Mohamedou Ould Slahi Is the Best-Selling Prisoner of Guantánamo

March 20th, 2015 No Comments   Posted in ACLU Nationwide
By Linda Moreno

This piece originally appeared at Slate.

It has become a rite of passage for new authors in the digital age to obsessively check Amazon to track book sales and tweet positive reviews in the hopes of picking up new readers. But for one author, whose book was on the New York Times best-sellers list for three weeks, this isn’t possible. He doesn’t know how well his book is doing or even what the book looks like. He lives in the informational black hole that is Guantánamo.

Tens of thousands of people have now read the harrowing story of ISN 760, the number our client, Mohamedou Ould Slahi, was assigned when he was rendered to Guantánamo Bay in August 2002. On Nov. 20, 2001, Mohamedou complied with a request from the Mauritanian police to answer some questions. He has not been home since but has spent the past 14 years imprisoned. The United States has never charged Mohamedou with any crime. In April 2010, a federal judge granted his habeas petition, ordering his release. But the government appealed, and he is still there. His telling of his story first appeared in Slate in 2013, and his book, "Guantánamo Diary," which he wrote by hand three years into his captivity, was published in January and has become an unexpected literary sensation.

Last month, I traveled to Guantánamo Bay to deliver the news to Mohamedou in person—practically, the only way his lawyers can communicate with him—that his book had been translated into dozens of languages to international acclaim. I was able to tell him that nearly 50,000 people had signed an American Civil Liberties Union petition asking for his immediate release. He learned that people from all walks of life, including former government prosecutors, schoolteachers, singers, and poets, were moved by his story and came forward with support.

I told him that celebrities and artists such as Colin Firth, Benedict Cumberbatch, Brian Eno, and others have recorded passages from his book, which are posted on a special section of the Guardian’s website. I hoped this news would give Mohamedou some comfort.

I also wanted to show Mohamedou a copy of his book. I wanted him to see the power of its cover, which features the black bars of the government’s redactions, with just the title, his name, and his editor’s name peeking through, as if gasping for air. The cover’s background is Mohamedou’s own handwriting from his manuscript, fragmented words, censored because the United States claimed they were classified. But the rules governing what detainees are allowed to receive at Guantánamo prohibited me from giving him a copy of his own book. I couldn’t bring it in.

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Even though Mohamedou is the author, the book contains an introduction and footnotes that he did not write. Before seeing my client, the Guantánamo authorities asked me to certify in writing that none of the items I was bringing contained any classified material—a new requirement in the ever-changing rules for prisoner visits at Guantánamo. Because I could not say for certain that the author of the introduction and the footnotes had not included something that is classified, even if that information was already in the public domain, I couldn’t show Mohamedou a copy of his book.

I was able to show him color copies of the international book covers of "Guantánamo Diary" and a photo of the U.S. edition as well as the front page of the Albuquerque Journal, which had a photograph of two of his other attorneys. But if an article about WikiLeaks or Chelsea Manning or anything else the government deems classified had also appeared on that page, it would likely have been prohibited. I know Mohamedou would have liked to study these items, looking at them over and over, but due to the rules governing detainee access to materials from counsel, I had to take them with me when I left at the end of the day.

For the past several years, prison officials allowed Mohamedou to keep books and a few other possessions in his cell. A few months before the release of his book, Mohamedou was moved to a different cell in Guantánamo. Nearly every single thing he owned for the past 13 years was taken from him. Among the seized property were his books, including one that had been given to him by a guard, whom Mohamedou had described in his memoir. In the book, the guard wrote:

Over the past 10 months I have gotten to know you and we have become friends, I wish you good luck, and I am sure I will think of you often. … I hope you think of us as more than just guards. I think we all became friends.

The only book he was allowed to keep was his copy of the Quran. We haven’t been told why.

I cannot now write about what Mohamedou Slahi said to me during the visit because it is deemed presumptively classified—at some point in the future, a government censor will review my notes and determine what I can and cannot share from that conversation. That is the reality of representing a client in Guantánamo. But what I can say is that Mohamedou is deeply moved by all of the attention his story has received and appreciative for the efforts of all the people, worldwide, who care about his story. I can also say that while he is hopeful, he is fragile, debilitated, and he wants to be free.  

