On Leak Prosecutions, Obama Takes it to 11. (Or Should We Say 526?)

October 14th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

James Risen is a Pulitzer Prize winning journalist. He's also currently under subpoena, possibly facing jail time, because of his reporting.

Specifically, he's being investigated because of an article on a CIA ploy to hinder Iran's quest for a nuclear bomb that went epically sideways and may have actually helped Iran along. 60 Minutes ran a great story on him this weekend, during which they cited a well-known statistic: the Obama administration has prosecuted more national security "leakers" than all other presidencies combined, eight to three.

But the story also prompted me to look into another figure, which is less well known and potentially more dramatic. Partially because of press freedom concerns, sentencing in media leak cases has historically been relatively light. Not so under President Obama. When it comes to sending these folks to jail, the Obama administration blows every other presidency combined out of the water – by a lot.

By my count, the Obama administration has secured 526 months of prison time for national security leakers, versus only 24 months total jail time for everyone else since the American Revolution. It's important – and telling – to note that the bulk of that time is the 35 years in Fort Leavenworth handed down to Chelsea Manning.

It takes a bit of digging to find all this information. As my public service for the day, here's a rundown of every leak case, the sentence (if there was one), and its current disposition.

Pre-Obama Cases

  • Daniel Ellsberg and Anthony Russo (1973). Famous national security whistleblowers prosecuted for releasing the Pentagon Papers. Sentence: Charges dropped after revelations that President Nixon's henchmen burglarized Ellsberg's psychoanalyst looking for dirt and tried to bribe the judge in their case with the directorship of the FBI.
  • Samuel Morison (1985). Naval analyst who sent pictures of the Soviet navy to Jane's Fighting Ships, a reference book on the world's warships. Sentence: 24 months. He was subsequently pardoned by President Clinton, despite CIA objection.
  • Larry Franklin (2005). Pentagon analyst charged with leaking Iran-related intelligence material to lobbyists for the American Israel Public Affairs Committee. Sentence: 10 months at a halfway house and 100 hours of community service.

Obama Cases

  • Thomas Drake (2010). NSA whistleblower. Revealed waste at the agency in connection with the Trailblazer Project. Sentence: All espionage charges were later dropped, and Drake pled guilty to a misdemeanor. He was sentenced to a year of probation. The judge called the government's conduct in the case "unconscionable."
  • Shamai Leibowitz (2010). Orthodox Jewish FBI translator, concerned about ill-considered Israeli airstrike against Iran, revealed U.S. spying against Israeli diplomats to blogger. Sentence: 20 months. Amazingly, the sentencing judge said, "I don't know what was divulged other than some documents, and how it compromised things, I have no idea."
  • Chelsea Manning (2013). Wikileaks. Sentence: 420 months (35 years). As noted, it's heaviest sentence in history, almost twenty times the pre-Obama record.
  • John Kiriakou (2013). CIA analyst and case officer. Kiriakou was the whistleblower who revealed the secret CIA torture program. Sentence: 30 months.
  • Donald Sachtleben (2013). FBI agent and contractor alleged to have disclosed to the Associated Press details of a disrupted Yemen-based bomb plot. The wildly overbroad subpoena the Justice Department sent to the AP as a follow-up made national headlines. Sentence: 43 months. Longest ever imposed in civilian court.
  • Stephen Kim (2014). State Department advisor who disclosed information about North Korea's plans to test a nuclear bomb to a Fox News reporter. The reporter was investigated by the FBI as a possible "co-conspirator" for mere act of newsgathering. Sentence: 13 months.
  • Jeffrey Sterling (case pending). Alleged to have been James Risen's source.
  • Edward Snowden (case pending). Revealed secret law allowing wholesale, covert surveillance of innocent people by the NSA. Charges against him carry decades in prison.

Wow. That's a long list. And as we're now waging a new war we are told could take years, it's a list that will only get longer.

With all due respect to the administration, this trend line should be going in the opposite direction. The modern national security state is more powerful than ever – more powerful even than during the Cold War. It demands democratic accountability. The last and best source of that accountability is a free press.

Tragically, that free press now has a 526-month sentence to serve.

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You Can’t "De-Gay" Our GSA

October 13th, 2014 No Comments   Posted in ACLU Nationwide
By Joshua Kilburn

My school, South Garland High School in Garland, Texas, is really large and diverse. It’s also right outside of Dallas, so it’s not like the fact that gay people exist is something new here. But I do still sometimes hear the word “faggot” thrown around in the hallway.

Sometimes it can be a scary place to be gay.

