Scholars Evaluate the Cost of Locking Up Immigrants For Months and Years on End. The Results Are as Bad as You’d Expect.

October 1st, 2014 No Comments   Posted in ACLU Nationwide
By Michael Tan, Staff Attorney, Immigrants' Rights Project, ACLU

In 2012, the government put a record-breaking 478,000 people behind bars while seeking to deport them from the United States.

Many of them are seeking refuge from persecution; others are long-time lawful permanent residents with U.S. citizen family. And people who eventually win their immigration cases are perversely the ones most likely to languish in prison for months or years on end while their cases drag on through the system.

So what are the costs of locking up immigrants for months or years on end who pose absolutely no threat to the community?

This week, 46 scholars of sociology, criminology, anthropology, psychology, geography, public health, medicine, Latin American studies, and law provided some grim answers. The group filed a friend-of-the-court brief in Rodriguez v. Robbins, a class action lawsuit brought by the ACLU to ensure that no one is subject to indefinite immigration detention without due process of law.

The brief details the effects of long-term detention on American families and communities. The findings aren't good:

  • Long-term detention jeopardizes immigrants' health and safety. Immigrants subjected to prolonged detention suffer substandard medical and mental health care, inadequate recreation, severely limited visitation, solitary confinement, and increased risk of physical and sexual assault.
  • Long-term detention imposes economic hardship on American families. Many immigrants are the sole or primary breadwinners in their families. When they're detained for months on end, they invariably lose their jobs and ability to pay for food and shelter for their families. Some are forced to foreclose on their homes.
  • Long-term detention hurts children, many of whom are U.S. citizens. Sixty-three percent of clients in the Rodriguez case have a U.S. citizen child. Children whose parents are detained suffer increased anxiety, stress, depression, anger and withdrawal; changes in sleeping habits; and harms to their development and academic performance.
  • Long-term detention is a waste of taxpayer dollars. The Obama administration's most recent budget proposal requested $1.8 billion to fund detention, at a daily cost of $161 per detainee. The average daily cost per participant for programs that supervise people without throwing them in prison was $5.94. And along with being cheaper, such programs are highly successful. Under the government's full-service program, 96 percent of participants showed up for court in 2011.

One takeaway is that if the government is going to put people in jail for months and years, it better have a good reason for doing so. The government can do that by ensuring that everyone receives the basic due process of a hearing before a judge to determine if their detention is justified.

Last year, the U.S. Court of Appeals for the Ninth Circuit ordered the government to provide such hearings after six months of detention. More than 1,250 hearings were held from November 2012 to January 2014 in the Los Angeles area alone. And in 69 percent of cases, a judge – having finally looked at the person's circumstances – found that the person could be safely returned to the community.

But in the face of the evidence – and despite its professed commitment to Latino and immigrant communities – the Obama administration has appealed the Ninth Circuit's ruling and is fighting to ensure that many immigrants never get the chance to ask a judge to release them. Taking a stand against due process and the welfare of families and communities makes no sense. Instead of resisting the Ninth Circuit's ruling, the administration should expand it nationwide. No one should be put in long-term detention without a hearing to determine if they need to be locked up in the first place.

The costs are too much for all of us to bear.

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The Wal-Mart Model: Not Just for Retail, Now It’s for Private Prisons Too!

September 29th, 2014 No Comments   Posted in ACLU Nationwide
By Carl Takei, ACLU National Prison Project

The nation's biggest and baddest for-profit prison company suddenly cares about halfway houses – so much so, that they want in on the action.

About a year after acquiring a smaller firm that operates halfway houses and other community corrections facilities, Corrections Corporation of America (CCA) CEO Damon Hininger announced a few weeks ago that "[r]eentry programs and reducing recidivism are 100 percent aligned with our business model."

Wait, what?

High recidivism rates mean more people behind bars, and CCA depends on more and more incarceration to make its billions. Since when do they actually want people to do well after they get out, instead of being sucked back into the system?

It's tempting to be hopeful. Is this a long-overdue acknowledgment that it's morally bankrupt to make money off of imprisoning human beings? Is the nation's largest for-profit prison company really admitting that mass incarceration has destroyed too many communities and that locking fewer people behind bars is a good thing?

Come on. It's CCA. We can't afford to be naïve. The motivation behind this announcement is where it always is for CCA: the bottom line.

If you read Hininger's speech carefully, he hints at a long-term corporate strategy that could eventually become even more lucrative than CCA's prison business: The Wal-Martification of reentry.

Currently, post-prison reentry programs, such as halfway houses and day reporting centers, are largely run by local nonprofit organizations or, in some cases, smaller for-profit companies. Hininger notes the small, local nature of reentry services in his speech – and then claims that CCA can use its size and resources to "provide consistency and common standards" in different facilities, rapidly make new arrangements with multiple agencies "on an as-needed basis," and "scale" (i.e, grow rapidly). These claims – bigger, faster, cheaper – echo those often made by Wal-Mart supporters to explain why the company is superior to local businesses.

