Arpaio talks about what he perceived as "threats" to American values and touts his iron-fisted approach to law enforcement. Unfortunately, Joe's Law did not include respect for the most American of values, our Constitution. It took a federal court to order the self-proclaimed "toughest sheriff in America" to stop violating the rights of Maricopa residents.
In his decision, the federal court judge went to great lengths detailing the biased attitudes that permeate every level of MCSO—from Sheriff Arpaio himself to his lieutenants and deputies out on patrol. During our three-week trial, MCSO witnesses of all ranks admitted that they use race as a factor in determining who to investigate for being in the country without lawful status. Sergeants were confronted with emails they had sent to their own deputies containing racist jokes denigrating Mexicans and Spanish-speakers. This conduct was never corrected, but instead reinforced by Sheriff Arpaio during his numerous media interviews. Sheriff Arpaio boasted that a factor in evaluating whether someone is in the country legally is whether "they look like they came from another country" or "look like they just came from Mexico." The court also determined that many of the operations conducted by MCSO were placed in locations suggested to Sheriff Arpaio in racist calls, emails and letters about Mexicans from local residents. For example, one caller asked the police department why "nobody gets all the Mexicans hanging out" in a certain area, and another person wrote to Sheriff Arpaio complaining of Spanish being spoken at a McDonald's and asking that a raid be conducted there to get rid of the illegal immigrants. Rather than recognize and dismiss these complaints as racist and a distraction from what the police are supposed to do—i.e., investigate actual crimes and keep the community safe, Sheriff Arpaio highlighted these complaints and sent them to his lieutenants to ensure that they considered them as they chose where to make stops and arrests. Ultimately, Arpaio and his posse could not escape the overwhelming evidence establishing their hostility against Latinos and their complete disregard for community members' rights.
The court also found that even after the federal government rescinded its agreement with the Sheriff's office authorizing officers to enforce certain provisions of immigration law, and after the Supreme Court made clear in Arizona v. United States that local officers could not detain people solely to verify their immigration status, MCSO continued its policy of arresting individuals who it believed to be undocumented. MCSO went as far as to have a policy of routinely detaining passengers on the basis of their race and without any suspicion that they have engaged in any criminal or traffic violation solely to verify their immigration status. The court found that these policies were clear-as-day violations of the Fourth Amendment.
This decision not only comes as a relief to the community in Maricopa County, but also at a critical time when many state and local law enforcement agencies are increasing their own efforts to enforce immigration laws and target individuals who appear, to them, foreign.
Sheriff Arpaio's rogue law enforcement policies are not unique. Reports abound of local police departments taking immigration enforcement into their own hands, leading to similar accounts of racial profiling and unlawful detentions based on a person's perceived immigration status. This decision serves as a warning to law enforcement officials who believe they can run roughshod over the rights of certain people and won't be held accountable.
While Sheriff Arpaio declared in a pre-recorded video statement posted May 29 that he would appeal, we remain confident that the court's extensive and detailed findings of fact and law are indisputable. Sheriff Joe seems to never tire of trying to justify his past actions, and now appears to be blaming the feds for faulty training. Joe—everyone knows that racial profiling is wrong, unconstitutional, and simply un-American, but sometimes it takes a lawsuit to make sure even the most obstinate of law enforcement officials understands.
Watch the video here:
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The New York Times ran an article yesterday about pressure that is mounting on Facebook to censor websites full of awful misogynistic material. The company said it was reviewing its processes for dealing with content under its hate speech policy.
As free speech and internet freedom advocates, what are we to make of this story? It seems to me that part of the ambiguity that arises in these cases is that there are two separate, incommensurable frames or paradigms through which we can interpret the situation.
In many respects, Facebook is a publisher like the New York Times, and like any editor has the right to exercise discretion in what it publishes, or allows others to publish in its pages. Within that framework (which is undoubtedly the legal framework that currently applies), those who care about internet freedom and free expression can relax, confident in the knowledge that whatever Facebook decides to do, all is well. In fact, from this point of view, we might note that social pressure against awful points of view is a perfectly acceptable means of restricting expression. Indeed, while we don't want the government censoring racist, misogynist, homophobic, or other hate speech, it is perfectly legitimate—desirable even—for citizens to express their social disapproval of such speech, and socially sanction those who use it. As a publisher, as a participant in the raucous conversation of public life, Facebook is entirely within its rights to act upon such anti-social material.
