Tag: aclu

DISCLOSE Again and Maybe for the Last Time

The DISCLOSE Act, slightly modified, is headed for a cloture vote on Tuesday afternoon. The alterations to the bill have changed few minds outside of Congress. It remains to be seen whether the modification in the bill — the sponsor removed a passage allowing labor unions to transfer funds among its affiliates — will be enough to attract enough support to achieve cloture.

My policy analysis of DISCLOSE applies to the altered bill.

The Center for Competitive Politics provides an analysis of the altered bill here.

The American Civil Liberties Union is sending around a letter of opposition that states “we believe this legislation would fail to improve the integrity of our campaigns in any substantial way while significantly harming the speech and associational rights of Americans.”

The ACLU has four objections to the altered bill:

  • The DISCLOSE Act fails to preserve the anonymity of small donors, thereby especially chilling the expression rights of those who support controversial causes.
  • The DISCLOSE Act would chill not only express advocacy on political candidates, but also issue advocacy.
  • The DISCLOSE Act imposes impractical requirements on those who wish to communicate using broadcast messages.
  • The DISCLOSE Act imposes unjust restrictions on contractors, TARP participants and corporations with minimal foreign participation.

WaPo on No-Fly: Black Hole to Quicksand

I wrote here Monday, and the Washington Post editorialized today, about the lawsuit in which the ACLU is representing a group of people who believe they have been wrongly placed on the government’s no-fly list. I find the Post’s editorial needlessly equivocal and muddied.

The plaintiffs “have a point — to a point,” says the Post. “[T]he list is essentially a black hole.” But it never says how their suit overshoots the mark.

When someone vindicating a constitutional right has a point, he or she has a point—period. Due process is a right prescribed by the Constitution, not something to dither about like Hamlet.

Hewing to a reasoned-sounding middle ground, the Post says, “There are legitimate law enforcement reasons for keeping the list secret: Disclosure of such information would tip off known or suspected terrorists, who could then change their habits or identities to escape government scrutiny.”

Think this through. The no-fly list is self-revealing. Any terrorist who tries to fly and can’t is “tipped off” that he or she is a suspect. (Does it matter whether the list or something else prevented him or her from flying? No.) Said terrorist will take steps to evade the list or someone else will take over—terrorists are fungible. The benefit of secrecy is small to the point of superfluous.

The Post correctly states that “U.S. citizens who believe they are on the list because of bad information should have a chance to challenge that designation before an independent arbiter.” But then it goes all mealy: “A federal court may be an appropriate forum, if governed by procedural safeguards to protect national security information. Creating an independent review panel within the executive might also meet the need.”

The secrecy rationale is tiny. The federal courts have vast experience with issues of all sensitivities. Developing a new (suitably) ”independent” panel would be a mountainous chore. And the constitutional doctrine of separation of powers cuts strongly against the Post’s proposal.

This editorial’s “middle ground” looks a lot like quicksand—a lot like the black hole the no-fly list is.

No-Fly With Me

The ACLU is representing several plaintiffs in a recently filed lawsuit challenging the U.S. government’s ”No Fly” list. The video in this “Blog of Rights” post tells the story of two of the plaintiffs. “I wanna go home!” laughs U.S. Marine veteran Ayman Latif. “I wanna see my mom. I want her to see my babies.”

No-fly listing is a constitutional aberration in which the executive branch unilaterally imposes a disability on persons it selects using unpublished criteria. It often denies these individuals any recourse by obscuring the reasons why they aren’t permitted to fly. Bills in the House and Senate would extend the use of the “no-fly” list to use in gun control.

There is no way to clear up the “no-fly” status of innocent travelers once and for all. The DHS’ Traveler Redress Inquiry Program may be good for unraveling mistaken name matching, but evidently it hasn’t cured the problem for these travelers.

No-fly listing is also a weak security measure. It’s CYA—“See? We did something!”—but it creates a class of people too dangerous to let fly but not so dangerous that they are sought for arrest.

There is some merit to watch- and no-fly-listing in the international context, where the U.S. is often unable to pursue threatening individuals. But generally, as I wrote in my book, Identity Crisis, “this procedure is like posting a most-wanted list at a post office and then waiting for criminals to come to the post office. It is a singularly lazy way to ‘pursue’ terrorists.”

Another security demerit: No-fly listing gives away the store. It tells any terrorist on a list that he or she is a suspect.

Since 9/11, airports and air travel have been something of a constitution-free zone. Exigency in the first year after that stunning attack may have justified some of the practices begun then, but we are secure and confident enough today to adhere to the Constitution. This lawsuit may vindicate due process values and the important liberty interest in freedom of movement.

Obama, Civil Liberties, & the Left

A confession: For all my innumerable policy disagreements with Barack Obama, on election night 2008, I found myself cheering with the rest of the throng on U Street. I fully expected to be appalled by much of his agenda – but I had also spent years covering the Bush administration’s relentless arrogation of power to the executive in the name of the War on Terror, its glib invocation of “national security” to squelch the least gesture toward transparency or accountability, its easy contempt for civil liberties and the rule of law. However fitfully, I thought, we could finally hope to see that appalling legacy reversed. And that seemed worth celebrating even if little else about the declared Obama agenda was.

