What Congress Needs to Do Now for Real NSA Spying Reform

This was originally posted at The Daily Beast.

One section of the Patriot Act has been ritually abused. Americans want it changed. With a few days left to kill, amend, or reauthorize the bill, the ACLU's legislative counsel says the latter is no longer a viable option.

Congress has just a handful of legislative left days to decide whether to amend, extend, or simply let provisions of the Patriot Act expire on June 1. And, for now, the ball is in the Senate's court.

Last week, the House of Representatives overwhelmingly passed the USA Freedom Act, a bill that proposes scaling back—but still extending—the expiring provisions. While it would limit some forms of abuse, the bill unfortunately still leaves room for the government to collect the information of thousands of innocent Americans.

In short, it simply doesn't go far enough. And, it is out of touch with the views of the public.

A new ACLU-commissioned poll released this week finds that voters want the Patriot Act to be modified to protect Americans' privacy—by nearly two-to-one margin. The poll also notes that more than 80 percent of likely voters are concerned that the government is collecting and storing personal information such as phone records, emails, and bank statements. Almost the same percentage of people says that a warrant should be required to search those types of records.

It's clear what the public wants: a retooled, less invasive Patriot Act.

The USA Freedom Act—a modest, inadequate rollback of some of the NSA's authorities just passed by the House—faces an uncertain future in a divided Senate. Some Senators have rallied around the bill, framing it as the only viable reform option on the table. Senate Republican leadership, however, appears to have rejected the notion of reform and supports reauthorizing the expiring provisions for five years or, at least, temporarily.

Both approaches are misguided. Unless the Senate can make substantial improvements to the USA Freedom Act, Congress should simply let the provisions of the Patriot Act expire instead.

The expiring provisions – including Section 215 – were never intended to be permanent. In the wake of 9/11, Congress included sunset dates precisely to ensure that our country debated not only whether these provisions were still necessary, but also whether they were used in a way that violated the law and Constitution.

Over a decade after 9/11, we can no longer turn a blind eye to how these provisions have been abused.

We now know that Section 215 has been used to create massive surveillance programs that far eclipse the original intent of the law.

Under Section 215, the government collects information about every call made to or from an American. This includes every call made to a doctor, suicide hotline, journalist, or even place of worship. In addition, Section 215 has also reportedly been used by the FBI and CIA to collect large numbers of other records, including financial records.

This month in a landmark decision, a federal appeals court ruled that the call records program operated under Section 215 is illegal. This ruling aligns with recommendations made by an independent government oversight board, which found in early 2014 that the program had not made a substantial impact on any terrorist investigation and should be discontinued in its present form.

Given this, the question is not whether we should let Section 215 sunset, but why are we even considering letting it continue?

If Congress elects to move forward with the current bill instead of allowing Section 215 to sunset, it must be strengthened substantially to provide meaningful protections for Americans.

The language of the bill should further narrow the ability of the government to collect the information of people with no nexus to terrorism. As the federal court opinion made clear, Section 215 was never intended to allow the government to amass and data mine the records of Americans with no connection to a specific investigation. It was used that way anyway for over a decade.

The bill also needs to require that the government promptly purge all irrelevant records to ensure that government databases containing the information of innocent Americans do not continue to balloon.

Any bill worth passing should include widely supported reforms to prevent the government from using Section 702 of the Foreign Intelligence Surveillance Act—another controversial surveillance authority—to obtain information about Americans. Specifically, the bill should close the so-called "backdoor search loophole," and require the government to obtain a warrant prior to searching through the Section 702 database for information about Americans.

Positive legislation also has to change other provisions of the law, like the administrative subpoena authorities. Until 2013, these were also used to collect Americans' call records en masse. As the federal court of appeals made clear, laws that permit the government to collect records "relevant" to an investigation are not a blank check for the government to engage in mass surveillance.

And, a reform bill should eliminate loopholes in the transparency provisions to ensure that members of Congress and the public are never again left in the dark about the NSA's surveillance activities. Specifically, the government should be forced to report the full scope and total number of individuals impacted under Section 215, as well as under Section 702.

Without these improvements, the bill falls short of providing the meaningful surveillance reform the public demands and our country deserves.

Section 215 was supposed to expire when it became clear that it was no longer serving the best interests of our country.  That has happened. Let it expire, as so many Americans want it to.

One section of the Patriot Act has been ritually abused. Americans want it changed.

What ACLU v. Clapper Means

This was originally posted on JustSecurity.

Many others have already weighed in about the significance of last week’s ruling in ACLU v. Clapper. Here are my own quick thoughts. As regular readers of this blog already know, I’m counsel to the plaintiffs in the litigation.