But Facebook can also be viewed through another lens. Facebook is in charge of a sprawling empire—a vast realm in which hundreds of millions of people vehemently express themselves and their opinions about the full range of human activity. It has to manage this swarming hive of activity, impose a minimum degree of order, and ensure that everything runs smoothly. It has the power to set rules, and to enforce them. In short, when it comes to the vast realm it oversees, Facebook is a government.
Viewed as a government, Facebook is almost an experiment in political science. What happens when a realm of human endeavor is governed by a near-absolute ruler that can set any rule, squelch any speech, expel any "citizen" for any reason, with only the due process protections it sees fit to spend money on?
Inevitably, without democratic checks and balances and pressure valves and escape mechanisms that allow people to act when they are unhappy, frustrations build, and privately run online worlds, like undemocratic countries, can be susceptible to social unrest and instability.
At the same time, the absolute nature of Facebook's power over its realm can actually help when it comes to one danger that affects democratic governments in particular: tyranny of the majority. As our Founding Fathers were so aware, the democratic passions of the majority, if not guarded by a strong judiciary, can themselves lead to the trampling of rights. Unpopular points of view are especially susceptible. If Facebook members could vote, there is no question that a wide variety of speech would be disallowed. So Facebook plays the role not just of the executive and legislative branches, but also of the judiciary.
Like any government, Facebook also has an interest in separating itself from responsibility for bad things. In the case of Facebook, "bad things" generally means bad speech. As I've written about before, once companies open the door to any censorship, they open themselves to blame and recriminations not only for anything they choose to censor, but also for anything they choose not to censor. And soon they are embroiled in pressures and counter-pressures over what to allow and what to forbid. If they declare their forum a free speech zone, on the other hand, they can credibly disclaim responsibility for anything that is said there.
I think Facebook recognizes this, and so has been commendably resistant to many calls for censorship, which are legion. In addition to the controversy over misogynistic sites, for example, there are also ongoing campaigns to remove various racist sites, and sites that glorify animal cruelty. But Facebook often seems hesitant to play the role of censor.
I suspect that Facebook also recognizes that hosting a lively, raucous forum where passionate debates rage, is much healthier not only for speech, but also, as a company that sells page-views, for its bottom line. As outrage over various awful material builds, and gets forwarded and circulated around, Facebook benefits not only from the additional page views, but also from the general passion and engagement and simple attention that Facebook is generating among its users. For Facebook, boring is bad and anything else is good.
At the end of the day, however, Facebook is not an absolute potentate; it is a for-profit company dependent on advertising revenue, and that gives advertisers power over it. And behind the advertisers stand consumers. So though Facebook has been admirably restrained in exercising its plenipotentiary powers over its little world, ultimately unpopular speakers within that world are susceptible to an attenuated version of the tyranny of the majority.
I think that over the long term, Facebook's best course is to absorb some short-term pain and stick fast to the principle that its forum shall be one where speech is free. Eventually people will learn that on Facebook, as in a public forum run by the real government, censorship of speech is just not an option, and will direct their outrage where it belongs: against the speaker, not against the forum.
Update: A colleague points me to this recent piece by Jeffrey Rosen detailing the struggles of Facebook and other companies to deal with content issues, and arguing as I have done that it is in their interest to maintain a strong pro-speech stance.
Government Admits Activist Was on DHS “Lookout” List, Will Turn Over Investigation Documents and Destroy Copied Data
FOR IMMEDIATE RELEASE
May 29, 2013
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BOSTON – In a settlement reached with human rights activist David House, the government has agreed to destroy all data it obtained from his laptop and other electronics when he entered the U.S. after a vacation, the American Civil Liberties Union and the ACLU of Massachusetts announced today. House, who was then working with the Bradley Manning Support Network, an organization created to raise funds for the legal defense of the soldier who has admitted to leaking material to WikiLeaks, charged in a lawsuit that the seizure violated his Fourth Amendment rights by subjecting him to unreasonable search and seizure, and violated his First Amendment right to freedom of association.
In November 2010, Department of Homeland Security agents stopped House at O'Hare International Airport in Chicago and questioned him about his political activities and beliefs. They then confiscated his laptop, camera, and USB drive, which contained information identifying members and supporters of the Bradley Manning Support Network. The government copied House’s cell phone at the airport and held his laptop and other devices for 49 days. The data taken from House’s materials was then turned over to the U.S. Army Criminal Investigation Division (CID), which concluded that it would not use the information.
