By Chris Soghoian, Principal Technologist and Senior Policy Analyst, ACLU Speech, Privacy, and Technology Project
Apple made big news today by announcing that they are no longer able to extract data from iOS devices for law enforcement agencies. The company had, for several years, offered a popular service for police in which it would extract data from seized PIN- or password-protected devices (if you don't have a PIN or password, then the government doesn't need Apple's help to get your data). The message from Apple is clear: they don't like being in the surveillance business, and are doing everything they can to get out of it, while still offering usable products to the general public.
In the wake of the Snowden disclosures, many big tech companies have announced major security improvements, including encrypting the links between data centers, turning on default HTTPS encryption for website visitors, and encrypting the connections between email servers.
Such steps have made it more difficult for the government to spy on users without the companies' help. The use of HTTPS by Google, for example, means that Verizon can't help the NSA spy on its customers' web searches. But none of those changes impacted the companies' own ability to see data, and thus government agencies' ability to force the company to turn it over. Apple's new move is interesting and important because it's an example of a company saying they no longer want to be in the surveillance business–a business they likely never intended to be in and want to get out of as quickly as possible.
This was a big step for Apple, and one that likely required significant engineering work. What is so interesting and smart about this move is that rather than telling the government that they no longer want to help the government, they re-architected iOS so they are unable to help the government. Think of it as Apple playing a game of chicken, and the company has just thrown the steering wheel out of the window.
That's something that's going to be difficult for most tech companies to do, because so many of them have built their businesses around access to user data. If the companies can search and analyze that data, they can be forced to turn it over to the government. Apple's business model—selling expensive, luxury hardware to consumers—gives them the freedom to lock themselves out of access to their customers' data. Apple doesn't care what you store on your phone as long as you buy a new one every two years.
Although today's announcement is certainly big news, in many ways, it is far less significant than Apple's success in delivering end-to-end encrypted text, voice and video communications to the hundreds of millions of people using iMessage and FaceTime. To date, these apps have been advertised as free and easy ways for people to stay in touch with loved ones and family. However, the company could and should start advertising them as a much more secure alternative to regular telephone calls and text messages.
If Apple CEO Tim Cook's open letter and recent interview with Charlie Rose are any guide, the company thinks it can compete on privacy, particularly against Google. Perhaps prompted by Apple's announcement, Google revealed today that it, too, will be taking steps to better protect the data stored on Android devices. This is a great first step, and perhaps a sign that the big tech companies may be ready to compete on privacy. If Apple has indeed started a Silicon Valley privacy war, consumers will be the ones that ultimately come out on top.
By Jameel Jaffer, ACLU Deputy Legal Director and Director of ACLU Center for Democracy
This originally appeared in a Politico feature collecting responses to President Obama's recently announced military plan against ISIS.
It's strange to think of it now, but when Congress authorized President George W. Bush to use military force in the wake of the Sept. 11, 2001, terrorist attacks, the authorization was meant to be a limited one. The Bush administration wanted a more sweeping resolution—one that would allow the use of military force against any group, anywhere, that the president believed was planning terrorist attacks against the United States. But some in Congress believed it would be reckless to give the executive branch such boundless authority, and the language that Congress ultimately settled on was narrower: It authorized the use of military force only against groups connected in some way to the 9/11 attacks.
As it's turned out, the language of the 2001 resolution hasn't actually been very limiting. Quite the opposite. The government's lawyers cited Congress's 2001 resolution to justify dragnet surveillance programs. They cited it to justify the imprisonment without charge or trial of an American citizen seized at Chicago's O'Hare airport. They cited it to justify the torture of prisoners in CIA black sites and the targeted killing of an American citizen in Yemen. They cited it to justify the use of military force in Afghanistan, Pakistan and Somalia, and now they are citing it to justify a new war in Iraq and Syria. The use-of-force authorization has turned out to be as broad as the government's lawyers have been creative.
