Debtors’ Prisons are Making a Comeback in America

December 26, 2013


Apparently having 5% of the world’s population, but 25% of its prisoners simply isn’t good enough for neo-feudal America. No, we need to find more creative and archaic ways to wastefully, immorally and unconstitutionally incarcerate poor people. Welcome to the latest trend in the penal colony formerly known as America. Debtors’ prisons. A practice I thought had long since been deemed outdated (indeed it has been largely eradicated in the Western world with the exception of about 1/3 of U.S. states as well as Greece).

From Fox News:

As if out of a Charles Dickens novel, people struggling to pay overdue fines and fees associated with court costs for even the simplest traffic infractions are being thrown in jail across the United States.

Critics are calling the practice the new “debtors’ prison” — referring to the jails that flourished in the U.S. and Western Europe over 150 years ago. Before the time of bankruptcy laws and social safety nets, poor folks and ruined business owners were locked up until their debts were paid off.

Reforms eventually outlawed the practice. But groups like the Brennan Center for Justice and the American Civil Liberties Union say it’s been reborn in local courts which may not be aware it’s against the law to send indigent people to jail over unpaid fines and fees — or they just haven’t been called on it until now.

The Brennan Center for Justice at New York University’s School of Law released a “Tool Kit for Action” in 2012 that broke down the cost to municipalities to jail debtors in comparison with the amount of old debt it was collecting. It doesn’t look like a bargain. For example, according to the report, Mecklenburg County, N.C., collected $33,476 in debts in 2009, but spent $40,000 jailing 246 debtors — a loss of $6,524.
Don’t worry, I’m sure private prisons for debtors will soon spring up to make this practice a pillar of GDP growth.

Many jurisdictions have taken to hiring private collection/probation companies to go after debtors, giving them the authority to revoke probation and incarcerate if they can’t pay. Research into the practice has found that private companies impose their own additional surcharges. Some 15 private companies have emerged to run these services in the South, including the popular Judicial Correction Services (JCS).

In 2012, Circuit Judge Hub Harrington at Harpersville Municipal Court in Alabama shut down what he called the “debtors’ prison” process there, echoing complaints that private companies are only in it for the money. He cited JCS in part for sending indigent people to jail. Calling it a “judicially sanctioned extortion racket,” Harrington said many defendants were locked up on bogus failure-to-appear warrants, and slapped with more fines and fees as a result.

Repeated calls to JCS in Alabama and Georgia were not returned.

The ACLU found that seven out of 11 counties they studied were operating de facto debtors’ prisons, despite clear “constitutional and legislative prohibitions.” Some were worse than others. In the second half of 2012 in Huron County, 20 percent of arrests were for failure to pay fines. The Sandusky Municipal Court in Erie County jailed 75 people in a little more than a month during the summer of 2012. The ACLU says it costs upwards of $400 in Ohio to execute a warrant and $65 a night to jail people.

Mark Silverstein, a staff attorney at the Colorado ACLU, claimed judges in these courts never assess the defendants’ ability to pay before sentencing them to jail, which would be unconstitutional.

Full article here.

On a related note, I strong suggest everyone read the following article from The Atlantic called: I Got Myself Arrested So I Could Look Inside the Justice System.

You’ll never see the “justice” system in the same light again.

Debtors Prisons Are Punishing the Poor Across America

A 19th century tool for instilling fear in the public to pay off debt
May 1, 2013 | AlterNet/By Bill Berkowitz

"In the 1990s, Jack [Dawley's] drug and alcohol addictions led to convictions for domestic violence and driving under the influence, resulting in nearly $1,500 in fines and costs in the Norwalk Municipal Court. Jack was also behind on his child support, which led to an out-of-state jail sentence." After serving three and a half years in Wisconsin, Dawley, now sober for 14 years, is still trying to catch up with the fines he owes, and it has "continue[d] to wreak havoc on his life."

Tricia Metcalf is a mother with sole custody of two teenagers. In 2006, Metcalf "was convicted of passing multiple bad checks. The fines mounted into the thousands. Unable to pay the total amount owed, Tricia entered into a payment plan of $50 per month." Although she's worked temporary jobs, a long-term job has been hard to find. "Whenever Tricia missed a payment, a warrant was issued and she was taken to jail."

The stories of Jack Dawley and Tricia Metcalf are only two of several compelling accounts in the ACLU's new report, The Outskirts of Hope: How Ohio's Debtors' Prisons Are Ruining Lives and Costing Communities .

The jailing of people unable to pay fines and court costs is no longer a relic of the 19th century American judicial system. Debtors' prisons are alive and well in one-third of the states in this country.

In 2011, Think Progress' Marie Diamond wrote: "Federal imprisonment for unpaid debt has been illegal in the U.S. since 1833. It's a practice people associate more with the age of Dickens than modern-day America. But as more Americans struggle to pay their bills in the wake of the recession, collection agencies are using harsher methods to get their money, ushering in the return of debtor's prisons."

In 2010, the ACLU did a study titled In for a Penny: The Rise of America's New Debtors' Prisons, which revealed the use of debtors prison practices in five states, Louisiana, Michigan, Ohio, Georgia and Washington.

In his 1964 State of the Union address, President Lyndon B. Johnson said:

"Unfortunately, many Americans live on the outskirts of hope - some because of their poverty, and some because of their color, and all too many because of both. Our task is to help replace their despair with opportunity."

Nearly 50 years after Johnson's address, which launched the "War on Poverty," "poverty in America has not dissipated," the ACLU's report states that "the number of people living in poverty in Ohio grew by 57.7% from 1999 to 2011, with the largest increase coming from suburban counties."

This year's ACLU report - which takes its name from a phrase in Johnson's speech - points out that many poor "Ohioans ... convicted of a criminal or traffic offense and sentenced to pay a fine an affluent defendant may simply pay ... and go on with his or her life [find the fine] unaffordable [launching] the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants, and even jail time. The stark reality is that, in 2013, Ohioans are being repeatedly jailed simply for being too poor to pay fines."

According to the report, Ohio courts in Huron, Cuyahoga, and Erie counties "are among the worst offenders. In the second half of 2012, over 20% of all bookings in the Huron County Jail were related to failure to pay fines. In Cuyahoga County, the Parma Municipal Court jailed at least 45 people for failure to pay fines and costs between July 15 and August 31, 2012. During the same period in Erie County, the Sandusky Municipal Court jailed at least 75 people for similar charges."

Debtors' prisons are unconstitutional

If you are thinking that debtors' prisons must be unconstitutional, you are right. The ACLU report points out that the U.S. Constitution, the Ohio Constitution, and Ohio Revised Code "all prohibit debtors' prisons."

"The law requires that, before jailing anyone for unpaid fines, courts must determine whether an individual is too poor to pay. Jailing a person who is unable to pay violates the law, and yet municipal courts and mayors' courts across the state continue this draconian practice."

The phenomenon of jailing people because they are unable to pay their fines and/or court costs isn't limited to Ohio. CBS Money Watch's Alain Sherter recently reported that "Roughly a third of U.S. states today jail people for not paying off their debts, from court-related fines and fees to credit card and car loans, according to the American Civil Liberties Union. Such practices contravene a 1983 United States Supreme Court ruling that they violate the Constitution's Equal Protection Clause."
Wreaking havoc on ordinary peoples' lives

Jack Dawley: "You'd go do your ten days, and they'd set you up a court date and give you another 90 days to pay or go back to jail... It was hard for me to obtain work, so I fell back into the cycle of going to jail every three months."

