By Zak Newman, ACLU Washington Legislative Office
It wasn't long ago that President Obama announced on Reddit, "We will fight hard to make sure that the internet remains the open forum for everybody - from those who are expressing an idea to those who want to start a business."
The NSA's surveillance programs fly in the face of that commitment. And, more critically, they violate international law.
A recent ACLU and Amnesty International submission to the Privacy and Civil Liberties Oversight Board (PCLOB) explains that Section 702 of FISA—enacted by Congress in 2008 to codify the Bush administration's warrantless wiretapping program—authorizes surveillance that is not only unconstitutional but that violates the long-established human right to privacy. The International Covenant on Civil and Political Rights (ICCPR), which the U.S. ratified in 1992, has four primary requirements relevant to national surveillance programs.
Surveillance must be:
- limited by statute and clearly defined in nature and scope;
- narrowly tailored to address legitimate governmental objectives, such as threats to national security;
- subject to independent oversight systems to prevent abuse;
- and applied equally irrespective of nationality.
Section 702 of FISA fails each of these requirements.
Section 702, as our submission explains, "provides US officials an extremely broad grant of authority and effectively unfettered discretion to secretly collect, store, and use protected communications." Meanwhile, Section 702 programs – like PRISM – provide virtually no "protection of the privacy interests of non-US persons outside US territory." That means there are few clear boundaries, little oversight, and no meaningful protections against surveillance for noncitizens.
That's not just the position of civil liberties and human rights groups. In its recent Concluding Observations on U.S. compliance with the ICCPR, the U.N. Human Rights Committee agreed:
The Committee is concerned about the surveillance … under Section 702 … conducted through PRISM. ... The Committee is concerned that until recently, judicial interpretations of FISA and rulings of the Foreign Intelligence Surveillance Court (FISC) have largely been kept secret, thus not allowing affected persons to know the law with sufficient precision. … The Committee is concerned that the current system of oversight of the activities of the NSA fails to effectively protect the rights of those affected.
So why does international law matter here?
First, disrespect for privacy rights around the world is inconsistent with U.S. policy goals and rhetoric. As the President's NSA Review Group stated in its report: "The United States should be a leader in championing the protection by all nations of fundamental human rights, including the right of privacy, which is central to human dignity."
Second, NSA surveillance programs have already created observable "chilling effects" for both citizens and noncitizens – they actually change the way we behave. Recent studies show that knowledge of the government's omnipresent collection programs has shifted the way people conduct their digital lives, causing us to be more selective about which search terms we use and what services we connect to. As our submission notes, this stifles Internet freedom, a long-recognized policy objective of the current administration.
Finally, NSA surveillance undercuts international human rights law that protects Americans, too. U.S. disregard for noncitizens' right to privacy gives the green light to other governments to indiscriminately collect and surveil Americans' most personal data. For the protection of its own citizens' privacy, the U.S. must respect the rights of noncitizens.
Americans understand that the surveillance programs exposed by Edward Snowden violate the Constitution, and it has been heartening to witness the protest movement growing in response. But it's important to consider international implications as well. The United States should be setting global standards – not breaking them.
We know that cuts to early voting are bad for voters. But just how bad are they?
As part of our lawsuit against North Carolina's voter suppression bill, we asked Ted Allen, a professor of industrial engineering at Ohio State University, and Paul Gronke, a political science professor at Reed College, to crunch some numbers. Both found that shorter early voting periods translate to longer lines and less voters.
During the 2012 general election, over one-half of North Carolinians voted early, with about 900,000 ballots cast during the seven days of early voting that have now been eliminated. If just four percent of those voters showed up on Election Day, waiting times to vote would have more than doubled, according to Allen, who literally wrote the textbook on lines and waiting times to vote.