At least as troubling as what the executive branch is doing, though, is what Congress and the courts are not doing. In theory, Congress decides when the country goes to war, and against whom. In theory, the courts ensure that the president doesn't exceed the authority that Congress and the Constitution have given him. But in reality, Congress and the courts have abdicated their responsibilities. Unless that changes, the only real limits on the executive's authority to wage war will be the limits that the president and his lawyers decide, in their discretion, to recognize.
By Louise Melling, Director, Center of Liberty; Deputy Legal Director, ACLU
Do they think we're stupid?
It's the question I ask myself time and time again as I read about some of the newest restrictions on abortion. Like, for example, the law just enacted by the Missouri legislature, which forces a woman in Missouri to delay her abortion three days after she talks with a health care professional.
Supporters describe the forced wait as a "reflection period" – as if a woman hasn't already carefully considered her decision. They argue that a woman who resents the forced wait can simply "go across the river" to Illinois or Kansas, a trip that could take six hours, one way.
Sadly, this law isn't an outlier when it comes to treating a woman like she doesn't have enough sense to think for herself. And it's not alone in being designed to shame a woman out of having an abortion.
Politicians have passed laws that require abortion providers to give every women seeking an abortion a booklet produced by the state detailing the development of the fetus throughout pregnancy. It's not a question of giving the pamphlet to women who ask for more information. It has to go to all of us – without regard to how firm we are in our decision.
Another law mandates that a medical professional tell a woman that an abortion "kills a living human being." Still more laws require women to have ultrasounds and have the images described to us before we are allowed to have an abortion.
Laws that send a woman, and only ever a woman, home to consider her decision, no matter how confident she is of her choice, no matter how long she's thought about it, and no matter how many people she has consulted, tell a woman she can't be trusted to make a decision. That her yes – "Yes, I am sure I want an abortion" – can't mean yes because a woman can't be trusted to understand what an abortion is.
In a nutshell, these laws all say a woman can't be trusted to think. It's a notion I would like to think antiquated, but it remains grievously at play.
Why else send a woman home even when she's sure she wants to end a pregnancy? Why else force on her the booklet with the pictures? Why else require her to hear a description over her objection? To make her feel bad, of course. To replace her choice – of an abortion – with a choice that a politician finds preferable.
These laws send a deeply disheartening message to women. They send the message that we are selfish if we prioritize finishing school, advancing in our career, or exiting a hurtful relationship. If we prioritize caring for our existing children in the way we dreamed. They tell us that, despite progress, the old-fashioned messaging that a good woman puts motherhood first is still alive and well.
They shame the nearly one in three women who will have had an abortion by the time she turns 45. Those women are our mothers, daughters and sisters. We don't think they're stupid, do we? Apparently, for all too many lawmakers, the answer to that question is a resounding yes.
Is the United States Constitution as important as the Declaration of Independence?
Every Fourth of July, we celebrate our founders' decision to form a country independent of Great Britain. But we don't have any equivalent celebration of the republic they actually founded – or the document that made us the United States of America.
In 2004, Congress took a first step to recognizing the importance of the Constitution, enacting a law declaring September 17 – which is the anniversary of the U.S. Constitutional Convention's adoption of our Constitution in 1787 – to be Constitution Day. But this legislation did not create a federal holiday, which would have meant a day off from school or work. Instead, it made September 17 a special day in school, requiring all schools that accept federal funding to present educational programs about the Constitution. In 2011, President Barack Obama issued a proclamation taking the next step by extending the day of observance to a week – September 17-23.
This year marks the 10th anniversary of Constitution Day – a good time to take the final and long overdue step and really show our commitment to our government's founding document by making September 17th a real federal holiday.
You can help by signing and promoting our petition on the whitehouse.gov website. We need 100,000 signatures, which will take a lot of organization. Students who join this campaign will have to do their best impressions of congressional whips, drumming up support and building coalitions of parents, teachers, and other adults to cast a vote for the petition.
Were you about to say: "But how can schools teach kids about the Constitution if they're closed?"
