There Is No 5-Second Rule for the First Amendment, Ferguson

August 21st, 2014 No Comments   Posted in ACLU Nationwide
By Lee Rowland, Staff Attorney, ACLU Speech, Privacy & Technology Project

This piece originally ran at POLITICO.

Tear gas, rubber bullets, and assault weapons; free speech zones, gags, and press pens: This is the arsenal of the police state. Some of these tactics are physical. The other ones—all the more pernicious for their quiet coercion—impose a veil of silence over the actions of law enforcement. And each of these weapons has been unleashed on the people of Ferguson, Missouri, since the killing of Michael Brown.

In the first few nights of protest, Ferguson and St. Louis County police responded with a truly inconceivable show of force. Officers suited up in DHS-funded military hand-me-downs, outfitted with goggles, machine guns, sniper rifles, riot gear and gas masks. Distressing warzone-like images flickered into the public consciousness: photos of armed police cohorts pointing loaded automatic weapons at citizens with their hands in the air, women and children's faces streaming with tear gas and milk and white officers targeting black protesters like it's Selma circa 1964.

The message was clear: The public is the enemy. And as we the people started getting that message, Ferguson starting working harder to shoot the messengers.

Police repeatedly ordered protesters to turn off cameras and cell phones recording law enforcement. In response, the ACLU of Missouri had to go into court to seek an emergency agreement reminding the police that photographing them is a constitutionally protected right. Roving SWAT teams, perplexingly, raided a McDonald's and arrested two journalists engaged in the suspicious act of recharging their phones. Police aimed tear gas canisters directly at members of the press. A local news crew caught police riding up afterwards and disassembling another crew's media equipment.

Then came more systemic approaches to shutting down the speech of the public and the press. First: a nighttime curfew, applied to a broad area, whose details were obscure and seemingly applied ad hoc on the ground. Of the seven people arrested that night, three claim to have been on their own driveway. Of course, since journalists were subject to the curfew, we don't have a lot of objective facts about what happened in those wee hours.

That curfew only lasted a few days. It was then replaced by a "no standing" rule of dubious origin and authority, under which police threatened the arrest of anyone who stood still for more than 5 seconds, day or night. That also included press. CNN's Don Lemon was pushed along the sidewalk on live television, after being told by authorities to be exactly where he was. As he rightly said to his audience: "Imagine what they are doing to people when [sic] you don't see on national television, the people who don't have a voice like we do."

However, reporters were allowed to stand still—so long as they stayed in the "press pen," a designated space so far off from the action between the cops and the protesters that reporters who tried to witness anything of consequence were tear gassed. And the police didn't hesitate to show they meant business, arresting Getty photographer Scott Olson when he strayed. Like other reporters arrested, he too was promptly released without a report or charges. The point of these repeat press arrests appears to be preventing accountability, not protecting public safety.

And officials have insisted they're not stopping.

The ACLU again went into court on an emergency basis to challenge the 5-second rule. The court declined to shut it down, relying on the state attorney general's word that the city had set aside a designated "free speech zone," which provided ample opportunities for protest. But when ACLU of Missouri staff went to confirm that description after the hearing, the area was empty and off-limits to the public. As of yesterday, the state did ensure the area was open, but it's totally inadequate. Removed from the symbolic location of Michael Brown's death, isolated and sterile, the "free speech zone" is truly where free speech goes to die. And it means that the rest of Ferguson is officially a speech-free zone.

Each of these tactics is an unconstitutional restriction on the rights of speech and assembly in its own right. But this constantly changing whirlwind of restrictions further deepens the constitutional sinkhole Ferguson has become. When residents are bewildered as to when, where, and how they can gather and speak without risking arrest, that uncertainty itself casts a shadow of intimidation and self-censorship across the right of free speech. And of course, that uncertainty is often happening at the business end of a high-powered rifle.

So why, especially in light of our strong First Amendment traditions regularly upheld by the courts, has Ferguson discarded the First Amendment? Perhaps it's because the stakes are so high.