But some people just can't afford to spend their time in line. With longer waits, Allen calculates that 18,000 people would have given up in frustration and left the lines without voting. And that's just a low-end estimate: In a worst-case scenario, waiting times would have been just shy of three hours to vote. For perspective, that's how long it takes to drive from Raleigh to Charlotte.
And Gronke, the nation's leading expert on early voting, also predicts that North Carolina's cutbacks will reduce the number of people who vote early. He looked at data from Florida in 2012, where over 300,000 fewer ballots were cast after the state similarly eliminated several days of early voting. The decline: 10.7 percent.
Who's going to be hit hardest? African–American voters, who have used early voting at higher rates in five out of the last six federal elections in North Carolina, that's who.
In fact, over 70 percent of black voters (or more than 1.6 million) cast their ballots during the early voting periods in 2008 and 2012. This racial effect is exactly what we saw in Florida in 2012. As Gronke observed, "After Florida cut back on early voting, its population of early voters became less black, and more white."
North Carolina Gov. Pat McCrory has brushed these concerns aside, promising that counties will continue to offer the same number of early voting hours, even as the total number of days shrinks. But, in fact, many counties will not do so.
And, regardless of the hours, we know these problems will happen anyway. Florida did the exact same thing before 2012 – compressing the same number of early voting hours into fewer days – and we know the outcome was still the same: less voting and longer lines.
So here's the long and short of it: When voters have less time to vote early, they have less time to vote. And when voters have less time to vote, fewer people get to exercise the most fundamental right in our democracy.
By Wendy George, Sister of commuted life-without-parole prisoner, Stephanie George
When we were little, we used to tell our mama she had good ears. My little sister and I would whisper under the covers in our bed after lights out, and somehow mom could always hear us. She'd tell us to quit talking and go to sleep.
Tomorrow I'm going to pick up my sister from prison. She's been away for 17 years, and until last December I thought she would never come home. I can't wait to drive back to my house, get in bed, and tell each other everything like we used to.
You'd think I had a twin. As kids, my sister and I looked a lot alike. Our mom used to dress us the same. Even as we got older, we wore the same kinds of clothes. We raised our small kids together. We both wanted to style hair for a living. Since she's been gone, a part of me has been missing. A part of me has been locked up for years.
Stephanie was 26 with four small kids when she was sentenced. Even though the judge objected, a mandatory minimum law meant that she got life without the possibility of parole for being "a girlfriend and bag holder and money holder" in a drug conspiracy.
I tried to make being in there easy for her. At first, I wouldn't tell her the bad things. But our father died when she was in there. I tried to hide our dad's sickness from her, and I had to tell her he'd passed. I know she was worried about me having to bury him alone, without her. "From here on," she said, "I want you to promise me that no matter what's going on outside, I want to know the truth."
Stephanie and I have kept each other going. I was the one to tell her that her son was shot and killed in October. I told her that the Sunday before he died, I saw him in the audience at church when I was singing in the choir. I know he got saved that day. She's made peace with it. I've been there since she went inside, and I'm going to be there when she gets out. It's all going to happen for her again – the grieving – when she comes home.
When Stephanie was sentenced, I took her kids into my home and raised them. I am grateful I had the strength to keep pushing on to make sure that her kids got to the prison to visit their mom. She told me horror stories of some of the women in there who didn't have a family outside to help with the kids. It was a rough role, but I thank God for giving me the strength to raise them all. I talked to my sister on the phone last week and joked that once she gets home, I am going to take a month vacation. She said I deserve it.
Even when they said she had a life sentence, I never accepted that. I've been praying and fighting for this day since day one. And the fighting has paid off. Finally, my sister's sentence has been commuted by President Obama.
She has a lot to come home to that she's lost, but we're going to make some happy times. I've lost 17 or 18 years together with her, but we're still young and can enjoy the rest of our lives together. Mom and I are spending all day today baking, and the whole family will be waiting for Stephanie when we pull into the drive way tomorrow.