“The government’s sweeping claim that it can search through our electronics at the border for any reason or no reason at all is flatly contradicted by the Fourth Amendment, which protects us from unreasonable searches and seizures,” said Catherine Crump, staff attorney with the ACLU Speech, Privacy, and Technology Project. “The tremendous amount of personal and business information that we can now easily carry around with us means that respecting the Fourth Amendment in all places – including the border – is more important than ever.”
Under the terms of the settlement, the government agreed to destroy all remaining data copied from House’s devices. The government will also hand over numerous documents, including reports describing Army CID’s inspection of House’s data as well as the DHS “Lookout” telling agents to stop House as he entered the country. The government further agreed to release reports on DHS agents’ questioning of House, which included inquiries about whether he knew anything about Manning giving classified information to WikiLeaks.
“The seizure of David House’s computer is a chilling example of the government’s overbroad ability to conduct a search at the border that intrudes into a person’s political beliefs and associations,” said John Reinstein, an attorney with the ACLU of Massachusetts. “Those rights were vindicated by the settlement we reached.”
In March 2012, the U.S. district court judge in the case rejected the government’s effort to dismiss the lawsuit, ruling that even if the government does not need suspicion to search a laptop at the border, that power is not unlimited and First Amendment rights remain intact. The settlement announced today is the result of months of negotiations following that decision.
“When my laptop was seized on American soil, I made a pledge to the everyday working people, clergy, and U.S. service members who make up the heart of Mr. Manning's financial contributors: that their generosity would not be met with retaliation from corrupt elements within our government, and that their personally identifying information, placed at risk by the seizure, would be reclaimed from those who had ordered it seized,” House said.
“Today, with a settlement to reclaim this data realized through the pressure of the courts and the hard work of the ACLU, I have made good on my pledge. The government's surrender of this data is a victory through vital action not only for the citizens put at risk, but also for anyone who believes that Americans should be free to support political causes without fearing retaliation from Washington.”
The settlement is available at:
More information on the case is at:
The American Civil Liberties Union and the ACLU of Arizona filed a lawsuit today on behalf of the NAACP of Maricopa County and the National Asian Pacific American Women's Forum (NAPAWF) challenging a state law that relies on harmful racial stereotypes to shame and discriminate against Black women and Asian and Pacific Islander (API) women who decide to end their pregnancies. A version of the following piece by Zeenat N. Hasan, co-founder of the Arizona chapter of NAPAWF originally ran in Arizona Central on April 3, 2013.
Arizona lawmakers have enacted some of the most restrictive abortion bans in the country, from limiting access to health-care providers to restricting medical education.
The sponsors of Arizona's so-called "prenatal nondiscrimination" law justified it based on a xenophobic stereotype that Asian women prefer sons over daughters and will abort based on the sex of the fetus. The law casts any Asian-Pacific-American (APA) woman who decides to have an abortion as a suspect, stigmatizing each and every APA woman who makes the personal and private medical decision to have an abortion.
As an Asian-American woman, I am concerned about the damaging effects of this law on my community. We already face many health risks. Language barriers, economic pressures and cultural taboos toward sex prevent a significant number of Asian-American and Pacific-Islander women from seeking and receiving quality and timely reproductive health services.
Our community also is less likely to use birth control to prevent unwanted pregnancy, and we experience some of the highest rates of breast and other preventable cancers.
More than two-thirds of Asian-Americans in Arizona are foreign born, and Arizona's Senate Bill 1070 and other anti-immigrant laws have created a chilling effect in the community. Our families need health services but are growing fearful of law enforcement as well as health and human-service providers.
Asian immigrant women struggle with domestic violence, for example, but often do not report the crime because they fear being separated from their children because of their immigration status.
My partner and I have begun to plan a family, but I face growing restrictions on my ability to determine my own reproductive future. Newer laws aimed specifically at women's reproductive-health rights not only deepen health and economic disparities, but harm the most vulnerable women — low-income women and women of color. These regulations infringe on aspects of our lives that are (and should remain) private.
For women like me, it is impossible to disentangle the relationship between reproductive choices and our economic health. Indeed, it often determines whether we live in economic prosperity or disparity.
As our numbers grow in Arizona, Asian Pacific-American women must stake a claim in the political process and work to protect our reproductive rights by voting, organizing and speaking out.
With that in mind, I co-founded the Arizona chapter of the National Asian Pacific American Women's Forum. Our group calls its members "fierce sisters."