CCA's plan to become the Wal-Mart of reentry may be good for its investors, but it should alarm the rest of us. First, the for-profit prison industry's history of abuse, neglect, and mismanagement raises serious questions about what kinds of abuses would occur if we hand over control of even more elements of our criminal justice system to CCA and similar profit-driven companies. Second, CCA fights aggressively to shield its operations from public scrutiny – even though incarceration and rehabilitation are some of the government responsibilities where transparency and accountability are most important.

At their best, halfway houses and day reporting centers can provide much-needed support, psychological help, educational services, and substance abuse treatment during a difficult period of transition between full-scale incarceration and post-sentence release to the community. But at their worst, they can fester with violence and sexual abuse as well as fail to address the serious needs of the people in their care. Given CCA's track record, we should be worried that vital reentry services are under threat.

No matter how much CCA executives protest that reducing recividism is "100 percent aligned" with the company's business model, an inherent conflict exists between CCA's duty to enrich its shareholders and this asserted commitment to successful rehabilitation: The company can keep increasing its profits only by ensuring an ever-greater flow of human beings into the criminal justice system. That flow is maintained by the same bad policies that fuel our national mass incarceration epidemic: the War on Drugs, extreme sentencing practices, and systemic failures to address problems like mental illness, substance abuse disorders, and homelessness outside of the criminal justice system.

For the past four decades, our country has relentlessly expanded the size of our criminal justice system, allowing companies like CCA to reap tremendous profits out of human misery. But the ACLU is committed to ending this colossal waste of lives and taxpayer dollars – and in the process, defeating CCA's plan for the Wal-Mart-ification of reentry.

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New Documents Shed Light on One of the NSA’s Most Powerful Tools

September 29th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Alex Abdo, Staff Attorney, ACLU Speech, Privacy, and Technology Project

Today, we're releasing several key documents about Executive Order 12333 that we obtained from the government in response to a Freedom of Information Act lawsuit that the ACLU filed (along with the Media Freedom and Information Access Clinic at Yale Law School) just before the first revelations of Edward Snowden. The documents are from the National Security Agency, the Defense Intelligence Agency, and others agencies. They confirm that the order, although not the focus of the public debate, actually governs most of the NSA's spying.

In some ways, this is not surprising. After all, it has been reported that some of the NSA's biggest spying programs rely on the executive order, such as the NSA's interception of internet traffic between Google's and Yahoo!'s data centers abroad, the collection of millions of email and instant-message address books, the recording of the contents of every phone call made in at least two countries, and the mass cellphone location-tracking program. In other ways, however, it is surprising. Congress's reform efforts have not addressed the executive order, and the bulk of the government's disclosures in response to the Snowden revelations have conspicuously ignored the NSA's extensive mandate under EO 12333.

The order, issued by President Ronald Reagan in 1981, imposes the sole constraints on U.S. surveillance on foreign soil that targets foreigners. There's been some speculation, too, that the government relies directly on the order — as opposed to its statutory authority — to conduct surveillance inside the United States.

There's a key difference between EO 12333 and the two main legal authorities that have been the focus of the public debate — Section 215 of the Patriot Act and the FISA Amendments Act, which the government relies on to justify the bulk collection of Americans' phone records and the PRISM program. Because the executive branch issued and now implements the executive order all on its own, the programs operating under the order are subject to essentially no oversight from Congress or the courts. That's why uncovering the government's secret interpretations of the order is so important. We've already seen that the NSA has taken a "collect it all" mentality even with the authorities that are overseen by Congress and the courts. If that history is any lesson, we should expect — and, indeed, we have seen glimpses of — even more out-of-control spying under EO 12333.

Here are some of the most significant things these new records show:

The documents confirm our suspicions that the NSA relies heavily on EO 12333 and that the order, therefore, deserves far more scrutiny than it has received. This vindicates those who've been warning us about the scope of the NSA's surveillance activities under the executive order — including a former State Department official who has tried to draw attention to its wide-ranging uses.

Here's how the NSA itself describes EO 12333 in an internal surveillance manual from 2007 (all highlighting is added):

Overview of Signals Intelligence Authorities, page 4

And here's a similar description from a "Legal Fact Sheet" on the executive order, which the NSA produced exactly two weeks after the first Snowden disclosure:

Legal Fact Sheet, page 1

In other words, EO 12333 is the main game in town for NSA surveillance. Of course, the debate about reforms to Section 215 and the FISA Amendments Act is tremendously important to Americans' privacy. But those authorities, while dramatically overbroad, pale in comparison to the executive order.

The documents make it clearer than ever that the government's vast surveillance apparatus is collecting information — including from Americans — about much more than just terrorist threats. The government generally defends its sweeping surveillance authorities by pointing to the threat of terrorism. But the truth is that its surveillance powers bear little relationship to that narrow goal. They reach far more broadly, allowing the government to monitor any international communication that contains "foreign intelligence information." That phrase is defined so nebulously that it could be read to encompass virtually every communication with one end outside the United States.

Some commentators have worried that the government could use this broad surveillance power to conduct economic espionage or to spy on Americans it hoped to convert into confidential informants.