The more news and images we see streaming out of Ferguson, the more we have visceral evidence of the systemic problems of race, inequality, militarization and an us-versus-them cop mentality that are fueling continued protest and righteous outrage. And the more we know about Ferguson, the more concern we should have. An astoundingly non-diverse police department. Financial incentives to over-enforce minor infractions. Charging a victim of police brutality for getting blood on officers' clothing. These aren't mere anecdotes. They are threads in the fabric of a truth we the people have a right – a duty – to reveal and unravel.

As our Supreme Court recognized in Roth v. United States, "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

There is much political and social change desired by the people in Ferguson, and throughout our country. Not one more unarmed young black man should die at the hands of the police. Not one more local police force should get financial incentives to militarize and mobilize against its own citizens. Not one more photographer should risk arrest by doing her job. The iconic images coming out of Ferguson illustrate the urgency of change.

So we the people must give thanks. We give thanks to the journalists who have been zip-tied in the fight for transparency. We give thanks to the tweeters who crowdsource the eyes and ears of America. We give thanks to those on the streets of Ferguson who lift up their camera phones to bear witness to the truth in real time. Because they are the agents of the change we must all seek together.

Our words, our voices, and our pictures are the most devastating weapons of all to entrenched systems of injustice: systems that led to the death of Michael Brown and to the anger it spawned.

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For Eric Holder, While He’s on the Front Lines in Ferguson

August 20th, 2014 No Comments   Posted in ACLU Nationwide
By Jennifer Bellamy, Washington Legislative Office

Long after the news cameras leave town, Attorney General Eric Holder wants the people in Ferguson to know he stands with them. He's in Missouri today, visiting the front lines.

In the days since Michael Brown was shot, the scene in Ferguson has been bleak. Protesters have been corralled into padlocked protest zones, bombarded with tear gas, and patrolled by police armed with weapons designed for combat. As has always been the case with overly aggressive policing in this country, communities of color have been hardest hit.

Protestors on the ground are demanding change. Their calls are being echoed across the country.

That's why it's so important that Eric Holder is in Ferguson today.

As attorney general, Eric Holder is uniquely positioned to help ensure that we do not have another Ferguson. We are encouraged to see that Holder has sent 40 FBI agents to conduct an independent investigation into Michael Brown's shooting. But we cannot just investigate what went wrong; We need to make the sweeping policy changes that will prevent future tragedies.

For many, mourning Michael Brown's death is unacceptably familiar. We have a long history of racially biased policing in this country, and too many instances of excessive force used against unarmed black men. Racial profiling and bias got us here. Addressing pervasive racial bias in our criminal justice system is the way to move forward.

To that end, when Holder returns to Washington, his first move should be to update the Department of Justice's guidance on the use of race by law enforcement officials, to include a comprehensive ban on profiling by federal law enforcement which would apply to state and local law enforcement who work in partnership with the federal government or receive federal funding. To protect and serve is not a suggestion. It is a mandate that law enforcement must apply equally to all communities. To that end, Holder should also lead the Justice Department to take steps such as requiring racial bias training and guidance for forces that receive federal grants.

The militarized response to protestors in Ferguson gives us a stark view into how our state and local law enforcement agencies have amassed wartime arsenals, and as our recent report makes clear, this militarized policing has disproportionately targeted communities of color. Holder, at least in part, holds the purse strings, as the Justice Department is one of several federal agencies funneling billions of dollars to state and local police departments to help them purchase military weapons and equipment. Our communities are not warzones, and Holder should also act quickly to mandate that his department apply stricter rules – or at least some oversight – to local police forces that are given military equipment for free.

For far too long, we have had two criminal justice systems in this country: one that serves and protects white communities, and one that criminalizes and controls black and brown communities. Eric Holder can provide the moral leadership we need to end the siege on communities of color. He's in Ferguson today because he is ready to address these systemic problems. Let's make sure he follows through.

Take Action! Call on the Department of Justice and other federal agencies to stop funding the siege on communities of color.

For more, please click here to read a letter to the Department of Justice outlining the ACLU's and other civil rights groups' recommended reforms to eliminate police abuse.

For the ACLU's complete response to Ferguson, click here.

