Posts Tagged ‘Supreme Court’

Albany’s on its way to becoming the next city to challenge federal indefinite detention

Friday, October 4, 2013 at 8:00 pm by

obama indefinite detention hypocriteOn October 2, 2013, Anton Konev, City of Albany Common Council member, introduced Resolution #80.92.13, adding his voice to mounting dissent in the Albany City Council towards the detention provisions within the National Defense Authorization Act (NDAA). The resolution aims to repeal Sections 1021 and 1022 in the NDAA, which could allow anyone, including US citizens, anywhere in the world to be indefinitely detained without trial.

The resolution points out that:

[T]he U.S. Supreme Court has ruled that neither Congress nor the President can constitutionally authorize the detention and/or disposition of any person in the United States, or citizen of the United States “under the law of war” who is not serving “in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;” or in subsequent cases as “part of or supporting forces hostile to the United States or coalition partners” and who have “engaged in an armed conflict against the United States” while “in a foreign combat zone;”

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Secret law thrives, eroding the courts

Monday, July 15, 2013 at 8:55 am by

Last week, current and former intelligence officials spoke anonymously with the New York Times and the Wall Street Journal to reveal that the Foreign Intelligence Surveillance Court (FISC) is wielding even more power than Edward Snowden’s leaks imply.  According to the New York Times, the court is not simply processing requests for surveillance authority. Instead, it is “regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.”

Under the Foreign Intelligence Surveillance Act (FISA), access to business records requires an application to the FISC that includes “facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” While the law around relevance and reasonable grounds to believe is somewhat unclear, the Wall Street Journal reports:

The court’s interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.

In addition to an extremely broad definition of what is relevant, the officials revealed that the court has issued opinions that “have expanded the use in terrorism cases of a legal principle known as the ‘special needs’ doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures.”

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News Digest 07/10/13

Wednesday, July 10, 2013 at 5:00 pm by

The land of the blind: The illusion of freedom in America

Tuesday, June 25, 2013 at 7:52 am by

police-state-noThis commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published on June 24, 2013.

“How far does a man have to go to be thought so dangerous that he needs to be locked away, physically separated from the rest of the world, behind stone walls and iron bars? Clearly, it is a last resort.” — Joe, Land of the Blind

In the Wachowskis’ iconic 1999 film, The Matrix, the protagonist Neo is wakened from a lifelong slumber by Morpheus, a freedom fighter seeking to liberate humans from virtual slavery—a lifelong hibernation state—imposed by hyper-advanced artificial intelligence machines. With their minds plugged into a perfectly crafted virtual reality, few humans ever realize they are living in a dream world to such an extent that most are willing to give their lives in order to preserve the system that enslaves them.

Sound familiar? It should, because as I make clear in my new book, A Government of Wolves: The Emerging American Police State (available on Amazon.com and in stores), we too are living in a fantasy world carefully crafted to resemble a representative democracy, while in reality we are little more than slaves in thrall to an authoritarian regime, with its constant surveillance, manufactured media spectacles, secret courts, inverted justice, and violent repression of dissent. And for the few who dare to challenge the status quo such as Edward Snowden, they are assured of being branded either as conspiratorialists, alarmists, lunatics or outright traitors.

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The panopticon is here

Wednesday, June 12, 2013 at 6:13 am by

On June 3rd, the Supreme Court released its decision in Maryland v. King, in which a 5-4 majority held that:

taking and analyzing a cheek swab of [an] arrestee’s DNA is, like fingerpringting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Justices Ginsburg, Sotomayor, and Kagan joined Justice Antonin Scalia’s dissent, focusing on the huge privacy invasion concerns represented by DNA swabbing prior to conviction.

This decision is clearly cause for concern. What’s more, it should  be viewed as part and parcel of a growing surveillance state, in which everyone’s bodies are cataloged, their movements tracked, and their beliefs recorded. The old idea of the Fourth Amendment, which was created specifically in order to protect us from government tyranny, is nearly dead.

Justice Kennedy, writing for the majority, acknowledged that swabbing for DNA qualifies as a  search under the Fourth Amendment. However, he argues, it is a minimal intrusion and requires only a balancing of privacy concerns and legitimate government interests. He focuses on the comparison between taking DNA and fingerprinting, which is done mainly for the purposes of identifying arrestees.

The thrust of questioning and argument during oral argument belies this focus. While the government fell back on the arrestee identification argument, it initially argued that taking DNA samples would help solve unsolved crimes. Questions from several Justices in the majority made it clear that they appreciate the crime-solving aspect of DNA, beyond the identification aspect. Justice Scalia’s dissent explains why this matters.

