Victory! New Legal Representation for Those Lost in Detention

October 31st, 2014 No Comments   Posted in ACLU Nationwide
By Carmen Iguina, Equal Justice Works Fellow, ACLU of Southern California

Mario* had a long history of mental illness prior to landing in immigration custody. He struggled with schizophrenia and had attempted suicide in the past.

Despite this, none of the various immigration officials who came into contact with him — including deportation officers, medical staff, or even the immigration judge — ever thought to assess Mario's mental health to determine whether he was competent to represent himself in his immigration case.

Instead, all he got was a notation in his file that he should be transferred to a more appropriate facility for evaluation and treatment — a notation that the immigration judge in his case never even saw. The judge had no idea that Mario suffered from a serious mental illness that could affect his ability to represent himself. Mario therefore appeared for hearing after hearing, alone. He was apparently supposed to represent himself, despite his clear inability to do so.

It was not until several months later, when another detainee at the facility contacted me at the ACLU, that things changed for Mario. He called because, as he explained, Mario was "clearly not well" and had been going to court unrepresented. "He needs help," his friend pleaded.

I wrote a letter to the immigration judge, informing him that Mario suffered from a serious mental disorder. As a result, the judge, now aware of his mental health history, conducted a hearing and found that Mario was not competent to represent himself. He was later provided with an attorney under Franco-Gonzalez v. Holder. Thanks to the historic April 23, 2013, ruling from the federal court in Franco, Mario now has an attorney to help him fight his case in immigration court.

But had it not been for that call from a friend, or that letter from the ACLU, Mario would have been lost in the immigration system, likely already deported back to his home country.

As Mario's case shows only too well, immigration authorities had no system in place for identifying individuals with serious mental disabilities or for communicating that highly relevant information to the immigration courts. Even when the information made it to the immigration courts, judges had no clear guidance on what to do to determine whether an immigrant with a mental disability was competent to represent him or herself. Immigration judges were not even able to ask for a forensic evaluation in a case if they found that they needed more information to determine whether someone was competent enough to proceed alone.

Yesterday, that changed.

The court in Franco-Gonzalez has issued yet another historic order in the case, this time establishing a comprehensive screening and competency determination system in the immigration detention centers and courts throughout Washington, California, and Arizona. The system will require all detainees to be immediately screened for mental disorders upon their arrival at the detention center. Should that initial screening or other information reveal that the individual might have a serious mental disorder or condition, the detainee will be referred for a further assessment.

Immigration authorities are now required to share that information with immigration judges, who will then hold structured competency hearings, with the aid of forensic evaluations, to determine detainees' competency. The order provides clear guidance to judges, including what standard to apply when determining whether someone is competent to represent himself or herself in immigration proceedings, thus establishing the first federal standard for making such a determination.

The fight for individuals like Mario is far from over. The judge has given the government ninety days to comply with the order and completely revamp the system that failed Mario the first time around. The ACLU will continue to fight to ensure that the government complies with the order, to push the government to apply those same procedures nationwide, and to make sure that all individuals like Mario are properly screened and assessed before being forced to stand in court alone.

*Name changed to protect our client's identity

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Why is the Government Trying to Kill This Iran Defamation Suit?

October 31st, 2014 No Comments   Posted in ACLU Nationwide
By Dror Ladin, ACLU Immigrants' Rights Project

Q: Why is the government trying to shut down a Greek billionaire's defamation suit against an influential anti-Iran advocacy group?

A: It's a secret.

United Against Nuclear Iran is a prominent nongovernmental organization that seeks to influence U.S. policy on Iran and is known for "naming and shaming" companies that do business with the country. Last year, the organization accused Victor Restis, a Greek shipping magnate, of doing illicit business with Iran. Restis sued the group for defamation, and that case is currently pending in New York.

Last month, the U.S. government suddenly intervened in the case, arguing that the lawsuit had to be immediately dismissed because further litigation would reveal "state secrets." It provided no public explanation. Facing a total vacuum of information, the media has been left to speculate about what the government is trying to hide. Unlawful government attempts to influence American public opinion through unaffiliated organizations? Foreign intelligence efforts to affect American politics?

The state secrets privilege is a legal doctrine that can be legitimately applied only in the very narrowest of circumstances. When properly invoked, the privilege permits the government to block the release of information in a lawsuit that, if publicly disclosed, would cause harm to national security — for example, the technical specifications of very sensitive military equipment.

In recent years, however, the government has increasingly sought to use the state secrets privilege not merely to shield particular information from disclosure, but to keep entire cases out of court. The government has used the privilege to avoid accounting for torture, to silence national security whistleblowers, to dismiss lawsuits alleging racial discrimination, and to cover up negligence. Government agencies have increasingly relied on the state secrets doctrine as a legal loophole to evade accountability for their illegal actions and to cover up embarrassing facts.

