Michael is a BORDC 2012-2013 Legal Fellow. He is a recent graduate of City University of New York School of Law (CUNY), where he served as Executive Articles Editor of the New York City Law Review and was awarded several fellowships, including the Haywood Burns Fellowship for Civil and Human Rights and Charles H. Revson Law Student Public Interest Summer Fellowship. Since graduating from Wesleyan University in 2006, Michael’s student internship and prior experiences including serving with the Center For Constitutional Rights, CLEAR (Creating Law Enforcement Accountability and Responsibility) Law Clinic, Office of the Appellate Defender of New York,
and the New York Civilian Complaint Review Board.
May 23, 2013 at 9:42 am
May 6, 2013 at 8:58 am
On May 17, the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations, held a hearing to address the growing concerns surrounding the domestic use of drones. The committee featured three witnesses, John Villasenor of the Brookings Institution, Gregory McNeal, professor at Pepperdine Law School, Tracey Maclin of Boston University School of Law and Chris Calabrese of the American Civil Liberties Union (ACLU).
Generally ,the witnesses differed on the extent to which new legislation was needed to address the privacy concerns raised by the coming proliferation of domestic drones. Professor McNeal suggested that existing Fourth Amendment law covering search and seizure would be sufficient to uphold privacy in the face of changed brought by drones. The other panelists, and seemingly many members of the committee, agreed that at least some additional legislation from Congress would be necessary to assure that Americans do not lose their rights to privacy as technology makes widespread surveillance easier, cheaper and more discreet.
The witnesses identified several key Supreme Court cases that serve as guideposts for current constitutional law on aerial surveillance and tracking. In California v. Ciraolo, the Supreme Court ruled that law enforcement officers could use evidence obtained by flying a plane over a person’s fenced property, even though they did not have a warrant. In United States v. Jones, the Court found that attaching a GPS tracker to a car and monitoring its movements for four weeks was a violation of the target’s privacy. In Kyllo v. United States, the court found that when “the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”
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April 27, 2013 at 4:03 pm
As the hunger strike at Guantánamo has widened to include all of the men held there, President Obama recently announced that he would renew a push on Congress to close the prison and examine his administrative options. However, the implication that Congress is preventing the closure of Guantánamo is at best disingenuous.
Obama has the power to transfer prisoners from Guantánamo right now. The president himself has placed a uniform ban on transferring any prisoners to Yemen, a collective punishment policy that he could reverse immediately. He could also release prisoners by issuing a certification through the Department of Defense and State that the administration has steps to assure the secure release and monitoring of the prisoners.
Moreover, President Obama’s seemingly newfound rhetorical opposition to indefinite detention runs counter to the policies of his administration. While he may have tried to move the prisoners to the United States, he still wanted them indefinitely detained, in violation of the Constitution and International Law. This has left even supporters of his detention policy befuddled.
The Guantánamo hunger strike can only be ended by the administration taking meaningful steps to close the prison. Those steps can begin immediately by releasing the 86 men who have been cleared for release by the government itself. The remaining men should either be given a speedy and fair trial or released as well.
The men at Guantánamo are resolute to peacefully protest through a hunger strike until they receive justice. One of them, Moath Hamza Ahmed al-Alwi put it this way:
I do not want to kill myself. My religion prohibits suicide. But I will not eat or drink until I die, if necessary, to protest the injustice of this place. We want to get out of this place. It is as though this government wishes to smother us in this injustice, to kill us slowly here, indirectly, without trying us or executing us.
Currently, 21 of the men, including Mr. al-Alwi, are bring force-fed in violation of medical ethics. The force-feeding process is brutal, as was described by one prisoner in an New York Times op-ed and can constitute torture, if undertaken as a form of punishment.
As the hunger strike continues, people across the world are pushing for the closure of Guantánamo and an end to indefinite detention. A change.org petition started by a former Guantánamo prosecutor, calling for the prison’s closure, has gained over 100,000 signers in less that two days. From May 17-19, people of conscience will stand together to demand that President Obama close the United States’ forever prison.
