On February 26, the Supreme Court heard oral arguments in the case Maryland v. King, which raised the question of whether the Fourth Amendment permits warrantless DNA collection upon an individual’s arrest but without charge.  The case began on April 10, 2009, when Alonzo King was arrested for pointing a shotgun at a group of people.  He admitted his guilt, was originally charged with a felony assault and ended up pleading guilty to a misdemeanor.

At the time of King’s arrest, the police swabbed his mouth to gather a DNA sample, which matched DNA from an unsettled rape case four years prior – King was convicted of first-degree rape and sentenced to life in prison.  His warrantless DNA sample was the only evidence linking him to the rape case; the police had no probable cause to sample his DNA.  Patricia Millet, who heads the Supreme Court practice at Atkin Gump, explained this by saying ,”DNA is more commonly used not to identify the individual but to link the individual to other crimes for which he is not otherwise a suspect (or at least there is not probable cause to think he committed the other crime.”

There are several problematic facets to warrantless DNA collection, the first of which is that this specific form of testing appears unconstitutional according to our Fourth Amendment protections.  This is the ground on which the Supreme Court will determine whether police can conduct DNA testing upon arrest, but there are far more complex issues beyond the simple constitutionality of this sampling.

Invasion of Privacy

Justice Stephen Breyer argued that DNA tests are “no more intrusive” than fingerprints but “much more accurate.”  This is a gross overstatement on Breyer’s part – unlike fingerprints, DNA tracks an individual’s medical history, ancestry, gender – even whether or not an individual is adopted.  It is a wonder that Justice Breyer argued DNA tests are “much more accurate,” being that in 2011, over 10,500 DNA samples were taken, only 19 of which led to arrests.  Not only, then, are DNA samples fairly unproductive, resulting in a meager percentage of arrests, but they also expose some of our most personal information.

Racial Bias

DNA tests are already used as racial dragnets among whole families and communities of color, The Nation argues. Because the majority of individuals stopped by police are African American and Latino men, DNA samples taken in these instances are inherently skewed, representing a disproportionate number of men of color.  The Nation writes, “DNA is a value-neutral biological molecule, but DNA databases are mirrors that reflect the bias in justice systems.  By 2008, Britain’s National Database stored DNA from 27% of the black population and 77% of black males.” It is imposible to overstate the racial, age and gender bias present in DNA databases.

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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.

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Bigelow and Ortiz are each scapegoats, focal points for debates forced by the failures not of individuals, but of entire institutions.

Two tragic events last Friday have prompted heated debate about torture, secrecy, freedom of information, and prosecutors run amok. But are critics assigning blame where due, or merely where convenient?

And is the convenient option too charitable, letting powerful systems of oppression off the hook in favor of scapegoating only the most visible perpetrators?

First (only because it’s an anniversary and was therefore predictable) was the 11th year of military detention at Guantánamo Bay, where prisoners under US control have endured torture–and in some cases, been murdered in custody while their deaths have been presented in public as suicides.

The military detention scheme at Guantánamo has existed for over a decade, but the use of torture remains clouded in secrecy.

In the middle of the raging healthcare debate in 2009, the one thing Congress could agree on was giving the Pentagon authority to hide evidence of its own criminal trail. Even though multiple courts ordered our government to release photos and videos held by the Pentagon that document widely implemented torture policies, that substantial body of criminal evidence remains secret to this day.

One of President Obama’s key appointments to the Justice Department was stalled for a year, before being withdrawn, because she committed the heresy of suggesting that DOJ actually enforce the law by prosecuting officials for human rights abuses.

Ultimately, Obama’s decision to resign accountability for torture ensured that discredited warmongers remained in Washington, where they continued their assault on the Constitution. A year ago, they secured a law extending military detention powers into the US, even beyond the Bush administration’s wildest dreams.

What do we know about torture? Apparently, only what Hollywood tells us.

Kathryn Bigelow’s controversial film Zero Dark Thirty supplies the public with plenty of facts (whether real or imagined) to fill the vacuum. Is it a work of fiction? A documentary? A Rorschach test?

Legions have rightly criticized Bigelow’s depiction of torture, lambasting the filmmaker’s careless insinuation that torture was ever useful (which it wasn’t) and reminding moviegoers that even if it was, it would remain illegal. Many have distributed flyers at theaters (like this one that we designed at BORDC) or chosen to boycott her work in awards ceremonies.

But who are the real culprits? Is it Hollywood’s fault that the public remains in the dark?

Three particular figures have gotten off especially easy–first when they committed crimes, again when they left government to return to positions of influence instead of prison cells, and yet again as Bigelow draws fire for depicting their crimes.  Dick Cheney, John Yoo, and Ninth Circuit Judge Jay Bybee are the former officials who authorized torture in the first place, hid their illegal decisions from the American public, and then lobbied to avoid accountability for their universally abhorred crimes.

Bigelow is no hero. But it’s not her fault that the American people don’t have enough facts to recognize her movie as fiction.

On October 29, Hurricane Sandy hit the New Jersey coastline and immensely damaged the most densely crowded populations in the US. On that same day, fusion centers may finally have been put to good use.

Fusion centers are information collection and analysis agencies first launched  in 2003 by the Department of Homeland Security and Department of Justice in order to share information between different federal and local agencies. In Trenton, NJ, the fusion center is called the Regional Operations Intelligence Center (ROIC) and it is home to the New Jersey State Emergency Operations Center. Most days, the purpose of the ROIC is to help intelligence specialists and law enforcement agents analyze and monitor crime, homeland security threats, and other suspicious activity.