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Guantánamo’s Layers of Lawyers

August 20th, 2014 No Comments   Posted in ACLU Nationwide
By Rita Cant, Attorney, ACLU Speech, Privacy & Technology Project

In the criminal justice system, we're familiar with two separate yet equally important groups of lawyers. On one side, we have attorneys for the government, who investigate, charge, and prosecute crimes. On the other, we have the defense attorneys, who advise the accused, preserve their rights, and represent them before the court.

At the Guantánamo Bay military commissions, where I observed pre-trial hearings last week, things are not so simple.

Take the prosecution of Ramzi bin al Shibh, one of the five detainees being tried for his alleged role in the 9/11 attacks. At least four legal teams are now directly involved in Mr. Shibh's case. They include not just the prosecution and defense teams, but also two additional sets of lawyers, each charged with investigating highly fraught issues of fairness and procedure that have arisen in this unique military commission system. These additional legal teams are necessary to address yet another problem of the government's own creation.

First, we have a special litigation team from the Department of Justice, examining whether Mr. Shibh's defense was compromised by the FBI's secret infiltration of his legal team. As you'll remember, hearings were stalled in April, when lead counsel for Mr. Shibh revealed that his team had been under ongoing FBI investigation and that members of the defense were recruited as FBI informants. Last week, the proceedings were again derailed while the DOJ's special litigation team advised the commission judge – without explaining what the FBI was even investigating – that the investigations had ceased and could no longer impair the detainees' representation or their attorney-client relationships. (Some of the detainees' lawyers cried foul, arguing that past probes continue to wreak havoc on their defense.)

Second, we have an independent defense counsel appointed to help Mr. Shibh understand the DOJ team's report and decide for himself whether his defense has been compromised and if he needs new counsel. Frustratingly, the DOJ's special litigators refused to share any details about the probes, so the prosecution and defense teams, as well as the public, are left to speculate about the nature of the FBI investigations and the extent of their reach. Without information about the risks and potential conflicts of continued representation, Mr. Shibh's own lawyers cannot advise him on this issue. In the meantime, everyone must wait for independent defense counsel to get full disclosure from the DOJ special litigators in order to advise Mr. Shibh about whether he needs a new defense team.

So why all these layers of lawyers?

They're the direct result of external government agencies' secret tampering in this case. And extra lawyers – "shuffling in and out of the courtroom," as defense counsel Walter Ruiz describes it – are costly to the 9/11 prosecution itself. For example, the last three commission hearings were consumed by side-litigation to discover how much damage has been done by the FBI and other agencies operating in the shadows of military justice.

During last week's proceedings, there was much discussion from the prosecution team about the need to avoid delay. But the reality on the ground at Guantánamo is that an unfair, unbalanced playing field gives carte blanche to outside influences to derail the commission's proceedings, resulting in more litigation, parallel investigations, extra lawyers – and increased delays. That's on top of the additional legal challenges resulting from the government's rejection of federal courts' more equitable system of justice in favor of military commissions. In the end, of course, history judges trials not by how quickly they convict people, but how fairly they arrive at their result.

In this instance, again, delay becomes necessary to achieve some greater measure of fairness. Unfortunately, we're still very far away from that.

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The Real Reason Ferguson Has Military Weapons

August 19th, 2014 No Comments   Posted in ACLU Nationwide
By Kara Dansky, Senior Counsel, ACLU Center for Justice

This piece was originally published on

It used to be billy clubs, fire hoses and snarling German shepherds. Now it's armored personnel carriers and flash-bang grenades. The weaponry has changed, but the target is still the same.

If some of the photos from Ferguson last week were in black and white, you might confuse them with scenes from the 1950s south. White police officers beating black protestors. Young black men lying face down in the street with police officers standing over them with assault rifles.

We have a long history of aggressively policing communities of color in America. Police have treated black and brown people like the enemy for decades. In that context, the recent events in Ferguson in the wake of Michael Brown's shooting come as no surprise. But they go way beyond Ferguson.

What we're witnessing is the militarization of policing, and it has become commonplace in towns across America.

Read the complete piece on

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Ferguson is Everytown, U.S.A.