"I tried to pay my fines several times in multiple ways," Tricia Metcalf said. "I had even gone to churches and asked if there was any way they could help. There was nothing I could do. I asked the judge about community service." She even sold personal possessions, including her only mode of transportation to keep up with paying the fines. "Since 2006, Tricia has been incarcerated five times for failure to pay fines," causing major disruptions for her family.

There are several other compelling personal stories in the report.

Perhaps the most irrational aspect of the growing use of debtors' prisons during tough economic times when counties are stretched beyond their financial capabilities, is that they "actually waste taxpayer dollars by arresting and incarcerating people who will simply never be able to pay their fines, which are in any event usually smaller than the amount it costs to arrest and jail them."

The ACLU is calling on the Ohio Supreme Court "to institute administrative rules to ensure that all courts properly determine whether a person can afford to pay her criminal fines, in order to ensure that those who are unable to pay are not incarcerated for these debts."

"....Until the state Supreme Court takes action, thousands of Ohioans will continue to be relegated to the outskirts of hope, where the crime of poverty sentences them to a vicious cycle of incarceration, burdensome fees, and diminishing optimism for a better life. Our constitution - and our conscience - demand that Ohio courts do better."

Obama takes Bush’s secrecy games one step further

BY GLENN GREENWALD - SALON.com
MONDAY, MAR 26, 2012

The ACLU is suing the Obama administration under the Freedom of Information Act (FOIA), seeking to force disclosure of the guidelines used by Obama officials to select which human beings (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security; from the CIA’s brief in response to the ACLU lawsuit:

. . .

What makes this so appalling is not merely that the Obama administration demands the right to kill whomever it wants without having to account to anyone for its actions, choices or even claimed legal authorities, though that’s obviously bad enough (as I wrote when the ACLU lawsuit was commenced: “from a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed "legal and factual bases" for assassinating U.S. citizens without charges, trial or due process of any kind”). What makes it so much worse is how blatantly, insultingly false is its claim that it cannot confirm or deny the CIA drone program without damaging national security.

Numerous Obama officials — including the President himself and the CIA Director — have repeatedly boasted in public about this very program. Obama recently hailed the CIA drone program by claiming that “we are very careful in terms of how it’s been applied,” and added that it is “a targeted, focused effort at people who are on a list of active terrorists, who are trying to go in and harm Americans, hit American facilities, American bases and so on.” Obama has told playful jokes about the same drone program. Former CIA Director and current Defense Secretary Leon Panetta also likes to tell cute little jokes about CIA Predator drones, and then proclaimed in December that the drone program has “been very effective at undermining al Qaeda and their ability to plan those kinds of attacks.” Just two weeks ago, Attorney General Eric Holder gave a speechpurporting to legally justify these same drone attacks.

So Obama officials are eager to publicly tout the supposed benefits of the CIA’s drone programs in order to generate political gain for the President: to make him look like some sort of Tough, Brave Warrior single-handedly vanquishing Al Qaeda. The President himself boasts about how tightly controlled, precise and effective the CIA drones are. Everyone in the world knows the CIA has a drone program. It is openly discussed everywhere, certainly including the multiple Muslim countries where the drones routinely create piles of corpses, and by top U.S. Government officials themselves.

But then when it comes time to test the accuracy of their public claims by requesting the most basic information about what is done and how execution targets are selected, and when it comes time to ask courts to adjudicate its legality, then suddenly National Security imperatives prevent the government even from confirming or denying the existence of the program: the very same program they’ve been publicly boasting and joking about. As the ACLU’s Jameel Jaffer put it after Obama publicly defended the program: “At this point, the only consequence of pretending that it’s a secret program is that the courts don’t play a role in overseeing it” – that, and ensuring that any facts that contradict these public claims remain concealed.

This is why the U.S. Government’s fixation on secrecy — worse than ever under the Obama administration, as evidenced by its unprecedented war on whistleblowers — is so pernicious. It not only enables government officials to operate in the dark, which inevitably ensures vast (though undiscovered) abuses of power. Worse, it enables the government to aggressively propagandize the citizenry without challenge: Obama officials are free to make all sorts of claims about how great and targeted the drone program is and how it Keeps Us Safe™, while simultaneously suppressing any official evidence or information that would test those claims and/or contradict them (even as some evidence suggests these assurances are false).

Worse still, it literally removes our highest political officials from the rule of law. The sole purpose of these vast claims of secrecy around the drone program — the absurd notion that they cannot even confirm or deny its existence without harming National Security — is to block courts from reviewing the legality of what they’re doing, which is another way of saying: they have removed themselves from the rule of law. Even Bush DOJ lawyer Jack Goldsmith, a vociferous advocate of executive authority and secrecy powers, understands how abusive this is:

First, it is wrong . . . for the government to maintain technical covertness but then engage in continuous leaks, attributed to government officials, of many (self-serving) details about the covert operations and their legal justifications. It is wrong because it is illegal. It is wrong because it damages (though perhaps not destroys) the diplomatic and related goals of covertness. And it is wrong because the Executive branch seems to be trying to have its cake (not talking about the program openly in order to serve diplomatic interests and perhaps deflect scrutiny) and eat it too (leaking promiscuously to get credit for the operation and to portray it as lawful).

Indeed, one of the worst abuses of the lawless Bush presidency was that Bush officials repeatedly invoked secrecy powers (the State Secret privilege) to shield their most controversial and lawless programs from judicial review: warrantless eavesdropping, rendition, and torture. One of the earliest alarms about what the Obama presidency would be was when the Obama DOJ told courts early in 2009 that it would continue to assert those same radical secrecy claims: thus telling courts that the very programs which candidate Obama long denounced as illegal were now such vital State Secrets that courts must not risk their disclosure by adjudicating their legality. Beyond Obama’s decree that the DOJ must not investigate Bush-era crimes, that was the instrument used by Obama to shield Bush’s criminal policies from judicial challenge: through Kafkaesque claims of secrecy whereby programs that everyone in the world knows exist were Too Secret even to let courts examine. In sum, there is only one place in the entire world where these policies of warrantless eavesdropping, rendition, torture, and CIA drones cannot be discussed: in American courts, when it’s time to review their legality and/or allow its victims to vindicate their legal rights.

Now, in this ACLU/FOIA case, the Obama administration is taking these warped secrecy games one step further. They boast publicly about the programs to lavish themselves with praise, only to turn around once they’re sued in court and insist that the programs are too secret even to acknowledge. So extreme is the fixation on secrecy from the "Most Transparent Administration Ever™" that they are routinely reduced to this type of self-parody; behold how they are insisting in response to a separate FOIA lawsuit from The New York Times that they cannot even confirm or deny the existence of the OLC memo which authorized the assassination of Anwar Awlaki — even though the NYT reported on its contents. More amazingly still, the Obama administration continues to insist that they cannot confirm or deny the memo’s existence even after Eric Holder talks about the memo in a Senate hearing.

This would be laughable if it were not so destructive. It results in the government’s most consequential actions being completely shielded not only from public scrutiny, but also from the rule of law. It enables the most powerful political officials to inculcate the public with claims about their actions while preventing any form of checks and suppressing any contrary information. It literally means that the Obama administration is able to conduct multiple secret wars around the world, ones conducted by drone attacks, the very existence of which they refuse to acknowledge. And it is yet another way the Obama presidency is cementing the worst abuses of the Bush presidency: the very same ones he so inspirationally vowed to reverse.

UPDATE: Just this weekend, The Washington Post published a lengthy, glowing profile of the anonymous CIA official who oversees the CIA drone program. We learned how the drone program has slain countless Al Qaeda leaders with such precision and force: the same program the Obama administration insists cannot be acknowledged without seriously harming national security. Given that claim, will the anonymous officials who enabled this hagiography by talking to the Post about this glorious official and all that the drone program has accomplished be prosecuted under espionage statutes? Yes, that question is rhetorical, and further highlights how severely secrecy powers are manipulated and exploited by this administration.