That’s why I decided to start a Gay-Straight Alliance. GSAs can provide a safe space for LGBT students and their friends to be who they are without having to hear that kind of thing. They make schools a safer place for everyone, and thankfully, they’re in thousands of schools all over the country and have been around since the 1990s.

With over 2,000 students here, it’s not surprising that we have more than 50 different student clubs and organizations. There are cultural groups like Sabor Latino and religious clubs like Fellowship of Christian Athletes. And, there are all sorts of clubs that are just about things people are interested in like: Table-Top Gaming Club, Fashion Club, Chess Club, and Comedy Improv Troupe. With so many clubs at our school, my friends and I didn’t think getting approval for a GSA would be a problem at all.

We lined up four faculty sponsors who were willing to help us out and came up with a plan to call our club the PRIDE (Promoting Relationships In Diversity Education) GSA. We planned a bunch of activities like a Rainbow Day in the spring when we’d all wear rainbow t-shirts and have a little pride party after school with snacks and music. One of the first things we wanted to do this semester was Ally Week. Created by the Gay, Lesbian & Straight Education Network (GLSEN), it’s a time to talk about how we can all be better allies to LGBT students while helping to fight bullying and harassment.

There was some confusion while we were trying to make plans for the year, and for a while there we thought the school wasn’t going to let us call it a Gay-Straight Alliance, so the name would have to be just PRIDE. We also were told it shouldn’t be about LGBT stuff, but more of a general diversity club, doing stuff about Latino American culture and Black History Month even though there are already clubs that celebrate those things. And, we were under the impression that we couldn’t have Rainbow Day or Ally Week.

I went to the GLSEN website looking for help, and that’s when I found a link to the ACLU’s resources for LGBT students. I learned that federal law says that if a public school allows any noncurricular clubs like Table-Top Gaming Club or Fellowship of Christian Athletes, then it can’t say no when students want to start other noncurricular clubs like a GSA. The school also can’t act like it’s allowing a GSA and then just de-gay everything about our club – including the name. And best of all, I found out how to contact the ACLU for help.

So that’s why the ACLU LGBT Project and the ACLU of Texas worked with my school district last week to make sure they understood we have the legal right to form a club with GSA in the name and talk about LGBT issues. And, it was a big relief when the school told us that we could do all of the things we’d hoped for, including hosting Ally Week and Rainbow Day. More importantly, I learned that we had a right to equality and I wasn’t alone.

Ally Week starts today. All we want is to make South Garland High School a safer school, not just for LGBT students but for everyone. We’re glad our school has decided to become an ally, too, and help us make that happen, especially to take the “scary” away from being gay at South Garland High.

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A Great Day for Seven Americans Formerly on the No Fly List

October 11th, 2014 No Comments   Posted in ACLU Nationwide
By Noa Yachot, Communications Strategist, ACLU

An extraordinarily secret government blacklist just got a little bit less secret.

Seven American citizens who were banned by the government from air travel received word yesterday evening that they are cleared to fly. For them, the notice ends a years-long struggle to find out why they were blacklisted and clear their names. As of last night, the seven can finally make plans to visit family, travel for work, and take vacations abroad.

The seven – six men and one women – had been on the government No Fly List, which prevented them from flying to, from, and over U.S. airspace. Even after they were surrounded by TSA agents at the airport and questioned by the FBI, the government refused to officially confirm that they were included on the list. They were also never provided reasons for being banned from air travel, or given a meaningful opportunity to contest the ban. In short, our clients have been locked in a fight to regain their freedoms with virtually no information.

The notice that the seven are “not currently on the No Fly List” came after a federal court last week set deadlines for the government in the ACLU’s challenge to the No Fly List. The court ruled that the government must notify our clients of their status on or off the No Fly List, give reasons to those still on the list, and provide an opportunity for them to challenge those reasons. The first of those deadlines was yesterday, and the government must complete reconsideration of the remaining cases by January 16.

These deadlines follow a June ruling by federal judge, striking down as unconstitutional the government’s procedure for challenging inclusion on the No Fly List.

Yesterday’s milestone isn’t only significant for the seven American citizens who can finally resume their lives. It also makes clear to the six other clients in the case that they’re still banned from flying. And while that may not seem like good news, it’s the first time the government has confirmed – albeit through negative implication rather than a direct confirmation – that people are on the No Fly List. It’s also a very basic victory for due process, because under our Constitution, the government can’t watchlist people and deny them basic freedoms without then telling them they’re blacklisted and why.