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FBI & NSA spying revealed: Uncle Sam is watching you, and both Congress and the courts are complicit

Thursday, June 6, 2013 at 10:41 am by

The (UK) Guardian published a previously secret court order authorizing dragnet surveillance of millions of Americans without any pretense of justification, confirming concerns raised by civil libertarians (including me) for years.

Since first taking office in 2009, the Obama administration has repeatedly extended the USA PATRIOT Act, including the overbroad section 215 cited as the basis for the FBI surveillance approved by the secret order disclosed by the Guardian. In light of Congress’ recent decision to extend the law permitting even worse abuses by the NSA for another five years, and the Supreme Court’s outrageous decision in Clapper v. Amnesty Int’l turning a blind eye to dragnet domestic surveillance, the document is also a clarion call for both mass outrage and immediate congressional action for long overdue sunlight at the National Security Agency.

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The document is disturbing because, in a single swoop, it authorizes not just the wiretapping of a single individual, or a single organization, but all of the customers of a single telecommunications company. The order reinforces its own secrecy, immune from public or congressional oversight, violating core tenets of both Due Process and the Fourth Amendment at once.

Surveillance run amok

The first thing to take away from this disclosure is this sheer scale and scope of FBI and NSA spying on Americans. Senators Ron Wyden (D-OR) and Rand Paul (R-KY), like the Bill of Rights Defense Committee and various allied organizations, have been raising alarm since even before the 2008 amendments to the Foreign Intelligence Surveillance Act (“FISA”).

Along with Senator Mark Udall (D-CO), Sen.  Wyden has suggested in his capacity as a member of the Senate Intelligence Committee that Americans would be outraged if we knew about secret government interpretations of the PATRIOT Act’s controversial Section 215 authority. The law is bad enough without being contorted to allow surveillance even beyond its meager limits, but that’s exactly what the document leaked to the Guardian demonstrates: a single wiretap order allowing the FBI to spy on millions of law-abiding Americans at once, without even a pretense of the individualized suspicion long required by the Constitution.

Wyden has also sought information about how many Americans have been impacted by NSA spying overseen by the same FISA court that approved the FBI surveillance revealed by the Guardian. The answers would be laughable if they weren’t so disturbing: the NSA claimed it couldn’t answer a quantitative question because it would somehow violate the privacy of individuals under surveillance, and also that figuring out the answer to Wyden’s inquiries would simply be impracticable.

The NSA’s spin moves before Sen. Wyden’s attempts at oversight insinuated what the Guardian’s disclosure confirms: that our government’s most secret agency is run amok, squandering billions of dollars while assaulting America from our own shores, using our own money.

While outrage is appropriately escalating at the scale of FBI and NSA abuses, three angles to this controversy have remained muted in most of today’s commentary.

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Silence in the face of classist Fourth Amendment jurisprudence

Friday, April 26, 2013 at 11:02 am by

Gavel and BooksLate last month, the Supreme Court of the United States handed down a victory for the Fourth Amendment and the largely African-American and Latino communities persecuted in name of the war on drugs. At the same time, the reasoning deployed by the 5-4 majority (written by Justice Scalia) does nothing to fix our classist Fourth Amendment jurisprudence, which protects one’s privacy in proportion to the size of one’s yard.

The case, Florida v. Jardines, involved whether the police’s use of a drug-sniffing dog in one’s yard to investigate suspected marijuana cultivation was a “search” and, therefore, required a warrant. In finding that the use of the dog violated the Fourth Amendment, the Court used a property-based notion of the Fourth Amendment.

The Court held that “[w]hen the Government obtains information by physically intruding on persons, houses, papers, or effects, a ‘search’ within the original meaning of the Fourth Amendment has occurred.” Because one’s yard is part of one’s house and the police intruded upon it without permission to use the K9, a “search” had occurred and a warrant is required.

The majority refused to consider whether the defendant also had a reasonable expectation of privacy in the odors emitted from his home. The decision goes to lengths to emphasize that the reasonable-expectations test has “been added to, not substituted for the traditional property-based understanding of the Fourth Amendment.” Therefore, it reasons, there is no need to pass on whether the defendant’s expectation of privacy was justified because the search violated the property-based protections.

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Millbrook v. US: Holding the government accountable for misconduct by law enforcement officials

Monday, April 1, 2013 at 5:57 pm by

This commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published on April 1, 2013.