He wants to go home.

Linda Moreno is a nationally prominent defense attorney and one of Mohamedou Ould Slahi’s habeas attorneys.

DHS Sends Troublingly Mixed Messages on Secure Communities Reform

March 20th, 2015 No Comments   Posted in ACLU Nationwide, Washington Markup
By Chris Rickerd, ACLU Washington Legislative Office

UPDATE: ICE Director Sarah R. Saldaña had this to say on Friday afternoon about her comments regarding Secure Communities: “Any effort at federal legislation now to mandate state and local law enforcement’s compliance with ICE detainers will, in our view, be a highly counterproductive step and lead to more resistance and less cooperation in our overall efforts to promote public safety.”  See full statement here.  -- 1:46 p.m., 3/20/2015

In her debut testimony before Congress yesterday, new Immigration and Customs Enforcement Director Sarah Saldaña enthusiastically agreed with Rep. Mick Mulvaney’s (R-S.C.) suggestion that Congress “clarify the law” by forcing state and local compliance with ICE requests to keep people in jail after their release dates. 

Secretary of Homeland Security Jeh Johnson, Saldaña’s boss, struck a very different tone last November when he acknowledged “the increasing number of federal court decisions that hold that [detention based on ICE requests to] state and local law enforcement agencies violates the Fourth Amendment.” He pledged to reform, and rename, the Secure Communities immigration enforcement program – which relies on state and local detention of immigrants – in a way that “supports community policing and sustains the trust of all elements of the community in working with local law enforcement.”

Saldaña’s statement, however, directly contradicts her boss’s approach, not to mention a recent federal appeals court decision that ICE can only make non-binding detention requests. Thankfully, neither she nor Congress can “clarify” the Constitution. The Fourth Amendment and principles of federalism prohibit forcing state and local jurisdictions to deprive people of their liberty based only on an ICE official’s suspicion of immigration violations. Saldaña’s testimony calls into question DHS’s commitment to reform the failed Secure Communities program, which has caused rampant racial profiling, hundreds of thousands of unjust family separations, and deters immigrants from calling the police – even after witnessing or being victimized by crime

Secretary Johnson stated four months ago that a new Priority Enforcement Program (PEP) would be implemented to replace Secure Communities “almost immediately.” Among other proposed changes, the secretary directed ICE to discontinue many of its requests for detention. The ACLU analyzed PEP’s strengths and weaknesses. However, four months after the secretary’s announcement, PEP still does not exist and the stench of Secure Communities lingers on. 

Saldaña’s few choice words asking Congress to force sheriffs sworn to uphold the Constitution to violate their oaths, and contradict their communities’ best judgments about local public safety, were shocking. By saying “Thank you, Amen, yes!” to Rep. Mulvaney, Saldaña insulted all the states and localities across the country who have wisely decided to stay out of immigration enforcement. 

Saldaña’s answer casts serious doubt on whether DHS is truly committed to rebuilding the trust so badly damaged by Secure Communities. She and DHS must immediately clarify their true intentions and end ICE’s unconstitutional detention requests.

Poverty Is Not a Crime, Whether You Live in DeKalb County or Ferguson or Anywhere Else

March 19th, 2015 No Comments   Posted in ACLU Nationwide
By Nusrat Choudhury, Staff Attorney, ACLU Racial Justice Program

Kevin Thompson, a black teenager in Georgia, was jailed for five days in December 2014 because he could not afford to pay court-ordered fines and company fees related to a traffic ticket.

In January, the ACLU, the ACLU of Georgia, and the Southern Center for Human Rights filed a federal lawsuit against DeKalb County, Georgia, and for-profit company Judicial Correction Services Inc. on his behalf. Yesterday, less than two months after the filing, we reached a settlement that promises to prevent others from being improperly jailed for being poor in DeKalb County.