April 9, 2013 at 12:43 pm
On April 23, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, held a hearing entitled “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing.” The Bill of Rights Defense Committee submitted testimony to the hearing emphasizing the need for transparency, and end the unconstitutional use of drone killing. BORDC’s testimony highlighted the secrecy of the administration’s legal justification for killing through drones and the attendant impossibility of meaningful checks and balances.
Despite repeated promises of transparency tied to the targeted killing program, President Obama refused to send a witness from his administration to the hearing. Even after the hearing date was moved a week to accommodate a potential administration witness, ultimately the Senators, the witnesses and the public were left guessing about what could put them on a kill list and whether the administration had any explanation for shocking number of civilians killed by US bombings.
One witness stood out among a panel populated by an otherwise typical beltway crowd of ex-military, academics and think tank members. Farea al-Muslimi, Yemeni democracy activist who previously spent time in the US studying through State Department scholarships told the committee about the impact of a drone strike on his village in Wessab, Yemen.
al-Muslimi’s testimony exposed many of the core justifications for Obama’s killing program as fallacies. While the administration argues that it only executes people with drones when it cannot safely capture them, al-Muslimi pointed out that the ostensible target of the drone stroke on his village would have been easily detained.
My understanding is that a man named Hammed al-Radmi was the target of a drone strike. Many people in Wessab know al-Radmi, and the Yemeni government could easily have found and arrested him. Al-Radmi was well known to government officials, and even to local government—and even local government could have captured him if the U.S. had told them to do so.
al-Muslimi also drew on his experience traveling the country as a democracy activist to describe the impact of drone strikes on public opinion of American in Yemen. The drone program is operated on the theory that it makes the US safer by killing our enemies. However, al-Muslimi testified that the program has killed large numbers of civilians.
The drone strikes are the face of America to many Yemenis. I have spoken to many victims of U.S. drone strikes, like a mother in Jaar who had to identify her innocent 18-year-old son’s body through a video in a stranger’s cellphone, or the father in Shaqra who held his four- and six-year-old children as they died in his arms. Recently in Aden, I spoke with one of the tribal leaders present in 2009 at the place where the U.S. cruise missiles targeted the village of al-Majalah in Lawdar, Abyan. More than 40 civilians were killed, including four pregnant women. The tribal leader and others tried to rescue the victims, but the bodies were so decimated that it was impossible to differentiate between those of children, women and their animals. Some of these innocent people were buried in the same grave as their animals.
Moreover, he pointed out that the drone program has successfully turned people against the United States, even where Al-Qaeda in the Arabian Peninsula (AQAP) had previously failed to do so.
Now, however, when they think of America, they think of the terror they feel from the drones that hover over their heads, ready to fire missiles at any time. What the violent militants had previously failed to achieve, one drone strike accomplished in an instant. There is now an intense anger against America in Wessab.
March 25, 2013 at 7:28 am
Now entering its third month, the hunger strike among prisoners at Guantánamo Bay continues, as the men there continue to risk their lives to protest their indefinite detention. According to defense lawyers, almost all of the men in Camp 6, a communal living area for more “cooperative” prisoners, are participating in the hunger strike.
Prisoners who have stopped eating have lost more than 30 pounds. Medical experts confirm that the consequences of extended fasting can be extreme:
irreversible cognitive impairment and physiological damage such as loss of hearing, blindness, and hemorrhage may begin to occur by the 40th day of a hunger strike, and death follows thereafter.
The hunger strike presents in stark terms the criminal nature of our government’s detention policy. The government has cleared over half of the men at the prison for release, but still keeps then locked away from their families and contact with the outside world, with no end in sight. That these men are willing to risk their lives to protest their confinement, despite the fact that they have been cleared for release highlights the emptiness of President Obama’s promise to close the prison.
Even the military has recognized that the administration’s failure to close the prison has triggered this desperate protest.
Gen. John Kelly, the head of U.S. Southern Command, explained to the House Armed Services Committee last week, detainees “had great optimism that Guantanamo would be closed. They were devastated . . . when the president backed off. . . . He said nothing about it in his inauguration speech. . . . He said nothing about it in his State of the Union speech. . . . He’s not restaffing the office that . . . looks at closing the facility.”
