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Giving the Super-Rich More Clout

BipartisanShip

By Dennis J Bernstein | Consortium News | April 3, 2014

To U.S. Supreme Court Chief Justice John Roberts and the other four Republican justices, the right of wealthy Americans to give maximum donations to as many political candidates as they wish topped the right of average Americans not to have their voices drowned out by the influence of money.

So, on Wednesday, the Court voted 5-4 to overturn federal law setting caps on how much a person can give in each election cycle, a decision that the reform group Public Citizen called “a devastating blow at the very foundation of our democracy.” Dennis J Bernstein discussed the ruling with Public Citizen president Robert Weissman.

DB: Let’s begin by explaining exactly what was decided [by the U.S. Supreme Court on Wednesday].

RW: Well, the short version of what was decided is that the super-rich, according to the five-vote majority of the Supreme Court, have a constitutional right to spend at least $5.9 million in direct donations to candidates, parties and political committees every two years. That is in place of the current limit of around $123,000. …

This is empowering the 1 percent, except that’s a little bit misleading. Because it’s not really a case about the rights of the 1 percent, it’s a case about the rights of the .0001 percent. There are only a few hundred people who are going to write multi-million-dollar checks following this decision. But they are going to have an absolute stranglehold over elections and policy-making in this country.

DB: I want to ask you to talk a little bit more, in detail, about the logic. What was said [in the majority’s decision] and the logic of the decision coming out of the court. What are they saying? Why is this a move towards “democracy”?

RW:  Well, it’s a little bit hard to articulate the, so-called, logic. But, here goes. The system, before today, involved both limits on how much a person can give directly to candidates, just $2,600 in the primary and $2,600 in the general election. And comparable, or similar limits, in what an individual person can give directly to political parties and to political committees. It also involved a limit on the total amount a person can give in a two-year cycle, totaling, like I said, around $123,000.

And the court today upheld the limits still on what you can give to a particular candidate, but they said the total aggregate limit, the limit on how much you can give in total, is unconstitutional. They said “Well, we see why there might be … maybe, there’s a reason to preserve the restriction on donations to particular candidates, but we don’t see why you should be limited in the number of candidates you can give the maximum contribution to. We don’t see why you should be limited in the number of political party committees you should be able to give the maximum to, or to the limit of the political committees you can give the maximum to.”

And if you say okay, well, what does that mean? Then they can give the maximum to all of them, that number $123,000, magically turns into $5.9 million. And there might be some impediment to doing that if you had to write, if you were a rich enough person to make that level of donation, you had to write, you know, 435 checks to candidates for the House of Representatives in the primary, and 435 checks in the general election.

It’s not going to be like that. It’s going to be writing one check to what will be called a joint fundraising committee. Maybe two checks to these joint fundraising committees who will take that money and then distribute it. So who’s going to run to the joint fundraising committee? Who is going to be mostly party leaders and political leaders who will be soliciting multi-million-dollar checks and are going to owe their allegiance to those who can write them.

The logic of the court, as I call it, well there’s a First Amendment right, a speech right for people to contribute as much as they want and, so again, the question further is what is the logic there.  What they are really saying is the right to give money deserves the same kind of protection, more or less, as the basic right to speech.

And then you say is there an offsetting value where we should weigh against that, that would justify restrictions on how much a person can give in the aggregate? And the answer was, well, the only thing that we look at is whether this might facilitate quid quo pro corruption meaning will it facilitate illegal bribery or the appearance of illegal bribery? And the answer is, it actually will, but the court says no, it won’t because it actually doesn’t authorize illegal bribery, and therefore there’s no countervailing public interest. So, if you ask the question “Well, what was the logic of the court?” That’s how it goes.

Now, there aren’t very many people who think that way. Unfortunately five of the very few people who do, were able to make the decision today. I think regular people would say “You’re talking about the purported rights of a few hundred people as against the rights of the rest of us to have a functioning democracy. That there will be a huge corruption as a result of this, even worse than we already have post-Citizens United.”

Because it’s a whole new form of giving available now to the super-rich. There’s going to be worse corruption, worse tilting of the playing field in favor of the rich, less political equality. In fact, less real political speech because the rest of us who aren’t able to amplify our voices by giving $5.9 million dollars in a single check, or two checks, are going to be shut out.

DB: Alright, and just to be clear, in terms of this $5.9 million, is it a public donation or can they do this in private and not tell anybody?

RW: These donations will be disclosed. This will not increase the dark money that we’ve seen after Citizens United. There will be a different channel of giving. That dark money is all going to outside organizations that don’t have to report their donors. This money is going to go directly to candidates, directly to Republican or Democratic party committees, directly to political action committees that are required to disclose their major donors.