The invocation of state secrets is particularly extraordinary in this case, even considering the ballooning use in the last two administrations of what was once a rare tactic. Previously – even in cases involving extraordinarily sensitive subject matters, such as torture, surveillance, intelligence, and secret weapons systems – the public had some basis for understanding why the government had an interest in the case when it tried to shut down lawsuits based on state secrets. But here, all we have are questions: Why does the government want to keep the public entirely in the dark about its interest in a defamation suit to which it's not even a party? Why does the government believe that a federal court shouldn't even hear this case? And how could the lawsuit possibly reveal state secrets, given that neither side has any acknowledged governmental connections that would entitle them to possess government secrets?

Responding to this unprecedented lack of transparency, the ACLU, along with the Brennan Center for Justice, the Center for Constitutional Rights, the Constitution Project, the Electronic Frontier Foundation, and the Sunlight Foundation, filed an amicus brief on Wednesday urging the court to carefully consider whether this case justifies the government's efforts to impose such blanket secrecy.

When the government abuses the state secrets privilege, it robs victims of their day in court. And the more broadly the government uses its secrecy power, the less the American people can know about their government's actions and hold it accountable.

For now, we don't know why the government wants to block the Restis v. UANI lawsuit. But regardless of who ultimately wins the defamation lawsuit, one thing is clear: When courts allow the government to overuse its state secrets privilege, it's our democracy that loses.

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"CITIZENFOUR": The Evolution of Whistleblower Edward Snowden

October 30th, 2014 No Comments   Posted in ACLU Nationwide
By Anthony D. Romero, Executive Director, ACLU

Filmmaker Laura Poitras, director of CITIZENFOUR, sits down with Anthony Romero, ACLU executive director, to discuss her film, the surveillance state, and Edward Snowden.

Anthony Romero: Your film offers an understanding of Ed Snowden and the NSA revelations in a way that we can't fully do in paper and writing. It brings it to life. And you're behind the scenes in the film, but you're also a protagonist. Talk to me a little bit about your relationship with Ed and about the trust that was built over time. How did he pick you?

Laura Poitras: Ed reached out to me in January 2013 anonymously. I didn't know who he was, and of course the first question I asked him was, "Who are you? And why are you picking me?" He said something very peculiar – that I had picked him. I had been put on a watchlist by the U.S. government. I had been stopped at the border many, many times. He felt that since I had been through that, I would have a unique understanding of the dangers of surveillance.

AR: What has changed since the Snowden revelations? What do you think has happened in our country and across the globe?

LP: We've seen a global shift in consciousness in people's understanding of the dragnet, bulk collection of communications globally. We've also seen technology companies understand that customers want privacy, and come forward with new encryption tools. And we've learned that encryption works. Ed and I wouldn't have been able to communicate for five months without encryption. Unfortunately, we haven't seen enough movement in our government. But, and this relates to the work the ACLU does, we now have documents that tell us what the government is doing, which has opened up the possibility for legal challenges. So we have the ACLU's litigation over the bulk collection of U.S. call records. Judges have called that Orwellian and unconstitutional.

AR: Your film beautifully chronicles the coming of age of a political dissident, from the moment when he first reaches out to you, to the revelations in Hong Kong, to his role as whistleblower and dissident. What does your film do to bring out a fuller picture of Ed Snowden and his motivations?

LP: In previous cases, like Chelsea Manning's, whistleblowers remained incommunicado, so they never got to voice why they made the choices they did. Ed made the choice early on to take responsibility, which allowed me and Glenn [Greenwald] and others to talk to him about why. He sees the expansion of these technologies as a real threat to democracy, and the fact that they're happening in secret without any public debate as really dangerous. He's also someone who grew up on the Internet and felt that it should be a force for good, not a force for human surveillance and control. You see when you meet him in this hotel room that he's undeniably motivated by principles. He's an idealist and he believes in the Constitution. He believes that these are everybody's issues and that the American public has a right to know what their government is doing.

AR: Tell me a little bit about the restrictions placed on you. It has not been an easy documentary for you to make.

LP: As a journalist, I have an obligation to protect sources that I work with. I actually moved to Germany because I felt I could no longer protect source material while crossing the border, because I've had things like my computer confiscated. It's not a good sign when journalists feel they cannot freely work or freely cross the U.S. border. So I've had to go to some pretty drastic measures to do my job, which is to protect the sources that entrust me with information. You hear that from lawyers, too. Lawyers don't feel like they can talk on their phone with certain clients, so they have to get on airplanes to meet with them.

AR: How does the film debunk some of the myths that were commonly held about Ed Snowden?

LP: He has said multiple times: I don't want to be the story. That has been consistent. He's never wanted to be the focus of attention. When we were in correspondence, he said to me that he would come forward as the source of the disclosures. And I told him, way before Hong Kong, that if he planned to come forward then I wanted to meet and film him. He said "No, I'm not the story." So it was actually with great reluctance that he agreed to meet me and for my camera to be present. He explains that he's never worked with the media, and that he thinks the media focuses too much on personalities instead of issues.