Happily, President Obama's decision to expand Constitution Day through the week leaves four additional days for schools to educate the next generation of civil libertarians about the importance of the Constitution. For two years now, the ACLU has been helping teachers and parents with their efforts to help students appreciate the Constitution by creating "Constitution Day Brought to You by the ACLU." Our website offers interactive educational program aimed primarily at students in grades 5-9 and providing teachers with model lesson plans that won't put their students to sleep.
For teacher resources and games for Constitution Day, click here.
The Supreme Court once declared in our historic Tinker case that "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Children should learn about and celebrate the Constitution, a document so powerful that it ensures their rights, even in the classroom.
But this shouldn't only happen in school. And honoring the Constitution should not only be an activity for students. If students, and hopefully many adults as well, are given a day off to devote to contemplating and discussing the Constitution, education and recommitment to our fundamental values can also spread outside the schoolhouse gate.
Supporting the petition to start an important new American holiday is one small way that anyone can show his or her respect for the Constitution. And after all, the Constitution has already shown a great deal of respect for "We, the People" by making us the true government of the United States of America.
Celebrate the Constitution and experience democracy in action by signing now.
By Nathan Freed Wessler, Staff Attorney, ACLU Speech, Privacy & Technology Project & Nicole Ozer, Technology & Civil Liberties Policy Director, ACLU of Northern California
New documents obtained by the ACLU of Northern California appear to show the Florida-based Harris Corporation misleading the Federal Communications Commission while seeking authorization to sell its line of Stingray cell phone surveillance gear to state and local police. The documents raise the possibility that federal regulatory approval of the technology was based on bad information. The ACLU today wrote a letter to the FCC asking for an investigation.
Harris's Stingray devices have come under sustained scrutiny in recent months because of their capacity to violate the constitutional privacy rights of large numbers of people, both suspects and innocent bystanders alike. Because Stingrays interfere with cell phone networks by mimicking cell towers and tricking phones into reporting back their identifying information, location, and other data, the FCC must sign off on the technology before it is sold to state and local police.
Through a Freedom of Information Act request to the FCC, the ACLU obtained a chain of emails between Harris employees and the FCC regulators responsible for reviewing Harris's equipment authorization application. In an email dated June 24, 2010, a Harris representative wrote:
Just want to make you aware of the question below we received regarding the application for the Sting Fish. I know many of these questions are generated automatically but it sounds as if there is some confusion about the purpose of the equipment authorization application. As you may recall, the purpose is only to provide state/local law enforcement officials with authority to utilize this equipment in emergency situations. [Emphasis added].
The problem? By 2010, when this email was written, it should have been patently obvious to the Harris representative that the use of StingRay technology for emergency situations was quickly becoming the exception, not the rule. As we describe in our letter to the FCC today, "records released by the Tallahassee, Florida, Police Department explain that in nearly 200 cases since 2007 where the department used a StingRay, only 29 percent involved emergencies; most of the rest involved criminal investigations in which there was ample time to seek some sort of authorization from a judge."
As early as 2004, while seeking retroactive approval for purchase of a Harris StingRay/Amberjack system, the Miami-Dade, Florida, Police Department wrote that "wireless phone tracking systems utilized by law enforcement have proven to be an invaluable tool in both the prevention of these [criminal] offenses and the apprehension of individuals attempting to carry out criminal acts."
Likewise, in 2012 the Charlotte, North Carolina, Police Department sought city council approval to purchase a StingRay to "assist in searches related to criminal and/or homeland security investigations." A spokesperson for the Gwinnett County, Georgia, Police Department has stated publicly that his agency uses its StingRay device "in criminal investigations with no restrictions on the type of crime." A member of the Oakland County, Michigan, Sheriff's Office described using a Harris Hailstorm device to track and locate fugitives and criminal suspects.
A private corporation obviously shouldn't be allowed to mislead federal regulators when applying for a license to sell invasive surveillance gear. Harris's misstatement is particularly galling because asserting that Stingrays are only used in emergency situations profoundly understates the amount of surveillance that state and local police will carry out, and therefore the magnitude of Fourth Amendment violations that may result.