Bill would create partnership between NSA and U.S. corporations

By Stephen C. Webster - RAW Story

Wednesday, March 7, 2012

Speaking at a policy debate Wednesday at The Heritage Foundation, a representative of the American Civil Liberties Union (ACLU) warned that a bill currently being considered by the House Select Committee on Intelligence would intertwine the National Security Agency (NSA) with corporate America, exposing vast amounts of private civilian data to unprecedented levels of monitoring, all in the name of “cybersecurity.”

H.R. 3523, introduced last year by Rep. Mike Rogers (R-MI), purports to help safeguard American corporations from espionage and cyber crime by allowing the NSA and other federal spy agencies to work directly with large corporate players, funneling them classified information on threat assessments to enable companies to defend themselves.

While the bill is openly supported by companies like AT&T, Lockheed Martin, Microsoft, Facebook, Boeing and Intel, ACLU legislative counsel Michelle Richardson cautioned Wednesday that it is not something to be taken up lightly.

“[The Rogers bill] will encourage companies to share personal and private data with the government,” she said. “And then with very little oversight, allow the information to be used in a number of different ways.”

“If you put the government int he middle of an information sharing scheme, it is absolutely critical that you clarify that it must be run by a civilian agency,” Richardson added. “One of our biggest criticisms of the Rogers bill is that they either explicitly say information should go to the National Security Agency and Cyber Command, or they’re otherwise silent and allow companies to choose where they want to send information, including to these different military facilities.”

Rogers contended that the NSA is full of “brilliant” people who “spend their day trying to figure out what the bad guys are doing to people, and what potential bad things are out there that we ought to be looking for.”

“Imagine how much stronger [U.S. corporations] would be if we let them know what the enemies are up to, and allowed them to see it in a very classified way, so that they can apply that knowledge to their networks and protect that network,” he added.

While it may sound good to some, Richardson countered that Rogers’ plan breaks with American tradition by explicitly using a military organization for domestic purposes.

“It’s a longstanding American value that the military does not operate on U.S. soil, and that’s what we’re really talking about here with these cyber security programs: domestic, civilian Internet use,” she said. “It is wholly inappropriate to have the military at the center of receiving, processing and distributing that information.”

Richardson also stressed that should Congress commit to using the government as an information sharing apparatus for corporate America, it must very narrowly define how information is shared and limit exceptions to privacy laws to extraordinary circumstances only.

The ACLU also recommended in a letter published in December that Congress take special care to require that all personally identifiable information be removed from information shared with its cyber command, to protect against the potential for abuse. They also asked for an oversight structure that produces regular public reports on the program.

“We’re very happy to see that the Obama Administration agrees, and they’ve spent the last several years making sure that these sorts of civilian domestic cyber security operations are going through [the Department of Homeland Security] and not the NSA,” Richardson said.

US Set to Outline Justification for 'Targeted Assassination' Program

Monday, March 5, 2012 by Common Dreams
 

The Obama administration will later today explain its legal justification for its 'targeted assassination' program, which allows the government to kill U.S. citizens anywhere in the world, the Associated Press is reporting.

The Associated Press reports that Attorney General Eric Holder will explain the legal backing for the program this afternoon at Northwestern University.
 

 CNN adds:

One official familiar with the speech said it was doubtful Holder would mention by name Anwar al-Awlaki, who was targeted in a September drone attack. Another American who was active in Al Qaeda in the Arabian Peninsula (AQAP), Samir Khan, was not the target of the strike but was with al-Awlaki and killed at the same time. [...]

Another official familiar with the speech confirmed the attorney general will discuss the legal framework on the use of lethal force. The official, who asked not to be identified because the speech is still under wraps, said the targeted-killing issue is just one aspect of a broad-ranging look at national security issues from a legal perspective.

Defense department lawyer Jeh Johnson said last month:

"Under well-settled legal principles, lethal force against a valid military objective, in an armed conflict, is consistent with the law of war and does not, by definition, constitute an assassination."

On February 1 the American Civil Liberties Union (ACLU) filed a lawsuit against the U.S. Depart of Justice to demand that the US government release information about the government’s targeted killing program.

Explaining its lawsuit, the ACLU wrote:

Our government’s deliberate and premeditated killing of American terrorism suspects raises profound questions that ought to be the subject of public debate. Unfortunately the Obama administration has released very little information about the practice — its official position is that the targeted killing program is a state secret — and some of the information it has released has been misleading. [...]

Some officials, including President Obama, have spoken on the record about the program. They have publicly claimed responsibility for killing al-Awlaki, and they have more generally defended the government’s right to kill citizens after a secret non-judicial process. Just last week, Secretary of Defense Leon Panetta acknowledged on 60 Minutes that the U.S. can and does carry out targeted killings of U.S. citizens subject to the recommendations of the CIA Director and the Secretary of Defense and pursuant to the President’s authorization. And this week, President Obama publicly defended the CIA targeted killing program in a live internet interview [starts at minute 26:30].

Glenn Greenwald wrote after the ACLU lawsuit was filed:

From a certain perspective, there’s really only one point worth making about all of this: if you think about it, it is warped beyond belief that the ACLU has to sue the U.S. Government in order to force it to disclose its claimed legal and factual bases for assassinating U.S. citizens without charges, trial or due process of any kind. It’s extraordinary enough that the Obama administration is secretly targeting citizens for execution-by-CIA; that they refuse even to account for what they are doing — even to the point of refusing to disclose their legal reasoning as to why they think the President possesses this power — is just mind-boggling. Truly: what more tyrannical power is there than for a government to target its own citizens for death — in total secrecy and with no checks — and then insist on the right to do so without even having to explain its legal and factual rationale for what it is doing? Could you even imagine what the U.S. Government and its media supporters would be saying about any other non-client-state country that asserted and exercised this power?

Obama DOJ Tries to Insulate Warrantless Wiretapping Law

Friday, February 17, 2012 by Common Dreams
ACLU Argues Dragnet Surveillance of Americans Is Unconstitutional

The government today asked the Supreme Court to overturn an appeals court ruling that allowed the American Civil Liberties Union to challenge the constitutionality of a law that gives the government unprecedented authority to monitor international emails and phone calls by Americans, according to the American Civil Liberties Union (ACLU).

At issue is an appeals court ruling that allowed the ACLU’s case to move forward. It rebuffed Obama administration arguments that the case should be dismissed because the ACLU’s clients cannot prove their communications will be collected under the law, known as the FISA Amendments Act. The ACLU said it was disappointed by today’s request.

“The appeals court correctly ruled that our plaintiffs have standing to challenge this sweeping surveillance law, and it’s disappointing that the administration is challenging that ruling,” said Jameel Jaffer, ACLU deputy legal director. “It’s crucial that the government’s surveillance activities be subject to constitutional limits, but the administration’s argument would effectively insulate the most intrusive surveillance programs from judicial review. The Supreme Court should leave the appeals court’s ruling in place and allow our constitutional challenge to proceed.”

The ACLU filed the lawsuit in July 2008 on behalf of a broad group of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive telephone and email communications with people outside the U.S. such as colleagues, clients, sources, foreign officials and victims of human rights abuses. The coalition includes Amnesty International USA, Human Rights Watch, The Nation, the Service Employees International Union and journalists Chris Hedges and Naomi Klein. The Justice Department claims that the plaintiffs should not be able to sue without first showing that they have, in fact, been monitored under the program – information that the government refuses to provide.