  1. The ruling is a major victory for the many advocates from across the political spectrum, outside the government and inside, who have been arguing that some of the government’s surveillance activities are overbroad and unlawful and that the system of oversight that Congress established in 1978 isn’t working. The FISA court signed off on the call records program dozens of times after hearing argument only from the government. Now the first appeals court to have considered the issue after adversarial presentation has concluded, in an opinion that no one could characterize as anything other than meticulous and comprehensive, that the program is illegal. The Second Circuit’s opinion is respectful towards the FISA court and the congressional intelligence committees, but there is no doubt that the opinion is an indictment of the oversight system.
  2. The ruling means that even if Congress reauthorizes Section 215 by June 1, the government will have to discontinue bulk collection under that provision unless Congress adds language expressly authorizing bulk collection or the government prevails on the Supreme Court to vacate the ruling. That the Second Circuit declined to enjoin the call records program is immaterial. If Congress reauthorizes Section 215 in its current form, the district court will likely issue an injunction. Even without an injunction, telecommunications providers may begin to resist compliance with production demands.
  3. The ruling means that the government will have to reconsider other bulk collection programs that are operated under other authorities but predicated on the same now-discredited theory of “relevance.” We know the DEA had a bulk call records program until 2013. We know the NSA was collecting Internet metadata in bulk until 2011. In what contexts the government is engaging in bulk collection now is not entirely clear, but news reports indicate that there are other bulk collection programs that haven’t yet been officially acknowledged. If the government is operating other bulk collection programs — or even “bulky” collection programs — it will now have to reconsider them. Even if it doesn’t reconsider them of its own accord, private entities whose assistance the government needs (telecommunications companies, financial companies, technology companies) may resist demands that they might not have resisted before last week. I suspect that general counsels of corporations that hold large volumes of third-party records will read the Second Circuit’s decision especially closely.
  4. The ruling will change the dynamics on the Hill — and to some extent it already has. The Senate majority leader was already struggling to marshal support for a straight reauthorization of Section 215. Now his task is harder, first, because the Second Circuit’s ruling makes it even clearer that the Patriot Act’s surveillance provisions are being abused; and, second, because, again, even a straight reauthorization won’t enable the government to continue bulk collection under Section 215 unless the Supreme Court vacates the Second Circuit’s decision. The flipside is that the leverage of the USA Freedom Act’s supporters has increased, and they may be able to use that leverage to strengthen the Act — for example, to tighten the restriction against bulk collection under Section 215, to impose stronger minimization requirements, to require greater transparency about the government’s surveillance activities, and to prohibit “backdoor” searches under the FISA Amendments Act. If the USA Freedom Act isn’t strengthened, some who previously supported it may ask whether it accomplishes significantly more than what the Second Circuit has already accomplished, and they may begin to wonder why Section 215 shouldn’t simply be allowed to sunset. On the other hand, if the reform bill is significantly strengthened, it may attract support from organizations and individuals that haven’t until now been willing to support it. (Currently, the ACLU is neither supporting the bill nor opposing it.)

It will be easier to say in three years, or perhaps even three months, precisely how significant the Second Circuit’s decision was. But the decision has already shaken things up, and it could change the government’s surveillance practices quite dramatically. I wrote two years ago that the Snowden disclosures should spark reform, and I wrote here nine months ago that they would. It’s too early to know whether I was right, but I’m more optimistic today than I was a week ago.

The ruling is a major victory for advocates from across the political spectrum.

After Rand Paul’s Sort-of Filibuster, What’s Next for Surveillance Reform?

While technically Sen. Rand Paul's (R-Ky.) stand against the NSA yesterday wasn't a filibuster, any time a member of Congress talks for over ten hours without a bathroom break, it's close enough in our book.

Paul's move came just as the debate around NSA reform started heating up in the Senate. Though senators were scheduled to leave today, it now looks like they may be in D.C. well into the holiday weekend, deciding whether to extend, reform, or simply put to rest provisions of the Patriot Act set to expire on June 1 (more on that here).

So, what is the effect of Sen. Paul's "filibuster" and what does it mean for the surveillance debate?

Here are the main takeaways. 

  1. Pressure is mounting from all sides on Congress to reform the Patriot Act

According to an ACLU poll released this week, Americans support reforming or sunsetting the Patriot Act by almost a two to one margin.

Two demographic groups that most support reform: millennials and independent men. Considering that, it's not a surprise that Senator Paul's stand did not go unnoticed. Twitter abounded with calls to #StandForRand.

Senator Paul was also joined on the Senate floor by Democrats and Republicans, mirroring the bipartisan coalition that has formed around the issue.