In solidarity with the hunger strikers, organizations, including Witness Against Torture, the Center for Constitutional Rights, Amnesty International and World Can’t Wait are calling for an emergency National Day of Action on April 11 to demand the closure of Guantánamo and an end to indefinite detention.The United Nations High Commissioner for Human Rights recently echoed these calls, noting that the imprisonment of many of the prisoners without charge or trial is a violation of international law. A number of groups, including BORDC, sent a letter to President Obama to ask that he begin to transfer prisoners from Guantanamo and appoint a high level official to take responsibility for closing the prison.
People of conscience can take action to call for the forever prison’s closure:
Raise your voice! Join the Day of Action! You can:
Organize a local demonstration demanding the closure of Guantánamo. Ideal locations are Federal buildings, congressional offices, and U.S. military sites like recruitment centers. We can help you plan a rally. Write to email@example.com.
Call the White House comment line at 202.456.1111 or switchboard at 202.456.1414 and say, “President Obama, there is a humanitarian crisis at Guantánamo. I urge you to swiftly close the prison by releasing the men you will not charge and by giving fair trials to those you will.” You can also e-mail the White House from www.whitehouse.gov/contact
Twitter Storm President @BarackObama @WhiteHouse Keep your promise: #closegitmo #GitmoHungerStrike
March 20, 2013 at 7:12 am
Last week, a historic trial challenging the NYPD’s practice of stopping and frisking almost exclusively people of color in New York City got underway. Allies of Communities United for Police Reform packed the courtroom and hundreds filled overflow rooms to watch the realities of life under the NYPD in their neighborhoods and city be brought to light in federal court.
The trial was, as described by plaintiff’s attorney Darius Charney, 14 years in the making, with its roots in challenges to the police department’s policies after the shooting of Amadou Diallo.
On Monday March 18, both sides presented their opening arguments, with the plaintiffs laying out the evidence to come showing that the NYPD has engaged in a longstanding pattern and practice of unconstitutional and race-based stops.
The central legal claims of the plaintiffs are (1) that the NYPD has a policy or practice of stopping people without the reasonable suspicion that the Fourth Amendment requires and (2) that the NYPD stops people on the basis of race in violation of the Equal Protection Clause of the 14th Amendment and Title VI.
The evidence supporting these claims is too voluminous to cover here, but several particular pieces stood out. In a meeting with NY State Senator Eric Adams, NYPD Police Chief Ray Kelly said the stop and frisk policy was designed to make young black and latino men afraid that they would be stopped wherever they left their buildings, so that “they would leave their guns at home.”
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March 11, 2013 at 7:14 am
On March 11, a series of organizations released a report entitled “Mapping Muslims,” which traces the human impact of the NYPD”s illegal spying program targeting Muslims in and around New York City. The report, based on interviews with 57 members of Muslim communities in New York City, takes stock of the spying programs’ effects on religious practice, freedom of speech, social and community relations, law enforcement relationships and college campuses.
In 2011, the Associated Press revealed that the NYPD, assisted by the CIA, was mapping and tracking Muslim residents and their businesses and places of worship through a secret squad, known as the “Demographics Unit.” However, the revelations of the AP failed to curtail the deeply racist and discriminatory pseudo-ethnographic project, which now goes by the euphemism, the “Zone Assessment Unit.”
The interviews conducted for the report make clear that the NYPD’s activities suppressed and chilled the practice of many Muslim’s faith. Individual interviewees observed:
It’s as if the law says: the more Muslim you are, the more trouble you can be, so decrease your Islam.
There are always parked, unmarked cars outside of mosques.
The impact on first amendment protected speech and community openness was found to be similarly chilling. According to Hamza, owner of a business monitored by the NYPD’s Demographics Unit:
I don’t allow Al-Jazeera on in our hookah bar. Particularly when things flare up in the Middle East. We can’t control what people start saying in response to the news, and we never know who else is in the bar listening.
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February 23, 2013 at 9:07 am
In Attorney General Eric Holder’s recent contentious appearance before the Senate Judiciary Committee, he hinted that President Obama would soon make a speech on the topic of drone usage for targeted killing. Holder alluded to President Obama’s promise for more openness on the issue in his State of the Union address:
“We have talked about a need for greater transparency in what we share, what we talk about,” said Holder, who added that with the release of more information, “there would be a greater degree of comfort that this government does these things reluctantly but also in conformity with international law, with domestic law and with our values.”