We still don't know what Harris wrote in its underlying application to the FCC—the agency has so far refused to release these documents to the ACLU. But in light of what we do know from the emails, we have asked the agency to investigate. The FCC Inspector General and a new FCC task force that will soon begin scrutinizing unauthorized Stingray use should take a close look at whether the agency's decision to authorize sale of Stingrays was influenced by false information. If the FCC is going to approve government use of invasive surveillance devices, at the very least it needs to have all the facts.
By Hina Shamsi, Director, ACLU National Security Project & Chris Anders, Senior Legislative Counsel, ACLU Washington Legislative Office
Whatever you may think of the harms carried out by the group referred to as the Islamic State in Iraq and Syria (ISIS), the fear of ISIS is now creating a double threat to our system of checks and balances. We now have a Congress so anxious to avoid tough votes that it is ducking any decision on whether to go to war in Iraq and Syria, and a president who is grabbing unprecedented power to take the country to war all on his own.
It is a dangerous combination of congressional political cowardice and presidential overreach. Almost a week after the president's speech on a military campaign in Iraq and Syria – and almost a month and half since President Obama began airstrikes in Iraq to confront the group – Congress has yet to authorize, or reject, any use of military force against the group. With Congress set to adjourn for a seven-week recess as early as Thursday, the time to debate and vote on any timely authorization is quickly evaporating.
Failure to debate and vote on an authorization before going on recess would be an abdication of Congress's singular war-making power. Absent a sudden attack on the United States, our Constitution vests in Congress alone the authority "to declare War," and Congress needs to do so by specifying enemies and defining clear objectives to define the scope of the president's war authority.
The ACLU is urging Congress to reassert its constitutional role before it leaves for recess:
Given the immediacy, gravity, and scope of the armed conflict that the President has already entered United States armed forces into in Iraq, and his stated intent to use military force against ISIS in Syria, there is no more pressing question before Congress or the country—and no more fundamental constitutional question for you and your colleagues—than whether to authorize or reject the use of force in Iraq and Syria.
Holding an up or down vote on the president's proposed military operation would be more than an abstract practice of good governance. It would be an essential rejection of sweeping executive war authority claimed by the Obama administration. As of today, Obama administration officials have claimed that the president has authority to use the military against ISIS, under trumped-up claims of both inherent constitutional authority and statutory authority from the 2001 Authorization for Use of Military Force (AUMF).
The administration's claims are factually incorrect and fundamentally dangerous. First, the administration's view that the president has constitutional authority as commander in chief to use force against ISIS is overbroad. The president's commander-in-chief authority may only be exercised when the country has been attacked, or when there is a threat of a direct and imminent attack. It cannot be invoked when, as top administration officials have repeatedly noted, ISIS does not present an immediate threat to the nation.
The claim that the 2001 AUMF authorizes an expanded military campaign in Syria and Iraq today is equally spurious and dangerously broad. The 60-word AUMF from 2001 authorized military action against "nations, organizations, or persons" who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or person." In other words, the AUMF, which Congress passed in the immediate aftermath of 9/11, authorized war against the Taliban and al-Qaeda in Afghanistan.
In essence, the Obama administration is arguing that the 2001 AUMF applies to a group that didn't exist on 9/11, and isn't even associated with al-Qaeda – indeed, to a group explicitly rejected by al-Qaeda. The statute simply cannot be read so broadly. The administration's apparent interpretation of the 2001 AUMF is an impermissible unilateral declaration of war against a new enemy.
Still, because the administration has not made public the details of its interpretations of the 2001 AUMF – and because Congress and the public needs to know those details to debate the administration's claims of authority – the ACLU has filed a Freedom of Information Act request seeking those interpretations.
Having Congress and the public informed and engaged is all the more important because both the Bush and Obama administrations have argued in multiple contexts that human rights and civil liberties at home and abroad must be curtailed because — and so long as — the nation continues to be on a war footing.