  1. Unless everyone can agree, the Senate is likely working into the weekend

Under Senate rules, typically the Senate leader (in this case, Sen. Mitch McConnell) files a motion to proceed, which then needs to "ripen" in order to allow a bill to move forward.  Unless the speaker can get the consent of all senators to immediately debate the bill, it typically takes 30 hours for a bill to ripen.

One of two bills would likely need to move in the Senate in order to beat the sunset – either the USA Freedom Act, which already passed the House, or a two-month straight reauthorization of the expiring provisions of the Patriot Act, which has not yet cleared the House.

By extending debate on the floor, Sen. Paul ensured that the earliest that Sen. McConnell could move to proceed on either  was this morning. In other words, absent carefully orchestrated procedural gymnastics (such as attaching the measures to another bill), the Senate will not debate either extending or reforming the Patriot Act until Saturday.

As of this moment, Sen. McConnell has not given a clear indication of whether he intends to bring one or both bills to the floor. If members who have already indicated that they support NSA reform stand strong and oppose any reauthorization, they easily have the 41 votes needed to jam any reauthorization bill, leaving sunset or reform as the only option.

  1. Gridlock could equal at least temporary sunset

Members of the House are set to leave Washington, D.C., to begin the Memorial Day recess (think nap time and monkey bars) this week. Unless they come back early, the House will not return until June 1. 

And, so, a game of chicken begins.

As you might remember, the USA Freedom Act — the modest reform bill passed by the House — extends provisions of the Patriot Act that are set to expire on June 1 with some modifications. House leadership has said that they will not take up a bill that simply seeks a straight extension of the Patriot Act provisions.

To really drive the point home, the House is leaving this afternoon and has said again (and again) that they will not come back early to vote on an extension.

With the House gone, if the Senate passes a new reform bill or a straight reauthorization of the Patriot Act, it would likely not be soon enough to stop the provisions from sunsetting first. That technically happens at midnight on May 31, 2015. Unless the House decides to come back early or essentially has unanimous consent to pass a bill during a pro forma session.

  1. A sunset could flip the NSA debate on its head.

After a sunset, the equation flips.

With a sunset, Congress' reform bill won't just modify provisions of the Patriot Act. It would resurrect pieces of the Patriot Act (i.e. parts of Section 215) that have died. Section 215 is the provision of the law that has been used illegally to collect call records of everyone in America, thousands of financial records, and other electronic records.

Proactively authorizing that kind of behavior again should and will be a tough pill for many members of Congress to swallow. 

And, it will be an even harder pill for the public to swallow.

It will be particularly difficult in light of the Justice Department report released earlier today, which exposed that the FBI is using Section 215 to collect huge volumes of information, including metadata and electronic records, about innocent people — and that despite all of this collection, the FBI is unable to point to any case in which the information it obtained turned out to be crucial to an investigation.

If Section 215 sunsets, pro-reform advocates will have  more leverage to push for stronger surveillance reforms than those currently on the table, because the new status quo will tip more in favor of those who oppose mass surveillance under the Patriot Act. However, they will have to strongly push back against fearmongering from anti-reformists and proposals that are weaker than those currently being considered.

Anyone excited yet?

Gridlock could mean a temporary Section 215 sunset. And then the equation flips.

The ‘South Texas Family Residential Center’ Is No Haven: It’s an Internment Camp.

Originally posted on The Marshall Project.

The Dilley "South Texas Family Residential Center" tries to mask its nature with summer-camp-inspired euphemisms. When I visited Dilley last week along with other nonprofit representatives, we were told that the "residents" live in "neighborhoods" with names like "Yellow Frog" and "Red Parrot," which come with matching cartoon animal labels, and are watched over by "residential supervisors."

But Dilley is no summer camp.

Opened in December, it is a 50-acre secure detention facility estimated to cost $260 million per year and is owned and operated by the Corrections Corporation of America, the nation's biggest for-profit prison company. Dilley's purpose is to detain families who fled violence in Central America, came to the United States seeking protection, and are waiting for the courts to decide their claims for immigration relief. Still under construction, the facility currently detains nearly 800 people and will have the ability to hold 2,400 by the time construction is finished. On completion, Dilley will be the single largest immigration detention facility in the nation, making Central American toddlers and mothers the new face of mass detention.

A high fence and security cameras encircle the camp, preventing the "residents" from escaping. Visitors go through metal detectors and entry procedures indistinguishable from those in a regular prison. Both the children and their mothers know the "residential supervisors" are guards — and are reminded of this fact by reporting to be counted three times a day and enduring frequent bed checks at night.