The Senate Homeland Security and Government affairs committee recently described these activities as “often producing irrelevant, useless, or inappropriate intelligence reporting to DHS, and many produced no intelligence reporting whatsoever.” However, New Jersey may have turned a bad thing into a useful resource. Many New Jersey residents did not have power, and therefore could not receive news from television networks, radio, or the internet.

State officials, including Governor Chris Christie, took advantage of the ROIC’s capabilities to help provide information to the public. What makes fusion centers potentially effective in emergency situations is that they “are in constant operation. The officials staffing them from different agencies are working with each other in the same room on a regular basis, gaining familiarity and skill with their informational tools.”

Although this particular fusion center (1 of over 70 around the country) was able to perform a public service in a time of crisis, that alone does not justify the role of fusion centers in  unchecked surveillance and information sharing. If fusion centers are able to help during emergencies, they should be re-tooled as emergency service centers, rather than centers for warrantless surveillance.

This year’s post-election “lame duck” congressional session presents several disturbing threats—alongside exciting opportunities—for fundamental civil liberties. [See below for updates since this post was originally written.]

Measures extending government authority to conduct dragnet warrantless wiretapping, and arbitrarily detain Americans in domestic military detention without trial, have passed the House and now loom before the Senate. Yet members of Congress willing to do their jobs could support alternative measures to protect privacy and dissent.

Will our government’s assault on privacy and due process continue, or instead recede in the face of long overdue checks and balances?  The answer turns largely on whether your federal representatives hear from you. BORDC launched an online petition last week to help raise your voice as part of a grassroots transpartisan chorus.

It includes four requests of federal representatives, relating to FISA, the NDAA, the JUSTCE Act, and ECPA. (If any of those acronyms are unfamiliar, this post is for you.)

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As news media gossips on a sex scandal that transformed Pentagon corridors into high school hallways, their chatter belies a critical discourse surrounding the investigation of former CIA director David Petraeus.  Besides gratifying a cultural fixation with the salacious, the Petraeus scandal invokes inquiry into how the FBI could observe his correspondence with Paula Broadwell.

It also illustrates the necessity for broader protections from state surveillance: if the nation’s top intelligence official can so whimsically come under the federal government’s watchful eye, what security do “We, the people” have against government intrusion?

While the Electronic Communications Privacy Act of 1986 (ECPA) once furnished such insulation, its outmoded provisions and obsolete restrictions fail to address contemporary threats to privacy and free speech. Reforming ECPA to require a judicial warrant to justify searches and seizures of the content of electronic communications will minimize civil liberties violations in the course of federal investigations.

The circumstances of Petraeus’ well-publicized scandal demonstrate how our government may casually obtain private information under the current legislative framework.  As reported by various news outlets, the FBI investigation of Petraeus began after socialite Jill Kelly complained to an acquaintance at the FBI about receiving anonymous, harassing emails.  Jill Kelly’s federal friend suggested an investigation to his superiors, and a superfluous cyber-stalking investigation revealed that Paula Broadwell, Petraeus’ biographer and mistress, had sent Kelly incendiary emails to discourage her friendship with Petraeus.

The FBI subsequently achieved access to Broadwell’s Gmail account and discovered her relationship with Petraeus through unsent messages in a drafts folder.  Though the saga continues on, these details alone suggest a lack of privacy in one of our most prominent means of personal communication.

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• 11/1,  Josh Margolin, New York Post, Gitmo tale of 2 cities
• 11/1, University of Massachusetts Medical School, Documentary examines physician involvement in detainee torture
• 10/31, Andrea Shalal-Esa, Reuters, Senate likely to revisit cyber bill when Congress returns
• 10/31, John W. Whitehead, Huffington Post, Looking Beyond Election Day: The Issues That Threaten to Derail the Nation
• 10/30, Sudha Setty, TruthOut, A Day In Court? Maybe Not In America

• 10/2, Burgess Everett and Adam Snider, Politico, ‘Defeat Jihad’ ads cause stir in D.C
• 10/2, Aaron Cynic, TruthOut, Free Speech Scores a Hat Trick
• 10/2, Spencer Ackerman, Wired, Not From the Onion: Army Says ‘Social Network’ Use Is a Sign of Radicalism
• 10/1, Public Radio International, Despite differences, Guantanamo prison out-of-sight, if not mind, in presidential election
• 10/1, Adam Serwer, Mother Jones, The Drone Unknowns
• 10/1, Brendan Sasso, The Hill, OVERNIGHT TECH: Court to hear arguments in cellphone tracking case
• 9/28, Ethan Bronner, New York Times, Citizen Held After 9/11 Wins Right to Be Tried

• 10/28, Ethan Bronner, New York Times, Citizen Held After 9/11 Wins Right to Be Tried
• 10/1, Naureen Shah, USA Today, Column: President Obama’s dangerous drone legacy
• 10/1, Staff, The Sun, Drones should be ‘like any other piece of cops’ kit’
• 10/1, Eric Limer, Gizmodo, The Head of Homeland Security Stays Secure by Not Using Email, At All
• 10/1, Josh Peterson, The Daily Caller, DOJ domestic phone, email, Internet surveillance of Americans skyrocketed under Obama
• 10/1, Jeffrey Rosen and Jillian Weinberger, The Take Away with John Hockenberry, Affirmative Action to Warrantless Wiretapping: The Upcoming Supreme Court Term