DB: Alright, now just say a little bit more about how this is – I don’t know if this is right – but sort of Citizens United on steroids. Explain how this moves the game with a little more detail.

RW: I think that’s a reasonable characterization of this decision. It’s certainly at that magnitude of Citizens United. So one way to think about Citizens United was it established the rights of corporations. And this is really a decision about the rights of the super-rich. And I can’t emphasize enough that we’re talking about a very, very small number of people who are going to seriously benefit from this decision, in terms of the amount of money that’s going to go in.

Citizens United enabled this unlimited spending by outside organizations that are supposedly not coordinated with candidates. There’s a lot of wink, wink, nod, nod kind of coordination that does go on. But still the money is outside of the direct control of the candidates. Now, that’s got some upsides for the candidates particularly in enabling massive and overwhelming spending on negative, attack advertising. But it’s got a lot of downsides, too, for the candidates because they aren’t able to exert the same kind of control as if the money is in their own coffers.

So this is going to now enable massive increases in the amount of money that goes directly to the candidates. And there will be, I think, a lot of influence on the broad number of beneficiary candidates who get this new money, but the real nexus of influence is going to be between these super donors and the top political leaders and party leaders who are going to be soliciting the giant checks. These are going to be the most important people, the most powerful people in politics. They are going to have a new kind of dependence to and allegiance to the super-rich donors.

DB: Let me ask you to step back a little bit and talk about this in the context of one person, one vote. There’s always been a big to-do about voter fraud, making sure things are clean and done well. But this really changes the whole nature of voting in this country or solidifies a different way of conducting what is continued to be called a democracy.

RW: If you step back from this vision and look at what the Supreme Court has done in the last several years on the voting rights side, particularly with the recent Shelby County decision, where they eviscerated crucial provisions of the Voting Rights Act, the court is making it harder for people to vote, especially people of color, low-income people, making it harder for people to vote, and enabling state officials to make it more difficult for people to vote, that’s on the one hand. And then on the other hand, they are empowering the super-rich and corporations to dominate the election process.

Now part of what they are doing is spending huge amounts of money on negative ads that are intended to deter people from voting. But more generally, they are trying to take control of the electoral process through this expenditure, through these massive expenditures. So it’s kind of a squeeze, from both sides, on electoral democracy. And, you have to say, electoral democracy, at this point, is screaming. I mean this is a really dire situation that’s going to call for a very dramatic response from the American people.

I think there’s no doubt for us after Citizens United about the need for a constitutional amendment to both overturn that decision and other Supreme Court decisions to really restore the functioning of our democracy. But for those who did have doubts about that, I think after today it’s crystal clear that we just can’t have a functioning democracy where these kinds of decisions, where these massive floods from different sources now, of super-rich and corporate money are coming to the electoral process, and just overwhelming what is supposed to be a one person, one vote democratic system.

DB:  And, finally, it certainly is, isn’t it, a stunning turnaround in the things that began to happen after the revelations around Watergate and dirty money. It looked like there was going to be some slow movement towards real campaign finance reform and that is all gone, wiped out.

RW: That’s right. I mean we had a pretty rapid reversal of the momentum post-Watergate with the Buckley decision and then also other decisions that established corporate rights to spend, at least in the area first of election referendum, and then increasingly in other areas. So the court took a bad turn starting in 1976, but really in the last several years, this Roberts court is so hostile to the most commonsense kinds of restraints on campaign spending, that it has become very difficult to talk about reform absent a constitutional amendment.

There are small reforms that one might do to try to mitigate some of the harms of [Wednesday’s] decision and we’re going to aggressively pursue those, as will others. But those are so inadequate at this point because the court has created a jurisprudence that makes regulators contort so much to try to comply that it just can’t do things. So that’s going to be true for both the Federal Election Commission and for Congress.

So I think there’s still space for fundamental legislative reform to get in place systems of public financing. But given what the court’s done even in that area, public financing is going to take place against the backdrop of these things. Public financing has to be voluntary, according to the court, and you can opt out and chose to accept these giant contributions, choose to be the beneficiary of giant Citizens United outside spending. So even public financing, which we are strongly pushing in the states and in the Congress, is going to suffer against the backdrop of these decisions.

We really have to sweep them away which is why it’s so important that there’s already been this really fast-growing grassroots movement for a constitutional amendment that I think now is going to pick up enormous steam. … We’ve got 38 states involved in this on the same day and I think that is both indicative of how strong the movement has become in the last four years and how much stronger it’s going to grow in the days, weeks and months ahead. We have a lot of work to do. And we don’t have any choice but to do it.