The temporary housing that members of Congress and the media saw in an earlier visit has been replaced with barracks-like structures that offer no privacy — a single room can hold as many as 12 people from unrelated families. Inside the treeless camp, the thin, red soil turns into throat-grinding dust when dry, and after rainstorms, it becomes sticky, shoe-destroying mud.

Each morning at 5:30 a.m., guards wake the children up with shouting and lights. For a place with so many young children, there are no toilets or showers inside the housing units — only communal restrooms accessible through hallways exposed to the elements. On one occasion, a young girl was forced to pee her pants during a detainee count because a guard refused to let her leave to use the toilet. It is not surprising that many children start each day with tears.

Immigration officials claim that this is a "safe and humane" way to detain children and their mothers. But what I saw at Dilley was disturbingly familiar to me.

During World War II, the U.S. government arrested my family because of their Japanese ancestry and locked them in prison camps that were euphemistically called "relocation centers." Historians generally agree that the wartime incarceration of Japanese Americans was wholly unjustified — a product of hysteria and racist, unsubstantiated beliefs that they were potential spies and saboteurs. In a historical irony, Japanese Americans were actually drafted from the camps and fought in a racially segregated U.S. Army unit.

I have previously visited the sites of ManzanarTule Lake, and other World War II incarceration camps. More than anything else, Dilley feels like an updated version of these places. And modern officials' efforts to put a happy sheen on family detention echo the World War II propaganda films created to justify the incarceration of Japanese Americans, which caused lasting trauma for Japanese-American families.

By rendering parents as helpless as their children, the camps both undermined family structures and created a constant undercurrent of anxiety. In the claustrophobia and lack of privacy of the barracks, nobody could escape from the arguments and tears of other families. Even after they left the camps, children struggled to recover from early experiences of living as child prisoners.

Today, immigration authorities under President Obama's direction are needlessly inflicting the same trauma on families that arrived in the United States seeking protection.

Family detention facilities on the scale of Dilley exist only because the Obama administration made a dramatic about-face last year in its treatment of migrant families. Between 2010 and June 2014, Immigration and Customs Enforcement generally did not detain families seeking asylum protection in the U.S. However, starting in the summer of 2014, ICE responded to increased numbers of Central American migrants by taking the position that Central American families should either be denied release or released only if they could post enormously high bonds.

These policies apply even to families that have passed the first hurdle for asylum protection: showing a credible fear of persecution in their home countries. The result of the government's policies has been a massive construction spree of family detention facilities. Though ICE maintained fewer than 100 family detention beds in May 2014, it is expected to have a total of 3,700 family detention beds nationwide by this summer.

The day after I visited Dilley, ICE announced that it would take steps to "enhance" conditions of confinement inside its family detention facilities because "the well-being of detained families, particularly of children, is of paramount importance to ICE." But these measures do not address the underlying inhumanity of family detention. If the administration is serious about protecting children and trauma survivors, then ICE must release these families to the community — under individually determined terms of release or supervision — while their immigration cases make their way through the courts.

ICE's misguided effort to build child-friendly prison camps repeats the inhumanity that the U.S. government inflicted on Japanese-American families during World War II. If Obama administration officials implementing family detention ignore the lessons of the past, they will assure their own ignoble place in history.

Today's family immigration detention centers may look child friendly, but they are the new internment camps.

‘Innocence’ Restored

Fifteen months ago, I wrote about a terrible decision by a federal appeals court, which secretly ordered Google and YouTube to remove all copies of a controversial and newsworthy film from their online platforms.

This original panel of judges (wrongly) held that an actress who appeared for a few seconds in the controversial "film" "The Innocence of Muslims" had an enforceable right under copyright law to get the whole movie taken offline. The court then ordered the movie completely erased from the digital world — under a gag order, to boot. When we at the ACLU finally found out — after the censorship has been silently carried out in the night — we joined other civil liberties and library groups in petitioning the full 9th U.S. Circuit Court of Appeals to reconsider its decision in what's called an en banc review, arguing that the copyright claim in this case was an unacceptable Trojan Horse within the citadel of the First Amendment.

This week, the court saw the light: The long dark takedown of "Innocence" is finally over.

The initial fight was between an actress, Cindy Lee Garcia, and writer-director Mark Basseley Youssef (who also uses a few aliases – rarely a good sign in a business relationship). Youssef paid Garcia to say a few innocuous lines for a fictional film he never made. Instead, he dubbed some repellant content over her two lines and incorporated this five-second clip into a 13-minute trailer advertising "The Innocence of Muslims," Youssef's polemic against the Prophet Mohammed. The promised film was intended to provoke — and it did. There were riots. The film was blamed for the attack on Benghazi. Garcia received death threats. She sued.

We should never cede our First Amendement rights to those who would match words with weapons.