I just can't wait. I haven't even been sleeping. I woke up this morning, and the first thing I thought was tomorrow is going to be the day. The day she comes home.
All I can say is if you have a sister, hold on to her.
UPDATE - April 17th, 2014
This morning, Stephanie George was released after her 17-year incarceration. She joyfully embraced her sister Wendy outside the prison.
Photographers’ Rights At Issue As Arizona Community Rises Up Against "Occupying Army" of Border Patrol Agents
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
The ACLU of Arizona today sent a letter to the U.S. Border Patrol demanding that the agency immediately stop interfering with the First Amendment rights of the residents of Arivaca, Arizona, to protest and to photograph government activities that are in plain view on a public street.
The dispute is part of a larger developing story in Arivaca that is actually a pretty incredible tale of citizens rising up against governmental abuse and repression in their own community. I recently spoke with James Lyall, a staff attorney for the ACLU of Arizona, and he described the situation to me:
Arivaca is a community of about 700 people, located 50 miles southwest of Tucson. It's a small town, in a beautiful part of the Sonoran desert. But when you go there sometimes it feels like you've gone to another country or somewhere where they've declared martial law, just because of the overwhelming Border Patrol presence in the community. There are an unbelievable number of armed federal agents—it seems like every other car or person you see out there is Border Patrol— as well as lots of surveillance towers, drones, and helicopters. Our office regularly takes calls from residents who've been pulled over for no reason, detained and interrogated at a checkpoint, or had Border Patrol agents cutting fences and coming onto their property. Residents describe feeling like they're living in a police state or with an occupying army. Agents will tell people, "You have no rights here," and "You're suspect just because you live here."
People are understandably angry at this extreme militarization of their community. So a number of Arivaca residents have come to together to form an organization called People Helping People. It's a true grassroots effort, led by community members, and last year they launched a campaign to demand the removal of the Arivaca Road checkpoint. That's just one of three Border Patrol checkpoints that surround the town and that have had a profoundly damaging impact on the community. Residents have experienced years of routine harassment and civil rights abuse at the Arivaca Road checkpoint, which is about 25 miles north of the border. They also say they've seen a decline in property values and tourism, and harm to local businesses. One local business owner recently went under, she believes, because of the decline in tourism resulting from the checkpoint, which has now been there for over seven years—even though it was supposed to have been a "temporary checkpoint." They also object that the checkpoint is part of a broader enforcement strategy designed to drive migrants into the harshest parts of the desert, resulting in countless deaths.
Lyall says the civil rights abuses at these Border Patrol interior checkpoints—and others throughout the Southwest—include prolonged stops and detentions, extended interrogations totally unrelated to verifying citizenship, drug dogs falsely alerting to nonexistent contraband in order to justify invasive searches, verbal insults, excessive use of force, and racial profiling of Latino residents.
In January, the ACLU of Arizona filed an administrative complaint with DHS regarding abuses at six different southern Arizona checkpoints, including the checkpoint on Arivaca Road. Reading the complaint conveys a some of the texture of what it is like for the citizens living in the area—though as the complaint notes, Border Patrol abuses are not limited to Arivaca or to the Southwest border region—and how Border Patrol agents are going far beyond the limits of their authority at checkpoints, which the Arizona Republic estimates now total 170 nationwide.
These interior checkpoints are in part the result of decades-old regulations giving Border Patrol authority to operate within a "reasonable distance" of the border. That distance was defined in federal regulations in the 1950's —with no public comment or debate, and at a time when the Border Patrol comprised fewer than 1,100 agents—as 100 miles from any external boundary of the U.S. That area that now encompasses roughly two-thirds of the U.S. population, nine of the ten largest cities, and the entirety of ten states. The law also gives Border Patrol authority to enter private lands within 25 miles of the border.