This settlement could not have come at a more important time. More than 30 years ago, the Supreme Court ruled that debtors’ prisons are unconstitutional. Yet, as described in the Thompson v. DeKalb County complaint and the Department of Justice’s damning report on Ferguson’s law enforcement, courts in Missouri and across the country lock people up when they cannot afford to pay fines and company fees arising from traffic tickets and other minor offenses. 

But efforts to generate revenue by targeting this vulnerable group – people too poor to pay fines and fees for low-level crimes on sentencing day – have had a devastating impact on communities of color and have led to the violation of people’s constitutional rights to fair treatment and equal protection of the law. The settlement achieved in Thompson v. DeKalb County promises to forge a new path in DeKalb County and provide a model for other courts to follow. The chief judge of the court that sentenced Thompson to jail agreed to take measures to protect the rights of people who cannot afford to make fine and fee payments required as a condition of probation for traffic and other misdemeanor offenses.  

These policy changes include:

  • Adoption of a “bench card” that provides judges procedures to follow to help make sure that poor people charged with failure to pay are afforded lawyers and are not jailed simply because of their poverty. The card lists the legal alternatives to jail and describes how to determine someone’s ability to pay and to protect their right to counsel in court proceedings concerning failure-to-pay charges.
  • Training and guidance to court personnel on probationers’ right to counsel in revocation proceedings and right to an indigency hearing before jailing for failure to pay fines and fees.
  • Revision of forms to let people charged with failure to pay know of their right to court-appointed counsel in probation revocation proceedings, and their right to request a waiver of any public defender fees they cannot afford.

Following the filing of Thompson v. DeKalb County, the Georgia General Assembly passed a law entirely abolishing the court that sentenced Thompson to jail by July 1, 2015, and transferring its cases to two other courts in DeKalb County. The policy reforms achieved in this settlement will apply in the interim period to judges in whatever capacity they are adjudicating misdemeanor probation cases in DeKalb County. They will also set an example for how the courts inheriting these cases can protect the rights of poor people who cannot afford to pay court-ordered fines and company fees related to a traffic tickets and other misdemeanor offenses.

In a previous blog post about his lawsuit, Thompson movingly wrote about the shame, pain, and fear he felt from being jailed and separated from his family for failure to pay traffic fines and probation company fees he could not afford. Under the settlement agreement, the defendants will also provide Thompson a monetary payment.

Being poor is not a crime. The Supreme Court made that clear decades ago. By standing up for his rights, Kevin Thompson has shown that this principle remains true today. In the process, he has helped to bring about promising changes to prevent debtors prisons in his home county so that others do not experience what he went through.

And for that, we are all grateful.

Millions Severed From the Body Politic

March 19th, 2015 No Comments   Posted in ACLU Nationwide, Washington Markup
By Deborah J. Vagins, ACLU Washington Legislative Office

This year marks the 50th anniversary of the Bloody Sunday march for voting rights and the passage of the Voting Rights Act.  In this historic year, as we work to strengthen and update the law that protects voters of color at the polls, it is important to remember another ongoing denial of this most fundamental right. An estimated 5.85 million citizens cannot vote as a result of criminal convictions. Nearly 4.4 million of those have been released from prison and are living and working in our communities, yet they are denied a political voice. 

Like other discriminatory tactics, criminal disfranchisement laws proliferated during the Jim Crow era and were intended to bar minorities from voting, but the impact of these laws continues today. Nationwide one in 13 African-Americans of voting age cannot cast a ballot – a rate four times the national average.

States have vastly different approaches to voting with a criminal conviction. This patchwork of state laws has caused confusion among election officials and the public. It has even resulted in legitimate voters – even those with no disqualifying criminal conviction – being  purged from the rolls, denied the ability to register to vote, or cast their ballots.  All of these factors work together to diminish the collective voice of these communities. And while there have been significant support for reform from faith, law enforcement, and civil rights organizations as well as a bipartisan movement at the federal and state levels, progress is too slow.

One federal court in Mississippi noted: “Disenfranchisement is the harshest civil sanction imposed by a democratic society. When brought beneath its axe, the disenfranchised is severed from the body politic and condemned to the lowest form of citizenship.” By continuing to deny citizens the right to vote based on a past criminal conviction, the government is endorsing a system that expects these citizens to contribute to the community but then denies them participation in our democracy. 