As I said before, I have a ton of sympathy for Garcia — who was, in the words of the court, clearly "bamboozled." Did she have claims for fraud, torts, breach of contract? Absolutely. Did she have a right to have a video at the center of a roiling public policy debate erased from the historical record? Absolutely not.

Fortunately, nearly everyone on the 9th Circuit saw the error of granting the initial copyright claim to the detriment of the public's right to watch this (badly produced and racist) film. Judge McKeown nicely summed up the first opinion's error by noting that it "gave short shrift to the First Amendment values at stake." Damn right.

But one judge had even sharper words for his colleagues: Judge Reinhardt, known as a cantankerous liberal lion on the court, was the lone voice specifically criticizing the court (PDF) for taking 15 whole months to reverse the initial ill-considered copyright takedown. He wisely wrote:

By leaving in place the panel's unprecedented gag order for well over a year, we surrendered to the threats of religious extremists who were offended by the film. For a United States court to do so was anathema to the principles underlying the First Amendment.

And that point is worth a special note. In recent weeks, we've heard many calls for censorship against Pamela Geller and her organization American Freedom Defense Initiative, which hosted a "draw Mohammed" cartoon contest in Texas at which officers were shot at and the two would-be attackers were killed. Those calling her actions "pyromania" or "hate speech" imply, dangerously, that the resulting violence justifies government censorship of her provocative words. And the original opinion in the Garcia case came perilously close to the same conclusion: that the death threats against Ms. Garcia justified the censorship of the public record.

Fortunately, as the court has now confirmed, our Constitution prevents those ideas from gaining traction. We don't give violent hecklers a veto over nonviolent speech. Period.

As Judge Reinhardt wrote with more than a soupçon of snark, "Although amateurish, offensive, and banned in many undemocratic countries, Innocence of Muslims is a film of enormous political, social, and religious interest." Our First Amendment sets us apart because it gives us the right and the privilege to see, hear, and react to newsworthy content. Including — and especially — terrible ideas.

And we should never cede that power to those who would match words with weapons.

The full 9th Circuit court saw the light, and the long dark takedown of the "Innocence of Muslims" is finally over.

A Plug-and-Play Model Policy for Police Body Cameras

Ferguson.

Staten Island.

Pasco.

North Charleston.

Baltimore.

An unarmed person of color. Dead at the hands of law enforcement. And then another. And another. And another. And another.

Seeking to stem the tide of senseless death, a national search began for an appropriate response. In short order, a growing chorus of elected officials, law enforcement, and community leaders settled on a common answer: police body cameras. Recent surveys suggest that more than one in four police agencies have already started using them.

Unfortunately, the violence, injustice, and inequity that plague our system of law enforcement will not be solved simply by affixing tiny cameras to officers' lapels. In fact, without the proper policies in place, the widespread deployment of police body cameras could do more harm than good. If body cameras are used to cast a net of roving surveillance over communities of color and low-income neighborhoods, they will cause harm. If police officers are given discretion as to when to turn on and off their cameras and key moments go uncaptured when violence erupts, they will cause harm. If video footage is captured but state laws or law enforcement policies prohibit the public from viewing it, they will cause harm. And if body camera videos are released en masse, resulting in the widespread violation of American's privacy with no public benefit — except perhaps to fans of TMZ and "COPS" style reality shows — they will cause harm.

If, however, police body cameras are deployed within the framework of a well-considered policy that strikes the proper balance between promoting transparency and protecting privacy, police body cameras might just do some good. To that end, and in response to overwhelming demand, the ACLU is releasing a model bill for use by state legislatures and local police departments to guide the development of their laws, policies, and procedures on the use of body cameras. This model bill is far more than a wish list — it is a comprehensive plug-and-play policy for those seeking to implement a sound police body camera program.

To date, we know of no state government or local police department body camera policy that checks all the right boxes. For example, Seattle's pilot program has strong rules governing when body cameras should be used, but it falls short in allowing police officers to review video footage before filing reports, which undermines investigations into police misconduct in many ways. The Seattle program also lacks disciplinary measures for officers who violate the rules.

The Los Angeles Police Department's policy, while fairly strong as to when officers should and should not use their body cameras, completely undercuts the goal of promoting transparency by hiding virtually all body camera footage away from the public. And in a state like Florida, even the best department-level body camera policies will be undermined by a new state law that shields large classes of body camera footage from disclosure under the pretext of protecting privacy.

To some extent, the hit-and-miss nature of state and local policies is understandable. The popular outcry for body cameras and the subsequent rush to use them in an effort to save lives and to bolster accountability left little time for contemplating complex issues of public policy and constitutional rights.