In practice, however, Border Patrol often goes even further into the interior. In 2008, Senator Patrick Leahy (D-Vt.) was stopped at a checkpoint 125 miles from the Canadian border, one of many examples of agents disregarding the geographic and legal limits on their authority. Many are also surprised to learn that Border Patrol operates checkpoints in northern states too, and that even more could be on the way: a recent ACLU Freedom of Information Act (FOIA) request revealed design plans for permanent Border Patrol checkpoints on southbound New England highways.
Lyall describes how the people of Arivaca have organized against the checkpoint:
These are people who have to go through this checkpoint on a daily basis—to go to work, to take kids to school, to get groceries. And every day they have to answer to an armed federal agent. And they don't know if they're going to be waved through, or if agents are going to say, "I want to search your trunk." They have the right to refuse a search—but they could find themselves detained while drug dogs tear apart their car. And that has happened—repeatedly. So they never know when they pull up to the checkpoint on a daily basis what they're going to get.
The first part of their campaign was to petition for the removal of the checkpoint: The petition was signed by over 200 people and 10 businesses—so about a third of the town, including most of the business owners in the town. Their congressman, Raúl Grijalva, wrote a letter in support of their petition. And Border Patrol wrote back saying we take your concerns seriously but buzz off—that's essentially what they said. Nothing about investigating the civil rights violations. Border Patrol has even refused to release stop data that would allow the community to assess whether this checkpoint is even needed.
So that was the first step. Their next step, Lyall says, was to initiate a checkpoint monitoring campaign, in light of all the abuses committed at that checkpoint:
They started monitoring the checkpoint on February 26th. About five or six checkpoint monitors in yellow vests, with video cameras and notebooks—as well as about two dozen supporters—went out to protest and monitor the checkpoint. Local media and the LA Times covered the event.
So they arrived at the checkpoint on foot, and set up near the secondary inspection area, where Border Patrol agents sometimes ask people to pull over to have their car searched. And they began to picket and to video record and document agents' interactions with motorists. Border Patrol agents approached them and told them they couldn't be there, giving a variety of vague and inconsistent reasons: that Border Patrol had a permit, that they had exclusive authority within this area. The Sheriff came and just asked them to go across the street, which they did. But shortly after the Sheriff left, Border Patrol said "you have to move 100 feet back that way or we're going to arrest you." So under threat of arrest they were forced to move quite a ways away from the checkpoint, behind a hastily constructed barricade, where they couldn't really see or record what was going on.
A few days later, they came back, and Border Patrol had set up "No Pedestrian" signs and more barriers and rope blocking the public right of way. Border Patrol is now claiming that this public roadway is their exclusive zone of authority and there are no pedestrians allowed. They also parked their vehicles right behind the barrier to further obstruct view of the photographers and protesters. On one occasion, they left a Border Patrol vehicle running for several hours, blowing exhaust in the faces of the monitors to try to make them go away. They also allowed Border Patrol supporters—but not the monitors—to set up inside the new "enforcement zone." That's a pretty good example of something called "viewpoint discrimination," and it's unconstitutional.
Border Patrol has no authority to come into this community and say "this is ours now and you have to stand 150 feet away behind our cars that are parked there so you can't see what we're doing to your neighbors." This is no different than any other police checkpoint, where courts have been very clear that law enforcement can't unreasonably restrict First Amendment rights of protesters and photographers, much less retaliate against people for exercising those rights. And courts have repeatedly said that a public roadside like this is "the archetype of a traditional public forum," where the government's ability to restrict speech for any reason is tightly curtailed.
So now, on top of all the abuses this community has had to face from Border Patrol, agents are violating residents' fundamental First Amendment free speech rights as well—the right to protest a checkpoint that has profoundly negative impacts on their daily lives, and the right to video record an agency that is known for routine rights abuses of residents. I don't think there could be any clearer demonstration of the Border Patrol's lack of public accountability and transparency: instead of addressing the rights violations and the community's concerns, they're literally barring the residents of Arivaca from seeing what these armed federal agents are doing to their friends, family, and neighbors—in their own community.