“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.”―Thomas Paine

At a time when the courts are increasingly giving deference to the police and prioritizing security over civil liberties, the U.S. Supreme Court’s ruling in Millbrook v. United States is a glimmer of hope in a sea of gloom.

Handed down on the second day of the Court’s same-sex marriage arguments, Millbrook has been largely overshadowed by the debate over marriage equality. However, this ruling should not be overlooked—not only for what it says about the need to hold law enforcement officials accountable to abiding by the law, but more importantly for what it says about the extent to which the government has given itself free rein to abuse the law, immune from reproach.

In its ruling in Millbrook v. United States, a unanimous U.S. Supreme Court concluded that the U.S. government may be held liable for abuses intentionally carried out by law enforcement officers—whether they’re police officers or prison guards—in the course of their employment. Critics of the government’s tactics hope the Court’s ruling will send a strong message to the government’s various law enforcement agencies that they need to do a better job of policing their employees and holding them accountable to respecting citizens’ rights, especially while on the job.

The facts in Millbrook are particularly egregious.

Kim Lee Millbrook is serving a 31-year sentence, reportedly for drug and gun-related charges along with witness intimidation. On March 1, 2010, Millbrook was transferred to a high-security federal prison in Lewisburg, Pa., which specializes in dealing with inmates who are highly disruptive and difficult to manage, including gang leaders. On March 4, 2010, a few days after being installed at the Special Management Unit (SMU) in Lewisburg, Millbrook and his cellmate got into a fight and were temporarily placed in a shower area. Then, according to Millbrook, three prison guards escorted him to the basement holding-cell area, where one guard choked him until he almost lost consciousness and a second guard made Millbrook perform oral sex on him, while a third guard stood watch by the door. Conveniently, no video cameras were monitoring the basement at the time of the alleged assault.

Although Millbrook claims the guards threatened to kill him if he reported the incident, he filed a complaint with prison officials, which then led to a formal investigation. During the course of the investigation, a prison physician determined that Millbrook did not show signs of having been choked, a prison psychologist concluded that Millbrook did not exhibit trauma consistent with a sexual assault, and the prison guards and Millbrook’s cellmate all testified to having no knowledge of any such assault taking place against him. Prison officials also noted that Millbrook had filed a similar complaint against guards at his previous prison, which was eventually dismissed when the charges could not be substantiated.

A non-lawyer relatively well-versed in navigating the legal system, Millbrook turned to the courts for relief in January 2011, suing the federal government for $1.5 million in damages for negligence, assault and battery and requesting a transfer out of the Lewisburg facility.

Neither the federal district court nor the Third Circuit Court of Appeals proved to be receptive to Millbrook’s argument that the prison guards should be held liable under a provision of the Federal Torts Claim Act (FTCA), which allows individuals to sue federal law enforcement officials for misconduct. As reporter Ailsa Chang explains:

Under the law, the government allows itself to be sued when a government representative commits a tort. A tort is an act done negligently or intentionally that results in injury to someone. However, if the tort was intentional, the law does not allow the lawsuit to proceed — except in cases where the defendant is a law enforcement official. And even in those cases, the federal government can be liable only if the officer was acting “within the scope of his office or employment.”

Although both courts noted that the prison guards’ alleged behavior was troubling, they ducked the issue and dismissed the case on the grounds that the federal government has sovereign immunity—that is, although an egregious wrong may have been committed by a government employee, they cannot be held liable for money damages for their behavior. Specifically, the courts reasoned that the FTCA only applies to “police officers” while they are in the process of making an arrest or seizure, or executing a search.

Undeterred, Millbrook filed a handwritten petition, in pencil no less, to the U.S. Supreme Court, and in a rare show of magnanimity, the Court agreed to hear his case and assigned a lawyer to represent him. Curiously enough, after the Court announced it could hear the case, the U.S. Justice Department—which had defended the government’s actions at every level of the judicial proceedings, including asking the Supreme Court not to take the case—did an about-face and switched its position to argue that the FTCA does apply to prison guards as law-enforcement officials.

The Supreme Court’s subsequent ruling, written by Justice Clarence Thomas, is a technical analysis of the FTCA, to whom it applies and in what circumstances. The bottom line, according to the nine justices in a rare show of agreement, is that the lower courts misconstrued the FTCA, which clearly provides for the government to be held accountable for wrongdoing carried out by law enforcement officials in its employ while on the job. (Although even the FTCA, it must be said, is notable for the many exceptions it provides to shield government officials from wrongdoing.)

