Tag: aclu

Teachers Suspended for Class about Constitution

This can’t be happening.  Teachers suspended from their posts for showing students a film about the Constitution!  I can understand the initial parental inquiry–if a student did say “I was taught how to hide drugs.”  There are such films on the market and those would certainly not be appropriate for school.  But instead of gathering the facts, the school authorities seem to have made a terrible and unjust decision to suspend these teachers.  The Busted film is about constitutional law and police encounters–showing people that they can lawfully stand up to the police and decline to approve a search of their home and belongings, and decline to answer police questions.  Hopefully, the ACLU or FIRE will come to the defense of these teachers and get them reinstated fast.

Flex Your Rights, which produced the Busted film, recently released an even better film called 10 Rules for Dealing with Police.  Cato hosted the premiere screening here in DC.

Adding Free Speech Insult to Property Rights Injury

My friend and former law firm colleague Mark Sigmon – who co-authored Cato’s brief in the New Haven firefighters case – is representing a man facing daily fines for displaying a large political message on his house.

David Bowden was upset about the way he had been treated by the town of Cary, NC, regarding damage to his property during a road-widening project.  This past July, Bowden hired someone to paint “Screwed By The Town of Cary” on the front of his house.  A few weeks ago, the town gave Bowden seven days to remove the sign or face daily fines – $100 for the first day, $250 for the second, $500 for each subsequent day – for violating a local sign ordinance. That’s when Mark, who’s affiliated with the ACLU of North Carolina, filed a lawsuit on Bowden’s behalf.   The complaint alleges that the town violated Bowden’s rights to free speech and to petition his government under the First Amendment and similar provisions of North Carolina’s constitution.

While the facts of this case are a bit colorful – and I’m sure Mark is enjoying the notoriety (here’s his appearance on Fox & Friends) – this is no laughing matter.  The town appears to be compounding the damage it did to a resident’s property rights by now violating his rights to speech and political expression. At least now the town has agreed to refrain from enforcing its ordinance and levying fines until the case is resolved – which is essentially a capitulation to Bowden’s request for a preliminary injunction.

For more news on this story go here, here, and here. And you can read the ACLU’s press release and access all the legal pleadings in the case here.

Who Reads the Readers?

This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order. I mean, the last Inspector General report finding widespread and systemic abuse of those came out, like, over a year ago! And as defenders of expanded NSL powers often remind us, similar records can often be obtained by grand jury subpoena.

Subpoenas like, for instance, the one issued last year seeking the complete traffic logs of the left-wing site Indymedia for a particular day. According to tech journo Declan McCullah:

It instructed [System administrator Kristina] Clair to “include IP addresses, times, and any other identifying information,” including e-mail addresses, physical addresses, registered accounts, and Indymedia readers’ Social Security Numbers, bank account numbers, credit card numbers, and so on.

The sweeping request came with a gag order prohibiting Clair from talking about it. (As a constitutional matter, courts have found that recipients of such orders must at least be allowed to discuss them with attorneys in order to seek advise about their legality, but the subpoena contained no notice of that fact.) Justice Department officials tell McCullagh that the request was never reviewed directly by the Attorney General, as is normally required when information is sought from a press organization. Clair did tell attorneys at the Electronic Frontier Foundation, and  when they wrote to U.S. Attorney Timothy Morrison questioning the propriety of the request, it was promptly withdrawn. EFF’s Kevin Bankston explains the legal problems with the subpoena at length.

Perhaps ironically, the targeting of Indymedia, which is about as far left as news sites get, may finally hep the populist right to the perils of the burgeoning surveillance state. It seems to have piqued Glenn Beck’s interest, and McCullagh went on Lou Dobbs’ show to talk about the story. Thus far, the approved conservative position appears to have been that Barack Obama is some kind of ruthless Stalinist with a secret plan to turn the United States into a massive gulag—but under no circumstances should there be any additional checks on his administration’s domestic spying powers.  This always struck me as both incoherent and a tragic waste of paranoia. Now that we’ve had a rather public reminder that such powers can be used to compile databases of people with politically unorthodox browsing habits, perhaps Beck—who seems to be something of an amateur historian—will take some time to delve into the story of COINTELPRO and other related projects our intelligence community busied itself with before we established an architecture of surveillance oversight in the late ’70s.

You know, the one we’ve spent the past eight years dismantling.