DB: And I must ask you, what about the politics? Is there any indication that this decision coming right before the mid-term elections is in any way going to help one side or the other?

RW: Well, one of the parties that helped bring this case was the Republican National Committee. So, you know, I think it’s going to help them. It’s going to help generally, by the way, it’s going to help the parties, such as they are, raise more money. Because the parties are going to be able to raise money from very rich people … in amounts that were previously impermissible. So the Democratic Party is going to raise more money as a result of this decision. The Republican Party is going to raise more additional money as a result of this decision. You know, from a partisan point of view it is going to clearly benefit the Republican Party. And the case was driven by Republican Party operatives.

That said, you know, I really think there is really bipartisan opposition to this system, and the poll data is very convincing on this. Overwhelming numbers of Democrats, but also overwhelming numbers of Republicans oppose the giant influence of the super-wealthy and corporations in Washington. They oppose overwhelmingly the big money influence over the election process. They oppose overwhelmingly the Citizens United decision.

As soon as we get poll data on this decision, I’m sure people just having commonsense are going to oppose this as well. And, again, it’s going to be across party lines. The trick is going to be both to mobilize people and convert the public anger about this into meaningful action by our elected representatives who are part of this system that we’re trying to reform.

Dennis J Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom.

April 4, 2014 Posted by | Civil Liberties, Corruption | , , , , | 1 Comment

When Will the Government Officially Correct the False Claims It Made to the Supreme Court About NSA Surveillance?

By Trevor Timm | EFF | October 22, 2013

We’ve documented again and again how the government has refused to tell the truth about NSA surveillance to news organizations, Congress, and the American public. Now it seems clear we can add the Supreme Court to that list.

First, it’s important to remember that just months before Edward Snowden became a household name, the ACLU was before the Supreme Court challenging the FISA Amendments Act—a key pillar designed to justify much of the NSA’s surveillance. The ACLU argued that since their clients—journalists, advocates, and lawyers—were the prime candidates to be subject to this surveillance, the clients should be able to challenge the law as unconstitutional.

Unfortunately, the government successfully convinced the Court that the case should be thrown out on procedural grounds. The Court ruled the ACLU’s clients didn’t have “standing.” Essentially, because they had no definitive proof they were being spied on, so couldn’t challenge the law.

At the time, many thought this reasoning was absurd, including four dissenting Supreme Court Justices. Given the law’s incredibly broad reach, of course surveillance was occurring. “Perhaps, despite pouring rain, the streets will remain dry,” quipped Justice Breyer.

So in order to convince the Supreme Court to throw out the ACLU’s challenge, the government smartly argued someone could have standing to challenge the law.  Otherwise, it may have seemed absurd to at least one more Justice, and the case might have gone the other way.

Solicitor General Donald Verrilli told the Court any defendant charged with a crime would be officially notified if they were subject to NSA surveillance and then someone could challenge it—an actual target. Prosecutors, according to the government, just hadn’t used FISA evidence yet in any court case.

Turned out, that wasn’t true.

As the New York Times reported last week, “Mr. Verrilli’s assurances clashed with the practices of national security prosecutors, who had not been alerting such defendants that evidence in their cases had stemmed from wiretapping their conversations without a warrant.”

In other words, the argument the Solicitor General used to convince the Supreme Court to dismiss a challenge to the FISA Amendments Act was false, and the Solicitor General deceived the Supreme Court, though perhaps not wittingly. When Verrilli confronted the Justice Department’s national security lawyers who briefed him for his argument, they explained away this false statement as “a misunderstanding,” according to the New York Times.

The Solicitor General has apparently convinced the Justice Department to change its policy and they now claim they will start notifying defendants. If the Justice Department follows through, this move should have implications across the board and will be a welcome shift.

Remember, just a few weeks ago Reuters reported that the Drug Enforcement Administration (DEA) was receiving tips from the NSA, distributing them to local law enforcement, and then covering them up by then obtaining the same evidence under different pretenses. As we explained at the time, this not only violates the Fourth Amendment, but the Fifth and Sixth Amendments as well, which guarantee defendants a meaningful opportunity to present a defense and challenge the government’s case.

There’s also the enormous “Hemisphere” phone surveillance program, first revealed by the New York Times in August, which the DEA carries out in partnership with the AT&T. EFF just filed an amicus brief in a San Francisco case that looks suspiciously like Hemisphere surveillance was going on as well.

It’s too early to tell if the Justice Department is going to follow through on its promise to tell the truth about spying in criminal cases. Thankfully, the ACLU has sued under the Freedom of Information Act to find out the Justice Department official policies on notifying defendants of NSA surveillance.