For more than a decade now, the United States has relied on overly broad claims of AUMF authority to engage in often-secret military or paramilitary actions in an unknown number of countries against enemies the executive branch has refused to identify publicly, and to hold detainees in Guantánamo and elsewhere indefinitely and without charge or trial. For years, the Bush administration also used war-authority arguments to justify torture and the warrantless surveillance of Americans and non-Americans alike. The Obama administration not only failed to grapple fully with those policies – insisting, for example, that it was better to look forward and not backward at torture policies approved at the highest levels of the previous administration – it perpetuated or expanded many of the same policies.
For their part, Congress and the courts have largely deferred to the executive's claims of war-based authority, weakening the other two branches' ability to check rights violations committed by the executive. The result has been a perpetual, unchecked war, which is now expanding even further.
President Obama was right when he said in May 2013 that "the choices we make about war can impact – in sometimes unintended ways – the openness and freedom on which our way of life depends." His administration's unjustifiable and expansive reading of its war authority threatens to rob the American people of their say in choices about war. It is time for Congress to either specifically authorize or reject war in Iraq and Syria, and for the president to stay within the bounds of the Constitution in making war decisions.
By Laura W. Murphy, Director, ACLU Washington Legislative Office
This post originally appeared on the Huffington Post.
For an organization that works on issues as diverse as drones, women's rights, racial justice, war powers, immigration and flag burning, internal debates are inevitable and healthy. We welcome them. One of those long-standing debates has become more animated recently as the Senate considers a constitutional amendment that would empower Congress and the states to regulate even non-partisan political debate without regard for the First Amendment's freedoms of speech, assembly and petition.
In advance of a vote on the amendment, several former ACLU officials wrote a letter to the Senate criticizing the ACLU's current stance on campaign finance laws. Professor Geoffrey Stone penned a similarly critical blog here in support of the letter.
We have enormous respect for Professor Stone and our former colleagues, and we share many of their concerns about the integrity of our political system. We also agree that our campaign finance system needs to be reformed. For that reason, the ACLU supports public financing programs that provide candidates with resources to mount a meaningful challenge against wealthy opponents such as the matching dollar system in the Fair Elections Now Act. We support tailored disclosure requirements. We support stronger rules to ensure that outside political advocates are not illegally coordinating their activities with candidates. And we support reasonable limits on direct contributions to candidates.
But history has taught us to be wary of proposals that would empower the government to monitor, regulate, and ultimately criminalize political speech. For instance, with the McCain-Feingold bill in 2002, Congress made it a criminal offense for groups like the ACLU or Sierra Club to even mention a candidate in certain communications paid for by general treasury funds in the crucial run-up period to elections and primaries.
The constitutional amendment under consideration in the Senate is even broader in some ways. It would allow the federal and state governments to limit spending, including spending by private citizens, that lawmakers say could "influence elections." Even proponents of the amendment have acknowledged that this authority could extend to books, television shows or movies, such as Hillary Clinton's Hard Choices or a show like the West Wing, which depicted a heroic Democratic presidential administration during the crucial election years of 2000 and 2004. It could even reach the ACLU's letter to Congress on the amendment noting that all of its sponsors are Democrats (or independents who caucus with the Democrats).
Professor Stone suggests that restrictions on campaign-related speech are somehow less troublesome if they apply in a non-partisan fashion. Without doubt, it would be worse to pass a law that attempted to limit speech by Democrats and not Republicans, or vice-versa. It does not follow, however, that we can or should accept a regime in which the government gets to decide how much speech is enough in the political arena.
That problem is compounded, moreover, by the inherent difficulty in deciding what speech is campaign-related and thus subject to regulation. Take the common example of a newspaper ad that supports a legislative proposal that a candidate for office also supports. Does that ad support the pending bill or does it support the candidate? Is it intended to influence policy or an election? And do we really want government officials to decide when they may be prompted by ulterior political motives?