As you might guess, I had a lot of disappointment coming – and not just with Obama.  There were, of course, principled civil libertarians on the left, like Salon’s Glenn Greenwald and Firedoglake’s Marcy Wheeler who kept banging the drum with undiminished fury. But many progressives seemed prepared to assume that Bush’s War-on-Terror policies would be out the door close on the heels of their author – conspicuously muting their outrage even as the reasons for it persisted. Meanwhile, the right – disappointingly if not entirely surprisingly – managed to fuse a penchant for breathless Stalin analogies with an attitude toward expansive surveillance powers and arbitrary detention authority that ranged from indifference to endorsement.

So it’s a little encouraging to see evidence over the last few weeks that burgeoning progressive disenchantment with Obama along a number of dimensions seems to be bringing these issues back into sharper focus. In a recent interview in Der Spiegel, Daniel Ellsberg of Pentagon Papers fame (described by the paper as a “lefty icon”) blasted Obama for “continuing the worst of the Bush administration in terms of civil liberties.” ACLU director Anthony Romero declared himself “disgusted” with the president, and Kevin Drum of Mother Jones catalogued a slew of reasons to agree with that appraisal. The real test of an issue’s salience, however, is whether it makes The Daily Show, and so perhaps the most significant bellwether is Jon Stewart’s decision to devote an unusually long and blistering segment to Obama’s failure to live up to his rhetoric on civil liberties and executive power:

The Daily Show With Jon Stewart Mon - Thurs 11p / 10c
Respect My Authoritah
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

Democrats have spent most of the past decade playing defense against “soft on national security” attacks from the right, on the assumption – borne out thus far – that the base wasn’t going to punish them for folding on civil liberties issues. But while many progressive complaints now being aired are themselves the product of an unrealistic view of presidential puissance, this really is one sphere where the president has enormous latitude to unilaterally affect policy. It’s therefore also a set of issues where scant progress can’t easily be blamed on Republican obstructionism.

During the Bush era, we saw the brief emergence of a small but hardy left-right “strange bedfellows” coalition opposed to the FISA Amendments Act. Now I find myself wondering: If progressive grumblings on this front continue and grow louder, will the Tea Party movement that’s sprung up in the intervening years realize that their own rhetoric logically commits them to the same position? And if they do, will civil libertarians on the left be open to resurrecting that odd alliance?

Mandatory Minimum Sentencing

The U.S. Sentencing Commission is taking another look at mandatory minimum sentencing and Cato adjunct scholar, Erik Luna, offered his thoughts [pdf] to Commission members, along with other experts. 

The ACLU’s Jay Rorty blogged about what he said and witnessed at the hearing:

I told the commission the story of an ACLU client, Hamedah Hasan, who received a life sentence for a first-time, nonviolent drug offense under the most extenuating circumstances: she came to stay with her cousin in order to flee a physically abusive relationship, and the cousin roped her into running errands for his drug conspiracy. Despite her previously clean record, her sentencing judge found his hands tied by a combination of mandatory minimums for crack cocaine and the then-mandatory sentencing guidelines based on those minimums. Hamedah’s sentence has since been reduced from life to 27 years, but she still has 10 years left to go. Hamedah has three daughters and one granddaughter. She gave birth to her youngest child in prison, and because of the ripple effect of this sentencing structure, Hamedah’s children and grandchildren are growing up without her. The judge has publicly urged that her sentence be commuted (reduced) and the ACLU filed a petition three months ago asking President Obama to do so.

Another tragic story recounted today was that of Weldon Angelos, who was facing a sentence of 6-9 years for dealing marijuana — until the government added three gun charges carrying increasingly harsh minimums that the law requires to be “stacked,” that is, to be added on top of one another. Even though he never fired the gun or threatened anyone, the fact Weldon had the gun with him on several occasions was enough to increase his sentence to 55 years, in spite of his judge’s firm conviction that the sentence was unfairly severe. Listening to stories like this made me wonder how Congress could have let this state of affairs persist for so long and whether they will ever be serious about changing it.

For more information, go to the FAMM (Families Against Mandatory Minimums) web site.

Update: Woman sentenced to life imprisonment for kissing a 13-year old boy and placing his hand on her breast.

Nevadans Don’t Want REAL ID, but the DMV Does, and That’s What Matters

Via the ACLU’s Blog of Rights, a temporary measure Governor Jim Gibbons put in place to bring Nevada into compliance with REAL ID has expired, and the legislature does not plan to renew it.

But the Nevada DMV wants it. The Las Vegas Review-Journal reports, “the DMV will seek legislative approval to implement the new licensing system at least by May 1, 2011.”

I wonder if the DMV will donate to candidates that support REAL ID, or perhaps campaign against legislators that don’t. Maybe it should just start voting in elections. The gall of these bureaucrats, telling the legislature what to do.