I made a film about him because I felt it was important to understand why such a young person – with so much ahead of him, 29 years old, making a good salary with a partner that he loved – would risk everything. It was in that context that we met in Hong Kong. Glenn and I both experienced somebody at a point of no return, who decided he was going to sacrifice everything, including his personal life, to inform the public about what the government is doing.

AR: Was there a particular turning point for him that made him decide [to expose the documents]?

LP: I think it was an accumulation over time of what he had witnessed. He says he had been building the tools to amass more state power and more state secrecy, and at some point he couldn't be a part of it anymore. I think the decision to leave the country was informed by seeing what had happened to previous whistleblowers. He obviously knew of the "NSA Four," a group of NSA whistleblowers including Tom Drake and William Binney, who tried to go through the normal channels to expose these things. The government put them under investigation and raided their homes. The FBI showed up with guns drawn. Ed knew very well what happened to whistleblowers who tried to expose what the NSA was doing from inside the system.

AR: Why did Ed give you the documents rather than publish them himself?

LP: He wanted the press to make the decisions about what was in the public interest. In every case, stories have gone through an editorial process. The process isn't easy and these are tough choices. You saw, for example, with the PRISM story – you had both the Washington Post and the Guardian publishing articles on the same document at the same time, without coordinating, making the same choices about what to redact. That document had information that was clearly of the public interest, about the cooperation of Internet companies and the NSA. But that document also had operational things that both news organizations deemed should be redacted. Those decisions have been debated in newsrooms for every story.

There are some things in the documents that I think are operational and shouldn't be published. There are a lot of names in these documents that I don't think should be published and things that don't serve the public interest. But there is an enormous amount of information that exposes what the NSA is doing.

AR: Tell me more about what is on the horizon in terms of other revelations. Is there much more, a little more? And why should our members care? Do you really think that privacy is something still worth fighting for, and that we can win?

LP: In terms of the reporting, yes, there's still a lot more to do. The process does take time. I've worked on stories that take four months to go to print.

AR: Why is that?

LP: Because they require research into the documents, outside reporting to verify, and other sources to get them right. Some documents speak for themselves, and some don't. I think the biggest story that has been underreported is what's called the Special Source Operations or SSO, which is the alliance between the NSA and the telecoms – the AT&Ts of the world – and how they've been working together and sharing information. I think that's the biggest story that hasn't been fully reported.

In terms of why privacy matters for ACLU members – did everyone read "1984" in high school? The chilling effect is profound. There's a point when Winston has to go to the corner of his room because that's the one place he can write in his journal without feeling that he might be monitored. What the government is able to collect is vast. The camera in your laptop can be turned on without you knowing. If you're an activist at Occupy Wall Street, the police use IMSI catchers, basically fake cell phone towers, to get a list of phone numbers of everybody who gathers.

We have the Fourth Amendment, we have freedom of assembly, freedom of expression, freedom of the press – these surveillance programs threaten all of those things at a fundamental level. The government is cracking down on sources and leaks, people who are trying to say that what the government is doing shouldn't happen in secret. Journalists who are working on these stories are now being targeted, rather than people responsible for things like CIA renditions. Where are the committees looking at those things? The White House is trying to hold back a Senate report on the CIA's engagement in torture. That's not what you want to see in a free country, a free democracy.

AR: What's next for you?

LP: I wish I could say that my work is done. I'm sure you wish that too, right? The post-9/11 era is a dark chapter in American history. There's been a moral drift away from fundamental principles of rule of law, full stop. It would be great to say, "Okay we're done. You can stop litigating these cases; I can stop focusing my filmmaking on them." But unfortunately the government is still engaging in policies that are not in line with our Constitution. So I think I'll be focusing on these issues for a while. And hopefully someday soon we can both focus on other things.

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New NSA Documents Shine More Light into Black Box of Executive Order 12333

October 30th, 2014 No Comments   Posted in ACLU Nationwide
By Ashley Gorski, Nadine Strossen Fellow, National Security Project, ACLU

What is arguably the most powerful of the U.S. government's surveillance authorities is also the most secretive, and it operates with the least amount of oversight.

Today, we're releasing a new set of documents concerning Executive Order 12333 that we — alongside the Media Freedom and Information Access Clinic at Yale Law School — obtained in an ongoing Freedom of Information Act lawsuit. EO 12333 hasn't received much public attention to date, but the government's prior disclosures in our suit have shown that the executive order in fact governs most of the NSA's surveillance. In the NSA's own words, EO 12333 is "the primary source of the NSA's foreign intelligence-gathering authority."

Surveillance conducted under EO 12333 is implemented almost entirely by the executive branch, without review by Congress or the courts. EO 12333 lacks even the plainly inadequate legislative and judicial checks on the two more well-known surveillance authorities — Section 215 of the Patriot Act and the FISA Amendments Act.

Some of the most significant conclusions to be drawn from the new documents:

"It is not possible" for the NSA to adequately protect the privacy of innocent Americans swept up in its dragnet.

Even when the NSA is "targeting" foreigners abroad, the agency sweeps up vast quantities of innocent Americans' communications. This is true when the agency is conducting surveillance under FISA, and it's just as true when the agency is conducting surveillance under EO 12333.