August 18th, 2014 No Comments   Posted in ACLU Nationwide
By Nusrat Choudhury, Staff Attorney, ACLU Racial Justice Program

The tragic killing of college-bound teenager Michael Brown has raised questions about the frequency with which police kill unarmed black men in America. The answer, unfortunately, is far too often.

Just three months ago, on a warm April afternoon, a white police officer shot and killed Dontre Hamilton, a 31-year-old black man, in downtown Milwaukee's Red Arrow Park. According to the Milwaukee police chief, the officer was "defending himself in a violent situation." But the eyewitness report of a Starbucks barista paints a very different picture.

According to the barista, Hamilton had been sleeping on the concrete sidewalk next to Starbucks when two police officers approached him, asked him questions, and left after determining that he was doing nothing wrong. But an hour or so later, she heard yelling. Looking out the Starbucks window, she saw a different white police officer standing up against Hamilton, "who was holding the officer's own baton in a defense posture." The officer "lunged" at Hamilton in an attempt to get the baton, but failed. The barista watched in horror as the officer stood 10 feet away from Hamilton, pulled out a gun, and shot Hamilton 10 times in quick succession without issuing any verbal warnings. The barista reports that she never saw Hamilton hit the officer with the baton.

The tragic killing of Hamilton bears a striking – and deeply troubling – resemblance to the killing of Michael Brown, who was shot by an officer six times, including twice in the head, after being stopped for walking down the middle of a street. Including Hamilton and Brown, at least six black men were shot and killed by police since April in circumstances that suggest the unjustified use of excessive force and possible racial profiling.

In July, Eric Garner was killed in New York by officers who placed him in a chokehold – a banned tactic – and slammed his head into a sidewalk during an attempt to arrest him for allegedly selling illegal cigarettes.

In early August, police in Beavercreek, Ohio, fatally shot John Crawford III in a Walmart, where Crawford had been holding a BB gun that he had picked up on a store shelf.

Just days after the killing of Brown, Ezell Ford was killed by police on a Los Angeles sidewalk during an investigative stop. While police contend that officers opened fire after a "struggle," Ford's mother reports that he was lying on the ground complying with the officers' order when he was shot three times in the back.

And the very next day, pressman Dante Parker was killed in Victorville, California, after being repeatedly shocked with a stun gun by police attempting to arrest him as a suspect in a nearby robbery. Apparently, police suspected him because he was riding a bicycle, and the robbery suspect was reported to have fled on a bike.

The stories of these six people make one thing painfully clear: The killing of black men in incidents that begin as investigatory police stops are anything but unusual in America. In this sense, Ferguson is Everytown, U.S.A.

There is a reason for this. More than 240 years of slavery and 90 years of legal segregation in this country have created a legacy of racialized policing. Killings and beatings lie at one end of a spectrum in which black people ­– and young black men in particular – are routinely stigmatized, humiliated, and harassed as targets for police stops, frisks, and searches, even when they are doing nothing wrong.

The numbers show the reality.

Studies of Rhode Island traffic stops and New York pedestrian stops confirm that police stop blacks at higher rates than whites. Even more troubling is that the New York study determined that a neighborhood's racial composition was the main factor for determining NYPD stop rates, above and beyond the "role of crime, social conditions, or the allocation of police resources." In other words, New York cops targeted blacks because of their race – not because they happened to live in a dangerous place or in an area flooded by police.

Data from Ferguson mirrors these racial disparities. Last year, blacks not only accounted for 86 percent of stops, 92 percent of searches, and 93 percent of arrests by Ferguson police, the state attorney general's office calculated that blacks were overrepresented in these encounters in light of their population figures. Even more damning is the fact that although police were twice as likely to search blacks than whites after initiating a stop, whites were far more likely to be found with contraband.

It is not a leap to conclude that the same biases that cause those racial disparities also make it more likely that black men will die during the course of police arrests. According to the Department of Justice, Bureau of Justice Statistics, although black men made up only 27.8 percent of all persons arrested from 2003-2009, they made up 31.8 percent of all persons who died in the course of arrest, and the majority of these deaths were homicides.