The Arizona Legislature may try to tell us we are suspect because we are different, our bodies are not our own and that we don't matter. But listen up, Arizona: Asian-American and Pacific-Islander women and girls are critical to the future of Arizona.
We're fierce. We're sisters. And we do matter.
The company wanted its workers to get the message that they would not have "free rein when they decide that they want to run." This echo of the bondage of centuries past was in an email between managers at Signal International, the Alabama-based industrial ship manufacturing and repair giant.
They were writing about 500 guest workers from India, legally employed at Signal as welders and pipefitters with H-2B temporary work visas, but illegally subjected to fraudulent recruitment practices, squalid living conditions, and threats of serious harm.
Last week, in an effort to pursue long-delayed justice, three of America's largest law firms filed lawsuits against Signal on behalf of many of these men, and at least five more major law firms have agreed to represent many more. In an unprecedented pro bono collaboration, the firms will collectively represent more than 200 former guest workers in these suits, which charge that the men were subjected to forced labor and fraud that rose to the level of racketeering and human trafficking.
The filings come as Congress considers comprehensive immigration reform, including an expansion of the foreign worker program that risks extending the very problems that took place at Signal. Legislators should take a close look at the story of Signal's Indian guest workers, because any future foreign worker program must be designed to ensure that this type of human trafficking is put to an end.
It was March 2007. Over 500 men from India had arrived at Signal's shipyards in Texas and Mississippi. They came on H-2B guest worker visas, but had been promised green cards - permanent residency - for themselves and their families. They paid dearly for these promises and a chance at the "American Dream" - going into debt to pay as much as $20,000 in recruitment fees, the equivalent of years of wages in India.
But when they arrived, the vision of a good life in the United States with their families was replaced by the squalor of an overcrowded, fenced-in, guarded labor camp. They were forced to live in unsanitary, racially segregated trailers where as many as 24 men shared only two toilets - and they were required to pay $1,050 per month each for these accommodations, even if they wanted to live somewhere else. The promises of green cards turned out to be lies. A group of outspoken workers was rounded up, locked in a guarded room, and told by Signal that they would be deported as an "example" to the other workers.
The following year, the workers, represented by our organizations and co-counsel, brought a class-action lawsuit against Signal. The court later ruled that our case could not be brought as a class action for procedural reasons, and now, the men who are no longer part of our lawsuit have decided to file individual cases against Signal.
The Signal story is not an isolated aberration - the structure of the U.S. guest worker programs invites abuse. Foreign recruitment networks often prey on the vulnerable. These recruiters need not register with the government, agree to follow U.S. law, or honestly disclose the terms of the job to their recruits. There is no U.S. government oversight of these recruiters and no accountability for the American companies that hire the workers they lie to.
Guest workers' visas tie them to a single employer - no matter how bad things are. If the guest workers abandon their jobs (or "abscond," as federal immigration authorities call it), they must choose to either return to their home country in crippling debt, or join the ranks of the nation's undocumented workers. As merely "guests" in our nation, they are an underclass that is here purely as labor without humanity, to be removed under color of law when their job is done.
But there are ways to fix the current system. Employers should bear the costs of recruitment, visas and transport, so that guest workers do not arrive under mountains of debt. Once here, they should have the ability to leave abusive employers and seek other U.S. employment without worrying about getting arrested and deported.
To enforce these rules, there must be robust oversight of labor recruiters and accountability for employers who hire them. This means giving the foreign workers an unequivocal right to bring their recruiters and employers to court for abuses and broken promises, and access to lawyers to make this right meaningful.
Finally, guest workers and their families must also have a path to permanent residency and eventual citizenship. That's fair and would guarantee basic human dignity for all involved.
After learning of the flaws in the existing program, Congressman Charles Rangel said, "This guestworker program's the closest thing I've ever seen to slavery."
He is correct, and to ensure that other workers don't have to endure the same abuse that the Signal workers did, we must stop treating guest workers like disposable commodities.
The immigration reform bill that has emerged from the Senate Judiciary Committee is good – not ideal, not awful, but good. It is a game changer for those who currently have no hope of realizing the Constitution's promise of equal protection. But it also creates real risks to privacy for all Americans regardless of status and expands the kind of database environment that many of us fear will give the government access to far too broad a swath of our lives. And the bill creates the kind of militarized environment along our southern border that is extremely costly, harmful to border communities' quality of life, and enormously inefficient. And we must not forget that some are wrongly excluded from even a chance at the fruits of immigration reform – beginning with those who happen to love someone of the same sex.