Fortunately, Sen. Ben Cardin (D-Md.) and Rep. John Conyers (D-Mich.) introduced a critical bill  yesterday that would fix this problem by establishing a uniform standard for voting in federal elections. 

The Democracy Restoration Act (DRA) would eliminate the confusion caused by the current state laws, streamline election administration, and ensure that probationers never lose their right to vote in federal elections. It will also ensure that people are notified about their right to vote in federal elections when they are leaving prison, sentenced to probation, or convicted of a misdemeanor. The DRA would finally erase the injustice of these laws and bring our returning citizens full voting rights in federal elections.

As we remember the incredible strides that were made 50 years ago for voting rights and work to repair the Voting Rights Act, let us also not forget the millions of citizens who are returning to our communities but have been severed from the body politic. We must work to return their fundamental right to vote with swift passage of the Democracy Restoration Act.

Why Utah Is No Utopia for LGBT Equality Despite Progress

March 19th, 2015 No Comments   Posted in ACLU Nationwide
By Rose Saxe, AIDS Project

The passage of a bill in Utah last week that will protect gay and transgender people from discrimination in housing and employment is a timely and important achievement: It ensures that the LGBT community cannot be singled out for unequal treatment. Over 50,000 gay and transgender Utahns will no longer need to fear being fired or refused an apartment just because of who they are.

But it would be a mistake to assume that the remedies offered in SB 296 can be championed as a model for nationwide replication. Utah’s law still leaves gay and transgender people without much needed protections from discrimination in places of public accommodation like stores, restaurants, and theaters. And longstanding Utah law contains an exemption that means the nondiscrimination law doesn’t apply to religious organizations. 

Last summer, coming on the heels of the Supreme Court’s deeply troubling decision in Hobby Lobby, the ACLU and other groups made the decision to withdraw support for the federal Employment Non-Discrimination Act over the inclusion of a sweeping provision to allow religious organizations to discriminate against LGBT employees.

In spite of demands for much broader exemptions in Utah, the bill that passed last week treats LGBT discrimination the same as other forms of discrimination prohibited under state law. That Utah now joins 18 states plus Washington, D.C., with explicit protections from discrimination is a significant accomplishment. 

Sen. Jim Dabakis (D-Utah) acknowledged in The Washington Post that the bill underscores that common ground can be found among religious groups and gay and transgender advocates.  Ultimately, that common ground rested on the fact that Utah already had an exceedingly broad exemption that freed religious employers from its nondiscrimination laws wholesale. These organizations are currently allowed to discriminate based on characteristics like race, sex, and age, and adding protections for LGBT people doesn’t change that. 

However, this isn’t the rule in most of the country. It’s important to remember that existing laws in many states, and our federal employment nondiscrimination laws, do not permit religious organizations that serve the general public and employ people of diverse faiths to freely discriminate against their employees who hold secular positions. 

Instead, these organizations are allowed to have a preference in hiring for people of their own faith. When it comes to other kinds of discrimination, they must operate under the same rules as all other employers. There’s no good reason to allow a religiously affiliated hospital to discriminate against women or people of color, and similarly there’s no good reason to allow them to engage in sexual orientation or gender identity discrimination. 

We chose to support SB 296 despite these concerns, because it offers significant protections in Utah, and it doesn’t identify a person’s sexual orientation or gender identity as cause for more severe forms of discrimination."

That’s important, but it doesn’t make Utah an archetype for other states looking to protect LGBT people from discrimination. And it doesn’t mean that our work in Utah is over.

Be Careful With Your Micro-Expressions at the Airport

March 19th, 2015 No Comments   Posted in ACLU Nationwide
By Hugh Handeyside, Staff Attorney, ACLU National Security Project

You're late for your flight, sweaty from having dragged your luggage to the check-in counter, and stressed about making it through security before boarding begins. For some of us, this is the rule, not the exception. For most of us, it's a pretty unremarkable scenario.

Not so fast, says the Transportation Security Administration. Typical airport behavior like this could make you a suspicious traveler who should be subjected to questioning and additional screening – and possibly referred to the police for investigation, detention, or arrest.