But we don't yet have a full understanding of EO 12333's implications for Americans' privacy. That's in part because of the secrecy surrounding EO 12333, and in part because, as one NSA memo acknowledges, the agency itself often doesn't know whether it's handling communications to or from Americans:

Excerpt #1

The government frequently argues that its sweeping, "collect it all" approach to surveillance is lawful because it follows certain procedures when searching and sharing the information it gathers. These "minimization procedures" vary by agency and by surveillance program, but in general, they require special treatment of Americans' communications to mitigate the intrusion on privacy rights.

But if the NSA can't — or won't — ensure that it is correctly identifying Americans' communications when it vacuums them up, how can the public trust that the NSA is properly safeguarding Americans' private information? Furthermore, if the NSA doesn't know what it's collecting, how can it effectively assess its compliance with its own rules?

NSA analysts may be laughing at your sex tape.

One of the other new documents, another internal NSA memo, considers whether "sharing of voice cuts among signals intelligence (SIGINT) analysts for purposes other than official ones constitutes a violation of any laws, policies, or procedures." Unsurprisingly, the deputy general counsel concludes that it's not permitted:

Excerpt #2

Excerpt #3

The memo appears to be a response to allegations made in 2008 by a former NSA military intercept operator, David Murfee Faulk, that he and others routinely circulated "good phone sex" recordings, or "cuts," around the office. Faulk and another operator also alleged that the NSA had eavesdropped on hundreds of U.S. citizens overseas as they called home — capturing not only phone sex, but more mundane pillow talk as well.

While phone sex may be a slowly dying art, the risk of NSA abuse has only grown as new media takes its place. Today, EO 12333 surveillance can put your nude selfies and your sex tapes into the NSA's hands, where analysts may once again be tempted to pass them around in violation of agency rules. As Edward Snowden recently said, the auditing of the NSA's systems is weak, and the ability to ogle nude photos is seen as one of the "fringe benefits of surveillance positions."

The NSA agrees that your phone number is identifying (except when it doesn't).

Much of the public debate on the NSA's collection of phone records, or "metadata," has focused on the Section 215 program. But reports suggest that the NSA collects an even greater quantity of call records under EO 12333 — up to five billion records per day. Though this collection takes place overseas, it still captures Americans' domestic metadata and other sensitive information, like location data, that the NSA says it does not collect under Section 215. That raises concerns that the NSA is using EO 12333 to maneuver around restrictions it faces under other statutory authorities.

The government has argued that phone records are not private because they don't include names, just numbers. This is an absurd argument. As the ACLU has explained, phone numbers are every bit as identifying as our social security numbers — no two of us have the same one — and it's a trivial matter for the government to attach a name to a number. One of the new documents shows that, back in 2007, the NSA's own lawyers recognized that Congress had considered this question — and had agreed with the ACLU:

Excerpt #4

This memo goes on to argue that Americans' metadata may be shared widely across intelligence agencies because it is not constitutionally protected — an argument that's wrong on several grounds. Metadata can reveal personal information that is just as sensitive and private as the content of communications. In addition, as the memo itself acknowledges, the handling of Americans' metadata is subject to certain statutory requirements. But it's not yet clear how the NSA interpreted those protections.

We're hoping that our FOIA litigation will result in the release of more information — not only about the scope of collection under EO 12333, but also about how the NSA and other agencies are handling and sharing the vast amounts of data they acquire.

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The Police’s Get-Out-of-Jail-Free Card

October 29th, 2014 No Comments   Posted in ACLU Nationwide
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project

This piece originally appeared at Slate's Jurisprudence, under the title, "Search Party."

It used to be that when police violated a suspect's Fourth Amendment rights through an unconstitutional search, evidence derived from the search would be thrown out.

Increasingly, that's not the case.

Courts are carving out ever-larger safe harbors for police errors and misconduct, thereby eroding the boundaries of the Fourth Amendment prohibition on unreasonable search and seizure. Earlier this month, the 3rd Circuit Court of Appeals became the latest to give the government a free pass for Fourth Amendment violations—in this case, allowing use of evidence derived from a GPS tracking device that police attached to a suspect's van without a warrant.

Under the "exclusionary rule," when police engage in an illegal search, prosecutors can't use the results. This penalty incentivizes police to abide by the Constitution and provides relief to victims of government misconduct. Indeed, as the Supreme Court explained a century ago, without the exclusionary rule the Fourth Amendment would be "of no value" and "might as well be stricken from the Constitution."

If courts never say what the Fourth Amendment requires, police will never be forced to comply with it.

But in a series of decisions starting in 1984, the Supreme Court has retreated from this vital protection of our rights. The justices first held that if police were relying in good faith on a judicially issued warrant authorizing a particular search, the resulting evidence couldn't be suppressed even if the search was later held to be unconstitutional. The court has since expanded this good-faith exception to cover police reliance on other forms of explicit authorization, including statutes later held to be unconstitutional and binding court rulings that are later reversed.