There really isn't that much blue water between Professor Stone, our former colleagues and the ACLU. They want more transparency around campaign funding. We want to be sure advocacy on important issues of the day remains unrestrained. These two goals are both worthy and not mutually exclusive, yet so much of the rhetoric suggests they are. It's time for advocates on all sides of the issue to talk with one another, not past one another.
In sum, this is a tough issue, but the desire to do something should not lead us to abandon core free speech values that have served us so well for more than two centuries.
By Faith Barksdale, Legal Assistant, ACLU
Why does the state of Wisconsin want voter ID for voters? It's not to prevent voter fraud--- there have been ZERO instances of in-person voter fraud, which the state's 2011 voter ID law purports to address. Instead, it disenfranchises voters who aren't able to get IDs. That's why a court found that the state's voter ID requirement imposes an undue – and unconstitutional – burden on Wisconsin voters.
Yet the state of Wisconsin appealed, and today we're at the Seventh Circuit Court of Appeals fighting for all Wisconsinites to have the right to vote as provided under the Constitution and the Voting Rights Act.
Though Wisconsin and other states claim to offer "free" voter ID, for many, these IDs don't come easy and they don't come cheap. You see, in order to qualify for a voter ID in Wisconsin you must present several forms of identification, often including a birth certificate. For many people this is a barrier that is insurmountable. Our client Eddie Lee Holloway Jr., was unable to get ID because his birth certificate read "Eddie Junior Holloway" instead of "Eddie Lee Holloway Junior." When all was said and done, he was told that a new birth certificate would have cost $400 to 600 to fix. He testified in trial he didn't have "400 to 600 cents."
That sounds a lot like a poll tax, a practice forbidden by the Constitution in the 1960s.
Across the country, we've seen state legislatures impose voter ID and other measures that are nothing more than voter suppression. In Ohio, a judge agreed with us that cuts to early voting should not be in place for the midterm election. We're still fighting cuts to early voting in North Carolina---which passed one of the most suppressive laws in the country—along with the elimination of Same-Day Registration.
Cutting early voting is a huge blow to the hundreds of thousands of voters who face hardship voting on Election Day due to concerns such as the inability to take time off work, arrange for childcare, or even catch a ride. For African-American voters in particular, these cutbacks are devastating. In addition to making disproportionate use of voting early generally (in North Carolina up to 70 percent of African-American voters cast their ballots during early voting periods in 2008 and 2012), African-Americans rely especially on Sundays during early voting periods.
And Same-Day Registration is one of the most powerful policy reforms for increasing voter participation. In fact, states that enact Same-Day Registration enjoy average voter turnout at rates 10 percentage points higher than those that don't.
Though today's hearing is about Wisconsin's appeal to our victory over its voter ID law, there's more at stake. We're tearing down laws that threaten to chip away at our democracy.
By Lenora M. Lapidus, Women's Rights Project
Peggy Young worked for UPS delivering letters and packages. When she became pregnant, she requested but was denied less strenuous work. She was then forced off her job.
We first told you about Peggy's story back in 2012, when the ACLU announced its support for her appeal. We argued that Peggy Young, like all pregnant workers who need temporary accommodations, is entitled to the same kinds of light-duty assignments employers routinely make available to disabled and injured workers. The appeals court in Peggy's case ruled against her. The court found that it was perfectly legal for UPS to leave her high and dry.
Just when she needed her paycheck to prepare for the expenses of having a baby, Peggy lost her pay, her benefits and had to go without health insurance. To make matters worse, she couldn't even get short-term disability benefits, because her doctor hadn't said she could not work – just that she could not lift heavy objects. She ended up stuck in a cruel bind – not allowed by UPS to work, but also not able to collect the short-term benefits normally available to people who temporarily cannot work.
Today, we filed a "friend of the court" brief in support of Peggy Young at the Supreme Court, which will consider her case this term.
Peggy's home state of Maryland reacted to this decision by standing up for pregnant workers. It passed a law requiring employers to give reasonable accommodations to pregnant workers who need them. This year, a number of other states followed suit. And now the Supreme Court will decide whether employers like UPS must offer light duty and other accommodations to pregnant workers that are provided to other employees.