That should seem far-fetched, but it isn't. The TSA continues to use pseudo-scientific "behavior detection" techniques that have given rise to persistent allegations of racial and ethnic profiling at our nation's airports.

Through a program called Screening Passengers by Observation Techniques, or SPOT, the TSA employs thousands of "behavior detection officers" who scrutinize travelers to look for signs of "mal-intent" in airport screening areas. The officers typically spend less than 30 seconds scanning an average passenger for over 90 behaviors that the TSA associates with stress, fear, or deception. When the officers perceive clusters of such behaviors in any given individual, they refer that person for secondary inspection and questioning.

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We Need to Move Beyond the Frame of the “Bad Apple Cop”

March 19th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project

I and others have argued that video has “killed trust in police officers.” Police have been able to get away with a lot of abuse because judges, juries, and the public have usually deemed police officers more credible than abuse victims. But with a regular parade of videos being posted online, a certain naive faith in police officers held by many Americans may be eroding.

But what has often replaced that blind trust is the frame of the "bad apple" police officer. In this view of the world, the only problem that we face in law enforcement is the inevitable appearance within police ranks of an occasional individual of unusual anger and brutality.

The problem is, police problems appear to be far more systematic. There are many reports of police abuse that call into question the “bad apple” notion.

Take, for example, the Chicago Police Department and its “Gestapo” tactics at a “black site” where arrestees were, according to recent reporting by the Guardian, often held incognito and mistreated. Rather than an anomaly, the record suggests that the Chicago police have used abusive interrogation tactics for decades. From another Guardian report:

Highly decorated Chicago Police Commander Jon Burge... used the techniques he learned [in Vietnam] on black suspects in Chicago. These techniques included Russian roulette with pistols and shotguns, burning suspects on radiators, suffocation with typewriter covers, beatings with phone books and electric shocks to the ears, nose, fingers, and testicles.

Burge was a fast-rising and well-respected officer who operated with impunity; neither his colleagues nor his supervisors blew the whistle. Neither did prosecutors or officials in the Cook County State’s Attorney’s Office....

Once public pressure mounted—and only then—Burge was finally fired in 1993, accused of torturing confessions out of what is believed to be more than 100 African American men. He was not, however, without his defenders: at the time of his firing, the Chicago Fraternal Order of Police, the largest union representing officers, attempted to run a float honoring Burge in the Chicago’s St Patrick’s Day parade. And it wasn’t until 2006 that a special prosecutor was appointed to examine Burge’s record and determine if a criminal case could be brought against him.

In Ferguson, Missouri, of course, the Justice Department recently reported that police there engaged in systematic, often brutal racial discrimination in enforcement, that that enforcement was oriented towards extracting revenue out of black citizens rather than protecting public safety, and that it took place within a larger context of corrupt municipal courts. Other recent Justice Department reports in Cleveland and (as I recently wrote about) Albuquerque found patterns of unnecessary use of excessive force, including deadly force. The DOJ found that in Cleveland, the problems were “rooted in common structural deficiencies,” such as proper training, and a “failure to adequately review and investigate officers' use of force.” In Albuquerque the DOJ likewise found the problem “stems from systematic deficiencies in oversight, training, and policy.”

It is not as if the DOJ is particularly tough on police officers (see, for example, this tragic case where the department declined to prosecute).

Even in cities without problems at that level, systematic racial profiling has been found in numerous studies of policing—for example, in Minneapolis and Boston.

My interest in the police is focused on technology, but even just in the area of photographer's rights, I have encountered numerous cases where police officers' wrongdoing is supported by their departments. To take just one example, in May 2013 a Bakersfield, CA woman saw six sheriff's deputies, a sergeant, and two California Highway Patrol officers beating a man, David Sal Silva, and recorded it on her phone, as did her daughter's boyfriend, according to news reports. The man, surrounded by officers, reportedly screamed and cried for help as he was beaten, and was later pronounced dead. Detectives then showed up at her daughter's house at 3:00 AM, and prevented the daughter and her boyfriend from leaving the house for 3 hours until he handed over his phone. Detectives also later confiscated the woman's phone. In neither case did they have a warrant. Nor did they allow them to simply email the relevant file to the police, the policy that would satisfy any evidentiary claims the police have to the video. Later, there were indications that the police may have destroyed video of the incident. In April 2014 the DA declined to file charges, saying that Silva's death was an accident. (Silva's family and the witnesses have filed suits.)