Greenwald on the Arrar Ruling

Glenn Greenwald has a good post about Arrar v. Ashcroft, an appeals court ruling that came down the other day.  Here’s an excerpt:

Maher Arar is both a Canadian and Syrian citizen of Syrian descent.  A telecommunications engineer and graduate of Montreal’s McGill University, he has lived in Canada since he’s 17 years old.  In 2002, he was returning home to Canada from vacation when, on a stopover at JFK Airport, he was (a) detained by U.S. officials, (b) accused of being a Terrorist, (c) held for two weeks incommunicado and without access to counsel while he was abusively interrogated, and then (d) was “rendered” – despite his pleas that he would be tortured – to Syria, to be interrogated and tortured.  He remained in Syria for the next 10 months under the most brutal and inhumane conditions imaginable, where he was repeatedly tortured.  Everyone acknowledges that Arar was never involved with Terrorism and was guilty of nothing.  I’ve appended to the end of this post the graphic description from a dissenting judge of what was done to Arar while in American custody and then in Syria.

Read the whole thing.   Also, the ACLU has put together a short film about the experiences of some prisoners released from Guantanamo.

What You Don’t Know Won’t Hurt You (Surveillance State Edition)

While there are many choice tidbits to relate from Tuesday’s hearings on PATRIOT Act reform at the House Judiciary Committee’s Subcommittee on the Constitution—not least the fellow who had to be wrestled from the room, literally kicking and screaming, after he tried to stand and interrupt with a complaint about alleged FBI violations of his civil rights—I’ll just relate a novel theory of the Fourth Amendment advanced by Rep. Steve King (R-Iowa).

The ACLU’s Mike German, a former FBI agent turned surveillance policy expert, was explaining that it’s hard to know whether expansive surveillance powers are being abused, they’re mostly used in secret and deployed via third-parties like financial institutions and telecoms, who have little incentive to raise much fuss or draw attention to their cooperation. King interrupted to suggest that if we weren’t hearing about constitutional challenges, then it was probably safe to assume there was no Fourth Amendment harm. German tried to reiterate that the people whose privacy interests were directly harmed typically would not know they had ever been targeted.

That, King declared, was precisely the point. Surveillance of which the subject never became aware, he said, could be compared to a “tree falling in the forest” when nobody’s around. In other words, if you aren’t ultimately prosecuted, and don’t even feel subjective distress as a result of the knowledge that your private records or communications have been pored over, then it’s presumably no harm, no  foul. If we take this line of thinking literally, sufficiently secret surveillance can never be unconstitutional, which would seem to make King a spiritual cousin of Richard “if the president does it, that means it’s not illegal” Nixon.

Prosecutors Should Not Be Allowed to Fabricate Evidence

In 1977, county attorney David Richter and assistant county attorney Joseph Hrvol worked side by side with police to investigate and “solve” the notorious murder of a former police officer in Pottawattamie County, Iowa. The prosecutors fabricated evidence and used it to charge and convict Curtis McGhee and Terry Harrington, sending them to prison for 25 years.

After the convictions were overturned for prosecutorial misconduct, McGhee and Harrington sued the county and prosecutors. The defendants in that civil suit invoked the absolute immunity generally afforded prosecutors to try to escape liability. After the Eighth Circuit ruled against them, the Supreme Court agreed to review the case.

On Friday, Cato joined the National Association of Criminal Defense Lawyers and the ACLU on a brief supporting the men unjustly imprisoned. We argue that prosecutors should be responsible for their role in manufacturing a false “case,” just as police officers would be under the same circumstances. As the Court has held, prosecutors enjoy absolute immunity only during the prosecutorial phase of a case, not its investigatory phase. Were prosecutors to receive absolute immunity here, citizens would have no protection from or recourse against prosecutors who frame the innocent by fabricating evidence and then using that evidence to convict them.

To read Cato’s brief in the case of Pottawattamie County v. McGhee, see here.

Civil Liberties and President Barack W. Bush?

It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list.  Indeed, they probably weren’t even on the list.  Candidate Barack Obama promised “change” when he took office, and change we have gotten.  The name of the president is different.

Alas, the policies are much the same.  While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.

Reports the New York Times:

Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.

It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?

The answer depends on what it means to act like Mr. Bush.

As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.

“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”

But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.

“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”

The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us.  The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.