Our client Abe Mashal had this response:

More than four years ago, I was denied boarding at an airport, surrounded by TSA agents, and questioned by the FBI. That day, many freedoms that I took for granted were robbed from me. I was never told why this happened, whether I was officially on the list, or what I could do to get my freedoms back. Now, I can resume working for clients who are beyond driving distance. I can attend weddings, graduations, and funerals that were too far away to reach by car or train. I can travel with my family to Hawaii, Jamaica, or anywhere else on vacation. Today, I learned I have my freedoms back.

Our clients have been living in limbo for years, without the ability to challenge a secretive government system that has dramatically curtailed their freedoms. While yesterday’s notice is long overdue and doesn’t make up for the burdens our clients have long endured, it is good news for the seven who can fly again. And the others look forward to finally receiving from the government its reason for watchlisting them, so they can correct errors or innuendo and clear their names.

For the first time ever, the unfair and unnecessary secrecy regime surrounding the No Fly List is beginning to crumble.

The government has committed to revamping the No Fly List redress process more broadly. We expect it to make good on its word and move quickly to give everyone else on the list the opportunity to clear their names.

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A Psychotic Episode Shouldn’t End in a Jail Cell

October 9th, 2014 No Comments   Posted in ACLU Nationwide
By Kara Dansky, Senior Counsel, ACLU Center for Justice

Michelle Mata wants to be treated the way you would want your mom to be treated.

She's an aunt and a neighbor. She likes line dancing. And she suffers from major depressive disorder with psychotic features.

When people like Michelle have a mental health crisis, people often call the cops. The situations are scary and frustrating for everyone involved. The police often don't know how to interact with those in a crisis, and those suffering from a crisis are terrified that the police may use excessive force.

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Privacy statement. This embed will serve content from youtube.com.

The state of mental health services in this country is unacceptable. Instead of social workers, we have armed law enforcement officers. Instead of treatment facilities, we have prisons and jails. More than half of the people behind bars have shown recent symptoms of mental health problems. The Cook County Jail in Chicago is now the biggest single-facility provider of mental health services in the country. Nearly $9 billion per year is spent locking up people struggling with mental illness. And 356,368 severely mentally ill people were imprisoned in 2012.

But correctional control isn't helping. Many people leave the system worse off, having gone without treatment and services that could have changed the course of their life. Too often, this means they keep coming back instead of getting better.

It's time to cut out the middleman. People shouldn't have to be arrested and thrown in a cell to get treatment. That only adds cost and wastes time. People should get the help they need, as quickly as possible.

San Antonio, Texas, however, is trying something different.

Approximately 95 percent of police officers in San Antonio have gone through Crisis Intervention Training (CIT), a program that teaches them how to spot the symptoms of mental illness and how to safely and effectively interact with someone struggling with a mental health crisis.

People with mental illnesses, including Michelle, work with the police officers to teach them how they should be treated. Michelle helps to train them. Even though it's not the ideal solution, some people call the police when having a mental health crisis. Instead of putting people in handcuffs and taking them to jail, officers in San Antonio take them to a center staffed with mental health professionals.

In the new short film series, "OverCriminalized," we interviewed several members of the San Antonio police force. They report that they are much more confident and comfortable dealing with mental health crises after going through the training. Most importantly, since the implementation, none of the CIT teams have used extreme force.

But it's not just about how to police; it's about the entire goal of these interactions. People struggling with mental illness are no longer taken to a jail cell by way of lengthy and expensive stops in the ER. This program has saved the city about $50 million dollars.

It's good to celebrate what's happened in San Antonio. But we need to step back and ask how the city got into this problem in the first place. The answer is that for decades, this county has been shoving social problems like mental illness and drug addiction into a criminal justice system ill equipped to solve them. This mass criminalization has led to way too many people behind bars, often for too long and for reasons that have no business being crimes in the first place. Communities of color have been hardest hit.

But it doesn't have to be this way. America can safely reduce our reliance on incarceration – several states have reduced their prison populations while crime rates have dropped.

San Antonio is leading the way on finding better approaches to mental illness than handcuffs and jail cells, and other cities should follow suit. Sign the petition to urge Congress to provide treatment for those who suffer from mental illness, not jail cells and arrest records.

"OverCriminalized," a new series produced by Brave New Films in partnership with the ACLU and The Nation, profiles three promising and less expensive interventions that may actually change the course of people's lives. It's time to roll back mass criminalization and focus on what works.

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VIDEO: Yes, Mass Collection of U.S. Phone Records Violates the Constitution

October 8th, 2014 No Comments   Posted in ACLU Nationwide
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

EDITOR'S NOTE: A resounding win! A Philadelphia audience sided squarely with team civil liberties in a debate hosted yesterday by Intelligence Squared. Arguing for the motion, "Mass Collection of U.S. Phone Records Violates the Constitution," were ACLU staff attorney Alex Abdo and Elizabeth Wydra, chief counsel of the Constitutional Accountability Center. They faced off against John Yoo, a former Justice Department attorney known for authoring the Bush-era torture memos, and Stewart Baker, former NSA general counsel.