As the bill moves to the full Senate for further consideration next week, we can find clues of upcoming changes in what just occurred in the Committee. Dozens of amendments were withdrawn before they could be voted upon – many of them will return on the floor where the numbers are less certain and more malleable. Some of the fights on the floor will be continuations of the skirmishes previewed in committee. We will certainly see an effort to curtail judicial discretion and the flexibility of administrative waivers. There will be attempts to further narrow the breadth of the path to citizenship – some will want to exclude those with minor offenses. But rest assured that the fight will continue to broaden the reach of the bill, too. We and others will look to expand protections against profiling and provide a modicum of hope to those with criminal convictions when special circumstances exist. And it would be nice to believe that the full Senate might vote to extend the rights of married couples to those who are in same-sex marriages BEFORE the Supreme Court tells them current law is unconstitutional, as we hope it does.
So now that you get a general gist of where we're at, here's a list of the highlights and lowlights of the bill as it emerged out of committee:
- Path to citizenship. First and foremost, the bill creates a pathway to citizenship for the great majority of the 11.5 million undocumented immigrants currently living in the U.S. Legalization of these aspiring Americans will help restore fairness to the immigration system by putting an end to the cycle of mass deportation, and will bring these individuals into a state of equality in American society – with all of the attendant benefits and responsibilities. To the great dismay of some on the Committee, however, immigration reform is closed to same-sex spouses even though open to opposite-sex spouses in precisely the same circumstances.
- Mandatory employment verification. The nationwide E-Verify system mandated by the bill raises the specter of a national ID system and generates risks to fundamental privacy rights of all workers. The error-prone systems endanger the rights and livelihood of everyone in U.S. workplaces and in civic life – both those who will be brought into the lawful workforce and those already there. On the bright side, amendments offered by Sen. Franken (D-Minn.) offer hope for improving accuracy and providing support for small businesses that will need to cope with this new federal mandate. And the underlying bill includes new and valuable due process protections.
- Border militarization. The original bill called for a broad expansion of law-enforcement presence on the Southwest border, focusing especially on high-risk areas. The amendment process doubled down on militarizing the border and extended heightened law-enforcement presence to all sectors. There were some significant but limited restrictions imposed on the domestic use of drones in the southern California border area.
- Flexibility and review. While there were some modifications, the Committee retained the original bill's basic trust in a system that relies on the wisdom and flexibility of judicial review of adverse legalization decisions and in the discretion to afford waivers based on unique individual circumstances where a blanket rule would run the risk of creating unfair and harsh results. That being said, the bill also lays down a hard line against those with felony convictions or three misdemeanors – and largely excludes such individuals from an adjustment to lawful status. Such a black-and-white system is never fair and should be modified. And more needs to be done to provide judicial review in deportation cases.
- Right to counsel. The bill endorses the concept that justice demands that those who are unable to represent themselves – children and individuals with certain mental disabilities – must have appointed counsel in immigration proceedings.
- Prompt bond hearings. The Committee fought off attempts to strip provisions that provide for prompt bond hearings for those in detention by immigration authorities, hearings that are cost-effective and fundamental to due process.
- Alternatives to detention. The Committee largely retained the original bill's substantial commitment to alternatives to the massive immigration detention system. While enforcement problems remain – programs like Operation Streamline, Operation Stonegarden, and 287g are still around – a commitment to alternatives to detention is welcome news.
- Discriminatory profiling. The Committee bill includes language barring racial and ethnic profiling by all federal law enforcement officials and provides for data collection. It omits, however, a ban on profiling based on religion and national origin. Also, there are exceptions that allow profiling to be used for national security and border enforcement – exceptions that may swallow the rule. In essence the language codifies the Attorney General's Guidance Regarding the Use of Race by Federal Law Enforcement Agencies – a document that the ACLU has roundly criticized. The Committee did adopt an amendment offered by Sen. Blumenthal that would allow the Department of Justice to withhold funding for state and local prosecutions along the border which arise from unlawful law enforcement practices, such as profiling. On the ledger's other side, a damaging Graham amendment was adopted that requires additional screening of aliens, spouses and children who live in regions or countries deemed a threat to national security, including regions or countries that merely contain threatening groups or organizations.
- Solitary confinement. The Committee adopted a landmark Blumenthal amendment that would restrict the use of solitary confinement. This is a significant step forward in detention practices and could have broader implications in the corrections community.