The executive’s track record on this has been dismal. The administration first denied the existence of any sort of drone or targeted killing program, continued to use the denial as a shield against liability for its killings in court, while beginning to announce its reasoning informally in speeches by various executive officials.
Any actual documentation of the administration’s logic for assassinating both citizens and non-citizens was unseen until a “white paper“ summarizing a portion of the goverment’s logic was leaked to the press.
Finally, the administration has begun to show some of the actual (still classified legal) memos outlining the criteria for extra judicial killing to selected members of congress. However, the public still doesn’t know under what circumstances the President and his lawyers think would justify their murder from the sky.
Transparency would be a good first step. Senator Rand Paul (R-KY) staked out a courageous position on in his recent filibuster, finally forcing Eric Holder to declare:
Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.
However, this representation (which begs the question: how does Holder define combat?), disclosure of all of the legal memos around drones, and a clear speech from President Obama explaining his necessity for keeping a “kill list” (or “disposition matrix,” if you prefer the administration’s sanitized euphemism) are only the beginning.
Ultimately, the people of the United States and their all too often cowed representatives in Washington need to demand a stop to murder, killing and assassination by drones in contravention of the Constitution, international law and human rights law. The broad claims staked out in the leaked white paper make clear that the administration is currently operating under a rubric that violates all three.
While some constitutional issues are esoteric, the protections of due process under the Fifth Amendment are not. The government does not have the right to deprive you of your life, after review of your perceived sins by government officials on “Terror Tuesdays.”
Some in Congress and the punditocracy have suggested that the due process problem be solved by so called “drone courts” where the government would secretly present the evidence against you to a judge who would then sign a death warrant. While paying some lip service to the idea that an independent judiciary can constrain executive power, a secret court authorizing murder is not a check or balance in any meaningful way.
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February 14, 2013 at 12:00 pm
On the heels of a Charlottesville, Virginia city council resolution banning the use of drones by the city, Virginia State legislators sent a bill to the governor’s desk which would place a two year moratorium on the use of drones. While the state resolution would only place a temporary ban on domestic drone usage, it provides a space from continued activism and education around the dangers that unchecked drones present to constitutional rights.
The Charlottesville resolution specifically prohibits the use of criminal evidence obtained by drone surveillance.
“To me, it’s Big Brother in the sky,” said Dave Norris, a city councilman in Charlottesville, Va., which this month became the first city in the country to restrict the use of drones. “I don’t mean to sound conspiratorial about it, but these drones are coming, and we need to put some safeguards in place so they are not abused.”
The bill, spearheaded by The Rutherford Institute and activist David Swanson, found support from a packed room of a supporters at the city council hearing. The pro-drone lobby did not make an appearance, failing to raise some of the orwellian arguments or language that can be found on one of their websites, IncreasingHumanPotential.org. The Charlottesville resolution marks the first success of a number of local and national movements to ban or regulate the use of domestic drones.
In addition to Virgina, states and localities from California to Massachusetts have introduced anti-drone bills. Draft legislation in congress would ban the weaponization of domestic drones, require warrants for drone surveillance and make it a misermeanor to photograph a person without their permission. While the legislation makes an exception for US border areas, it defines these regions as within 25 miles of a land border, rather than the large nebulous zones that have proved to be black holes for constitutional rights. Even without legislation, public pressure in Seattle, Washington caused the police department to forgo the use of a drone for surveillance of crime scenes. Activists across the country are also preparing for a campaign against the use of drones, both domestically and internationally.
February 7, 2013 at 9:27 am
The Bill of Rights Defense Committee joined an amicus brief, filed by the Electronic Privacy Information Center (EPIC) calling for the Supreme Court to hear a case that could strengthen privacy protections for anyone who uses e-mail. The case, Jennings v. Broome, stems from a family dispute in South Carolina where an extended family member gained unauthorized access to a relative’s email account and shared sensitive information pointing to an affair. At issue is whether the e-mails were protected as “electronic storage” under the Stored Communications Act (SCA). This act, part of the larger Electronic Privacy Communications Act (ECPA), was enacted to give the same constitutional protection to electronic commutations as afforded to conversations via mail and telephone.