Intelligence Squared debates measure the audience's support for each side both before and after the debate, so the winner isn't just a question of who earned a plurality or a majority of votes, but who compelled more audience members to change their positions. Team civil liberties won on both fronts: 46 percent of the audience voted for the motion (with 17 percent voting against and 37 percent undecided) before the debate. By the end, a full 20 percent became convinced that the NSA's bulk collection of ordinary Americans' phone records is in direct violation of the Fourth Amendment. The debate ended with 66 percent voting for the motion, 28 percent against, and 6 percent undecided.

Poll Results

Read Alex's opening statement below. Or even better, just watch the debate:

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Privacy statement. This embed will serve content from youtube.com.

I'm honored to be here to discuss the mass collection of Americans' phone records by the NSA. Before getting into that program, though, it's critical to recognize that this debate is not just about phone records, and it is not just about the NSA. This is a debate about the kind of society we want to live in. Do we want to live in a country in which the government routinely spies on hundreds of millions of people who have done absolutely nothing wrong? Or do we want to be true to the vision of our nation's founders, who believed that the government should — as a general matter — leave us alone unless it has cause to invade our privacy. I think our founders got it right, and I hope you'll agree, which is why you should vote for the resolution: Mass collection of our phone records violates the Fourth Amendment.

Here's what it looks like to live in a society of mass surveillance:

Every time you place or receive a call, the government knows who you talked to, when the call started, and how long it lasted. The government knows (1) every time you called your doctor, and which doctor you called; (2) which family members you stay in touch with, and which you don't; and (3) which pastor, rabbi, or imam you talked to, and for how long you spoke.

The government knows whether, how often, and precisely when you called the abortion clinic, the local Alcoholics Anonymous, your psychiatrist, your ex-boyfriend, a criminal-defense attorney, and the suicide hotline.

If you called someone today — by tomorrow morning, the government will have a record of that call. It will keep that record for the next five years. And it is doing the same for every one of your calls, and for every one of the calls of millions of other Americans who have done nothing wrong.


This program is the most sweeping surveillance operation ever undertaken in the United States.

And it is unconstitutional for the simple reason that the Fourth Amendment does not permit dragnet surveillance. In fact, as my partner will explain in a few minutes, dragnet or indiscriminate surveillance was the principal evil the Fourth Amendment was designed to prevent.

And for good reason. Dragnet surveillance intrudes on one of the most fundamental of liberties in a free and democratic society — to be left alone by our government absent good cause.

The phone-records program breaks that promise. It places the entire country under surveillance without any suspicion. It threatens our ability to communicate freely without having to worry that the government is looking over our shoulders. It discourages journalists' sources from coming forward, knowing, as they now do, that their every call is being documented in a government database. And it causes ordinary Americans to hesitate before calling individuals or organizations they would rather not have in their permanent record, on file with the NSA.


Now, our opponents will attempt to minimize the NSA program's intrusiveness and exaggerate its effectiveness. They will argue (1) that the Fourth Amendment does not protect our phone records; (2) that there are protections in place for our privacy; and (3) that the program is necessary for our national security.

Those arguments are all wrong.

First, our phone records—particularly when they are collected in bulk—are extraordinarily sensitive. They reveal all of your associations: personal, professional, medical . . . all of them. In fact, your phone records can be every bit as sensitive as what you actually say on the phone. If you call someone other than your spouse routinely at 1 in the morning, you don't have to know what's said in order to know what's going on. If a government employee calls a reporter a dozen times before news breaks of an illegal government program, again, the call pattern tells the story. Our phone records are, in other words, a proxy for the content of our calls.

Our opponents will say that the Supreme Court has already decided that phone records are not protected by the Constitution. The argument is based on a Supreme Court case, called Smith v. Maryland, decided in 1979. But that case involved the collection for several days of an individual criminal suspect's phone records. The NSA's program—in contrast—involves the indefinite surveillance of millions of innocent Americans.

Our opponents will say that these differences don't matter, but it's truly bizarre to define the boundaries of privacy in the digital age based on a legal opinion issued before the internet as we know it was created—an opinion that many Supreme Court justices have already said is ill-suited to the digital era.