In March 2011, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the plaintiffs do, in fact, have the right to challenge the constitutionality of the law. In September, the full Second Circuit rejected the government’s request for reconsideration of that ruling.

“The FISA Amendments Act is the most sweeping surveillance statute ever enacted by Congress. It allows dragnet surveillance of Americans’ international communications with none of the safeguards that the Constitution requires. This kind of law should not be shielded from judicial scrutiny,” said Alex Abdo, staff attorney with the ACLU’s National Security Project.

Little is known about how the FISA Amendments Act has been used. In response to a Freedom of Information Act lawsuit filed by the ACLU, the government revealed that every six-month review of the Act had identified “compliance incidents,” suggesting either an inability or an unwillingness to properly safeguard Americans’ privacy rights. The government has withheld the details of those “compliance incidents,” however, including statistics relating to abuses of the Act.

The Act is scheduled to sunset in December 2012. The ACLU is calling for amendments that would limit surveillance to suspected terrorists and criminals, require the government to be more transparent about how the law is being used and place stronger restrictions on the retention and dissemination of information that is collected.

Attorneys on the lawsuit challenging the FISA Amendments Act are Jaffer and Abdo of the ACLU; Christopher Dunn and Melissa Goodman of the New York Civil Liberties Union; and Charles S. Sims, Theodore K. Cheng and Matthew J. Morris of Proskauer Rose LLP.

***

More information on the ACLU’s lawsuit challenging the law:
www.aclu.org/national-security/amnesty-et-al-v-clapper

More information on the ACLU’s FOIA lawsuit:
www.aclu.org/fixFISA

Drone Industry’s Lobbying Plan To Expand Over Domestic, Law Enforcement Markets

Source: RepublicReport - February 17, 2012 
Drones are mainly associated with the Predator airships that patrol the Afghanistan sky. But thanks to a bipartisan vote last week, the public can expect 30,000 domestic drones flying over the United States in the next eight years.

The dramatic change in policy, which has raised concerns with everyone from civil liberties groups like the ACLU and Electronic Frontier Foundation to the pilot association and the Independent Institute, as well as conservative think tanks, occurred thanks to an aggressive and well-organized effort by drone makers and their lobbyists.

Yesterday, we reported how the Association for Unmanned Vehicle Systems International (AUVS), a drone trade group, actually doubled its recent lobbying expenses. Today, we report on a PowerPoint presentation put together by top AUVS lobbyists Michael Toscano, Mario Mairena, and Ben Gielow. The lobby group — which maintains an official partnership in Congress with Reps. Buck McKeon (R-CA), Henry Cuellar (D-TX), and dozens of other lawmakers — was the driving force behind the domestic drone decision passed last week. In the presentation obtained by Republic Report, there are several fascinating concerns raised by the lobbyists:

– Page 5: Drone lobbyists claimed access to airspace and “Global Conflict – particularly U.S. and allied nation involvement in future conflicts” will “either positively or negatively” influence “market growth” for the industry. 

– Page 6: The drone lobbyists take full credit for authoring the expansion of domestic drone use codified in the FAA authorization bill passed last week, noting “the only changes made to the UAS section of the House FAA bill were made at the request of AUVSI. Our suggestions were often taken word-for-word.” 

– Pages 10-12: The drone industry eagerly anticipates that civil drone use, including use of drones for “suspect tracking” by law enforcement, will soon eclipse military use of drones. Under a section called “Challenges facing UAS,” the lobbyists listed “Civil Liberties.”

Report: U.S. Surveillance Society Running Rampant

By David Kravets - WIRED
If you think you’re being watched, you’re probably right.

The American Civil Liberties Union posted a website Monday showing that government-financed surveillance cameras are running rampant across the United States.


All the while,  studies suggest they do nothing to cut down on violent crime. San Francisco, for example, has spent $700,000 for dozens of public cameras, but a University of California  study (.pdf, 187 pages) just concluded there was "no evidence" they curtailed violent crime.


"Violent incidents do not decline in areas near the cameras relative to areas further away," added the study, which noted the cameras helped police bring charges against six people accused of felony property crimes. "We observe no decline in violent crimes occurring in public places."


But the report did show that, over the past two years, property crimes such as burglary and muggings dropped an estimated 24 percent in areas within 100 feet of San Francisco camera locations.


The ACLU’s website, "You Are Being Watched," shows a map of the 50 U.S. states with links to news accounts about where surveillance cameras are in each state. The federal government has given state and local governments $300 million in grants to fund an ever-growing array of cameras.


Barry Steinhardt, director of the ACLU’s Technology and Liberty Program, said in a telephone interview that, while the cameras have helped nab suspects, he believes they provide a false sense of security.


"It’s the illusion of security … public authorities like to give the impression they are doing something about crime and terrorism,"Steinhardt said.


He said it is impossible to quantify exactly how many government-backed surveillance cameras are in the public right of way, but they are in virtually every U.S. state.


Two questions posed on the ACLU site ask: "Do we want a society where an innocent individual can’t walk down the street without being considered a potential criminal?" and "Do we want a society where people are comfortable with constant surveillance?"

ACLU Will Take Gene Patent Case to Supreme Court

Sunday, October 16, 2011 by Inter Press Service

by Amanda Wilson 

 

WASHINGTON - When Jaydee Hanson, then-bioethics director for the United Methodist Church, spoke out publicly against gene patents over 15 years ago, some in the biotech industry compared his stance to the Catholic Church's persecution of Galileo, the 15th century astronomer who discovered the moons of Jupiter.

Hanson and 200 other religious leaders had released a statement that DNA in the human body and animals are natural objects and should not be subject to patenting.

"It's kind of like saying two of your genes are in jail, but we are not allowed to report this information to you, even though it would save your life."

Patent supporters in the biotech industry disagree, arguing that "isolated copies" of genes outside the human body should be patentable and that the prospect of intellectual property rights on genes serves as incentive for further research.

On Wednesday, the American Civil Liberties Union (ACLU) announced it would ask the Supreme Court to rule on a patent by Myriad Genetics, a genetic diagnostics company based in Salt Lake City, Utah, on "isolated" BRCA-1 and BRCA-2 genes, two genes that can have mutations linked to breast, ovarian and prostate cancers.

Those with a stake in the case say any ruling from the court would have a major impact on patient care, scientific research, and rights to access human genetic information, as well on legal doctrine.

The gene patenting case has been moving up through lower courts since 2009, when the ACLU first filed a civil suit in a district court in the state of New York arguing that Myriad's patent on the genes should be invalidated.

District judge Robert Sweet agreed with the ACLU in 2010, but Myriad appealed, and the Federal Circuit Court of Appeals overturned Sweet's ruling in July, with two out of three judges siding with Myriad, affirming the company's right to patents on the two "isolated" BRCA genes linked to breast cancer.

Facing a mid-December deadline to appeal the lower court's ruling to uphold gene patents, the ACLU decided to move forward with the appeal in time for National Breast Cancer Awareness Month in October, said Sandra Park, an ACLU attorney working on the case.

"We consulted with our clients and made the decision to move forward, given the importance of the issues to patients and scientists," Park told IPS, adding that the Supreme Court would likely make a decision in the spring of 2012 about whether it will hear the case.

More than 4,000 genes have been patented, including copies of genes that make up 20 percent of the human genome, according to Hanson, who now works as a policy director for the International Centre for Technology Assessment (ICTA). In the past, Hanson and ICTA have successfully challenged patents on a beagle and other animals.

In September, Myriad sent the following comment to IPS: "Myriad defended its position in the courts and recently had a favourable outcome. We believe that isolated DNA and cDNA are patent-eligible material, as both are new chemical matter with important utilities which can only exist as a product of human ingenuity."