Unfortunately, Peggy's situation is not an isolated case. In fact, it's pretty typical of workers who are pushed to take unpaid leave when pregnant. One worker who testified before Congress this year, Armanda Legros, described her inability as a single mom to put food on the table after she was kicked out of her job at a truck company because she couldn't lift heavy items while six months pregnant. She ended up having to take shortcuts, like putting water in her older child's cereal instead of milk, and had to turn to public assistance to get by.
Our client Asia Myers, a nursing assistant at a nursing home was not allowed to come to work after she experienced pregnancy complications and was told not to lift by her doctor. Being out of work made it hard for her to make ends meet, and she watched the bills pile up.
These incidents have long-term effects on women's ability to maintain stable careers and achieve equality in the workforce. Last week, the New York Times reported on new data showing that while men statistically get paid more when they have children (the "fatherhood bonus"), women pay a "motherhood penalty" that affects their income throughout their lives. Policies like UPS's, that force pregnant women who want to work out of the workforce, contribute to this problem.
In the brief we filed today, along with our co-authors at A Better Balance, and joined by a number of civil rights organizations, we explained what happened to Peggy, Armanda Legros, and other women who have been pushed into financial instability by policies like UPS'. These are part of the larger picture of persistent inequality for working women who become pregnant and have children. We hope the Supreme Court agrees: It's time for employers to let women – including pregnant women – remain at work.
Read more about pregnancy discrimination.
By Cassandra Stubbs, Director, ACLU Capital Punishment Project
We know almost nothing about how Earl Ringo Jr. was executed in the early hours of the morning by the State of Missouri. Missouri deliberately hid crucial facts about its lethal injection drugs and their administration, blocking the public from understanding how capital punishment is carried out in our name. This state government took the secrecy one step further, its officials telling outright lies under oath about what could happen to Mr. Ringo and others scheduled for execution. We need our courts to care enough to demand the truth. We need other states' governors to put a halt to executions until we have answers to the most basic questions about lethal injection.
Missouri was caught in its lies a week before Mr. Ringo's execution date. The Director of the Missouri Department of Corrections George Lombardi promised, under oath, that Missouri would not use midazolam, the controversial drug tied to botched executions in Oklahoma, Ohio, and Arizona. That was at a hearing held in January. But chemical log forms revealed last week prove that prison officials were in fact administering midazolam and had done so in executions both before and after Lombardi's testimony.
Instead of admitting to their flat-out lie, Missouri officials first tried to claim that the drug was "offered" to prisoners, as if it were their choice to receive a drug that had tortured prisoners in other states. But officials have conceded that the prisoners did not get to make the decision about whether to accept midazolam, a drug that is only administered intravenously.
Next, Missouri tried to change the definition of the word "execution" itself. Missouri Department of Corrections spokesman David Owen said that Missouri didn't use midozalm during the execution, only "in advance" of the execution. The record logs reveal that "in advance" means as little as three minutes before . Under this logic, Missouri could administer any secret torture regime in the hours leading up to an execution, outside of the public eye, without any review or disclosure.
Tragically, court majorities, over the vigorous dissents of a few judges, swallowed these verbal gymnastics and let the secrecy continue.
This kind of secrecy encourages and protects the use of shady manufacturers and illegal substances. Expired drugs, untested cocktails and methods – these are shameful examples of a criminal justice system gone terribly wrong. Indeed, back at the hearings in January, Department of Corrections officials disclosed that they purchased lethal injection drugs the same way one might buy crack cocaine: in the cover of the night, across state lines, with cash in hand.
More fundamentally, such covert action is un-American. We are a nation built on democracy, open government, and accountability. Our ideals are founded on the premise that our government doesn't lie to us, and that when it does, courts will care, and act.
Four justices of the United States Supreme Court voted last night to stop the execution of Ringo until these new revelations could be evaluated by a court. Unfortunately, that was one justice too few.
What's needed now is for federal courts and governors to halt all executions until we have answers to the most basic questions about lethal injection.