Having been given the green light for his lawsuit to proceed, Millbrook still has an uphill battle ahead of him. Indeed, Millbrook has to prove to the lower courts that he was, in fact, sexually assaulted by the guards. Whether or not his allegations prove to be true, however, his case is a painful reminder that such kinds of abuses are not only par for the course in our nation’s overcrowded prisons but are often tolerated by prison officials.

Inmate Jens Soering’s insightful book One Day in the Life of 179212: Notes from an American Prison (Lantern Books, 2012), with its accounts of therapeutic beatings, rapes and the sense that one is in constant peril, may be the most vivid first-person portrait of the failure of America’s penal system to date. As Soering writes:

Repeated anonymous surveys have determined that 20 percent of all inmates are forced to have sex each year, and 10 percent are violently raped. The overwhelming majority of these crimes are never reported: a silence maintained out of fear of retaliation from the perpetrators and because of the indifference of prison officials.  In 2004, only 8,210 sexual assaults were documented, even though correctional experts testifying at a U.S. Senate hearing in 2003 estimated the actual number of cases to range from 250,000 to 600,000per year.

The question that we must ask ourselves is what kind of government not only turns a blind eye to such abuses but absolves itself of any responsibility for righting such wrongs?

The answer is a government whose system of “checks and balances” has given way to a concerted effort by all branches of the government, including the courts, to maintain their acquired powers at all costs. Looked at from this perspective, while Millbrook was, indeed, a welcome respite from the Supreme Court’s usual practice of giving law enforcement officials a “get out of jail free” card, it may prove in the long run to be little more than a bone tossed to a dog, a small concession amidst a sea of abuses.

Jeff Bucholtz, the lawyer who argued against Millbrook and in favor of government immunity, didn’t appear to view the ruling as much of a loss. Responding to the assertion that the Millbrook ruling ensures that the “government now has a direct pocketbook interest in stopping this kind of behavior,” Bucholtz pointed out that “FTCA judgments are paid by an unlimited fund provided by Congress, so it doesn’t hurt prison guards or their supervisors when judgments are paid out under the statute.”

In other words, it’s just business as usual, with the taxpayer forced to pay the penalty for the government’s misdeeds. In days gone by, this payment to right a wrong was called “blood money,” and it was paid by the guilty party to his victim. Could it be that the government has managed to slip the noose from around its own neck, leaving us to hang for the crime—figuratively speaking, of course?

Constitution in Crisis :: BORDC’s March Newsletter

Thursday, March 21, 2013 at 9:27 am by

Constitution in Crisis

March 2013, Vol. 12 No. 03

View this newsletter as a webpage: http://www.bordc.org/newsletter/2013/03/


March 2013, Vol. 12 No. 03

View this newsletter as a webpage: http://www.bordc.org/newsletter/2013/03/


Paul leads filibuster of Brennan nomination to lead CIA

On March 6, Senator Rand Paul (R-KY) forced a long overdue conversation in Washington about checks and balances on executive power by leading a bipartisan filibuster of John Brennan’s nomination to lead the CIA.

BORDC News

BORDC in the news

In the last month, BORDC and coalitions we support across the nation have appeared in various press outlets to promote concerns about constitutional rights and the powers of police and intelligence agencies that abuse them.

Read the latest news & analysis from the People’s Blog for the Constitution

Have you read BORDC’s blog lately? The People’s Blog for the Constitution has attracted a growing audience that has tripled over the past year. Featuring news & analysis beyond the headlines on a daily basis, it offers a great way to stay up-to-date and informed.

Highlights from the past month include:

BORDC’s Shahid Buttar speaks in Austin, TX

On Tuesday, March 5, BORDC’s Shahid Buttar spoke at the University of Texas School of Law in Austin. Hosted by the American Constitution Society, his talk, which was videotaped and is available online, addressed “Power and Accountability in the Post-9/11 era: torture, targeted killing, and domestic drone surveillance.”

BORDC hosts reception to celebrate recent Bay Area organizing victories

On Sunday, May 5, BORDC will host a reception in San Francisco celebrating the organization’s first decade of grassroots organizing to restore civil liberties, and several recent policy victories across the San Francisco Bay Area.

Grassroots News

March 2013 Patriot Award: Mary Madden

Every month, BORDC honors an individual who has made an outstanding contribution in his or her community to the movement to restore civil liberties and the rule of law. This month, the Patriot Award goes to Mary Madden for her extraordinary and committed activism and organizing.