Second, the privacy protections that our opponents will focus on are a red herring. Those restrictions are weak. They can be violated, and they already have been thousands of times. But more importantly, under our opponents' theory, the Constitution simply does not apply to our phone records. This means that the government could collect them without any of the supposed privacy protections our opponents will describe.

Another fatal flaw with the argument is that the government's collection of our phone records violates our privacy even if there are restrictions on their later use. The collection itself is a violation. For that reason, we don't let the NSA keep a copy of every single email sent in the country, so long as it has protections in place. And we don't allow the NSA to put a video camera in our bedrooms, so long as it agrees not to press play without a good reason.

Third, bulk collection has not made us any safer. Virtually every independent review of the NSA's phone-records program has concluded that it hasn't stopped any terrorist attacks, and that the government can track down terrorists without mass collection, by issuing targeted requests to the phone companies.

A congressional review group said that after carefully studying the NSA's classified evidence, they could not identify "a single instance involving a threat to the United States in which the telephone records program made a concrete difference." A separate presidential review group came to the same conclusion. And the president himself has agreed with both of those reports.


One final point. Tonight's resolution is focused on phone records, but don't be fooled—the consequences are much, much broader. If the Fourth Amendment permits the bulk collection of our phone records, then it would permit the bulk collection of other similar records.

The problem is that virtually everything we do today leaves a digital trail of some sort. Whenever you send an email, visit a website, use your credit card, or even just walk around with your phone turned on—you are leaving a rich trail of digital breadcrumbs in your wake.

The arguments our opponents will make tonight would expose all of that information to routine, bulk collection by the government.

That's not the world that our framers envisioned when they drafted the Fourth Amendment, and it's not the world that you should accept. You should vote for the motion: Mass collection of our phone records violates the Fourth Amendment.

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Federal Appeals Court Tells Obama Administration to Stop Imprisoning Immigrants for No Reason

October 8th, 2014 No Comments   Posted in ACLU Nationwide
By Eunice Lee, Detention Attorney, ACLU, Immigrants' Rights Project

A federal appeals court sent a clear message to the Obama administration this week: stop locking away immigrants without bond based on old criminal convictions.

The court on Tuesday held that the U.S. Immigration and Customs Enforcement (ICE) broke the law when it picked up ACLU client Clayton Gordon on his way to work one day last year and locked him away without a bond hearing. ICE misapplied so-called "mandatory" detention to Mr. Gordon – a lawful permanent resident who has lived here for over 30 years and has served in the U.S. Army – based on a single, drug conviction that he served one day in jail for in 2008.

By the time ICE encountered Mr. Gordon in June 2013, he had returned to his family, gotten engaged, had a child, bought a house, and started plans to build a halfway house for his community. He also had no subsequent run-ins with the law. But none of this factored into ICE's decision, and no judge had an opportunity to consider these factors for release until ACLU sued on behalf of Mr. Gordon and others like him.

Instead, the government took the shameful position that the U.S. army veteran had no right to a bond hearing at all.

Thankfully, the court disagreed. Noting the "harsh consequences of uprooting these individuals from the community," the court held that people who have returned to their families and rebuilt their lives, such as Mr. Gordon, must be able to ask a judge for release.

This is basic due process, as well as common sense.

As the court observed, "those who have resided in the community for years after release cannot reasonably be presumed either to be dangerous or flight risks. This is particularly so given the breadth of offenses to which [mandatory detention] applies, and the inclusion of offenses such as non-violent drug possession."

In other words, it's not okay to imprison people without bond when they don't need to be locked away. In fact, it's unconstitutional and immoral. Not to mention wasteful. After Mr. Gordon finally got his bond hearing earlier this year, the immigration judge immediately ordered his release on bond. He's now back living peacefully with his family.

You have to ask yourself: What, exactly, did we spend tens of thousands of dollars of taxpayers' money and waste months of Mr. Gordon's life for?

Fortunately there's an easy solution. Just give immigrants a bond hearing and the due process everyone deserves.

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Boston Police Have a Racially Biased Policing Problem, and a Golden Opportunity to Reform

October 8th, 2014 No Comments   Posted in ACLU Nationwide
By Nusrat Choudhury, Staff Attorney, ACLU Racial Justice Program

During the summer of 2011, then-19-year-old Ivan Richiez was robbed at gunpoint and pistol-whipped by two men in the Jamaica Plain neighborhood of Boston. Bruised and bloodied, Ivan walked home passed the local Boston Police Department (BPD) precinct. He thought about stopping to ask for help. But then he remembered the more than two dozen times police had stopped or frisked him since 2007, even though he hadn't been doing anything wrong.

He kept walking.

For years, Boston's communities of color have reported that police target them for police-civilian encounters, including stops and frisks. They have not been crying wolf.

