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.”

(more…)

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.”

Transparency

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.

Accountability

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.

(more…)

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.

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.

On Saturday, February 2, a new civic group called “Defend the 4^th” protested against “random” bag searches on the Massachusetts Bay Transportation Authority. Two hundred people marched from different stops on the MBTA system and joined together on the Boston Common. This group of people was a large coalition including political, religious, and other civic groups.

Since 2006, the Transportation Security Administration has been searching bags on the MBTA. The process is that the TSA will choose one out of five individuals to have their bags searched. The TSA claims that this system is used due to a federal law requiring that suspicion-less searches must be conducted at random. However, the TSA has been targeting areas that have large populations of people of color, such as the Dudley Square T station. If an individual does not consent to a search, they are refused admittance to that particular entrance, but can go to another station or entrance. Clearly, if the TSA is trying to keep any dangerous materials or substances from getting into the transportation system, allowing an individual to enter elsewhere would not be effective. Also, TSA workers are not present at MBTA stations on the weekends.

However, this most upsetting facet of this case is how far these “random” searches expand the authority of the TSA over the lives of citizens that have done nothing to warrant a search. Also, these new policies require expanding budgets as well. There have been no new threats to passenger safety known at this time to warrant the TSA’s involvement, or the need for searches at MBTA stops generally. Without probably cause for the search, is there any way to be sure they are taking place at random? It hardly seems that this system is efficient or random in nature.

• 1/16, Danya Greenfield, The Atlantic, Ask Brennan: Are Drones Really Working?
• 1/16, Evelyn Krache Morris, Boston Globe, Obama must write the rule book for drones
• 1/15, Wells Bennett, Lawfare, On the Constitution’s Presumptive Application in the 9/11 Case
• 1/15, Michael Calderone, Huffington Post, Drone Media Debate Picks Up In 2013, But Coverage Remains Tough To Sustain
• 1/15, Shahid Buttar, People’s Blog for the Constitution, Don’t Get Mad, Get Even: Challenge Prosecutors, not Scapegoats
• 1/15, Kathryn Bigelow, Los Angeles Times, Kathryn Bigelow addresses ‘Zero Dark Thirty’ torture criticism

After a four year absence, a board charged with ensuring government respect for privacy and civil liberties was recently reconvened and received recommendations from civil liberties groups.  How it approaches its work will carry serious implications for civil liberties going forward.

In 2004, the September 11th Commission’s recommendations to Congress included the creation of a Privacy and Civil Liberties Oversight Board (PCLOB) to ensure the protection of civil liberties.  Noting that “if our liberties are curtailed, we lose the values that we are struggling to defend,” the commission called for a board to oversee the government’s adherence to defending civil liberties.  The PCLOB was constituted in 2006, but after operating for less than a year, it was reorganized by Congress, curtailing the tenure of its original members and then allowing to lapse after 2008.

After years of inactivity, the Senate finally confirmed new members of the Board, and it convened for a public hearing on October 31.  A bevy of civil liberties groups submitted statements to the Board, including the Bill of Rights Defense Committee (BORDC), as well as the ACLU, the Defending Dissent Foundation, the Electronic Privacy Information Center (EPIC), the Brennan Center for Justice at NYU School of Law, the DC-based Center for National Security Studies (CNSS), and the Constitution Project.

Both BORDC and CNSS  recommended approaches to the PCLOB’s work going forward, rather than discrete issues.  BORDC’s statement included three major recommendations to guide the work of the board:

• [Undertake] a concerted effort to recruit and engage pro bono counsel to extent the PCLOB’s investigative capacity.
• Beyond examining any discrete set of policies…acquaint policymakers, the press, and its observers within the executive branch with context about the landscape connecting these various long overlooked civil liberties issues.
• Because the PCLOB has convened only in passing over the decade since its creation was first recommended by the 9/11 commission, it should evaluate contemporary policies not in the context of the most recent incremental changes, but rather against the baseline pre-dating the 9/11 commission.