With its patents, Myriad holds exclusive rights in the U.S. to test the BRCA-1 and BRCA-2 genes for mutations and provide that information to doctors and patients. Those mutations place women at a much greater risk of developing breast cancer and some men at greater risk of developing prostate cancer.

ACLU: Patents make tests cost-prohibitive and block research
The ACLU represents a group of 20 other plaintiffs, including geneticists, pathologists and breast cancer survivor advocates, who maintain that the patents block patient care.

They argue that patients shouldn't have to pay for genetic information they could use to make life-or- death decisions, such as whether to get a mastectomy, especially when other genetic testing providers could offer that information if Myriad didn't have exclusive rights to sequence the genes.

Five to 10 percent of breast cancer cases are linked to mutations on the BRCA-1 or BRCA-2 genes, and those with the mutations have an 85 percent risk of developing cancer. Some insurance policies cover the tests, but other plans, especially those providing insurance for the poor, don't.

According to Park, Myriad chose not to enter into contracts with about half of all insurance programs in states that cover low-income people.

Ellen Matloff, a genetic counselor at Yale for over 15 years and a plaintiff in the ACLU case, said the cost of the test was a real issue for many of her patients.

According to her, "comprehensive" breast cancer test from Myriad for other breast cancer mutations costs 3,400 dollars and a supplementary test for the BRCA-1 and BRCA-2 genes, called the BART test, costs 700 dollars. Matloff said that 95 percent of patients she recommends for supplementary testing don't end up being tested because of its high cost.

"I know that we are missing mutations," Matloff told IPS, adding that the BRCA gene mutations are passed down maternally and paternally. "It is going to impact them, their children, their siblings their grandchildren, their nieces and nephews, and from a clinician's standpoint it is horrifying."

Gene patenting opponents also argue that in a new era in which full- genome sequencing is getting faster and cheaper, patents stand in the way of access to new knowledge about how certain genes are related to disease.

"The whole next phase of [research in] genetics and disease is to understand how genes work together," Hanson told IPS. "It is a huge task, and the patents just interfere with it."

Matloff expressed a similar concern that advanced knowledge about genes without access to that knowledge could create problems for patients and care providers.

"It is almost like saying, 'we have your genes right in front of us, it came out of your body, but we are not allowed to look at it, we're not allowed to interpret it, and we are not allowed to give the information back to you,'" Matloff said.

"It's kind of like saying two of your genes are in jail, but we are not allowed to report this information to you, even though it would save your life."

The ACLU on Obama and Core Liberties

Wednesday, September 7, 2011 by Salon

by Glenn Greenwald

The ACLU decided to use the 10th anniversary of the 9/11 attack to comprehensively survey the severe erosion of civil liberties justified in the name of that event, an erosion that -- as it documents -- continues unabated, indeed often in accelerated form, under the Obama administration.  The group today is issuing a report entitled A Call to Courage: Reclaiming Our Liberties Ten Years After 9/11; that title is intended to underscore the irony that political leaders who prance around as courageous warriors against Terrorism in fact rely on one primary weapon -- fear-mongering: the absence of courage -- to vest the government with ever-more power and the citizenry with ever-fewer rights.  Domestically, the "War on Terror" has been, and continues to be, a war on basic political liberties more than it is anything else.  The particulars identified in this new ACLU report will not be even remotely new to any readers here, but given the organization's status among progressives as the preeminent rights-defending group in the country, and given the bird's-eye-view the report takes of these issues, it is well worth highlighting some of its key findings.

Let's begin with the ACLU's summary assessment of what President Obama has done with regard to these matters:

Last week, the top lawyer and 34-year-veteran of the CIA, John Rizzo, explained to PBS' Frontline that Obama has "changed virtually nothing" from Bush policies in these areas, and this week, the ACLU explains that "most [Bush] policies remain core elements of our national security strategy today."  At some point very soon, this basic truth will be impossible to deny with a straight face even for the most hardened loyalists of both parties, each of whom have been eager, for their own reasons, to deny it (and even the two differences cited there, though positive, are wildly exaggerated by Obama defenders: the torture techniques authorized by Bush were no longer in use and the CIA black sites were empty by the time Obama was inaugurated; by contrast, there is ample evidence that the Obama administration continues to use torture by proxy and rendition/CIA-black-sites by proxy as well).

The ACLU then highlights one of the most perverse though revealing ironies of Democratic Party opinion on civil liberties in the Obama age: the way in which Bush's attempt merely to imprison a U.S. citizen without due process (or merely to eavesdrop on citizens) prompted such outrage, while Obama's claimed right to assassinate U.S. citizens without due process provokes virtually no protest:

Critically, the ACLU emphasizes that this Obama fixation -- wildly expanded programs of targeted killings even of U.S. citizens far from any battlefield -- is as threatening to the rule of law, and at least as dangerous, as any policy implemented by Bush/Cheney:

For all the talk about how Bush and Cheney turned the U.S. into a rogue state, here is the escalating result of this Obama policy:

The ACLU then devotes an entire chapter to the way in which immunity for America's torturers -- bestowed jointly by President Obama and a judicial branch meekly deferential to his and Bush's claims of state secrecy -- has contaminated and degraded the entire justice system and made the future reintroduction of torture a virtual inevitability:

Then there's the ongoing targeting of American Muslims for some of the most invasive and unconstitutional rights-abridging actions in decades.  Explains the ACLU: "No area of American Muslim civil society was left untouched by discriminatory and illegitimate government action during the Bush years . . . In short, the Bush administration used religious, racial, and national-origin profiling as one of this nation’s primary domestic counter-terrorism tools."  And now?

A separate chapter is devoted to what the ACLU calls "A Massive and Unchecked Surveillance Society."  It explains: "Using Patriot Act  authority, the Bush Administration started -- and the Obama Administration has continued -- to conduct wholesale 'preventive' surveillance of innocent Americans without judicial review."  And "the result is a national surveillance society in which Americans’ right to privacy is under unprecedented siege."  But little is known about exactly what is being done by this purely unaccountable hidden government -- what The Washington Post calls "Top Secret America" -- because of this:

This Surveillance State, like most other Bush/Obama Terrorism policies, is justified by a never-ending orgy of fear-mongering.  But other than the enrichment of the private Security State industry (see here and here), its real purpose -- as I documented last week -- is this:

But the primary cause of this Bush-Obama continuity is the vigorous embrace by both Presidents of the same theory of war and Terrorism -- the unlimited global battlefield and the President's resulting unconstrained power to act anywhere in the world without limits -- which was once so controversial during the Bush presidency but has now become mainstream, bipartisan consensus:

Pointing to that core theory of both presidencies, the ACLU dispatches one of the most misleading claims of Obama defenders: that the President's failure to close Guantanamo is due exclusively to Congressional obstructionism; in fact, long before Congress acted at all with regard to that camp, the President announced his intention to continue its core injustice -- indefinite detention -- albeit in a different locale:

During the Bush era, the actions and condemnations of the ACLU received ample positive attention from progressives. That, of course, is no longer true, and this damning report will likely be ignored in most of those circles, just as this truly remarkable comment from the ACLU's Executive Director has been.  And, as usual, anyone urging that attention be paid to these facts will be met with demands that eyes be diverted instead to how scary Sarah Palin Christine O'Donnell Michele Bachmann Rick Perry is, and then this will all blissfully fade away in a cloud of partisan electioneering even with the election more than a year away.

Either way, this creeping unchecked authoritarianism marches forward unabated, and is now -- rather than the province of the right-wing GOP -- fully bipartisan consensus.  I really don't understand how progressives think they'll be taken seriously the next time there is a GOP President and they try to resurrect their feigned concern for these matters; they'll be every bit as credible as conservatives who pretend to be deficit-warriors and defenders of restrained government only when the other party is in power.