So the work the people in Arivaca are doing is an important precedent and it's important for the ACLU to support their efforts—especially now that the Border Patrol is piling on First Amendment abuses on top of the other civil rights and human rights violations that we and others have been documenting for years.
The residents of Arivaca are proving that the American spirit, alive since the Revolution, is not dead—that Americans still have it in them to rise up against occupying soldiers and abusive government authorities. They are fighting for their own rights —but they're also fighting for all of our rights.
By Sarah Solon, Communications Strategist, ACLU
This isn't a blog about the top ten kissing tips for spring. And it's not a blog making fun of the magazine that usually delivers such tips. This is a blog applauding Cosmopolitan for taking a firm stance against criminalizing pregnant women. Well done.
You might think it would be hard to find someone who falls into the "pro-criminalizing pregnant women" camp. Sadly, you'd be wrong. A dangerous bill has wormed its way through the Tennessee legislature that would allow prosecutors to bring criminal assault charges against women who use drugs during pregnancy.
In all seriousness, it's encouraging to see Cosmo publish a thorough take-down of this bill. It's a sign that deep misgivings about the needless expansion of our criminal justice system are now so widely held that they've reached pop culture salience. For decades, this country has ratcheted up the number of crimes on the books and the length of time we lock people up, pushing the number of people under correctional control to about 7 million. Many of these people would be better served outside of the criminal justice system entirely.
That's certainly true for pregnant women who use drugs. Just in case it needs to be said: I'm not in favor of women using drugs during pregnancy. I am, however, an ardent supporter of solving problems instead of making them worse.
In 2013, 921 babies in Tennessee were born with neonatal abstinence syndrome (NAS), a bundle of problems linked to addictive, illegal, or prescription drug use during pregnancy. We need to recognize that this is a health care crisis. Our goal should be making treatment as easily available as possible, not erecting criminal barriers between people and the care they need.
Criminalization will not lead to fewer babies born with NAS; instead, it will encourage pregnant women to lie to their doctors and shy away from prenatal care out of fear of ending up behind bars. NAS is treatable, which means it's vital people get the medical care they need. Criminal penalties will only scare people away from seeking treatment.
What's more, this bill misses the pragmatic mark. Study after study from around the country shows that stiffer criminalities do not lead to less drug use. Citing the ineffectiveness of criminalization, even the American College of Obstetricians Gynecologists has come out against any bill that would punish pregnant women for substance abuse.
Among its many problems, this bill would only criminalize certain types of drug users. By penalizing only "cocaine and heroin," as one of the bill's sponsors has said, this legislation ignores fetal injury from alcohol use, cigarettes, and prescription drugs. This narrow focus makes no sense, considering that 60 percent of mothers of babies born with NAS in 2013 had a prescription for the drugs they were taking. Some have suggested the law will be selectively enforced as well. Farah Diaz-Tello, staff attorney for the National Advocates for Pregnant Women, issued this warning: "I can almost guarantee that this [law] will be used disproportionately against African-American women because, even though we know that fewer African-American women than white women use drugs during pregnancy, they are more likely to be blamed for the outcomes of their pregnancies." Diaz-Tello's point is underscored by a study finding that white women have higher rates of alcohol and cigarette use during pregnancy than Black women.
If we truly care about the problem of NAS, it would be much more productive to simply leave intact the law Tennessee passed last year, the Safe Harbor Act, which allows women who have used drugs during pregnancy to seek out healthcare and treatment without fear of having their parental rights terminated. With the increase in the reported number of babies born addicted to drugs in Tennessee, we do not have time to be distracted. There is a clear solution: eliminate any criminal penalties linked to seeking medical care.
I'd love to claim I said it here first. But the truth is I read it in Cosmo, just after an article on the perfect bikini belly.
By Barry Scheck, Co-Director, The Innocence Project
This piece originally appeared on Salon.