The theory behind these Supreme Court decisions is that the exclusionary rule's purpose is not to help people whose rights have been violated, but to deter police from committing violations. When police are following guidance from an authoritative outside source, the theory goes, they are doing what they are supposed to do. Suppressing evidence won't deter future violations because police couldn't have been any more careful. Unfortunately, this view of the Fourth Amendment leaves defendants without relief for unconstitutional police conduct. (A similar doctrine, qualified immunity, often prevents people from securing compensation for Fourth Amendment violations in civil suits against offending police officers.)

Perhaps even worse, the good-faith exception to the exclusionary rule stunts the development of Fourth Amendment law. It discourages defendants from challenging illegal searches by denying them the possibility of redress. And courts frequently apply it without also addressing whether police conduct actually violated the Fourth Amendment in the first place. Whatever you think about the good-faith exception, courts are using it as an excuse to avoid scrutinizing questionable police searches.

For instance, last year, a three-judge panel of the 3rd Circuit held in United States v. Katzin that FBI agents violated the Fourth Amendment when they placed a GPS tracker on a Pennsylvania man's vehicle without a warrant. The court ordered the GPS-derived evidence suppressed. The panel's decision was important, because it was the first appellate opinion to hold that a warrant is required for GPS tracking since the Supreme Court's 2012 decision in United States v. Jones. In that case, the court found that attaching a GPS device to a car and tracking the car's movements is a Fourth Amendment "search," but did not decide whether it is the kind of search that requires a warrant, leaving that important question to lower courts to figure out. (I worked on the amicus briefs filed by the American Civil Liberties Union for Katzin and other cases involving the good-faith exception.)

Borrowing language from Justice Sonia Sotomayor's concurring opinion in Jones, the 3rd Circuit panel explained that a warrant is required because GPS trackers can record "a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations."

After losing in Katzin, the government sought rehearing by the full 3rd Circuit. It argued that the good-faith exception should apply even though there was no binding judicial decision permitting warrantless GPS tracking at the time of the search. On Oct. 1, the full appeals court took the government's side. While radically expanding the scope of the good-faith exception, the court also vacated the portion of the original panel opinion that required a warrant for future GPS tracking.

Every other court of appeals to have considered warrantless GPS tracking since Jones has likewise avoided opining on whether a warrant is required, meaning the good-faith exception has become a shield against meaningful judicial review. This shirking of judicial responsibility leaves police without guidance on what the Constitution requires and people vulnerable to encroachments on their privacy. If courts never say what the Fourth Amendment requires, police will never be forced to comply with it.

The 3rd Circuit's decision only feeds the good-faith exception's malignant growth. The court held that it was reasonable for law enforcement to not seek a warrant based on a combination of outdated Supreme Court opinions about obsolete "beeper" tracking technology, the nonbinding decisions of other circuit courts, and the advice of a prosecutor, who has an incentive to approve overly aggressive police investigative practices.

The five dissenting judges excoriated this approach for "expand[ing] the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum."

If police can rely on any mushy combination of nonbinding factors to justify an unconstitutional search, the Fourth Amendment becomes immeasurably weaker. And if courts decline to even say what the Fourth Amendment means, we are left at the mercy of investigators' self-interested decisions, without the scrutiny of an independent judge.

Unfortunately, decisions like the 3rd Circuit's recent one create a climate of government impunity and weaken our system of protections against overzealous searches. In the coming months, several more appellate courts will have an opportunity to consider whether GPS evidence acquired without a warrant can be introduced at trial. And defendants in cases where courts have expansively interpreted the good-faith exception have petitioned for Supreme Court review.

In one case awaiting oral argument in the 8th Circuit, police used a battery-powered GPS tracker on a Missouri man's car for nearly two months without a warrant, cataloging his every move as he traveled around the greater St. Louis area. In another case, police used a GPS device to track a man as he traveled in Maryland and West Virginia for nearly a month, also without a warrant. After a three-judge panel of the 4th Circuit invoked the good-faith exception, the defendant petitioned the full 4th Circuit for rehearing (the court has yet to act). This kind of long-term location tracking threatens the core protections of the Fourth Amendment by exposing voluminous details of people's private lives to police scrutiny.

In these and other cases, there is still a chance for courts to get it right.

As our judicial system struggles to apply the Fourth Amendment's protections to new kinds of searches in the digital age, instituting proper safeguards against unwarranted police surveillance will become ever more important. Courts that keep contriving new ways to accommodate the police should remember that the Fourth Amendment's protections—what Justice Thurgood Marshall described as "an essential bulwark against arbitrary and unreasonable governmental intrusion"—can only erode so far. If we're not careful, some day we might realize those vital protections have withered away completely.

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Let an Innocent Man Spend His Last Days at Home

October 29th, 2014 No Comments   Posted in ACLU Nationwide
By Barry Scheck, Co-Director, The Innocence Project

This piece originally appeared at the Texas Tribune.

Max Soffar, an innocent man on death row in Texas, has just a few months to live.

He's dying of liver cancer, and his last wish is to hold his wife, Anita, in his arms.