The "bad apple" frame would suggest that the officer or officers leading the response in this incident were individual rogues, and that their fellow officers understood that their response was a problem. Yet there were nine law enforcement officers present. And then separately a number of detectives showed up later to seize the witnesses' cameras, which suggests a high degree of internal coordination within the police department. And the department hasn't released the video (which its creators would do, had the police not seized their phones).

Are the officers involved in these kinds of incidents bad people? In some cases, no doubt they are, but that is not a useful way of thinking about the problem. There is no question that there are some individual officers who are troubled, confrontational, and violent, or otherwise not up to the job of serving as a police officer with professionalism. At the same time, it’s clear that the problem often goes well beyond individual officers. The very fact that these problems appear to be so widespread suggests that there is something systematic rather than personal about the problem. Whatever it is that drives individual officers to engage in abuse, it clearly does not require some rare and unusual pathology. And given how common it is for officers to be protected instead of disciplined for abuse, that behavior also seems to reflect systematic problems, whether the in-group psychology behind the “blue wall of silence,” or the self-protective and sometimes evil behavior that all bureaucracies, including police departments, tend to exhibit.

When it comes to the “bad apple” frame, I suspect that there are powerful psychological forces pushing people to want to trust the police. The relative stubbornness of such trust probably has to do with the power of cognitive dissonance and the “Just World Hypothesis” (the strong need to believe that the world is a just place and that we are in control of our destiny). Rather than accepting the stressful reality that police officers, with all the power they wield over us, are capable of such abuse, we maintain a faith in their fundamental trustworthiness. If that belief cannot withstand the barrage of video-age evidence of abuse, then we revert to the “bad apple” frame as the next-most-comforting thing: there may be some people who are unlucky enough to encounter a rare bad apple police officer, we reason, but the problems are no worse than that.

Of course, the residents of Ferguson and other targeted communities may not hold any illusions about the nature of the problem. But many more privileged Americans—who tend to control law and policy—do.

And the urge to view things in those terms is inhibiting reform. As long as we see things in personal terms, Americans won’t tackle the heart of the problem. We need to demand that law enforcement officers be accountable for their actions just like all other citizens, and put in place institutional measures to make that happen, not only body cameras, but also independent oversight bodies with the power to enforce the law against officers, improved training (including in the handling of the mentally ill) and implicit bias training. It's time for a new leap forward in the evolution of our police forces and their professionalization.

How Did a Lifelong Prison Sentence for an Iraq Vet Turn Into an Imminent Death Sentence?

March 18th, 2015 No Comments   Posted in ACLU Nationwide
By Cassandra Stubbs, Director, ACLU Capital Punishment Project

Courtney Lockhart is an Iraqi war veteran now on Alabama's death row, but he shouldn't be.

The jury that heard the prosecutor's request for his execution voted unanimously against it, opting instead for life imprisonment after hearing evidence of Lockhart's brutal tour of duty in Iraq. Lockhart served 16 months in Ramadi, Iraq – the deadliest part of Iraq – where he was attacked with a mortar strike and witnessed far too many friends and comrades die. Once home, he struggled with PTSD, hiding under his bed or in a closet and then living out of his car. His life spiraled into one of isolation and despair, and in 2008 he tragically shot and killed a college student.

The jury voted unanimously to sentence Lockhart to life, based on his military service and PTSD. Yet Lockhart faces execution for the simple reason that his case was tried in the state of Alabama. Alabama is one of only three states that allow judges to override – literally veto – the decisions of juries in capital cases, and the only state to do so in practice.

Serving on a jury in a capital case is hard work. Jurors have to miss work, be separated from their families for extended periods of time, and ultimately decide the fate of another human being. But in Alabama, the product of this expensive and difficult emotional journey is only advisory.