But the ACLU has taken that time. We have spent countless hours examining and contemplating police body camera policies, including in those areas where principles we care deeply about — like privacy, racial justice, reforming police practices, and criminal justice reform — are inescapably at odds with each other. The result is that we have come through the process with a model bill that wisely balances the many important and competing interests that are inherent in any police body camera policy.

As we gain more real world experience with police body cameras, it is very possible some policy determinations reflected in our model bill may need to be reconsidered. That being said, the ACLU is confident the recommendations in our model bill are strong enough to be relied upon by states and local police departments throughout the nation.

There is much we must do to remedy the shortcomings of our nation's law enforcement system. The implementation of sound police body camera programs is just a small piece of that effort, but if done right, it will likely be an important and valuable step in the right direction.

How to get the knotty issue of police body cameras right.

To Prevent Abortion Access, Legislators are Risking Women’s Lives

Access to safe and legal abortion is an incontrovertible constitutional right, though extremists in the Texas Capitol are doing their level best to change that. Emboldened by its past, dubious success with the now-infamous HB 2, this week the legislature is poised to pass two measures—HB 3994 and SB 575—that continue to whittle away at women’s access to health care, and in a worst-case scenario, would risk their very lives.

Representative Geanie Morrison’s (R-Victoria) HB 3994 follows a trend set by a number of measures introduced this session that create big problems by feigning to address issues that happen not to exist in the first place. Currently, minors seeking an abortion in Texas must first have parental consent, but in those rare instances where those minors either cannot or will not get that consent, they may seek to override the requirement by going before a judge in a process called “judicial bypass.” Through its onerous and ill-defined ID requirement, its needless deadline extensions, and its flagrant disdain for confidentiality, HB 3994 serves to make each and every step of the bypass process more difficult and, in many cases, impossible.

Given that only about one half of one percent of all abortions performed in Texas involve minors seeking judicial bypass, the bill’s scope is limited. However, the women who do seek judicial bypass are usually doing so for a very good reason: oftentimes these young women are victims of abuse, neglect, or sex trafficking, and their lives are about to be made considerably harder simply to satisfy the social agenda of a few Texas extremists. This bill is designed to hurt vulnerable children. That is precisely what it will do, and that is all that it will do.

For its part, SB 575 is an insidious and frankly baffling piece of legislation diametrically opposed to the conservative philosophy that holds that the state should leave businesses alone. Ostensibly tailored to prevent federal funding of abortions through the ACA exchange, in practice SB 575 makes it illegal for private health insurers to cover abortions for their clients, leaving them with nowhere to turn.

Additionally, while SB 575 does contain an exception for life endangerment, it provides no such protections in the case of rape, incest, or severe fetal abnormality. Indeed, the authors of the bill don’t even seem to grasp what a “severe fetal abnormality” actually is. While SB 575’s supporters would argue that pro-choice advocates are seeking abortions in order to avoid having children with Down’s Syndrome or a cleft palate, it’s unlikely they’ve ever had to face broken-hearted families who had to terminate pregnancies due to Anencephaly, Alobar Holophrosencephaly, Patau’s Syndrome, Thanatophoric Dysplasia, or any other of the devastating genetic dispositions that are, according to the medical terminology, “incompatible with life.”

With these two iniquitous bills, extremist elements in the Texas legislature demonstrate how far they’re willing to go to prop up their crumbling anti-choice agenda. These measures are likely to pass, tragically, and so once again we’ll have to look to the courts to ensure that reasonable reproductive policy prevails. In the meantime, however, the women of Texas will continue to suffer at the indifferent and insensitive hands of Texas legislators.

There’s still a chance to convince our leaders to do the right thing: sign the petition today and tell your representatives that they have no right to come between a woman and her doctor.

The Supreme Court Leaves the Americans with Disabilities Act Intact

Teresa Sheehan has survived being shot by the police five times; she has survived the challenges of a psychiatric disability; and she has now survived a challenge at the Supreme Court.

In 2008, Teresa Sheehan was living in a group home for people with serious mental health issues, and experiencing a mental health crisis. Recognizing that Sheehan needed help, a social worker called the police to take her to the hospital. Within minutes of arriving, the police had shot Ms. Sheehan five times.

Teresa Sheehan, however, lived and sued the city of San Francisco for violating her rights under the Americans with Disabilities Act. The city then appealed her case all the way to the Supreme Court. When the city asked the Supreme Court to hear the case, it told the court it should decide if the ADA applied to detentions and arrests — a position so surprising, especially for San Francisco, that the city later, in its briefs and oral argument, backed away from it.

The city argued that the police officers were justified in shooting Ms. Sheehan because she had threatened them. Ms. Sheehan argued that the officers should have taken her mental disability into account and used time, patience, and communication to resolve the situation rather than responding with force.