Earlier this month, Glenn Ford, an African-American man, walked out of the Louisiana State Penitentiary after spending thirty years on death row for a crime he didn’t commit. One of the most important contributing factors to his death sentence? Racial discrimination in the selection of his all-white jury. In a community that is almost half African-American, the prosecutor struck African-American jurors with the flimsiest of excuses.
That kind of bias not only contributes to guilty verdicts for the innocent, it tilts the playing field toward death, particularly for defendants of color.
In North Carolina, the state Supreme Court has a chance to show the country that race bias should not be allowed to corrupt our jury system.
Continue reading on Salon.
By Noa Yachot, Communications Strategist, ACLU
The New York Police Department is disbanding the unit that mapped New York’s Muslim communities, their places of worship, and businesses they frequent – based on nothing but their religious beliefs and associations. To this we say: Good Riddance.
But the end of the Zone Assessment Unit – better known by its former, more apt name, the Demographics Unit – doesn’t necessarily mean an end to the NYPD’s unconstitutional surveillance of New York’s Muslims.
The NYPD’s discriminatory spying program has many components, of which the Demographics Unit was just one. (The ACLU, along with the NYCLU and CLEAR Project at CUNY Law School sued the NYPD over the program – read about our case here.) Before we celebrate the end of bias-based policing, we need to ensure that the other abusive tactics employed by the NYPD meet the same fate as the unit. For example:
Use of informants: A wide network of NYPD informants have infiltrated community organizations, mosques, restaurants, bookstores, and more to monitor, record, and take notes on innocent people and innocuous conversations. This needs to stop.
Designation of entire mosques "terrorism enterprises": The NYPD has used “terrorism enterprise investigations” against entire mosques to justify the surveillance of as many people as possible. That unmerited designation has allowed the police department to record sermons and spy on entire congregations.
Discriminatory use of surveillance cameras: Cameras have been set up outside mosques and community events – even weddings – to record community members’ comings and goings and collect license plate numbers of congregants and attendees.
Radicalization theory: The NYPD must disavow its debunked “radicalization” theory, on which discriminatory surveillance is based. This misguided notion, which we’ve described in detail here, treats with suspicion people engaging in First Amendment-protected activities including “wearing traditional Islamic clothing [and] growing a beard,” abstaining from alcohol, and “becoming involved in social activism” – meaning, basically, anyone who identifies as Muslim, harbors Islamic beliefs, or engages in Islamic religious practices.
Discriminatory surveillance by other units: The Demographics Unit’s discriminatory mapping activities shouldn’t be carried out by other parts of the NYPD and its Intelligence Division.
The Demographics Unit has sown fear and mistrust among hundreds of thousands of innocent New Yorkers – creating “psychological warfare in our community,” Linda Sarsour of the Arab American Association of New York told the New York Times. Shutting it down is a welcome step, but it’s only the first one. New York’s Muslims — and all its communities — deserve more and better from their police force than bias-based policing.
Ah, April 15th. Tax Day.
When you pay taxes, you assume they'll be used to support education, health care, public transportation, and other programs that make your community stronger. That's true, but so is this: some of your hard-earned dollars might be bundled into a massive payout to a private prison company that cares more about profits than public safety.
That's right, taxpayers: for-profit prison companies are skimming off the top of taxes you pay ostensibly to create safer communities. And no company benefits more than the largest private prison company out there: the Corrections Corporation of America, or CCA.
CCA gets contracts all over the country by promising it can run prisons better and more cheaply. But time and time again, they've broken that promise. That's why the ACLU and the ACLU of Tennessee are launching the "Who Is CCA?" campaign to expose the business tactics and egregious track record of CCA, which is headquartered in Nashville. Our aim is to deliver a petition with tens of thousands of signatures to Governor Bill Haslam asking him to walk away from his contracts with a company that has made massive profits off our country's overuse of incarceration.