But even that ultimately matters little: so entrenched is this institutional militarism, secrecy, surveillance and authoritarianism that even if there were greater public debate over it like there was during the Bush presidency, this system would hardly be affected, let alone threatened.  Governments and other power factions -- especially ones threatened by the prospect of social unrest and upheaval -- do not relinquish this sort of authority unless compelled to do so.

UPDATE:  Tomorrow morning beginning at roughly 11:20 am EST, I'll be on NPR's On Point, discussing 9/11 and civil liberties, along with The Washington Post's Dana Priest, who will be on from the start of the show at 11:00 am discussing Top Secret America.

UPDATE II: Donald Rumsfeld becomes the latest right-wing figure -- of many -- to heap praise on President Obama's Terrorism and civil liberties policies (h/t flellis):

Former Defense Secretary Donald Rumsfeld says President Barack Obama has come to accept much of the Bush Doctrine out of necessity, despite what he campaigned on in 2008. . . .

“They ended up keeping Guantanamo open not because they like it — we didn’t like it either — but they couldn't think of a better solution,” Rumsfeld told Fox News’ Greta Van Susteren on Tuesday. . . .

"The same is true with the Patriot Act, and military commissions, and indefinite detention. All of those things were criticized but today are still in place two-and-a-half years later because they are the best alternative to the other choices -- and they are in fact successful in keeping America safer," he says.

Just as nobody could have strengthened the Bush/Cheney Terrorism template the way Obama has, so, too could nobody have provided vindication for those policies the way he has.

House Wrestles Over War-on-Terror Measure

Thursday, May 26, 2011 by Politico.com
by Josh Gerstein and Charles Hoskinson

House Republican leaders will attempt Thursday to beat back an effort by Democrats and at least a few GOP lawmakers to defeat a legislative proposal that critics contend will expand and indefinitely extend the war on terror.

The update to the Authorization for Use of Military Force — passed three days after the terrorist attacks of September 11, 2001 — is part of the annual defense policy bill that the House Armed Services Committee approved 60-1 earlier this month.

The fate of the new use-of-force provision could signal whether the U.S. intends to press on with a largely military approach to the war on terror in the wake of Osama bin Laden’s death, or whether lawmakers are prepared to gradually rein in the conflict.

Democrats on the panel didn’t put up much of a fight in committee, but since then they have introduced a series of amendments aimed at nixing both the updated use-of-force authorization, which they argue is too broad and open-ended, and other language that limits President Barack Obama’s power to release Guantanamo prisoners abroad or bring war-on-terror prisoners to the U.S. for trial.

GOP lawmakers who drafted the use-of-force update say it’s a needed revision and affirmation as the 10th anniversary of the Sept. 11 attacks approaches, since the connection between those strikes and the terrorists the United States is now fighting is becoming less obvious.

“I don’t think anyone can legitimately argue it does not need to be updated,” Rep. Mac Thornberry (R-Texas) said in an interview Tuesday. “What this language does is make clear the authority for what we are doing right now.”

The language in the defense bill also explicitly endorses the president’s right to take prisoners and hold them “until the termination of hostilities.” It could also support military action against terrorists not directly related to Sept. 11.

But a coalition of civil liberties and human rights groups led by the American Civil Liberties Union opposes the revamped measure.

“This monumental legislation — with a large-scale and practically irrevocable delegation of war power from Congress to the President — could commit the United States to a worldwide war without clear enemies, without any geographical boundaries (the use of military force within the United States could be permitted), and without any boundary relating to time or specific objective to be achieved,” the coalition wrote Wednesday in a letter to House members.

Opponents got a boost Tuesday when the White House threatened to veto the defense bill if it clears Congress with provisions that “challenge critical executive branch authority.” A statement of administration policy identified those provisions as the ones that relate to detainees. The administration’s official position paper said it “strongly” opposes the reauthorization because it would “effectively recharacterize [the conflict’s] scope and would risk creating confusion regarding applicable standards.”

Advocates said Tuesday’s statement was the first official veto threat by the administration against legislation that would limit its authority to handle detainees.

It was not entirely clear from the White House statement whether the veto threat applies to the use-of-force provision or solely to the detainee-related language. A White House spokesman said Tuesday he is not permitted to expand on or clarify the written statement.

However, one administration official familiar with the deliberations said officials are concerned that the proposed language could have unforeseen implications.

“The bill was rushed through,” said the official, who spoke on condition of anonymity. It “sounds reasonable, but when you look at the consequences that emerge, the more you look, the worse it gets.”

The official said the proposal could be read to authorize military action against any country or individual who supported Al Qaeda or affiliated groups in any way. “Who does it end up with?” the official asked, noting that even when the U.S. was at war in Korea and Vietnam, America did not declare war against all communist governments and sympathizers worldwide.

An amendment to strip out the measure passed the House on a preliminary voice vote Wednesday night, but a formal roll call vote on the issue is expected as soon as Thursday morning.

The chief sponsor of the amendment, freshman Rep. Justin Amash (R-Mich.), warned that the bill’s language amounts to “perhaps the broadest authority for the use of military force Congress has ever considered.”

Amash said it would permit military action not just against Al Qaeda and the Taliban, but an undefined category of “associated forces [that] don’t need to be connected to 9/11, associated forces don’t need to have fought against the United States and associated forces may even include American citizens.”

But House Armed Services Committee Chairman Buck McKeon (R-Calif.) said the bill’s definition of which entities the U.S. is engaged in armed conflict with came directly from one the Obama administration has advocated in court.

“This section does not alter the way the war on terror is currently being fought,” McKeon said during a floor debate Wednesday night. “While the courts have accepted the administration’s position, that could change any day. I’m not willing to take that chance.”

Rep. Barbara Lee (D-Calif.), the only lawmaker to vote against the measure in 2001, said the language in the new defense bill “goes even beyond that original authorization and amounts to a declaration of war without end anywhere in the world.” She called it “an entire checkbook of blank checks.”

Rep. Allen West (R-Fla.), who like Amash is a tea party favorite, spoke out against stripping the provision from the bill. “If we allow an amendment such as this to go forward, it would have precluded us from going in and killing the world’s No. 1 terrorist, Osama bin Laden. If this amendment passes, we will not be able to go after [Anwar] Al-Awlaki,” said West, referring to a leader of the Yemen-based Al Qaeda of the Arabian Peninsula who has reportedly been the focus of U.S. drone attacks.

Amash countered that bin Laden was killed when the original, narrower language was in effect.

The top Democrat on the Armed Services Committee, Rep. Adam Smith of Washington, said Congress should update the measure but that the implications of the GOP language could be significant. “When you put in ‘associated forces’ and you don’t have any end date, it does confer on the president the potential for a great deal of power over a long period of time,” Smith said.

One expert said the administration’s 42-word official explanation of its opposition is confusing because the language in the bill is so similar to what lawyers for the administration have argued in court.

“They cannot possibly be strongly opposed to writing their litigating positions into law. To the extent they are strongly opposed to that, they risk grossly undermining their litigating positions,” said Benjamin Wittes of the Brookings Institution.

Wittes said the administration opposition might be a tactical decision to increase the president’s chances of removing other provisions he objects to in the bill, such as continuing limits on transferring prisoners from Guantanamo to the United States for trial or detention.

He said the administration should negotiate with McKeon to craft mutually acceptable language. “They have a real allergy to dealing with the Hill on these issues. … Their mistrust of the Hill is legion and they take it too far, though they have good reason to be suspicious,” Wittes said.