Today, the ACLU and the ACLU of Massachusetts have released a report, "Black, Brown and Targeted," that describes powerful new evidence of racially biased policing in Boston. A police-appointed researcher conducted a preliminary analysis of more than 200,000 reports of police-civilian encounters from 2007-2010. The analysis provides evidence that BPD engaged in racially biased "stop and frisk" practices in the following ways:

  • While blacks make up only 23 percent of Boston's population, they made up 63 percent of police encounters from 2007-2010.
  • The racial composition of Boston neighborhoods drove the number of police encounters from 2007-2010, even after controlling for crime rates and other factors. In other words, separate and apart from targeting locations of crime, BPD targeted neighborhoods with black residents simply because black people lived there.
  • Blacks were significantly more likely than whites to experience the escalation of an encounter to a frisk or search from 2007-2010 even after controlling for crime-related factors, like the civilian's alleged gang involvement or history of prior arrest.
  • Not a single one of the 200,000 police encounters from 2007-2010 that researchers studied led to an arrest.

The bottom line: BPD targeted both black neighborhoods and black people disproportionately for police encounters in ways that are not explained by efforts to target crime.

This is powerful evidence of racially biased policing. And it presents Boston with a powerful opportunity.

Armed with this information, Boston can acknowledge its history of racially biased policing. It can show that the problem is not intractable. It can serve as a leader nationwide in adopting reforms to root it out.

In other words, Boston can be the leader that Ferguson was not.

Before the tragic killing of Michael Brown by a police officer in August 2014, Ferguson already had evidence of racially biased policing. The Missouri attorney general had published data showing that although Ferguson police were twice as likely to search blacks than whites after initiating a stop, whites were far more likely to be found with contraband. That meant police were targeting blacks for stops and searches, but getting it wrong more often than they were for whites. But the police did not reform.

We urge Mayor Marty Walsh and Police Commissioner William Evans to take a bolder and better path than Ferguson. They should tackle Boston's racially biased policing problem with a focus on accountability, constitutionality, and transparency.

Accountability: The Boston police should adopt a policy requiring all officers who engage in any police-civilian encounters to wear and use body-worn cameras during every interaction with the public. It should also provide documentation – i.e., a receipt – to any civilian involved in a stop, frisk, and search, even if purportedly consensual.

Constitutionality: BPD should adopt department-level training on implicit bias and supervision to identify and correct racial bias. This will help ensure respect for the right to equal protection under the law.

Transparency: BPD should publish on a quarterly basis electronic data on all police-civilian encounters, including demographic information and the officer's basis for the encounter and action. Openness will rebuild badly damaged public trust, permit researchers to continually test data for evidence of racial bias, and help identify solutions.

Boston has all the information in needs to choose the right path. The time is now.

Visit our website for more information on the ACLU's work to end racial profiling.

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After 9 Years, Manuel Velez, an Innocent Man, is Free at Last

October 8th, 2014 No Comments   Posted in ACLU Nationwide
By Brian Stull, ACLU Capital Punishment Project

At 12:32 p.m. ET, Manuel Velez, my client and an innocent man, stepped out of prison and into the Huntsville, Texas air a free man.

For nine years, Manuel has languished behind bars. What's ironic about watching him walk out of this particular prison, the Walls Unit, which is often used to process releases, is that is better known for its executions. The state of Texas has executed more than 500 men and women here. Manuel was almost one of them.

Manuel was condemned to death in a 2008 trial for the 2005 killing of Angel Moreno, his then-girlfriend's one year-old son. Angel died of brain trauma. The state's medical experts presented the case as a simple one – his head must have been slammed against the wall or some hard object. But they failed to recognize a medical report in their own file that showed Manuel was innocent.

The report showed indisputably that Angel's head injuries occurred at a time when Manuel was a 1000 miles away, working construction in Tennessee. The neuropathologist the state used to examine Angel's brain under a microscope had made findings on the timing of the child's head injuries and put them in the report, which the state's testifying experts completely ignored. Manuel's court-appointed counsel also missed these crucial facts, along with other medical evidence, proving this timeline. Manuel was too poor to hire his own attorney.

On appeal, the courts held the attorneys' failures to be constitutionally inadequate, and they ordered Manuel be given a fair, new trial. But there were other problems too.

Manuel, a native Spanish speaker and seventh-grade dropout, is functionally illiterate in both Spanish and English. The police had on hand a video recorder to record interrogations, and in fact used it for his codefendant, Angel's mother. But they did not record Manuel's interrogation.