This week, the United States Supreme Court declined to rule for either side on this issue. Because the city did not present any argument on whether the ADA applies to police encounters of this type, the court dismissed the question without ruling on it – an uncommon procedure called "dismissed as improvidently granted." They did say the officers couldn't be sued as individuals.

If the court's opinion doesn't resolve much about police use of deadly force, it brings to light an often overlooked fact in police shootings: According to the best evidence, approximately half of people killed by police are people with disabilities.

We know how to reduce these numbers. Police departments around the country — including departments in Texas, Tennessee and Florida — have adopted crisis intervention trainings and de-escalation strategies to help police officers safely resolve confrontations. Coordination with mental health professionals and clear police department policies, practices, and assessments all provide resources and expectations that can change officer behavior.

Police can and must learn how to de-escalate where appropriate – by differentiating actual danger from perceived danger and by mitigating  rather than exacerbating threats. These approaches have repeatedly demonstrated better, safer outcomes for both people with disabilities and the police.

But wait: Wouldn't this make sense for people who do not have disabilities as well?

Indeed.

The use of de-escalation techniques is as important for the general public as it is for people with disabilities. While the problem before the court involved law enforcement's obligations to people with disabilities, the issue, of course, is much broader. When the police "perceive" a threat, how can they be trained to de-escalate rather than shoot? How do we move away from a model of law enforcement that uses a military approach to conflict and move back to a model that protects and serves the public?

Calm, reasoned de-escalation is not just the right thing for police to do for people with disabilities. It's the right thing to do for everyone. Period.

The police shooting of a mentally disabled woman raised the question of whether police must abide by the ADA.

HIV Is Not a Crime

...except in at least 32 states, it can be.

When we were first confronted with HIV in the United States in the 1980’s, contracting the virus was largely understood to be a death sentence. Thirty years later, with treatment and access to medical care, HIV is a treatable, even if incurable, condition.

Yet even as science and treatment has advanced, we are arresting and locking people with HIV up for engaging in consensual sex, for bleeding, for spitting, for existing.

As the Center for HIV Law and Policy reports, “Thirty-two states and two U.S. territories have HIV-specific criminal statutes and thirty-six states have reported proceedings in which HIV-positive people have been arrested and/or prosecuted for consensual sex, biting, and spitting. At least 180 such prosecutions occurred from 2008 to 2013 alone.”

While framed as public health measures intended to prevent the spread of HIV, in reality these laws stigmatize people with HIV and misrepresent the causes of HIV transmission, the treatment options, and outcomes for people living with HIV and disproportionately impact people of color. 

In reality, as the Department of Justice notes, “many of these state laws criminalize behaviors that the CDC regards as posing either no or negligible risk for HIV transmission even in the absence of risk reduction measures.”

But despite the position of the federal government and major medical associations, state prosecutions for exposure to HIV continue.

Last week, a Missouri jury sentenced Michael Johnson, a young, black gay man living with HIV, to over three decades in prison for allegedly exposing consensual sexual partners to HIV . 

A star wrestler at Lindenwood University in St. Charles, Missouri, Johnson was revered for his strength, athleticism, and sexual desirability. That same body that brought wrestling wins to the university and which attracted admirers on social media quickly became the subject of racialized tropes about the danger of black male sexuality when he was arrested and his HIV status widely publicized. 

For example, Buzzfeed reported that “Overtly racist blogs, like Chimpmania.com, labeled him an ‘HIV Positive Buck.’” In imagery and discourse that has been used to restrain and criminalize black sexuality since chattel slavery, reports cast him as a strong, predatory weapon that preyed on smaller white victims.

As with many criminal laws, laws making exposure to HIV a crime disproportionately affect gay and trans people of color whose sexuality is already perceived as dangerous and deviant. In response to the racialized targeting of Johnson in the public discourse, fellow black gay men wrote him a public letter of support:

“For you, your accusers saw your Black and masculine body as a site of ultimate sexual pleasure, until they had to deal with you as a whole person. At that moment you became a problem and were disposable to them.”

Johnson went from revered to reviled and spent 18 months in jail awaiting trial. For the past three months, he has had no contact with other prisoners, instead spending 23 hours a day in lockdown segregation. He then was tried and convicted before an almost all-white jury, which included jurors who believed that “homosexuality is a sin.”

Though prosecutors attempted to analogize non-disclosure of HIV to driving under the influence of alcohol, the charge and punishment levied upon Johnson are in no way comparable to how drunk driving is treated under Missouri criminal law. While drunk driving is a misdemeanor offense with a maximum of six months in jail for first time offenders, Johnson was charged and convicted of six felonies and will face between 30 and 60.5 years in prison.