The administration source acknowledged that the veto threat is undermined somewhat by Obama’s decision last year to sign legislation that limited his ability to release detainees abroad and to bring them to the U.S. for trial.

“We should have picked this fight last December but, okay, we can pick it now,” the official said. “It’s fair to hit the Obama administration for not speaking out earlier, but you’ve got to give us credit for speaking out now.”

Two other detainee-related amendments were debated Wednesday and are expected to receive roll call votes Thursday. Smith put forward language that would restore Obama’s ability to bring detainees to the United States for trial in criminal courts. And Rep. Vern Buchanan (R-Fla.) offered an amendment that would make military commissions the only trial option for all foreigners who allegedly engage in terrorist acts in the United States or against U.S. personnel abroad.

Thornberry predicted that “you will see at the end of the day a pretty big bipartisan majority to pass the bill. I hope there’s not a pressure from [the Democrats’] leadership to make it otherwise.”

U.S. expansion of biometric tech poses ‘grave danger,’ says ACLU

U.S. expansion of biometric tech poses ‘grave danger,’ ACLU tells Raw Story
By Stephen C. Webster - RAW Story
Friday, March 25th, 2011

A recent announcement by the Federal Bureau of Investigations detailing plans to embark on a $1 billion biometrics project and construct an advanced biometrics facility to be shared with the Pentagon has the American Civil Liberties Union on red alert.

In an exclusive interview with Raw Story, attorney Chris Calabrese, an ACLU's legislative counsel in Washington, D.C., warned that this move in particular was indicative of a fast approaching mass surveillance state that poses a "grave danger" to American values.

The FBI's forthcoming biometrics center will be based on a system constructed by defense contractor Lockheed Martin, and part of that system is already operating today in Clarksburg, West Virginia. Starting with fingerprints, and creating a global law enforcement database for the sharing of those biometric images, the system is slated to expand outward, eventually encompassing facial mapping and other advanced forms of computer-aided identification.

To help ramp up the amount of data flooding into this center, the FBI said that electronic fingerprint scanners would be sent to state and local police agencies, which would be empowered to capture prints from any suspect, even if they haven't been arrested or convicted of a crime.

"We think rolling out these kind of invasive measures is really another step toward mass surveillance of the population," Calabrese told Raw Story. "I mean, now if you're just walking around on the street, do you think that automatically police should be able to check your fingerprint? Seems very invasive to us."

But it's more than just invasive, he suggested: it's a fundamental revolution in American values.

"Facial recognition is one of the most invasive biometrics because it allows surreptitious tracking at a distance," Calabrese continued. "They can secretly track you from camera to camera, location to location. That has enormous implications, not just for security but also for American society. I mean, we are now at a point where we can automatically track people. Computers could do that. That's what, we think, is a grave danger to our privacy."

And it's not just a rhetorical threat, where -- as many a police officer has said -- if you aren't doing anything wrong, you've got nothing to hide. It could actually go so far as changing the culture of law enforcement as a whole, Calabrese said.

"Law enforcement's focus should stay where it's been for a 100 years: finding bad guys, but since 9/11 the focus has shifted toward terrorism. It's suddenly this idea that's like, well, let's scrutinize the whole U.S. population before trying to find bad guys."

He went on: "In the United States, you're innocent until proven guilty for a reason. You're supposed to have the right and the ability to live your life free of government scrutiny. That's fundamental to American values.

"That's what we're really talking about here: a shift in American values, from a place where you can live your life unencumbered by government scrutiny to one where you really have to worry whether the government is watching you either through a video camera, or a police officer who could step up and potentially ask you for a fingerprint at any time."

Mr. President, tear down this list

Another item in the FBI's announcement that alarmed civil libertarians was the creation of yet another database dedicated to tracking certain individuals. The FBI said this latest database, called the "Repository for Individuals of Special Concern," would only focus on wanted criminals, registered sex offenders and "suspected terrorists."

But considering the Obama administration's secretive policy which strips Miranda rights from U.S. citizens suspected of terrorism -- a policy issued in January and revealed yesterday by The Wall Street Journal -- that database could become a flashpoint.

Miranda rights are what allows suspects to remain silent in the face of police questioning, and have an attorney present for their interrogation. The Obama administration's policy says that law enforcement may deny these rights if they deem the situation "exceptional," even if it doesn't pertain to any immediate threat.

While Calabrese did not address the issue of Obama's Miranda policy, the ACLU at-large did issue a statement yesterday, condemning the administration.

"It is important to remember that no change in FBI interrogation policy can alter the constitutional imperative that information gained without Miranda warnings is inadmissible against a defendant in a court of law where no public safety exception exists," they said. "This principle is fundamental to the American system of justice."

But what about these lists? And specifically, the "Individuals of Special Concern," which is now only likely to grow in importance as a database containing some individuals who the president potentially considers to be unprotected by the U.S. Constitution.

"The biggest problem with the terrorist database is not having a separate database of people," Calabrese said. "There may be situations where you have high value targets, you know, you want to make sure you can immediately get a ping-back on. The problem is how people get on those lists. Have they been connected to a crime? Is there an arrest warrant out for them? In situations like that, obviously it's fine. We want the police to be able to find dangerous people. Once there's a warrant out for a person's arrest, obviously we want to give law enforcement the tools they need to capture those people."

Unfortunately, he added, that's not a reflection of today's U.S. law enforcement.
"What we have instead is secret watch lists, where people don't know they're on the list, they don't know the standard for putting them on the lists and there's no way to get off the lists," Calabrese said. "That's a serious problem."

"We're not opposed to technology, but we are seeing technology advancing rapidly and often times legal protections aren't keeping up. When it's now technologically possible to do things like capture a facial recognition image and use the various cameras across a city to track somebody using that image automatically ... When that's technologically possible, the only barrier between us and widespread mass surveillance is legal protections. They don't exist right now, in many cases."

Court Allows Constitutional Challenge to New FISA Law

Tuesday, March 22, 2011 by Salon.com
by Glenn Greenwald

 

In October, 2007, candidate Barack Obama -- in response to the Bush administration's demand for a new FISA law -- emphatically vowed that he would filibuster any such bill that contained retroactive amnesty for telecoms which participated in Bush's illegal spying program.  At the time, that vow was politically beneficial to Obama because he was seeking the Democratic nomination and wanted to show how resolute he was about standing up against Bush's expansions of surveillance powers and in defense of the rule of law.  But in a move that shocked many people at the time -- though which turned out to be completely consistent with his character -- Obama, once he had the nomination secured in July, 2008, turned around and did exactly that which he swore he would not do:  he not only voted against the filibuster of the bill containing telecom amnesty, but also voted in favor of enactment of the underlying bill.  That bill, known as the FISA Amendments Act of 2008, was then signed into law by George W. Bush at a giddy bipartisan signing ceremony in the Rose Garden, which -- by immunizing telecoms and legalizing most of the Bush program -- put a harmless, harmonious end to what had been the NSA scandal.

Beyond telecom amnesty, the FISA Amendments Act also wildly expanded the Government's power to conduct warrantless surveillance of telephone calls and emails.  In large part, the bill was intended to legalize the illegal Bush NSA program that had caused so much faux controversy among Democrats.  As Yale Law Professor Jack Balkin put it:  "Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about"; separately, Balkin contended that Obama voted for the bill because, as President, he himself would want the same powers Bush had to intercept people's communications without bothering with court approval.

When trying to placate his numerous supporters furious over his reversal, Obama insisted he voted for the bill with "the firm intention -- once I'm sworn in as president -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future" (that promise caused his then-large band of faithful followers to evangelize that Obama only voted for the bill to make sure he won the election, so that he could then use his majestic power to fix civil liberties abuses of the type he had just voted for; that was when people were still willing with a straight face to invoke the 11-dimensional chess justification for everything he did).  Needless to say, it would have been unhealthy in the extreme holding one's breath for that "we'll-fix-it-when-I'm-President" promise to be fulfilled, as -- more than 2 years into his presidency -- nothing like it has remotely happened. 