Revise the Maryland Wiretap Law?

As I said in this piece in the Baltimore Sun, Maryland police officers are misusing that state’s wiretap law to deter anyone who would film them performing their duties. Maryland officers have asserted that any audio recording of a conversation, even in a public place, is a violation of the state’s wiretapping law and a felony punishable by five years in prison and a $10,000 fine. Officers made this claim to deter filming of an arrest at the Preakness, and when motorcyclist Anthony Graber videotaped his traffic stop.

As Radley Balko points out, the officers’ reading of the law is out of step with the language of the statute itself and Maryland rulings interpreting the scope of the law. Is it time for a revision of this law, or is it just the officers’ interpretation that is the problem? I discussed this on the Kojo Nnamdi Show with the prosecutor pressing charges against Anthony Graber, State’s Attorney Joseph Cassilly, and Graber’s lawyer, David Rocah of the Maryland ACLU.

If you ask some officers in Maryland, any recording of a conversation violates the wiretap statute. If you ask a judge, you will get an entirely different reading of the law. Even though Maryland’s wiretapping statute is considered a “unanimous consent” or “two-party consent” law, its language is different from other states put in the same category such as Massachusetts and Illinois. Where Massachusetts and Illinois have no protection for recordings of conversations outside of electronic means of communication, the first section of the Maryland wiretapping law restricts unlawful interceptions of “oral communications” to words spoken in a “private conversation.”

While the analysis for wire communications is made without regard to privacy, Maryland courts held in Fearnow v. C & P Telephone Co. that a “private conversation” is one where there is a “reasonable expectation of privacy.” Fourth Amendment jurisprudence provides plenty of guidance on where a “reasonable expectation of privacy” exists. Simply put, a traffic stop on an interstate is not a place where Anthony Graber or the officers who cited him have a reasonable expectation of privacy.

This conclusion is bolstered by the guidance given to the Montgomery County Police by the Maryland Attorney General in this 2000 advisory opinion on recording traffic stops. Since 1991, the wiretapping statute had an exemption for police dash cameras where officers could record interactions with motorists when they warned the citizen that the traffic stop would be recorded. The 2000 letter addresses the possibility that other people could show up after the receipt of consent from a motorist and potential “inadvertent interceptions.” The opinion concludes that there is little for officers to worry about, but the state legislature expanded the law enforcement exception in 2002 to address this concern anyway. In a footnote, the advisory opinion makes the point that, in any case, the motorists being pulled over have no reasonable expectation of privacy:

It is also notable that many encounters between uniformed police officers and citizens could hardly be characterized as “private conversations.” For example, any driver pulled over by a uniformed officer in a traffic stop is acutely aware that his or her statements are being made to a police officer and, indeed, that they may be repeated as evidence in a courtroom. It is difficult to characterize such a conversation as “private.”

The Attorney General’s office provided further guidance on the issue in this letter to a state legislator in 2009, advising that surreptitious recording of a meeting of the Democratic Club would probably not be a violation of the Maryland wiretapping law because statements made in this setting lack a “reasonable expectation of privacy.”

So, under the interpretation of the law supporting Anthony Graber’s prosecution, dash camera footage of Anthony Graber’s traffic stop is not a violation of the law, but Graber’s helmet-mounted footage is. The law enforcement officer, a public official performing public duties, retains a “reasonable expectation of privacy” on the side of I-95, but Anthony Graber has none. This is an assertion made contrary to the interpretation of the courts of Maryland, the Maryland Attorney General, and common sense.

This injustice could be resolved in several ways. First, as Radley suggests, the Maryland Attorney General could issue an opinion clarifying the wiretapping law with regards to recording police activity. Advisory opinions are not generally given sua sponte, so a state legislator or other official would have to request the AG’s interpretation. Second, Anthony Graber’s case may provide a rebuttal to an expansive reading of the statute by Maryland law enforcement officers. Third, the legislature could step in to deter future abuse of the statute by expressly stating that public discussions are not “private conversations.”

I discussed this on the Kojo Nnamdi Show with David Rocah and Joseph Cassilly. Rocah wants to preserve the “two-party consent” statute. The legislature, in fact, can clarify the  definition of “private conversations” without changing the consent requirement of the law with regard to electronic communications.

On the other hand, State’s Attorney Joseph Cassilly recalled occasions when citizens have come to his office with recordings of threats or extortion demands and he was required to tell them that under Maryland law (1) their recording was not admissible as evidence because it did not have the consent of the threatening or extorting party (though I see no reason that a letter with the same communication would be inadmissible); and (2) the victim of the threat or extortion committed a felony violation of the wiretapping law by making the recording in the first place. That may be the law, but it’s not justice.

In any case, the prosecution of Anthony Graber is an abuse of police power. If Maryland law enforcement officers continue to use the state’s wiretapping law to shield their activities from public view, the backlash may result in a revision of the law in its entirety.