Why does racialized policing persist despite the end of slavery and Jim Crow? While explicit racial bias may be less prominent today (albeit anything but eliminated), implicit racial biases plague all of us, including those charged with keeping our streets safe. A large body of compelling research has demonstrated how these unconscious, automatically activated, and pervasive mental processes translate into action with devastating consequences for black people.

In particular, researchers have well-documented shooter bias. One video game study simulated the nearly instantaneous decisions made by police officers to shoot armed individuals and to refrain from shooting the unarmed. The study revealed that participants were more likely to shoot black people than white people in error.

Both explicit and implicit biases lead far too often to the killing of black men in police-civilian encounters. And they undergird the daily indignity and humiliation experienced by blacks who are stopped, questioned, and searched by police when they have done nothing wrong.

Police are sworn to serve and protect everyone equally, not disproportionately stop and harass only certain communities. Rather than express surprise and shock during a summer where six black men have been killed by police in highly questionable circumstances, it is up to us to do something.

The single most important first step is to provide accountability—including through the Attorney General's issuance of a comprehensive ban on racial profiling. Accountability will advance justice for past harms and pave the way forward for a future in which we are closer to the promise of equal justice for all.

Sign our petition asking the Departments of Defense, Homeland Security and Justice to stop funneling billions into the militarization of state and local police forces.

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Ferguson: On the Ground

August 17th, 2014 No Comments   Posted in ACLU Nationwide
By Diane Balogh, ACLU of Eastern Missouri

In the wake of the Michael Brown tragedy last week, the ACLU has been working diligently to shed light on what transpired, as well as preserve First Amendment Rights for the community and media.

Here's how we are working on behalf of the community and people of Ferguson:

The ACLU of Missouri filed two Missouri Sunshine Law suits to receive copies of the incident reports from both theSt. Louis County and the Ferguson Police Departments. Both have refused to turn over the reports that should contain details regarding the shooting, and police transparency is key to a fair and just investigation.

On Thursday, we also challenged the police policy of ordering members of the media and public to stop recording the police acting in their official duty on public streets and sidewalks. This was resolved late Friday with an agreement between the involved parties that the media and members of the public have the right to record public events unless it obstructs the activities or threatens the safety of others, or physically interferes with the ability of law enforcement officers to perform their duties.

We're working hard to protect First Amendment Rights on the ground as well, assembling volunteers to assist with legal observation at community gatherings and marches in Ferguson. They are also distributing "What to Do If You are Stopped by Police, Immigration or FBI Agents" cards, along with "Know Your Rights at a Protest" flyers at demonstrations. Citizens have been encouraged through social media to file an intake form with the ACLU, if they feel they have been victims of police overreach.

On Saturday, Gov. Jay Nixon declared a state of emergency and has put a curfew in place from midnight until 5 a.m.

Today, along with NAACP-LDF and the Lawyers Committee for Civil Rights, we released the following statement about the civil liberties concerns surrounding the curfew, which is set to go into effect for a second night in a row. Read the letter here.

Sign our petition asking the Departments of Defense, Homeland Security and Justice to stop funneling billions into the militarization of state and local police forces.

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Ferguson Police’s PR Stunt Poisons Independent and Impartial Investigation

August 15th, 2014 No Comments   Posted in ACLU Nationwide
By Dennis Parker, Director, ACLU Racial Justice Program

The tragic killing of unarmed teenager Michael Brown by Officer Darren Wilson of the Ferguson Police Department has shocked his family, community, and the nation.

The public and the ACLU of Missouri have called for release of the police incident report on the shooting to resolve the dispute about whether the incident involved the excessive use of lethal force and illegal racial profiling, and to shed light on how many times and where on his body Mr. Brown was shot.

Instead of disclosing that information, the Ferguson Police Department today released approximately 30 seconds of surveillance footage and an offense/incident report concerning a reported shoplifting at a convenience store that police now alleged involved Brown about ten minutes before he was killed. Yet the Ferguson police chief's own statement undermines the relevance of those disclosures. The officer who shot Mr. Brown, according to the chief, was unaware that he may have been a suspect in the shoplifting and stopped him because he was walking down the middle of a street.