Immediately upon enactment of the Bush/Obama-supported FISA Amendments Act, the ACLU filed a lawsuit seeking to enjoin its enforcement on the ground that the law's expanded warrantless eavesdropping powers violated the Fourth Amendment.  Aside from its warped and radically enlarged "state secret" doctrine, the Bush administration's standard tactic for avoiding judicial review of their illegal eavesdropping programs was a two-step "standing" exercise grounded in extreme cynicism:  (1) they shrouded their eavesdropping actions in total secrecy so that nobody knew who was targeted for this eavesdropping, and they then (2) exploited that secrecy to insist that since nobody could prove they were actually subjected to this eavesdropping, nobody had "standing" to contest its legality in courts (that's how the Bush DOJ got an appeals court to dismiss on procedural grounds a lower court ruling that their NSA program broke the law and violated the Constitution).

In the case brought by the ACLU, the plaintiffs were a variety of human rights activists, lawyers and journalists (including Naomi Klein and Chris Hedges), who argued that both they and their sources have a reasonable fear of being subjected to this expanded surveillance, and that fear-- by rendering them unable to perform their jobs and exercise their Constitutional rights -- constitutes sufficient harm to vest them with "standing" to challenge the new eavesdropping law.  In response, the Bush administration argued -- as always -- that the plaintiffs' inability to prove that they were actually targeted by this expanded surveillance precluded their suing; their mere "fear" of being targeted, argued the Bush DOJ, was insufficient to confer standing to sue.

The Dissolving Constitution

Enumerated Rights are Hanging by a Thread
By PAUL CRAIG ROBERTS

While people in Tunisia and Egypt have taken to the streets in attempts to gain their liberty, Americans are losing their liberty with minimal protest. Even the American Civil Liberties Union seems unfocused. At a time when we are being surrounded by a police state and the federal judiciary is being taken over by the Federalist Society and unitary executive theory that places the president above the law, we need a heightened appreciation of civil liberty and the Constitution on the part of the American people. The American people need to come together and to take a united stand against the police state and unaccountable executive branch power.

During my many years of writing in defense of law as a shield of the people instead of a weapon in the hands of the state, I have identified two important reasons that Americans are losing the protection of the legal principles that made them free. One reason is that among a significant portion of the population, especially those who think of themselves as conservative, there is indifference and even hostility to civil liberties. The other reason is that Benthamite thinking has made inroads into the Blackstonian conception of law that is the basis of the Constitution. Jeremy Bentham argued for pre-emptive arrest before a crime is committed, for torture in order to obtain confession, and for subverting the attorney-client privilege. Bentham’s views, fiercely hostile to those of our Founding Fathers, are now represented on the federal bench (federal appeals court judge Jay S. Bybee, for example) and in prestigious law schools (John Yoo, UC Berkeley, for example).

In chapter 3 of The Tyranny of Good Intentions, Larry Stratton and I contrast Bentham’s views with those of William Blackstone and our Founding Fathers. This article is about the division of the American public on the matter of civil liberty.

Court decisions by “activist judges” in behalf of criminals, all in the name of constitutional rights and civil liberty, have resulted in many Americans identifying civil liberty with procedures that provide protections and immunities for criminals and with judicially created rights that are destroying morality. All the fights over Supreme Court appointments have to do with “social issues” such as abortion. The enumerated rights in the Constitution, such as habeas corpus, due process, free speech and association, long ago receded into the background and play scant role in Senate confirmations of Supreme Court appointees.

As a member of the ACLU, I look to that organization for the legal defense of our enumerated rights. The ACLU does stand up for the enumerated civil liberties spelled out in the Constitution. However, reading the current issue of the ACLU newsletter, I found myself wondering if the ACLU is unconsciously contributing to the public’s indifference and hostility to civil liberty.

These are all issues that infuriate conservatives, and these are the issues that conservatives identify with civil liberties. Therefore, much of the public is not the least bit perturbed to hear that civil liberties are under attack when many understand civil liberties to consist of criminal rights, prayer bans, abortion, and homosexual marriage. This is dangerous, because in the public’s mind, civil liberty can easily morph from procedures that coddle criminals into procedures that coddle terrorists. Should this occur, all would be lost. Defense of the enumerated rights would become “giving aid and comfort to terrorists.”

It is not my purpose to argue the validity of the ACLU’s position on abortion and homosexual marriage.

The unintended consequence of the judicial branch exercising the legislative function in the name of constitutional rights has been the alienation of a large percentage of the population from civil liberty concerns. Today much of the population views the ACLU as a threat to society comparable to terrorism.

With the police state destroying protections against searches, the First Amendment, habeas corpus, due process, and the right to an attorney, with grand jury subpoenas issued to war protesters, with lists of American citizens to be assassinated, with ongoing war crimes committed in wars based in lies and deceptions, with the executive branch’s seizure of the power to violate statutory laws against torture and spying without warrants, should the ACLU refocus, stop alienating conservatives, and bring the people together against the police state?

Reproductive rights and homosexual marriage will not stop people from being thrown into dungeons. If the enumerated rights are lost, no other rights are meaningful.

Espionage Act endangers First Amendment rights, ACLU warns

By Eric W. Dolan - Thursday, December 16th, 2010

Applying the US Espionage Act to third-party publishers of classified information like WikiLeaks would violate protected speech rights, the American Civil Liberties Union (ACLU) told members of the House Judiciary Committee Thursday.

"If the Espionage Act were to be applied to publishers, it would have the unconstitutional effect of infringing on the constitutionally protected speech rights of all Americans, and it would have a particularly negative effect on investigative journalism – a necessary and fundamental part of our democracy," the ACLU said in a statement (.pdf).

"In the current environment, it would be all too easy for inflamed public passions to serve as the basis for arguments to justify broadening even further the proscriptions of the law. Instead, Congress should stand clear-eyed and firm against arguments based on passion, not reason – and narrow the Espionage Act to those who leak properly classified information."

"[W]e urge Congress to resist the urge to broaden the Espionage Act's already overbroad proscriptions and, instead, to narrow the Act’s focus to those responsible for leaking properly classified information to the detriment of our national security," they continued. "Publishers who are not involved in the leaking of classified information should be praised by our society for their contributions to public discourse, not vilified as the co-conspirators of leakers with whom they have no criminal connection."

Government documents are too easy to classify, which has resulted in the classification of thousands of documents that pose no real risk to national security if released, according to the ACLU.

"Documents that are unnecessarily classified under such a system have the effect of grossly expanding the penalties of the Espionage Act to the release and publication of documents having purely innocuous content – but which happen to be designated as secret."

The ACLU urged Congress to amend the Espionage Act by removing all references to "publication" from the legislation and to improve the current classification system.

The committee's Thursday hearing on "the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks" included a number of legal scholars and attorneys, including Ralph Nader.

Benjamin Wittes, a senior fellow in Governance Studies at The Brookings Institution, warned Monday that applying the Espionage Act to WikiLeaks founder Julian Assange could make "felons of us all."

Under the Act, anyone "having unauthorized possession of" information relating to the national defense, or information that could be "used to the injury of the United States or to the advantage of any foreign nation" may be prosecuted if he or she publishes it or "willfully retains" it.

"By its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations," Wittes wrote on his blog. "It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them–in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents."

The State Department has argued that Assange is not "journalist" or "whistleblower," but a "political actor" with his own agenda.