This is only a start.  Informing criminal defendants of warrantless wiretaps only exposes illegal spying on a small few, and the Justice Department has made no promises to inform the millions of ordinary American’s caught up in the NSA dragnet. But it’s an important step forward, and could lead to a court to rule on the legality of the program.

ACLU deputy legal director Jameel Jaffer has also called on the Solicitor General to file a formal acknowledgement with the Court that the government’s policy was misrepresented to the justices during arguments. As Jaffer explains, there is ample precedent for the government to do so in situations similar to this.

It’s important for the Court to know that the government has not been honest with them, as the Court considers other representations about secret programs. Unfortunately, this is not the only time the government has provided false and misleading information to a court.

The culture of misinformation around the NSA has to stop. EFF also calls on the Solicitor General to formally acknowledge to the Court its misrepresentations and promptly tell every defendant that was subject to NSA surveillance so they can challenge the unconstitutional laws behind it.

Related article

October 23, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , | Comments Off on When Will the Government Officially Correct the False Claims It Made to the Supreme Court About NSA Surveillance?

Supreme Court Rules a Suspect’s Silence during Police Interrogation Can be Used against Him

By Noel Brinkerhoff and Danny Biederman | AllGov | June 20, 2013

Remaining silent during questioning by police can be used against a person in a court of law, the U.S. Supreme Court has ruled (pdf) in a startling reinterpretation of Fifth Amendment rights.

A narrow majority ruled 5-to-4 in Salinas v. Texas that it was permissible for authorities to present at Genovevo Salinas’ trial that he refused to answer the police’s questions about a fatal shooting because Salinas had already answered some questions prior to being arrested and read his Miranda rights.

Salinas voluntarily spoke with police about the December 1992 murders of Juan and Hector Garza in Houston. But when asked whether the shells found at the scene would match a shotgun found in his home, the defendant went silent and refused to answer.

A ballistics test subsequently showed the shells were fired from Salinas’ weapon. Prosecutors used the fact that Salinas did not respond to the question about the shells, and appeared nervous, as a further argument to convince jurors of his guilt. Also presented was testimony from a witness who said Salinas took credit for the killings.

Salinas’s first trial ended in a mistrial. A second trial resulted in his being convicted and sentenced to 20 years to life in prison.

He later appealed, arguing that prosecutors had violated his right to stay silent. Salinas’ silence as evidence of possible guilt should have been omitted from the trial, claimed his lawyer, citing the Fifth Amendment’s protection against self-incrimination.

Justices Samuel Alito, Anthony Kennedy, Clarence Thomas, Antonin Scalia and Chief Justice John Roberts disagreed with Salinas’ argument and validated his conviction. Their ruling states that Salinas would have to have voluntarily invoked his Fifth Amendment right in order to be protected by it.

Critics claim that this ruling damages the spirit of the Fifth Amendment and will hereafter give law enforcement an incentive to delay the reading of Miranda warnings—the right to remain silent—to criminal suspects.

Related article

June 20, 2013 Posted by | Civil Liberties | , , | 1 Comment

Five Reasons Why the Courts Aren’t Enough to Ensure Drone Privacy

By Jay Stanley  | ACLU | March 15, 2013

Yesterday the drone regulation bill in the Washington state legislature died, having failed to meet the cutoff date for moving to the House floor. Although our lobbyist there thought the bill would have passed both houses had the Democratic leadership allowed it to get there, they did not. Boeing lobbied against the bill, as did law enforcement.

One of the arguments presented by opponents, our Washington state lobbyist Shankar Narayan reports, was the claim that no regulations are needed for drones because we ought to let the courts work out the privacy issues surounding drones and deal with any abuses that arise. I have also heard spokespeople for the drone industry association, the AUVSI, making this argument lately. It seems to be emerging as a primary argument of drone-legislation opponents.

This is a weak argument. Let me briefly give five reasons why:

  1. There is no reason to wait for abuses to happen when they are easily foreseeable. When you put an enormously powerful surveillance technology in the hands of the police and do not place any restrictions on its use, it will be abused, sooner or later, in ways illegal (i.e. by bad apples) and legal (i.e. through officially approved policies that nonetheless violate our Constitution and/or values). Why wait, when we can prevent them before they take place and spare their victims the grief?
  1. The legal system has always been very slow to adapt to new technology. For example, it took the Supreme Court 40 years to apply the Fourth Amendment to telephone calls. At first the court found in a 1928 decision that because telephone surveillance did not require entering the home, the conversations that travel over telephone wires are not protected. It was not until 1967 that this literal-minded hairsplitting about “constitutionally protected areas” was overturned (with the court declaring that the Constitution “protects people, not places”). Today, technology is moving far faster than it did in the telephone era—but the gears of justice turn just as slowly as they ever have (and maybe slower).
  1. There are many uncertainties about how our Constitution will be applied by the courts to aerial surveillance. Just as the new technology of the telephone broke the Supreme Court’s older categories of understanding, so too will drones with all their new capabilities bring up new situations that will not fit neatly within existing jurisprudential categories of analysis. For example, how will the courts view the use of drones for routine location tracking? The Supreme Court started to grapple with such questions in its recent decision in the Jones GPS case, but it is far from clear what the ultimate resolution will be. The Supreme Court has ruled before that the Fourth Amendment provides no protection from aerial surveillance, even in one’s backyard surrounded by a high fence, and while the new factors that drones bring to the equation could shift that judgment, we cannot be certain. Legislators should not sit around waiting for cases to come before the courts; they should act to preserve our values now.
  1. Legislatures often set rules even when the Constitution would seem to cover something. To take just one example: after the Supreme Court issued that 1967 ruling that a warrant was needed to tap someone’s phone, Congress went on to enact detailed standards the government had to follow before it could do so. What it did not do was throw its hands up and say “the court has ruled, if there are any further abuses we can let the courts take care of them.”
  1. Our courts often defer to the judgments of elected bodies. While the courts’ role is to step in and protect fundamental rights when they are threatened by the majority, they normally show great deference toward the judgments of elected representatives of the people. And for good reason—we live in a democracy, and unless fundamental rights are at stake decisions should be made by our democratic representatives. A legislature acting to protect fundamental rights such as privacy does not threaten such rights, and there is no reason why elected representatives shouldn’t act to protect our fundamental values if they feel that the citizens in their districts want them to.

Let’s hope that state legislators in other states don’t fall for this line of argument.

March 15, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , | Comments Off on Five Reasons Why the Courts Aren’t Enough to Ensure Drone Privacy

Oral Argument on DNA Searches Provides Scary Glimpse Into the Future of Privacy

By Hanni Fakhoury | EFF | March 4, 2013

The Supreme Court recently heard oral argument in Maryland v. King, a case considering the constitutionality of warrantless DNA collection from arrestees. We’ve long warned about the privacy problems with the rise of cheap, easy and fast blanket DNA collection, and filed an amicus brief with the Court urging it to hold the government can only obtain this sensitive genetic material with a search warrant. While it can be fruitless trying to read the tea leaves of oral argument, one specific idea — that technological advances making DNA analysis faster means warrantless collection may be OK — should leave you worried about the fate of privacy going forward in the digital age.

One of the main disagreements surrounding the issue of DNA collection is whether the state is collecting DNA from arrestees for immediate identification — to figure out if they’ve arrested the right person and learn who that person is for purposes of making a bail determination — or for past and future investigation — to solve cold cases and to store DNA for future searches. The state has long claimed they used DNA for both, while we’ve argued the government simply isn’t able to use DNA collection for immediate identification purposes since there’s currently a delay in analyzing DNA ranging from several days up to a few months. But with the rise of rapid DNA analyzers which can analyze DNA in 90 minutes, law enforcement is chomping at the bit to purchase and install these devices at police stations across the country. When the lawyer challenging the blanket DNA collection argued that law enforcement’s interest in using DNA for immediate identification was simply not possible because of the lengthy delays in DNA analysis, Chief Justice Roberts interrupted to note (PDF):

Now, your brief says, well, the only interest here is the law enforcement interest. And I found that persuasive because of the concern that it’s going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it. But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that’s entirely different…

Other members of the court echoed this idea, hinting that if DNA analysis was done faster, than there could be a legitimate identification — as opposed to investigative — need for the practice. And if that was the case, then DNA collection was no different than fingerprinting, and the police could swab and collect DNA without a search warrant. This would be a dangerous Fourth Amendment precedent.

The reasonableness of a search under the Fourth Amendment has always depended on whether the search is reasonably related in scope to the circumstances that justify the search in the first place. But that determination shouldn’t hinge on how long it takes to do the search, but rather what the search reveals. And with DNA searches, an enormous amount of sensitive information is being revealed to the government: a person’s entire genome. Ignoring the breadth of this intrusion by focusing on the ease of collection — implicitly believing the easier it is to intrude into a private place, the less protected it is — elevates form over substance to the detriment of the right of privacy enshrined in the Fourth Amendment.