His lawyers continue to present evidence of his innocence to the courts. But a false confession Soffar signed 34 years ago, as a drug-addled and brain-damaged youth, will likely keep him locked away — unless Gov. Rick Perry intervenes.

Soffar is spending his last days locked in a cell the size of a small bathroom for 23 hours per day. His only breaks are for brief showers and recreation in a cage. Aside from the guards who shackle him and the medical staff who care for him, he has no human contact. Soffar sees his wife and others allowed to visit him but, separated from them by glass, can't touch them. He sits on a metal stool bolted to the floor, peering through the window, straining to position his cancer-ravaged body comfortably.

Soffar's case is like others I've seen in my years with the Innocence Project. He signed a police statement confessing to involvement in a notorious Houston triple murder, but the three days of interrogation weren't recorded. No other evidence inculpates him — no fingerprints, no witness identification and no forensic evidence. And like the recent exoneration of our death row client Damon Thibodeaux, Soffar's confession doesn't match the facts. An appellate judge found that Soffar's statement "appears to be a tale told by one who heard about the robbery-murders rather than by one who committed them."

Indeed, nearly 30 percent of DNA exonerations (including death penalty cases) involve false confessions. Again and again, our clients have described an overwhelming pressure to confess, even when their statements are false, when police isolate them from the world for hours or days, tell them they're lying, cut them off at every turn and threaten devastating consequences if they don't concede.

Proving that a confession in a death penalty case was false can be extremely difficult. For Soffar, whose case doesn't have DNA evidence to support his innocence, this has meant decades of legal work — efforts that still need more time. Time that he no longer has. For Soffar and so many others, I wish DNA evidence were as easy to come by as TV shows and movies suggest. In truth, fewer than 10 percent of crime scenes contain DNA that could identify the true perpetrator. The coffee cup, the cigarette butt — these are lucky breaks, not the norm.

Take the recent exonerations of Henry McCollum and Leon Brown in North Carolina. Like Soffar, they were youths (ages 19 and 15) and intellectually disabled when they falsely confessed to murder and rape. Like Soffar, they were sent to death row based only on statements the police wrote and asked them to sign; no other evidence linked them to the crime. Like Soffar, their interrogations weren't recorded. And just like in Soffar's case, the jury never heard about a far more plausible suspect in the crime. For McCollum and Brown, there was a key difference: The crime's perpetrator left his DNA at the scene on a cigarette butt.

The DNA revolution has freed many innocents. But the lesson we should learn is that the practices leading to wrongful convictions — including coercive and manipulative interrogations — occur throughout the criminal justice system. And they occur whether or not DNA evidence exists that proves innocence. One simple fix, already required in 24 states, 850 other jurisdictions and recently adopted by the FBI, is to videotape interrogations from Miranda warnings forward. This reform, recommended years ago by Texas' Timothy Cole Advisory Panel on Wrongful Convictions, should be at the top of the Texas Legislature's list when it convenes next year.

But Soffar's only hope to die at home lies with the governor. The Texas Board of Pardons and Paroles recently denied Soffar's petition for clemency. Citing the absence of an execution date for him, the board said, "It has been determined that Mr. Soffar's request will not be considered by the Board at this time." But nothing in Texas law requires Perry to accept the board's absurd refusal to decide this issue now, before Soffar dies. The governor can and should order a more comprehensive review.

Governor Perry, this isn't a question of politics, of being for or against capital punishment, or even of whether Max Soffar is guilty or innocent. It's a humanitarian appeal — an issue of mercy, compassion and human decency.

Please allow Max to die in peace, close to his loved ones who have suffered greatly for so long.

Sign this petition at Change.org and tell Gov. Rick Perry to send Max Soffar home to die surrounded by his loved ones, not prison walls.

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Ebola: Travel Bans, Quarantines, and Political Courage

October 29th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

The political reaction to Ebola has been a study in contrasts. On the one hand, we see some leaders insecurely trying to prove their “Ebola-fighting bona fides” by racing to go beyond what public health experts recommend. Some are actually fanning the flames of public fear. On the other hand, we have also seen some political courage in the response, including from the Obama administration.

Ebola is a frightening disease that is very deadly for those who catch it. But scientists say that while additional "sparks" of the disease are likely to land in the United States as long as an epidemic continues to rage overseas, it's extremely unlikely that Ebola will "go viral" here. "The system that's in place, with our health care infrastructure, would make it extraordinarily unlikely that we would have an outbreak," as Dr. Anthony Fauci of the NIH said recently, agreeing with (as the Chicago Sun-Times put it) “just about every leading infectious disease expert in the world.” Both Nigeria and Senegal stopped the epidemic in their countries, despite having many fewer resources than the U.S. The chances of any person who has not been in close contact with a known Ebola victim coming down with the disease in the United States are, according to experts, close to zero.

The role of our political leaders should be to help the public understand the scientific facts of this disease, and to solicit and follow the guidance of public health experts in crafting a calm and rational response to it.