A combination of racism, homophobia, and a gross misunderstanding (or perhaps deliberate rejection) of science led to the inhumane conviction and sentence of Johnson under the HIV criminalization scheme, which is, according to the open letter, “yet another tool used to police and incarcerate bodies that are too often poor, Black or brown, or queer-identified.” 

For those of us in the LGBT community, the rejection and outright disposal of people living with HIV is our history and our fight. There is still work to be done to fight the stigma of living with HIV. Almost 30 -years since the founding of ACT UP, the calls to “Stand up. Fight Back. Fight AIDS.” must continue. And those calls mean fighting the criminalization of HIV. 

And to Michael Johnson, we will stand with you and support you in this fight. Your body was marked for disposal because of your blackness, your gayness, and your HIV status. We will not tolerate such injustice. 

Except in at least 32 states, it can be.

Prosecutor Tells Pregnant Woman Punched in Stomach: “Assault on a Latino by a Latino” Deserves Less Protection

According to Locke Bell, the district attorney of Gaston County, North Carolina, the ethnicity of a domestic-violence survivor can disqualify that person from equal protection under the law. The Charlotte Observer reports that Bell refused to certify a domestic violence survivor’s visa application because he thinks the relevant law protecting crime victims “was never intended to protect Latinos from Latinos.”

The controversy surrounds Evelin, a domestic violence survivor who courageously called police to press charges against her abusive boyfriend. She says he punched her, kicked her, and pulled her hair. Two weeks ago, he returned to her home after being deported, accused her of seeing another man, and repeatedly kicked her. Evelin reported the crime to the police and, as is her right, applied for a U visa.

U visas are for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of the crime. Congress created the nonimmigrant, temporary U visa in 2000 — as part of legislation that included the Battered Immigrant Women’s Protection Act. The visa, contrary to what Bell believes, makes no distinctions based on ethnicity or immigration status.

After hearing that Bell disqualified her from protection based on her ethnicity, Evelin commented: “It’s unfair. It’s unjust. He needs to remember we are all humans.” Michael Moore, president of the National District Attorneys Association (NDAA), agreed, telling Latin Times:  “I can’t even find the words to describe [what Bell reportedly did] . . . unprofessional is enough … despicable might be close.”  Moore suggested that if Bell were an NDAA member he’d be subject to expulsion.

If you were expecting the federal government to denounce Bell’s policy, you’ll be disappointed. 

U.S. Citizenship and Immigration Services administers U visas. It had at least two opportunities to condemn Bell’s racist policy, but the agency has chosen to stay silent. USCIS instead feebly pointed journalists to a website explaining that visa certifications are left to the discretion of prosecutors and law enforcement. But Bell’s decision has nothing to do with the lawful exercise of discretion: It is blatant ethnic discrimination that USCIS and federal civil rights officials should have condemned in the strongest terms.

The Obama administration needs to make amends, go into affected communities, and show that it cares about immigrant crime victims wherever they live.

A study by the University of North Carolina-Chapel Hill School of Law Immigration/Human Rights Policy Clinic concluded based on survey results that “over 190 certifying agencies [for U visas] refuse to certify based on standards that seem to go beyond the scope of what was intended by Congress.” It criticized the “geography roulette” that determines whether a survivor gets protected. The DePaul University Asylum & Immigration Law Clinic similarly found that “the location of crime has increasingly played a major role in a victim’s access to justice as a result of disparate treatment of U certification.”

In other words, a whole bunch of jurisdictions are denying domestic-violence and other crime survivors’ U-visa certifications in cases despite their eligibility for such visas. Therefore, USCIS urgently needs to be more active in these locations, educating prosecutors and law enforcement agencies about U visas, as well as seeking certification alternatives in recalcitrant jurisdictions.

The UNC study also recommends that the Department of Homeland Security “issue new and/or revised policy memoranda and guidance to give clarity and greater definition regarding the scope of authority of certifying agencies and the parameters of acceptable practice.” New regulations are needed to end the disparate outcomes for similarly situated immigrant crime victims.  Congress should also change the U-visa law to allow qualifying applicants who are wrongly refused certification to receive a U visa from USCIS.

USCIS needs to show that it’s taking Bell’s prejudiced policies seriously by working to eradicate all illegitimate obstacles to U-visa certification. The Obama administration must affirm that racism and national origin animus have no place in U.S. law or life and that it will leave no domestic-violence or other immigrant survivors of crime unprotected. 

Evelin and countless others deserve no less.

U visas protect crime victims who are immigrants, but at least one county denies them based on ethnicity.