This dangerous thinking extends beyond DNA collection. We’ve already warned about the problems with warrantless home video surveillance and stingrays, or fake cell phone towers which the government has been very secretive about. As technological advances like these allow the government to easily collect and catalog greater amounts of information, courts run the risk of allowing broader and more intrusive searches to pass Fourth Amendment scrutiny simply because of the possibility of exposure. Instead, courts should be focusing on the actual intrusion and people’s expectation that private information will not be exposed, regardless of how technological advances can make government access easier or faster.

The fact the government can do something now it couldn’t do before doesn’t make it constitutional. In fact, it should be the opposite. As it becomes easier for the government to seize and analyze, institutional checks — like a search warrant — on the government’s power is necessary to protect privacy before it becomes a casualty to technological advances.

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March 5, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , | Comments Off on Oral Argument on DNA Searches Provides Scary Glimpse Into the Future of Privacy

Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains

By Cindy Cohn and Trevor Timm | EFF | February 27, 2013

Yesterday, the Supreme Court sadly dismissed the ACLU’s case, Clapper v. Amnesty International, which challenged the FISA Amendments Act (FAA)—the unconstitutional law that allows the government to wiretap Americans communcating with people overseas. Under the FAA, the government can conduct this surveillance without naming individuals and without a traditional probable cause warrant, as the Fourth Amendment requires.

The court didn’t address the constitutionality of the FAA itself, but instead ruled that the plaintiffs—a group of lawyers, journalists, and human rights advocates who regularly communicate with likely “targets” of FAA wiretapping—couldn’t prove the surveillance was “certainly impending,” so therefore didn’t have the “standing” necessary to sue. In other words, since the Americans did not have definitive proof that they were being surveilled under the FAA—a fact the government nearly always keeps secret—they cannot challenge the constitutionality of the statute.

EFF’s Warrantless Wiretapping Case, Jewel v. NSA, Is Not Affected by Clapper

It’s shameful that the courts again have cut off another avenue for accountability regarding the NSA’s warrantless and unconstitutional surveillance activities. But as disappointing as the Clapper decision is, the good news is the decision likely won’t adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.

The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court’s decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications.”

Clapper v. Amnesty’s Catch-22

Nonetheless, the Supreme Court’s requirement in Clapper that a future harm must be “certainly impending” to allow a case to go forward is very troubling, especially in the context of cases involving secret surveillance.

As Justice Stephen Breyer’s dissent points out, future conduct can never be predict anything with 100% certainty, and if certainty was a requirement for standing, then virtually no cases would ever reach conclusion. Justice Breyer runs through dozens of cases where standing has been found for plaintiffs in situations where plaintiffs had a reasonable fear of harm, and in many of those cases, the plaintiffs were much less certain than the lawyers, human rights workers and journalist in Clapper.

Breyer summed absurdity of the “certainly impending” standard by saying, “One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical).”

This standard is especially problematic when the harm is illegal surveillance conducted via secret government programs.  Unlike physical searches of the home, communications surveillance is by its nature hidden from the people affected, and national security surveillance is rarely made public or used in domestic criminal prosecutions. Thus, under the Supreme Court’s rule, regardless of whether its surveillance was legal or constitutional, the government can deny standing to a victim of illegal surveillance just by never revealing its illegal actions to the person affected. Essentially, one can’t challenge the government’s surveillance unless the government agrees.

Indeed, in arguing that its ruling does not mean that government surveillance under the FAA can never be reviewed by the courts, the Court could only point to situations in which the government intentionally revealed its surveillance.1

Allowing the Executive broad unfettered powers to “turn the Constitution on and off at will,” is exactly what the Supreme Court refused to do in Boumediene v. Bush, but what it appears to have allowed here.

It’s not even clear that the majority even understands the real scope of the FAA. In the opinion’s first sentence, Justice Alito refers to “individuals” that can be warrantlessly surveilled, but as we’ve explained many times, and the dissent notes, one of the most odious parts of the law is that it allows the government to get one court order for groups or categories of people—potentially thousands of people can be affected at a time.

The Shrinking Ranks of Warrantless Wiretapping Cases

This is the second ruling in the past year in which the government has convinced the court to dismiss challenges to the NSA warrantless wiretapping program on technical grounds, when there is ample evidence of wrongdoing. In 2012, the Ninth Circuit reluctantly dismissed the Al-Haramain case on “sovereign immunity” grounds despite a lower court ruling the government had violated the Fourth Amendment. The court reasoned that because of a glitch in the language of FISA statute, the plaintiffs had to sue individuals in the government in their personal capacities and couldn’t sue government agencies themselves or government officials in their official capacities.

We look forward to the district court in Jewel v. NSA determining that our case can move forward, and that the government can, once and for all, be held to account for the NSA’s unlawful and unconstitutional warrantless wiretapping program.