- Dangerous enforcement practices. The Committee adopted an amendment from Sen. Coons (D-Del.) restricting dangerous nighttime deportations. And the Committee adopted a Blumenthal-Coons proposal restricting immigration raids in certain sensitive locations such as hospitals, houses of worship, and schools.
In 2008, 66 year old Baerbel Roznowski sought a protection order to keep herself safe from her estranged boyfriend, Chan Kim, who had a history of violence. A court issued the order, which said that Kim must stay away from Roznowski and her home and stop contacting her. The order included instructions for law enforcement explaining that Kim did not speak English well and would need an interpreter to fully understand what was happening, and that Kim would likely react violently against Roznowski when he received news that they would be separated. Unfortunately, the police officer who brought the order to Kim didn't bother to read these instructions. He gave the order to him at Roznowski's home, did not bring an interpreter, and left them together without ensuring that they were safely separated. Just hours later, Baerbel Roznowski was dead. Her boyfriend had stabbed her 18 times, murdering her in her own home.
This tragic loss is just one example of a widespread and serious problem. Police in the United States frequently do not take domestic violence seriously. Gender-based violence, and domestic violence in particular, are often viewed as less serious crimes, with law enforcement believing that disputes can be resolved with no or minimal police intervention, even in situations where there is a protection order in place. This perception is more than just inaccurate; it is discriminatory against women, results in negligent behavior by law enforcement, and can end in serious injury, or even death.
That is why the ACLU and the ACLU of Washington filed a friend-of-the-court brief supporting a lawsuit filed by Roznowski's daughters against the City of Federal Way for police negligence. After a jury found in favor of the daughters, the city appealed, saying that police had no responsibility to protect Roznowski from Kim, even though the officer elevated the risk she faced by serving the order in the way he did. The case has now reached the Supreme Court of Washington. The ACLU's brief explains that the police had a duty to protect Roznowski under Washington state law, and that finding such a duty is consistent with international human rights standards.
International human rights law recognizes that governments have an obligation to effectively respond to and prevent domestic violence. In 2011, the Inter-American Commission on Human Rights found that the United States had violated the human rights of Jessica Lenahan and her three daughters when the police in Castle Rock, Colorado failed to enforce her protective order against her ex-husband. He had kidnapped their children in violation of the order, but despite Lenahan's repeated pleas for assistance, the police took no action and the dead bodies of the girls were later found. The United States has made a commitment to uphold human rights standards related to gender-based violence, recently informing the United Nations of how it intends to improve its response to domestic violence to bring it in line with international human rights principles.
In a case like this one, international human rights standards can help inform our courts in interpreting the duty that is owed to victims and survivors. International human rights law clearly extends protections to domestic violence victims and holds government agencies accountable when they fall short. The Washington Supreme Court should do the same, and help to ensure that police misconduct won't lead to a tragedy like Roznowski's again.
Memorial Day is over, with its picnics, parades, and poignant remembrances of the veterans who gave their lives in America's wars. But there is one group of vets few want to remember: the ones who went to war, came back tragically changed, committed a crime and were executed.
Vets like Wayne Felde, who arrived in Vietnam on his 19th birthday by choice, not by the draft; who saw heavy action and was wounded; who came back to the U.S. hounded by his memories of death and crippled by what those memories did to him. Drunk, unable to hold down a job or a marriage, in trouble with the law, he was probably trying to kill himself when his gun went off while he was in the back of a police car. The bullet ricocheted and killed an officer. He was sent to death row, and in March of 1988, executed by the state of Louisiana.
Or a veteran like Louis Jones, executed in all our names by the federal government on March 18, 2003. Jones served with great distinction in Grenada and the first Gulf War, where he was exposed to chemical neurotoxins. The effects of the nerve gas and the combat-induced PTSD -- often called "Gulf War Syndrome" -- turned a model soldier into a sick man, one whose remorse for the killing he committed was deep, who confessed to his crime immediately. Two days after President Bush denied clemency for Sgt. Jones, the invasion of Iraq began.
There are other stories. Perhaps one Memorial Day soon, we'll have an exemption for veterans who commit capital crimes in part because of what happened to them in our wars. As Felde said to his jury:
I am not a criminal but a troubled and wrecked man. Like many other vets I know what [war] did to me.... Critical wounds do not always pierce the skin, but enter the hearts and minds and dreams of those that are only begging for help so badly needed.
Better still, perhaps the United States will abolish the death penalty for all.