Similarly, CNSS provided input on the Board’s role, objectives, operations and its place vis-a vis the public and Congress. Notably, CNSS urged the Board to take a broad view of what constitutes privacy, inviting it to:

consider those ways in which government access to personal information, even when that information may be somehow available on the internet, impacts those constitutional values of liberty, due process and individual autonomy that privacy is supposed to protect.

A number of allied organizations presented suggestions about particular issues screaming out for scrutiny and oversight by the PCLOB.

(more…)

The phrase “fiscal cliff” has been splattered all over the news for the last month, with little explanation of what it really means. The fiscal cliff refers to spending cuts and tax hikes that will go in to effect in 2013. These changes are automatic, meaning they will happen unless Congress and the President can reach a deal on the budget. Pundits have been arguing over how large the impact will be, but there is no question that it will be felt by working class Americans.  Jonathan Weisman of the New York Times and Wall Street Journal says that everyone will see a difference in their tax rate, estimating that the lowest rate would rise from 10% to 15%, and:

25 percent, 28 percent, and 33 percent rates would rise to 28 percent, 31 percent and 36 percent respectively.

In spending cuts;

defense programs would be sliced by 9.4 percent. Most non-defense programs outside the big entitlements — Social Security, Medicare and Medicaid — would be cut by 8.2 percent.

What appears to be chasing us over the edge of the cliff is Bush-era tax cuts. What the GOP wants to do is cut social services accordingly. Democrats want to increase taxes. But what seemingly no one has mentioned is the staggering cost of domestic security operations.

(more…)

Donald Vance and Nathan Ertel, both US citizens that worked for a private company in Iraq in 2006, were denied access to justice by the US Court of Appeals for the Seventh Circuit in Chicago. They had alleged that, after trying to blow a whistle on illegal weapons trafficking by their employer and military personnel, they endured torture by the US military for over two months.

The Seventh Circuit, however, ruled that they cannot sue former Defense Secretary Donald Rumsfeld over their allegations. The court’s decision was an 8-3 ruling that overturned a three-judge panel’s decision that allowed the suit to proceed, against the wishes of both the Bush and Obama administrations.

The trial court ruled that Rumsfeld could be held personally responsible because the decision to use torture was made by senior government officials.  Judge Frank Easterbrook, writing for the appeals court that reversed that decision, stated:

“A court cannot say that, if there are too few prosecutions (or other enforcement), and thus too much crime, then the Attorney General or the Secretary of Defense is personally liable to victims of (preventable) crime.”

Three judges, however, did disagree with Judge Easterbrook. They based their dissenting opinion on the observation that the majority’s opinion creates immunity for the military, which is a violation of prior Supreme Court precedent.

The Seventh Circuit’s ruling essentially establishes that civilians may not assert their rights if a member of the military violates them. Exceptions such as these undermine access to justice, fundamental rights and universal human rights. The ruling is especially ironic because it was announced in the one city in America that has proactively declared itself a torture-free zone.

It is unacceptable for Rumsfeld and other leaders to not take responsibility for actions taken under their direct command. The result is yet another case against whistleblowers and the Constitution.

• 11/9, Suzanne Nossel, The Nation, Time for a reset on human rights
• 11/9, Editor, Fox 2 Now, Who Is Watching You? Drones Used To Track Crime, Weather
• 11/8, Eric L. Lewis, New York Times Opinion Pages, A Second Chance on Human Rights
• 11/8, Michael Tarm, ABC News, Court: Alleged Torture Victims Can’t Sue Rumsfeld
• 11/8, Chantal Valery, AFP, Obama urged to fulfill Guantanamo closure pledge
• 11/8, Danielle Gram, PolicyMic, Prop 34: California Sees the Greatest Civil Liberties Loss This Election Day
• 11/8, Garrett Epps, The Atlantic, How Obama Should ‘Preserve, Protect, and Defend the Constitution’ in His Second Term