  • 1. The court also noted that a provision of the FAA allows a service provider, presumably in a fit of patriotic fervor and a willingness to pay expensive attorneys for its customers, challenges the government on its own, in secret. Yet even under this provision, the victim of the surveillance is unable to seek judicial review.
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February 27, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | Comments Off on Supreme Court Dismisses Challenge to FISA Amendments Act; EFF’s Lawsuit Over NSA Warrantless Wiretapping Remains

Hope Dies at Guantanamo

The Disturbing Case of Adnan Latif

By MARJORIE COHN | The Jurist | June 20, 2012

The tragic case of Adnan Farhan Abdul Latif hit a dead end when the US Supreme Court issued an order refusing to hear his case last week. Latif, a Yemeni man, has been imprisoned at Guantanamo Bay since January 2002, after being detained while traveling to seek medical treatment.

Latif had suffered serious head injuries as the result of a car accident in 1994, and the Yemeni government paid for him to receive treatment in Jordan at that time. But his medical problems persisted, and in 1999 Yemen’s Ministry of Public Health recommended that Latif undergo tests, therapy and surgical procedures at his own expense. Unable to afford it, Latif said he left Yemen in 2001 with the help of a charitable worker to seek free medical treatment in Pakistan. When he was picked up in Afghanistan — on his way to Pakistan — and transferred to US custody in December 2001, Latif had his medical records with him.

After a kangaroo court proceeding, a Combatant Status Review Tribunal at Guantanamo declared Latif to be an “enemy combatant.” He was not allowed to attend the hearing, nor was he permitted to see the evidence against him. Instead of a lawyer, he was given a “Personal Representative” — a military officer who did not represent Latif’s interests.

Four years ago, the Supreme Court rejected the Bush administration’s argument that the detainees at Guantanamo had no right to contest the legality of their confinement in US courts. In Boumediene v. Bush, the Court upheld the habeas corpus rights of the detainees, saying they must be given “a meaningful opportunity” to challenge their detention.

Latif petitioned a federal district court for a writ of habeas corpus. The Obama administration opposed the petition, relying on information from an interrogation report. Large sections of the report were blacked out, so it is difficult to know exactly what the report says. But we do know that, according to the report, Latif admitted to being recruited for jihad, receiving weapons training from the Taliban and serving on the front line with other Taliban troops. Latif said his interrogators garbled his words so that their summary bears no relation to what he actually said.

In the US District Court for the District of Columbia, Judge Henry Kennedy granted Latif’s habeas petition, concluding that it could not “credit the information [in the Report] because there is serious question as to whether the [Report] accurately reflects Latif’s words, the incriminating facts in the [Report] are not corroborated, and Latif has presented a plausible alternative story to explain his travel.” It troubled Judge Kennedy that, “[n]o other detainee saw Latif at a training camp or in battle. No other detainee told interrogators that he fled from Afghanistan to Pakistan, from Tora Bora or any other location, with Latif. No other type of evidence links Latif to Al Qaeda, the Taliban, a guest house, or a training camp.”

Particularly significant to Judge Kennedy was that the “fundamentals [of Latif’s story] have remained the same.” More than a dozen interrogation summaries and statements contained “[Latif’s] adamant denials of any involvement with al Qaida [sic] or the Taliban; his serious head injury from a car accident in Yemen; his inability to pay for the necessary medical treatment; and his expectation and hope that [the charitable worker] would get him free medical care.”

Judge Kennedy also reasoned that errors in the report support “an inference that poor translation, sloppy note taking . . . [blacked out] . . . or some combination of those factors resulted in an incorrect summary of Latif’s words.” The fact that Latif was found in possession of his medical papers when seized, according to the judge, “corroborat[ed]” Latif’s “plausible” story.

The government appealed the district court ruling to the conservative US Court of Appeals for the District of Columbia Circuit, which reversed the grant of habeas corpus. The appellate court admitted that the interrogation report was “prepared in stressful and chaotic conditions, filtered through interpreters, subject to transcription errors, and heavily redacted [parts blacked out] for national security purposes.” But for the first time, the DC Circuit held that government reports must be accorded a “presumption of regularity.” That means they will be presumed to be true unless the detainee can rebut that presumption.

Judge Janice Rogers Brown, who wrote the opinion for the two judges in the majority on the three-judge appellate panel, twisted Boumediene‘s statement that “innovation” could be used in habeas corpus proceedings into a “presumption of regularity” in government reports. Judge Brown criticized “Boumediene‘s airy suppositions.”