One over-reaction to the disease that has emerged is a proposal for a blanket travel ban from the affected countries in West Africa. Public health experts say that such bans are not necessary, would not be effective, and would be a poor use of resources. Worse still, experts say they would most likely make matters worse by further isolating the countries where the outbreak is taking place, worsening the situation in those countries and therefore the threat to the United States. Travel bans “hinder relief and response efforts risking further international spread,” as the World Health Organization warned. Experts say such bans would also inevitably drive travelers underground, making it difficult to retrace the path of a disease when a case does appear.

Proposals to close the border to all travelers from affected nations are not a scientifically and medically legitimate exercise of government power and therefore would be arbitrary and discriminatory whether applied to citizens or non-citizens.

Now, of course, we are also seeing the questionable use of quarantine powers in some states. Medical experts have opposed such steps given that Ebola is not transmissible until after a fever begins and is not a highly transmissible disease generally, and given that individuals have strong incentives to carefully monitor themselves. Doctors Without Borders, for example, has condemned these quarantines as a threat to its battle against the disease in Africa. It cites the effect the quarantines will have in deterring doctors and nurses from taking the already remarkably brave step of entering the fight against the disease—and in stigmatizing them when they do. In short such quarantines threaten to weaken the most effective weapon we have in stopping the disease at its source. (It’s also shameful to treat returning health care workers, who have put their own lives at risk to help others, as anything less than heroes.)

Where individuals cooperate with the authorities in allowing close monitoring of their health and other reasonable precautions, the imposition of quarantines on those without symptoms appears to be driven by politics rather than science, and therefore raises serious civil liberties concerns.

While some political leaders have acted out of fear, Obama Administration officials deserve praise for largely sticking to science and not caving in to some of the fear mongering that is swirling around them. The White House has prioritized medicine over politics. It has resisted calls for travel bans, tried to persuade the governors of New Jersey and New York to reconsider their quarantines, and has largely followed the advice of public health experts in the recommendations that they have made. The Administration has also taken helpful steps such as expediting emergency FDA authorization for the use of new machines for rapid detection of the Ebola virus—which could allow detection of the disease before symptoms appear.

In fact, the Obama Administration has a history of good policy on communicable diseases. As we described in a 2009 white paper on that year’s H1N1 flu scare, the Administration acted calmly and appropriately in response to that epidemic, and overall, President Obama has turned away from his predecessor’s military/law enforcement approach to fighting disease, which we criticized in detail in our 2008 report on pandemic preparedness.

As ACLU Executive Director Anthony Romero said in a statement Monday (and as I wrote in a previous post on Ebola), the ACLU recognizes that civil liberties must sometimes give way when it comes to fighting a communicable disease. Overall, however, the public health community has learned over time that treating people with dignity and minimizing incursions on their freedoms is the best way to fight disease. Unnecessary incursions on civil liberties are counterproductive from a public health standpoint.

The Centers for Disease Control and White House are to be commended for remaining level-headed and professional in the midst of what one quarantine expert called a “political parade of follies.” Experts say that there will likely be additional sparks of Ebola landing in the United States for as long as the epidemic rages overseas. Let us hope that in the midst of what will no doubt be breathless coverage of those cases, cooler heads continue to prevail.


North Carolina Doubles Down on Shaming Women Who Seek Abortions

October 29th, 2014 No Comments   Posted in ACLU Nationwide
By Andrew Beck, Reproductive Freedom Project

Another day, another attempt by politicians to shame and humiliate a woman seeking an abortion. Yet again, the government intrusion pushes right into the exam room.

Today the state of North Carolina is asking an appeals court to reinstate a medically unnecessary, intrusive, and mandatory ultrasound law, which a federal judge blocked earlier this year. North Carolina's law would require a physician to show every woman who seeks an abortion an image of the fetus, describing the image in detail during the procedure. The physician has to do this even if the doctor thinks it would be psychologically harmful and even if a woman says she doesn't want to see it or hear it.

In fact, the state's position is that if a woman doesn't want to see the ultrasound screen and hear the detailed description, she should just put on eye blinders and headphones.

If you're thinking that this law has nothing to do with good medical care and is all about punishing and humiliating women, you're spot on. Major medical organizations, like the American Medical Association and the American College of Obstetricians and Gynecologists, have made clear that laws like this one are the antithesis of good medical practice.

So if they're not good medicine, why are politicians still determined to pass them?

The state of North Carolina made that crystal clear: to stigmatize abortion. The state all but admitted that the law is designed to shame a woman seeking an abortion and to make the experience more difficult.

North Carolina's position is that a woman seeking an abortion should "be a man about it" and "hear what is not pleasant to hear."

Plus, the state says, even if the doctor or the woman don't think it's necessary to view and describe the ultrasound, the intrusive ultrasound law lets politicians send a woman the message that "her fellow citizens" "are concerned about the potential effects of the decision she is making and think there are certain facts she should know and consider in order to make a mature and informed decision about the choice the law makes available to her."