Nearly 29 years ago, I stood before members of the Tennessee House of Representatives to testify against prison privatization in Tennessee. At the time, privatization was being hailed as the "cure-all" to numerous problems plaguing the Tennessee prison system. But ACLU-TN believed there were too many unanswered questions about the constitutional, financial, and ethical ramifications of a private, profit-driven corporation taking over custody of inmates. Today, we have those answers — and they aren't pretty.
CCA operates more than 60 facilities across the country and pocketed $1.7 billion in taxpayer-funded profits in 2012 alone. CCA values profits above the public safety improvements that would actually benefit our communities. In2012 Securities and Exchange Commission filings, the company reported that "risks" to their bottom line include "reductions in crime rates."
Private prisons have incentives to maximize profits by cutting corners at the expense of decent conditions and safety, so the high levels of violence within some CCA facilities shouldn't be surprising. Take just two examples. At a CCA-run facility in Ohio, prisoners were forced to defecate in bags because they lacked access to running water. A study by the Idaho Department of Corrections found that an Idaho CCA facility, known as the "Gladiator School," had four times as many prisoner-on-prisoner assaults as the state's seven other prisons combined.
Hiring for-profit companies to run our prisons is not saving us any also wastes our money. As just one example, Tennesseans were required by contract to pay CCA nearly half a million dollars for empty beds at the Metro Detention Facility in Nashville in 2011. What's worse, CCA admitted to falsely billing Idaho for 4,800 hours of unstaffed security posts during night shifts at the facility.
With all of these problems, how does CCA continue to grow? By spending millions of dollars on political contributions and by litigating to ensure it is not subject to the same open-records laws as publicly-run prisons.
Our reliance on private prisons is not cost-effective, safe, or fair. It's time for Tennessee to join the ranks of Texas, Idaho, Mississippi, and Kentucky, and walk away from its contracts with CCA.
By Brett Max Kaufman, Legal Fellow, ACLU National Security Project
The oft-delayed, secrecy-plagued 9/11 military commission hearings came to an abrupt halt today before the scheduled arguments surrounding the competency of defendant Ramzi bin al Shibh even began. Just minutes after Army Col. James Pohl called the courtroom roll, defense lawyers revealed that, hours earlier, they had filed an emergency motion seeking to stop this week's proceedings and asking the court to investigate yet another instance of alleged government meddling with defense counsel in this death penalty case.
This time, said James Harrington — lead counsel for bin al Shibh — two FBI agents visited the Defense Security Officer assigned to bin al Shibh's defense team on the morning of Sunday, April 6. Each team of defense lawyers is assigned a DSO, who vets classified filings and acts as a liaison with the government on classification issues. Defense lawyers described the DSO as charged with helping that team further its mission of mounting a vigorous and effective defense, and his work falls within the attorney–client privilege.
Harrington suggested that the visit, during which the agents had inquired into various activities of all five defense teams, was part of an investigation into wrongdoing on the part of the defense attorneys themselves. (Carol Rosenberg of The Miami Herald has reported that the investigation relates to the publication of a 36-page document by defendant Khalid Sheikh Mohammed in January — a document several 9/11 defense lawyers say was never classified, is not relevant to the pending prosecution, and was distributed widely last year to all lawyers for both the defense and the prosecution.)
According to Cheryl Bormann, the lawyer for defendant Walid bin Attash, the agents also had the DSO sign a "Sensitive Information Non-Disclosure Agreement," a document that the attorneys had filed with the court for inspection as part of their new motion. Defense attorneys also raised a related concern: Have other members of defense staffs been approached — and gagged from ever saying so?
Today in court — before a stunned gallery of journalists and NGO observers — the defense lawyers asked Judge Pohl a simple question: How can they advise their clients on any issue if they are uncertain whether serious conflicts of interests (such as an FBI investigation of the lawyers) might prevent them from giving those clients unbiased, confidential advice?