The Ferguson Police Department's actions appear misleading and remarkably cynical. They call into question the department's commitment to ensuring an independent and impartial investigation into the killing of Michael Brown. The video and incident report released are of dubious relevance. The decision to disclose them suggests an attempt to assassinate Mr. Brown's character by showing that he had roughly pushed a convenience store clerk on the day that he was killed. The one-sided and piecemeal disclosure of potentially irrelevant and prejudicial information, while continuing to withhold the critical police incident report that the public has demanded, suggests a desire to confuse rather than to shine a light on what happened.

Mr. Brown's family and the public deserve better. The Ferguson police's disclosures seem more like spin control than objective investigation. The department's apparent attempts to impugn the character of a shooting victim while withholding potentially revealing information about the conduct of its own police officer makes a mockery of the concepts of fairness and impartiality.

Therefore, the ACLU calls for an independent and comprehensive federal investigation by the Department of Justice of the fatal shooting of Michael Brown. Without this, there can be no justice for the Brown family or honest conversation about excessive force, racialized policing, law enforcement accountability and transparency, and the kinds of systemic reforms that are critically needed to ensure fair and effective policing in Ferguson and throughout our country.

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The U.S. Record on Racial Discrimination is on the Whole World’s Agenda

August 15th, 2014 No Comments   Posted in ACLU Nationwide
By Chandra Bhatnagar, Senior Staff Attorney, ACLU Human Rights Program

As the United Nations this week debated America's record on race, one name was on everyone's minds: Michael Brown. Not only Americans have been riveted this week by the tragic killing of the unarmed teenager, the subsequent protests, and the militarized response of law enforcement in Ferguson, Mo.

The events in the overwhelmingly black suburb of St. Louis came as the U.N. Committee on the Elimination of Racial Discrimination reviewed U.S. compliance with the world's leading anti-discrimination legal instrument, which the United States ratified 20 years ago. The gap between the rights guaranteed by our Constitution on one hand, and the reality of the persistent racism that continues to plague our society on the other, could not have been made more relevant by current events.

That gap is just as stark when viewed from the lens of international human rights law. This week, in Geneva, Switzerland, the U.N. committee that oversees compliance with the International Convention on the Elimination of All Forms of Racial Discrimination placed the U.S. record under the spotlight. The committee, comprised of leading human rights and race discrimination experts from all over the world, heard from high-level representatives of the U.S. government in a large delegation as well as from advocates and victims of human rights abuses.

The committee expressed deep concern at the circumstances surrounding Mr. Brown's shooting as well as over other recent deaths of unarmed African-American men – like Eric Garner, John Crawford, Ezell Ford, and others – at the hands of law enforcement. They heard heartbreaking testimony from the mother of Trayvon Martin and the father of Jordan Davis, both of whom lost their sons in violent circumstances that underscored the overt and subconscious forms of racism that our country continues to face. Mark Kappelhoff, the deputy assistant attorney general of the Civil Rights Division at the Department of Justice said in response to the committee's questions that the Department of Justice has opened a civil rights investigation into the Brown case.

The United States was represented by a high-level delegation led by Ambassador Keith Harper, a member of the Cherokee nation of Oklahoma and the first Native American U.S. ambassador to represent the United States at the U.N. Human Rights Council. In Ambassador Harper's words:

The United States has made...visible progress that is reflected in the leadership of our society, [but] we recognize that we have much left to do. Issues covered by this Convention are of such fundamental and deep importance that we must continue to make progress. For this reason, we value the opportunity for dialogue with the Committee.

That dialogue was a rich one, with the committee questioning the United States on a variety of issues, including deaths on the Southern border, the unaccompanied minor crisis, family detention, lack of access to justice for individuals detained at Guantánamo Bay, education, and violence against women, amongst many other topics. The committee also asked specific questions about lack of implementation of the treaty at federal, state, and local levels and echoed many concerns raised in the ACLU shadow report submitted to the committee. Those include:

The committee's final report and recommendations will be issued on August 29. We hope that they serve as a guide for how our government can better comply with its obligations under the convention and – more importantly – take further steps to address persistent forms of discrimination and prevent any more unnecessary deaths.