In other words, North Carolina politicians don't trust a woman to make her own decision. Instead, they want to make sure every woman seeking an abortion gets a special message of disapproval in the exam room.

How insulting—but of course that's the whole point. Let's hope that the appeals court sends these politicians a message instead and pushes politicians out of the exam room, where they certainly don't belong.

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UPS Finally Admits the Obvious – Letting Pregnant Workers Work is Good for Business

October 28th, 2014 No Comments   Posted in ACLU Nationwide
By Ariela Migdal, ACLU Women's Rights Project

We recently reported that the fight to let pregnant workers come to work has finally reached the Supreme Court.

On December 3, the court will hear the case of Peggy Young, a United Parcel Service (UPS) package driver who was forced off the job while she was pregnant, when she requested a temporary light-duty position. The case has important implications for millions of women, including our client Julie Desantis-Mayer, another UPS driver who was pushed out of the workplace after she requested light-duty work on the advice of her doctor.

UPS's consistent practice has been to deny such requests when they come from pregnant women, even though it regularly grants light-duty assignments to workers who are injured on the job and to workers with disabilities.

On Friday, UPS filed a brief with the Supreme Court announcing an about-face in policy.

Going forward, the company said, it will "provide pregnant women the same accommodations as other employees with similar physical restrictions resulting from on-the-job activities." Yes, you read that right – UPS now promises to give pregnant workers the equal treatment they have been demanding all along.

This is a surprising and welcome change.

Essentially, UPS is conceding the argument that treating pregnant workers as well as other workers makes good business sense – even as the company continues to deny that the law requires such equality of treatment. And it still refuses to give back pay to women like Peggy and Julie who were forced off the job in the past.

Still, this is a welcome development – and one that reinforces an argument that a number of business leaders made to the Supreme Court in a friend-of-the-court brief: Treating pregnant workers equally is not only good policy, it's a good business practice.

Women like Peggy Young and Julie Desantis-Mayer should not have to go to court, much less the Supreme Court, to fight for their basic right to go to work and earn a living without putting their pregnancies at risk. In the past year, a number of states have taken action, passing Pregnant Worker Fairness laws to clarify that employers must provide reasonable accommodations to pregnant workers. A similar bill, the Pregnant Workers Fairness Act, is gathering steam in Congress.

On December 3, the Supreme Court has the opportunity make clear once and for all that our civil rights laws require what UPS has already admitted is good business policy: equal treatment for pregnant workers.

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Eight Police Officers Fired 46 Times at My Mentally Ill Son for Holding a Pen Knife

October 27th, 2014 No Comments   Posted in ACLU Nationwide
By Jewel Hall

The following is an excerpt from an interview with Jewel Hall conducted by the ACLU of Michigan about the killing in 2012 of her son Milton by eight police officers. Parts of her interview appear in the video below, which also includes footage of the police killing Milton. Today the ACLU of Michigan is presenting this video at a hearing about racial disparities in the U.S. criminal justice system before the Inter-American Commission on Human Rights, which is part of the Organization of American States. The county prosecutor declined to bring charges against the officers involved, and earlier this year, the Department of Justice also declined to bring charges against them. The interview has been lightly edited for clarity.

Milton was a homeless, mentally ill African-American man, who was born on April 25, 1963, in Saginaw, Michigan. He was a community worker, and he was always there speaking out for those whom he considered the weak, for those who did not have the strength to speak for themselves.

He had a mental disability that became apparent as a young adult, from when he was probably 24 or 25. But in spite of this, he lived his life independently and with freedom.

He managed his own affairs, and that I supported and understood.

As long as he was on his medication and all, he did fine. It was when he wasn't on his medication that he was impatient. He'd sometimes become intolerant. But when he was on his medication, he maintained.

He always would say everybody has equal rights. That was one of his songs that he sang all the time. So he exposed violations and campaigned for redress for people that he thought were victims.

Milton took action to ensure and promote equal rights, and that was part of his training that he got from working with Rosa Parks. He was always addressing institutional racism. I admired him for that.

Being an avid reader and a researcher, he was knowledgeable about oppression, particularly violence towards poor people, people of color , the homeless, and those who struggled with mental illness.

For him to be shot at 46 times and hit 14 times by all white policemen, it really raised questions in my mind. How they circled him and assassinated him. One policeman, after he was on the ground, turned him over, handcuffed him, and put his foot on his back.

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His blood running down the street like water. And he wasn't a threat, I mean, he had a little pen knife. He had no idea that those policemen would do that to him.

To have eight people stand in front of one human being and shoot at him 46 times and hit him 14 times – it's been devastating to our family. It was devastating to the community, to everybody. And justice still has not been served.

When you have the U.S. government go in and look at Milton's case for four or five months and then come out and say, "Well, it wasn't intentional." To shoot at somebody 46 times and it wasn't intentional? It has given me a commitment for the little time that I have left to work with parents whose kids have been similarly killed.

What needs to change is how police deal with situations like the one that ended in my son's death. The elected leaders and community leaders must address conditions that allow police to use excessive and deadly force with impunity.

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