The definition of “electronic storage” is crucial to determining whether all email, or only certain emails are protected under the SCA. The judges in the South Carolina case disagreed over the definition, alternately opining that emails must a) copied personally for backup b)unread or c)backup copies by the service provider in order to be protected. As pointed out by EPIC:
All three of the South Carolina Justices’ opinions conflict with the Ninth Circuit’s view in Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), that e-mails received and read, and then left on the server instead of being deleted, could be characterized as stored “for the purposes of backup protection” and therefore kept in electronic storage.
If your emails do indeed fall into the category of “electronic storage,” then they receive privacy protection under ECPA and the SCA. According the the Ninth Circuit:
The SCA prohibits unauthorized access to e-mail and other communications in “electronic storage.” See 18 U.S.C. § 2701. The SCA also regulates the voluntary disclosure by service providers of messages in “electronic storage.” See 18 U.S.C. § 2702. And finally, the SCA specifies the legal process the government must use to compel disclosure of messages in “electronic storage.” See 18 U.S.C. § 2703. The SCA specifies that government must obtain a warrant in order to access an e-mail that has been in “electronic storage” for 180 days or less.
The amicus brief, representing the interests of BORDC and other civil liberties, privacy and consumer organizations, highlights the crucial and indispensable role that e-mail plays in modern business, education and social life. It points out that the South Carolina decision misunderstands the way in which all service providers maintain copies of emails, and this fail to properly apply the concept of “electronic storage.” The brief demonstrates that email privacy is essential in modern society to allow “candid interactions, intimate relationships and privileged conversations” and points out the David Petraeus scandal as an example of the fallout from the disclosure of private conversations. Finally, the brief points out the failure of congress to clarify the language of the law as it applies to e-mail, and calls on the Supreme Court to interpret the meaning of “electronic storage” to ensure that federal communications privacy law is clear and useful in today’s society.
Today, the US Court of Appeals for the Second Circuit heard oral arguments in Hedges v. Obama, a lawsuit challenging domestic military detention authority under the National Defense Authorization Act (NDAA) of 2012. The panel of three judges heard arguments from lawyers representing the plaintiffs, who included Christopher Hedges, Noam Chomsky and Daniel Ellsberg. The court also heard arguments from attorneys for the Department of Justice and, in a move opposed by the government, a lawyer representing three members of the Senate Armed Services Committee: Kelly Ayotte (R-NH), Lindsey Graham (R-SC), and John McCain (R-AZ).
The small courtroom was quickly filled with supporters of the plaintiffs. Over a hundred additional supporters, as well as journalists, were soon shuttled to an overflow courtroom outfitted with an audio feed of the arguments, but the sound quality was spotty, making it difficult to decipher the proceedings in the courtroom. Outside, a large group of activists held signs emblazoned with the rights and values threatened by the NDAA, including a free media, the right to assemble and the right to live without fear.
As the government was the party challenging the lower court’s decision placing a hold on the use of indefinite military detention under the NDAA, its lawyers presented their arguments first. During the government’s argument, lawyers claimed that the plaintiffs had no reasonable fear of indefinite detention, prompting the judges to question what prevented this administration, or any other, from backing away from that interpretation of the law. The government also emphasized its claim that the NDAA’s indefinite detention provisions did not expand governmental power beyond what already existed from the Authorization for Use of Military Force (AUMF) signed by President Bush after September 11, 2001.
Plaintiffs’ attorney Carl Mayer began by dedicating his argument to Fred Korematsu and Gordon Hirabayashi and the other victims of Japanese Internment in the United States. The dedication drew attention to the history and dangers of indefinite military detention and the human consequences of unchecked executive authority. BORDC helped to organize amicii for the case, including a brief on behalf of the Korematsu Center, and also filed its own amicus brief in the case.
The plaintiffs’ lawyers argued that the NDAA clearly expanded the detention authority granted to the executive branch, noting both the text of the la, as well as the absurdity of passing a law that has no effect.
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