The world is watching.

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A Chance to Limit Spying on Americans

August 15th, 2014 No Comments   Posted in ACLU Nationwide
By Arjun Sethi, ACLU

This piece was originally published on

For the first time in nearly 40 years, Congress looks poised to limit the powers of the U.S. intelligence community, an opportunity it should seize.

When Congress returns from its August recess, surveillance reform will be high on the agenda. In May, the House passed the USA Freedom Act, a measure aimed at ending bulk collection of Americans' phone records under the Patriot Act. And in July, a much stronger version of the bill was introduced in the Senate.

The Senate version would curb the most egregious abuses of the telephone metadata program and represents a compromise among the White House, civil liberties advocates and private industry.

Yet, important work remains.

In particular, the bill doesn't reform NSA surveillance under Section 702 of the Foreign Intelligence Surveillance Act. Under that program, the NSA collects the content of phone calls, text messages, e-mails and other electronic communications of Americans who ...

Read the full article at

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Whistleblower Says CBP Has Culture of Impunity and Violence

August 15th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Chris Rickerd, ACLU Washington Legislative Office

Yesterday the Center for Investigative Reporting (CIR) published what it described as "the most scathing public criticism ever lodged against Customs and Border Protection from a high-ranking official at the nation's largest law enforcement agency."

James F. Tomsheck, who in June was reassigned to a senior Border Patrol post after eight years heading CBP internal affairs, delivered a devastating indictment of CBP's integrity. Tomsheck, CIR reported, says:

  • CBP has a culture of impunity, seeing itself as above reproach and "constitutional constraints," and aims to shield agents' misconduct and a massive corruption problem from outside scrutiny.
  • Border Patrol officials have consistently tried to change or distort facts to make fatal shootings by agents appear to be "a good shoot" and cover up any wrongdoing.
  • Tomsheck said he believes that thousands of employees hired during an unprecedented expansion of the agency in the post-9/11 era are potentially unfit to carry a badge and gun.

CIR's remarkable story confirms other media reports of a pervasive lack of integrity within CBP and validates longstanding advocacy by border communities, including litigation and public education by the ACLU. The overwhelming evidence compels an inescapable conclusion: CBP is a dangerously out-of-control agency in deep crisis.

After six years in office, the Obama administration must take urgent action and show that it's finally serious about reforming CBP. Here are four vital steps:

  1. The Department of Justice should conduct an external review of CBP's internal-affairs failings, especially all uses of deadly force since 2005. Until CBP builds proper internal-affairs capacity, DOJ should detail personnel to assume those functions. All current and former CBP employees complicit in fostering the culture of impunity deplored by Mr. Tomsheck must be held accountable, all the way up the chain of command.
  2. CBP's new leadership – including Commissioner Gil Kerlikowske and FBI veteran Mark Morgan, Tomsheck's replacement at internal affairs – must acknowledge the integrity crisis at CBP by committing publicly and forcefully to changing CBP's culture. There must be wholesale reform of CBP's broken complaint system, including a clear statement by leadership that public complaints will be investigated without retaliation. The ACLU and allies have made detailed recommendations to CBP on its complaint processing.
  3. CBP should immediately deploy dashboard and body-worn cameras to record all interactions with the public within appropriate privacy and data-retention guidelines. In September 2013, CBP promised to pilot dashboard and body-worn cameras. Nearly one year later, the public deserves to know why this promise is unfulfilled.
  4. Secretary Johnson must reduce CBP's 100-mile zone of operations, including the 25-mile zone to enter private property without a warrant. Contrary to the law's requirement that CBP operate only within a "reasonable distance" of external borders, CBP makes vast claims to intrusive and abusive power at ports-of-entry, checkpoints, and on roving patrols. Hundreds of millions of Americans have their rights diminished by CBP's excessive zone of operations and flouting of constitutional protections.

Tomsheck's remarks underscore the dire need for systemic cultural change at CBP. Without oversight and accountability, CBP abuses have destroyed families; humiliated Americans, travelers, and migrants; and disgraced federal law enforcement.

That needs to end.

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