Instead, they typed up two different statements in English and had Manuel sign them without being able to read them. The statements were full of false claims, including that Manuel shook, bruised, and bit the baby – things that absolutely never happened. Because prosecutors liked one of the statements better – it had more of these false facts – they presented it to the jury as the only true statement, and claimed the less guilty one was a defense fabrication. But it was the prosecutors who were fabricating.

The deceit, however, didn't end there. They committed further misconduct by not correcting the codefendant mother's bogus claims to the jury about the nature of her plea agreement in which she falsely minimized her own responsibility. And that's not all. The Texas Court of Criminal appeals reversed the death sentence from the 2008 trial because the prosecutors presented testimony about prison conditions they knew or should have known was false.

Manuel Velez immediately after being released from prison.

In spite of all this, it was only a fluke that Manuel's innocence was discovered. A Texas law professor was concerned that Manuel could be intellectually disabled and so asked my office and two outstanding law firms – Carrington, Coleman, Sloman & Blumenthal and Lewis, Roca Rothgerber – to work on Manuel's appeals. It took armies of lawyers to prove Manuel's innocence, but far too many men strapped down in the execution chamber yards away have never had a single good lawyer working on their case. Under our broken system, innocent people have been and are going to continue to be executed until the death penalty is abolished.

If it's possible to add one more bit of injustice to Manuel's story, there's this. To guarantee his freedom and seeing his family today, he has pleaded no contest to recklessly injuring Angel – by failing to report his mother's abuse. We would have preferred to take Manuel's case to trial to prove his innocence and hear the words "not guilty," but we couldn't justify the risk of failure, or further injustice at the retrial. We couldn't take that risk with a plea to time served on the table. So while he comes home free, he's still tainted by this broken system.

But right now is a time for happiness. For the next six-and-a-half hours, Manuel, I, and his other lawyers will be in a van making the 420-mile trip to his sister's home in Brownsville, just across the river from Mexico. There his family is waiting to greet him, a man they knew could never do what he was accused of and sentenced to die for.

Since Manuel was locked away, his mother and father have become elderly and frail and have learned to survive without his support. His sons Ismael and Jose Manuel have grown from a toddler and first-grader to teenagers. Elmita, Leticia, Marisol, Virginia, Rafael, and Wenceslao, his siblings, have learned to compensate for their missing brother. Nieces and nephews have gone without the ice cream and barbecue Manuel loved to share.

Until now.

After 420 miles and nine years, this is going to be one joyous reunion.

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How Many People Must Be Maimed or Killed Before We End the Militarization of Our Police Forces?

October 7th, 2014 No Comments   Posted in ACLU Nationwide
By Kara Dansky, Senior Counsel, ACLU Center for Justice

Yesterday, a grand jury in Habersham County, Georgia, decided not to bring charges against the police officers who threw a flashbang grenade into the crib of Bounkham Phonesavanh, known affectionately as "Baby Bou Bou." The explosion left a hole in the then-19-month-old's chest, exposing his rib, and almost ripped his nose from his face.

How could this happen? Combine systemic police militarization, the war on drugs, and sloppy police work, and you have the perfect recipe for disaster.

In May, the Habersham County Special Response Team executed a no-knock drug raid on the home of a family friend where Baby Bou Bou, his parents, and sisters were staying. It was the middle of the night, and even though the family's minivan was parked in the driveway and children's toys were in the yard, a squad of SWAT officers decided to throw a flashbang grenade into the living room.

Acting and looking like an invading army, the cops broke down the door, terrorizing the entire family. When Alecia, Baby Bou Bou's mother, tried to go to him, they screamed at her to shut up. They violently threw and pinned Bou, his father, to the ground, injuring his shoulder so badly he cannot take care of his children alone anymore. Alecia and Bou did not see their son until they arrived at the hospital several hours later.

When they were able to see him, they were devastated.

The explosion from the flashbang tore a hole in Bou Bou's chest, separated his nose from his face, and covered his body in third degree burns. His injuries were so severe that doctors placed Bou Bou in a medically induced coma.

And for what?

The man the SWAT team was looking for no longer lived in the house and was later arrested without incident. There weren't any guns or drugs in the home either. To add insult to injury, the county refuses to pay the Phonesavanh's medical bills, which now total $1 million, claiming the law doesn't allow it.

The Phonesavanh family, however, is not alone. SWAT teams raid people's homes approximately 50,000 times a year in the United States. Most of these raids are to search for drugs. Many of them result in tragedy.

In May, the police shot and killed a man in his home during a raid to search for some marijuana. The man had reported that he was fearful of being burglarized and the police told him: "If anyone breaks into this house, grab your gun and shoot to kill." When he followed their instructions, they killed him.