Grassroots updates

To view campaigns supported by BORDC at a glance, visit our interactive campaign maps for local coalitions addressing surveillance and profiling by local law enforcement, or military detention under the NDAA. To get involved in any of these efforts, please email the BORDC Organizing Team at organizing (at) bordc (dot) org. We’re eager to hear from you and help support your activism!

          • Nationwide: Campaigns emerge to address domestic surveillance drones
          • Boston and Cambridge, MA: Diverse coalition takes action in several ways
          • Hartford, CT: Public education on how immigration enforcement could undermine civil liberties
          • New York City, NY: Residents gather to challenge drones and detention, while lawsuit proceeds vs. NYPD stop-and-frisk profiling
          • Annapolis, MD: Statewide coalition challenges NDAA, plans upcoming discussion event
          • Asheville, NC: Coalition mobilizes to support proposed Civil Liberties Ordinance
          • Cleveland, OH: Coalition launches monthly vigils, bus tour, and petitions
          • Chicago, IL: Coalition mobilizes to challenge suppression of dissent, anti-immigrant profiling
          • Madison, WI: New coalition initiates public education campaign
          • Helena, MT: House votes unanimously to approve bill vs. NDAA
          • Los Angeles, CA: Coalition plans community mobilization for upcoming Police Commission meeting
          • San Francisco, CA: The 18th city to say “No!” to indefinite detention under the NDAA
          • Seattle, WA: Community considers racial profiling and drones
          • Friday Harbor, WA: Coalition organizes educational forum

Law and Policy

Bipartisan legislation introduced to curtail domestic surveillance drones

Earlier this month, Representatives Ted Poe (R-TX) and Zoe Lofgren (D-CA) introduced the Preserving American Privacy Act of 2013 (HR 637), a bipartisan bill that would establish basic legal ground rules for the domestic use of unmanned drone aircraft. The principles now governing searches by this new technology are vague, and the clarity of this bill would greatly benefit both police and the public.

CISPA threatens military control of domestic cybersecurity

The Cyber Information and Sharing Act (CISPA) was first introduced last year by Representatives Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD). It prompted widespread opposition, including a veto threat from President Obama, in addition to a petition with over 800,000 signatures, and a widespread online campaign dubbed “Stop Cyber Spying Week.” Nonetheless, CISPA is back.

Immigration enforcement: a Trojan horse?

Calls for comprehensive reform of federal immigration law have prompted a bipartisan debate on Capitol Hill. Most observers, however, have overlooked how stronger immigration enforcement could undermine the rights of not only immigrants, but also US citizens.

DC Circuit Court forces CIA to at least acknowledge documents about drones

On March 15, the US Court of Appeals for the DC Circuit ruled that the CIA must respond to a FOIA request by the ACLU seeking information about the targeted killing program using drone aircraft. While the decision does not require the actual disclosure of the documents, which the lawsuit will now move on to address, it does represent a rare example of the federal judiciary standing up to government secrecy and asserting an independent check and balance.

National Security Letters held unconstitutional

On March 15, a federal judge in California struck down National Security Letters (NSLs) as unconstitutional violations of free speech. US District Judge Susan Illston ordered the Justice Department and FBI to stop issuing NSLs, which are unilateral demands for private information unsupported by a judicial warrant, and also ordered them to stop enforcing gag orders attached to NSLs in other cases.

US Supreme Court places NSA above the law in Clapper v. Amnesty

On February 26, 2013, the US Supreme Court ruled 5-4 to allow warrantless wiretapping to continue. The controversial decision places the National Security Agency (NSA) above the law and insulates it from judicial review.

New Resources and Opportunities

Join the struggle for Due Process vs. domestic military detention under NDAA

The transpartisan grassroots movement against the domestic detention provisions of the National Defense Authorization Act (NDAA) is growing. Nearly 20 cities have passed resolutions supporting Due Process, and organizers are using Facebook to help build statewide campaigns in several states.

BORDC to host spring convenings in the Northeast and Bay Area

BORDC supports grassroots organizers as they build diverse coalitions seeking local protections and civil rights and civil liberties. A pair of upcoming convenings offer opportunities for organizers to travel to the Northeast in April, or Bay Area in May, to share skills and case studies with allies from other cities.

Micro-grants offer opportunities for grassroots action

To help encourage outreach, public education, and grassroots mobilization, BORDC has provided micro-grants to coalitions that have participated in one of BORDC’s anchor convenings, such as the May 2012 convening in Chicago. Grants of $300 to $500 are available to help active coalitions expand their local visibility, host events, or build capacity.


News Digest 3/04/13

Monday, March 4, 2013 at 5:00 pm by