The judge, who faces re-election, can – and in Alabama often does – substitute his or her judgment for the jury's. Delaware and Florida have judicial override on the books, but it is largely a relic of the past. Judges in Alabama, on the other hand, have overridden over 100 life verdicts by juries to impose death. At least 10 people have been executed by Alabama after a judge overrode the jury's verdict of life.

This practice is not just wasteful and dismissive of jurors' time. It is actually unconstitutional. Override of a jury's determination violates the defendant's right under the Sixth Amendment to have a jury, not a judge, make factual findings in a criminal case. It also violates the defendant's right under the Eighth Amendment's prohibition against arbitrary punishments.

The rest of the country has effectively abandoned override – recognizing that is it not an appropriate method of imposing the most serious sanction ever dispensed under the law. Alabama's outlier practice runs afoul of the nation's evolving standards of decency in direct contravention of the Eighth Amendment.

Two years ago the Supreme Court declined to hear a challenge to Alabama's outlier practice in Woodward v. Alabama, over the sharp objections of Justices Sotomayor and Breyer. As Justice Sotomayor explained, she thought the court should hear the case because of "deep concerns about whether [the practice] of override offends the Sixth and Eighth Amendments."

Courtney Lockhart and another Alabama death row inmate, Christie Scott, have now asked the Supreme Court to look at Alabama's unreliable and unfair override practice, in a request that could be decided as early as this week. The court should take this opportunity to bring Alabama in line with the rest of the country, and the Constitution.

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Big Government v. Traumatized Defenseless Children = Justice?

March 18th, 2015 No Comments   Posted in ACLU Nationwide
By Joanne Lin, Washington Legislative Office

Imagine a child alone in immigration court – defenseless – representing herself against a government prosecutor, standing before an immigration judge, and trying, in a language she does not speak, to make a case for her life. Unfortunately, this horrifying scene takes place regularly across the country and Congress is currently debating legislation that could make an unhappy ending to this scene even more likely.

As children continue to enter immigration courts alone, this month, the House Judiciary Committee debated two immigration bills that aim to gut the due process rights of traumatized children, many of whom have fled violence and sexual abuse and who face potential lethal harm if deported to Central America. Both bills were voted out of committee and their next stop could be the House floor.

The Asylum Reform and Border Protection Act (H.R. 1153) and the Protection of Children Act (H.R. 1149) seek to extinguish the government's existing authority to pay for legal representation for individuals in deportation proceedings. H.R. 1153 seeks to bar the government from paying for immigration counsel for anyone in removal or appeal proceedings, including children, adults with mental disabilities and other vulnerable persons. Currently, only one-third of unaccompanied children in deportation proceedings are represented by an attorney. H.R. 1153 also appropriates funds to hire 60 more government trial attorneys. H.R. 1149 takes aim at unaccompanied children by weakening their right to counsel, and states that "access to counsel" suffices. It doesn't matter if they don't speak English, don't know what they need to prove up, and don't understand what's at stake if they lose. They're on their own. Worse, given the 2014 influx of Central American children to our border, refugee protection and human rights experts reported that large numbers of children fled brutal sexual and gang-related violence.

Government-paid counsel is an indispensable component to a fair and efficient immigration court system. The presence of immigration counsel greatly increases children's chances of winning their immigration case. Using a decade's worth of immigration court records, the Transactional Records Access Clearinghouse at Syracuse University found that whether an unaccompanied child had an immigration attorney was the single most important factor influencing the case's outcome. In nearly three-quarters of cases in which a child was represented, the immigration court allowed the child to remain in the U.S. In the cases where the child had no immigration counsel, only 15 percent of the children were allowed to remain in the U.S. The remaining 85 percent were ordered to be deported.

While Congress continues to fight over immigration, all lawmakers should agree on two basic principles: children cannot represent themselves in high-stakes deportation proceedings. And our Constitution and our conscience cannot tolerate a court system that pits powerful government prosecutors against defenseless traumatized children, who, upon deportation, could be harmed, and even killed.