The allegations about improper FBI conduct are serious. They are also of a piece with other troubling events that demonstrate the way in which the government continues to jeopardize the legitimacy of its own prosecution. In January 2013, an "external body" outside the courtroom — almost certainly the CIA — cut off sound to the public during a discussion of CIA black sites, without the knowledge of even the judge. Months later, files disappeared from supposedly secure defense-counsel hard drives. Next, defense lawyers learned that monitoring equipment had been installed at their counsel tables and that secret microphones had been placed in the smoke detectors in attorney–client visiting rooms.
All of these events allegedly took place without the prosecution's knowledge, raising the question of why the government seems to be prosecuting the most important terrorism case in the nation's history while its left hand is unaware of what its right hand is doing.
Today, Judge Pohl adjourned the proceedings 36 minutes after they started, with the prospects for any further substantive discussions this week looking dim. Although the proceedings will resume at 9:00 a.m. tomorrow morning, the potential for a lengthy investigation into the basis for and consequences of the FBI's visit to the security officer has cast a dark shadow over whether anything meaningful can, and will, be discussed.
Once again, these stop-and-start commission hearings are proving to be more stop than start.
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project
Today, the ACLU and ACLU of Utah filed an amicus brief in support of a Utah paramedic whose Fourth Amendment rights were violated when police swept up his confidential prescription records in a dragnet search. Law enforcement’s disregard for basic legal protections in the case is shocking.
The United Fire Authority (UFA) is Utah’s largest fire agency, with 26 fire stations in communities surrounding Salt Lake City. Last year, some UFA employees discovered that several vials of morphine in ambulances based at three fire stations had been emptied of medication. Suspecting theft, they called the police. At this point, one would expect police to interview firefighters and paramedics with access to ambulances at those three stations and try to draw up a reasonable list of suspects. But one detective had a different idea.
Within a day or two of receiving the theft report, a detective with the Cottonwood Heights Police Department logged into the Utah Controlled Substances Database and downloaded the prescription histories of all 480 UFA employees. The database tracks patients’ prescriptions for medications used to treat a long list of common medical conditions, and the records can reveal extremely sensitive health information. But unlike some other states, Utah doesn’t require police to get a warrant before accessing this private data. The detective took advantage of this loophole and obtained a great deal of confidential information without going to a judge or demonstrating any individualized suspicion.
Even after scooping up the prescription histories of every UFA employee, the detective still couldn’t figure out who might be behind the morphine theft. Instead of stopping there, however, he went on a new fishing expedition through the records, looking for anything he deemed suspicious. He read through the prescription histories of hundreds of firefighters, paramedics, and clerical staff, learning what medications they took and revealing private facts like whether they suffered from an anxiety disorder, chronic pain, insomnia, or AIDS. He identified four people whose records seemed to indicate dependency on opioid painkillers, and convinced a prosecutor to charge three of them with prescription fraud. One of them, paramedic Ryan Pyle, filed a motion to suppress, arguing that the warrantless search of his prescription records violated his Fourth Amendment rights. The ACLU is now weighing in on his side.
Under the Fourth Amendment, police must get a warrant before searching items or places in which people have a reasonable expectation of privacy. The ACLU recently won a case in federal court in Oregon where we sued the federal Drug Enforcement Administration for requesting records from Oregon’s prescription database using administrative subpoenas instead of warrants. As the judge in that case explained, “The court easily concludes that [patients’] subjective expectation of privacy in their prescription information is objectively reasonable. ... The prescription information maintained by [the Oregon database] is intensely private as it connects a person’s identifying information with the prescription drugs they use.”
The Utah detective failed to get a warrant, and therefore violated the Fourth Amendment. As the ACLU’s brief explains, that means the court should throw out the evidence illegally gathered by police. If the Fourth Amendment means anything, it means that police cannot have free rein to flagrantly violate our medical privacy rights without judicial oversight or probable cause.