The dissenting appellate judge, David S. Tatel, noted that, in practice, the presumption of regularity will compel courts to rubber-stamp government detentions because “it suggest[s] that whatever the government says must be true.” He concluded that the report in Latif’s case was inherently unreliable because “it contain[s] multiple layers of hearsay.” Judge Tatel accused the majority of denying Latif the “meaningful opportunity” to contest the lawfulness of his detention that Boumediene guarantees.

When seven detainees whose petitions had been denied by the DC Circuit, including Latif, took their cases to the Supreme Court, they hoped the high court would do justice. During the Bush administration, the Court had struck down illegal and unjust executive policies. These included the denial of habeas corpus rights to Guantanamo detainees, the refusal to afford due process to US citizens caught in the “war on terror” and the holding of military commissions because they violated the Uniform Code of Military Justice and the Geneva Conventions.

But hope for justice died last week when the Court refused to even consider the propriety of the appellate court’s denial of habeas corpus to those seven detainees. Henceforth, detainees who lose in the DC Circuit cannot expect the Supreme Court to give them relief. Their last stop will be at one of the most right-wing circuits in the country, which overturns or delays all release orders by federal judges if the government objects.

The Supreme Court’s refusal to review the appellate court decisions in these cases has rendered Boumediene a dead letter. Since 2008, two-thirds of detainees who have filed habeas corpus petitions have won at the district court level, yet not one of them has been released by judicial order. Judge Tatel wrote that “it is hard to see what is left of the Supreme Court’s command in Boumediene that habeas review be ‘meaningful.’”

Like many men at Guantanamo, Latif went on a hunger strike to assert the only power he had in the face of utter hopelessness — the power to refuse food. He was force-fed for three months, which, he says, “is like having a dagger shoved down your throat.” As attorney Marc D. Falkoff writes in his chapter about Latif in The United States and Torture: Interrogation, Incarceration, and Abuse, “[t]he United Nations Commission on Human Rights calls this torture.”

Of the 800 men and boys held at Guantanamo since 2002, 169 remain. Of those prisoners, 87 have had their release approved by military review boards established during the Bush administration, and later by the Guantanamo Review Task Force established by President Obama in 2009. Yet they continue to languish in the prison camp.

In her opinion, Judge Brown wrote, “Luckily, this is a shrinking category of cases. The ranks of Guantanamo detainees will not be replenished.” Indeed, Obama has sent only one new prisoner to Guantanamo. His strategy is to assassinate “suspected militants” or people present in “suspicious areas” with drones, obviating the necessity of incarcerating them and dealing with their detention in court. As Judge Brown ominously observed, “Boumediene‘s logic is compelling: take no prisoners. Point taken.”

Marjorie Cohn is a professor at Thomas Jefferson School of Law and past president of the National Lawyers Guild. Her most recent book is The United States and Torture: Interrogation, Incarceration, and Abuse.

June 21, 2012 Posted by | Civil Liberties | , , , , , | Comments Off on Hope Dies at Guantanamo

Supreme Court Denies Request to Hear American Torture Victim’s Lawsuit

ACLU | June 11, 2012

WASHINGTON – The U.S. Supreme Court today announced that it would not review the American Civil Liberties Union’s lawsuit against current and former government officials for their roles in the unlawful detention and torture of U.S. citizen José Padilla. In January, the Fourth Circuit Court of Appeals upheld the district court’s ruling that an American citizen designated an “enemy combatant” by the executive branch could not sue to vindicate his constitutional rights based on a claim that he was tortured at the direction of senior government officials.

“The Supreme Court’s refusal to consider Jose Padilla’s case leaves in place a blank check for government officials to commit any abuse in the name of national security, even the brutal torture of an American citizen in an American prison,” said Ben Wizner, the ACLU’s lead counsel on the case. “To date, not a single victim of the Bush administration’s torture regime has received his day in court. It is precisely the role of the courts to ensure that allegations of grave misconduct by executive Branch officials receive fair adjudication. That vital role does not evaporate simply because those officials insist that their actions are too sensitive for judicial review.”

Padilla was taken from a civilian jail in New York in 2002 by military agents, declared an “enemy combatant” and secretly transported to the Naval Consolidated Brig in Charleston, S.C. He was imprisoned without charge for nearly four years, subjected to extreme abuse and was unable to communicate with his lawyers or family for two years. The illegal treatment included forcing Padilla into stress positions for hours on end, punching him, depriving him of sleep and threatening him with further torture and death.

More information and case documents are available at:
http://www.aclu.org/national-security/padilla-v-rumsfeld

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June 11, 2012 Posted by | Civil Liberties | , , , | 1 Comment