In July, a St. Paul SWAT team raided a home and killed the family dogs in front of two young children. All they found was some marijuana.

Earlier this month, the Georgia State Patrol sent a helicopter and a K-9 Unit to a man's home in search of what they thought was marijuana. It turned out to be okra.

As we pointed out in our report, War Comes Home: The Excessive Militarization of American Policing, police militarization is real. And it can be deadly. America watched in horror as law enforcement responded to the peaceful protests in Ferguson, Missouri, as though they were an invading army. They threatened to kill peaceful protesters. They pointed assault rifles at people exercising their right to peaceably assemble. They jailed journalists.

Some lawmakers have suggested that the answer is better training. Training will help, but it is not an answer to the very real and very entrenched problem of police militarization.

Law enforcement agencies have been aggressively using military weapons and tactics in communities of color for decades, mostly for the purpose of waging the failed and wasteful War on Drugs. They have been able to do so largely courtesy of the federal government, which funnels billions of dollars' worth of funding and equipment to state and local law enforcement agencies – equipment that was designed for combat.

Habersham County, where the flashbang exploded in Baby Bou Bou's crib, has received at least 17 assault rifles, 13 automatic pistols, two utility trucks, and an armored personnel carrier from the federal government in the last 10 years alone. When the police use combat weaponry to serve drug warrants and respond to peaceful protests, they do so knowing that they are using weapons and tactics designed for war against their own citizens.

What happened to Baby Bou Bou is not a rare occurrence, and neither is the lack of accountability for the police officers who altered his life forever. It's the price our communities pay – young and old, disproportionately black and brown – when police believe they are counterinsurgents waging the War on Drugs, and Uncle Sam arms them that way.

It is time to end police militarization. Not only through improved training, but through an end to the federal programs that fuel it and a shift in how the police view the communities they're meant to protect and serve.

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A Close Shave for Religious Liberty at the Supreme Court

October 7th, 2014 No Comments   Posted in ACLU Nationwide
By Heather L. Weaver, ACLU Program on Freedom of Religion and Belief

To shave or not to shave? That is the question the Supreme Court will consider today as it once again turns to fundamental issues of religious liberty.

This morning, the justices will hear oral argument in Holt v. Hobbs, a Muslim prisoner's challenge to grooming rules prohibiting him from growing a one-half-inch beard in accordance with his religious beliefs. The case was brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which Congress enacted in 2000 to provide stronger protections for incarcerated people of faith, who are especially vulnerable to infringements of their religious-exercise rights.

Gregory Houston Holt – the petitioner in the case, who also goes by the name Abdul Maalik Muhammad ­– believes that Allah commands him to wear a beard at all times. The hair-grooming policy at his Arkansas prison, however, requires prisoners to remain clean-shaven. When Holt asked for an exemption, prison officials essentially dismissed his request out of hand, claiming that it would create a security risk.

As the ACLU argued in a friend-of-the court brief filed on behalf of several former corrections officers, Arkansas officials have no good reason for denying Mr. Holt a religious accommodation.

Accommodating individual religious practice tends to enhance prison security because it has a "positive effect on individual adjustment and rehabilitation," and it helps foster an environment where prisoners do not feel as if decisions are arbitrary and unreasonable. Indeed, as noted in our brief, 38 states, the Federal Bureau of Prisons, and the District of Columbia "permit beards with no restriction on length for all prisoners or for prisoners with religious motivation," and several other states allow beards up to one-and-a-half inches in length.

Unfortunately, Arkansas officials were unaware of these facts because they did not bother to review the hair-grooming policies of other jurisdictions. Nor did they undertake any other investigation to determine whether Mr. Holt's requested half-inch beard would actually pose a security risk. Mr. Holt and the ACLU have maintained that this is simply inadequate to meet the very high legal threshold that RLUIPA imposes on prison officials who want to deny a religious accommodation.

Last term, the Supreme Court missed the boat with its rulings in two religion cases. In Burwell v. Hobby Lobby Stores & Conestoga Wood Specialties Corp., the court, for the first time, allowed business owners' religious beliefs to trump their employees' rights and benefits. And in Town of Greece v. Galloway, the court authorized town councils to marginalize nonbelievers and those of minority religions by repeatedly opening meetings with prayers specific to one faith.

But, unlike in Hobby Lobby and Town of Greece, the religious exercise at issue in Holt will not foment discrimination or impose any other harm on third parties. Wearing a short beard for religious reasons is a personal and individual expression of faith. It is the very type of core religious exercise that no government official should be able to impede without the most compelling proof of necessity.

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