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Politics Swirling Around Clinton Email Scandal Obscure Real Problems

March 17th, 2015 No Comments   Posted in ACLU Nationwide, Free Future
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

Hillary Clinton’s use of a personal email server while secretary of state has inevitably become a fully inflated political football in these early days of the 2016 presidential race—with the right somehow linking the emails to the late Vince Foster, and Clinton’s allies offhandedly dismissing the value of open government with comments like “people don’t care about email policies."

But make no mistake, the scandal has highlighted the very real dangers to government transparency that result when politicians use private accounts to conduct official business. The scandal also highlights important concerns around cybersecurity and overclassification.

Here’s the background. Shortly before being sworn in in 2009, outgoing Senator Clinton set up a private email server at her home in Chappaqua, New York and registered the domain “” Two months later, Secretary of State Clinton started using that email exclusively for all correspondence—both private and government.

This practice was at odds with relevant guidance at State. Further, by keeping all emails, private and professional, on one server, Secretary Clinton effectively gave herself personal veto power over what would be subject to open records laws and what wouldn’t. And, in fact, that’s what happened. Although Secretary Clinton turned over 55,000 pages of emails in 2014, she made the determination on what to disclose and what to destroy (including over 32,000 emails that she deemed, at her sole discretion, private).

Fortunately, the laws have changed since then and high-ranking officials are now expressly required, if they use personal email accounts for government business, to send a copy of the work email to the government within 20 days. That requirement must be enforced strictly.

So what are the concerns?

The open government point should be obvious. Ironically, the Clinton White House was the first to recognize the importance of email as potential federal records. Previously treated as akin to disposable pink phone message pads, then-Staff Secretary John Podesta wrote a memorandum in 1993 clarifying that emails qualify as presidential records and must be retained. Out of concern that records could be lost, that memo barred the use of personal systems.

Violations of that policy during the Bush administration starkly highlighted the danger in allowing government officials to conduct official business using private accounts. As the Committee for Responsibility and Ethics in Washington has documented at length, various Bush White House officials used Republican National Committee accounts to communicate with Attorney General Alberto Gonzales in what would become the scandal over the hiring and firing of United States attorneys that the Department of Justice later found to be the inappropriately politicized.

The decision by Secretary Clinton to use “” exclusively for official business disregards these historical examples. Unfortunately, officials can face the strong temptation to hide official business out of the reach of Freedom of Information Act requests. And as the new retention rules recognize, that’s unacceptable for our democracy.

On cybersecurity, the concerns are perhaps less apparent but are just as acute. As ACLU Principal Technologist Chris Sogohian has noted at length, you’re “on your own” when protecting a private server from hackers. With a government email account, you’ve got an entire IT apparatus protecting your information. Indeed, security for the government system is going to incorporate state-of-the-art techniques developed by the National Security Agency, which, despite its issues with mass surveillance, is pretty good at keeping hackers at bay.

Finally, the email controversy highlights the incoherence and unfairness of existing classification policies. Despite the fact that the State Department routinely deals in extensive volumes of classified information, Secretary Clinton has said that absolutely nothing in her private email was classified. As many classification experts have noted, that’s pretty astounding if true, especially given that, as we now know, President Obama himself communicated with Secretary Clinton using her private email. Worse, and regardless of whether the claim is true, Secretary Clinton is virtually assured of immunity from any investigation into the improper handling of classified information, let alone legal consequences.

That immunity should be seen as of a piece with the amazingly lenient treatment of General David Petraeus, who pleaded guilty to a misdemeanor earlier this month for giving classified documents to his mistress while serving as the head of the CIA. And it contrasts tragically with the 35-year sentence imposed on Private Chelsea Manning (who, ironically, was prosecuted in part for releasing State Department emails), or the three felony charges facing Edward Snowden, or the months and months of hard time to be served by the unprecedented number of other national security “leakers” prosecuted by the Obama administration.

Fortunately, this whole imbroglio leaves us with a teaching moment. Secretary Clinton could—like President Obama in 2008—pledge a new-found commitment to open government. If she does decide to run in 2016, she should acknowledge her mistake in using a private server and embrace the cause of government transparency as a campaign promise. That’s actually the best way to give her team possession of this political football—not to mention being the right thing to do.

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