According to at least this internal Defense Department presentation, the concerns are real (N.B.: "USPs" refers to "U.S. persons," which the government defines as American citizens or organizations, as well as legal residents):

DoD HUMINT Legal Workshop Fundamentals of HUMINT Targeting, page 6

The documents openly acknowledge the word games that the government plays when describing its surveillance. Two of my colleagues have previously highlighted the NSA's "vocabulary of misdirection — a language that allows [it] to say one thing while meaning quite another." One of the slippery words that the NSA uses is the seemingly straightforward "collect," which the NSA has redefined to let it simultaneously acquire huge amounts of data while denying that it is "collecting" anything at all.

An "intelligence law handbook" disclosed by the Defense Intelligence Agency acknowledges this misdirection, admonishing intelligence analysts to "adjust" their surveillance vocabulary. It is a case study in Orwellian doublespeak:

Intelligence Law Handbook Defense HUMINT Service, page 22

Finally, the candid tone of the DIA handbook is striking. Its frank discussion of government surveillance authority would serve the public far better than the dissembling and obfuscation we too often see from the government in describing its powerful spying tools.

Here's a characteristic passage from the handbook:

Intelligence Law Handbook Defense HUMINT Service, page 34

The author appears to grapple with several of the weighty questions surrounding the scope of the government's surveillance authority. It's worth asking whether those policy debates had to take place in secret. Based on these documents, it's clear that they should have taken place in public.

Smokey Says, Get a Permit, Shutterbug

September 26th, 2014 No Comments   Posted in ACLU Nationwide, Free Future
By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office

Well, sort of.

First Amendment advocates have expressed escalating concern in recent days over a U.S. Forest Service rule requiring permits for photographers in national forests. In particular what is at issue is a new proposed Forest Service regulation that attempts to clarify and make permanent an already existing permit requirement for certain photographers.

Many news reports, such as this one in the Washington Post, suggest that the requirement applies to all photography and filming—including mobile phone pictures and news-gathering—on all national forest land, and will impose a $1,500 fee per permit. By contrast, Forest Service Chief Tom Tidwell told the Associated Press that nothing in the regulation “infringe[s] in any way on First Amendment rights” and that permits will not be required for “any part of the news.” Earlier this week, service officials had said permits would be required for anything other than “breaking news.”

I’m not sure either the news reports or Chief Tidwell are getting it quite right. And, although the governing regulations and laws are far from a model of clarity, I think by any reading the proposed regulation still raises a number of important free speech issues, which I’ll get to once I parse what appears to be going on.

First, the permitting regulation has been on the books for about four years but some reports suggest it was unenforced, or at least selectively enforced. The recent proposal, released in early September, would tack on additional criteria to the current framework for deciding whether to issue a permit (which can be found in section 45.51b in this chapter of the Forest Service Handbook).

According to the handbook, permits are required for two types of activities. You need a permit for “commercial filming,” regardless of where it occurs. And you need a permit for “still photography” that requires props, sets, or models; could impose administrative costs on the Forest Service; or takes place at a location where the public is normally not allowed.

Commercial filming is defined broadly as any moving image or sound recording that could generate income. The only carve-out is for “breaking news,” which is defined as an “event or incident that arises suddenly, evolves quickly, and rapidly ceases to be newsworthy.” Still photography is defined circularly as any photography that takes place in a non-public part of the forest, uses props etc., or could impose administrative costs on the service.

From what I can tell, any still photography involving more than 30 people requires a permit costing $450 a day. Commercial filming involving more than 70 people costs $1,500 a day.

So, while the Forest Service isn’t requiring a $1,500 fee for any old tree picture, the framework they’ve set up certainly poses a host of First Amendment issues.

Just to start, the carve-out for “breaking news” means that any other newsgathering activity that would qualify as “commercial filming”—in other words, all “non-breaking” newsgathering that could generate income and involves audio-visual recording—is subject to the permit fee, even in places where the public is allowed. The concern here is twofold.

First, the rule as a whole unfairly singles out the press. If I’m on Forest Service land taking a cell phone video of, for instance, lax maintenance activity, I’m free to do so. A local news station taking the same video would likely be subject to the permitting requirement, assuming the lax maintenance isn’t “breaking.” That’s likely unconstitutional, not to mention bad policy. Second, the awfully vague definition of “breaking news” gives Forest Service officials the discretion to arbitrarily deny journalists permits, or fine them for not getting one, by claiming the story isn’t “breaking.”

There are even bigger problems, however. The rule the Forest Service proposed in early September—the one that really started this whole kerfuffle—sets out several new criteria by which the service should evaluate permit applications. The service “may” issue a permit for anything other than “noncommercial still photography” (that is, commercial still photography and all other audio-visual recording including non-breaking newsgathering) if the activity meets, among others, the following criteria:

  • It has the “primary objective of dissemination of information about the use and enjoyment of wilderness or its ecological, geological, or other features of scientific, educational, scenic, or historical value.”
  • And, it does not “advertise any product or service.”

This poses two, potentially severe, problems. First, the “primary objective” criterion is desperately vague and again could be used arbitrarily by administrators to block filming or photography that depicts the Forest Service—or any other government agency—poorly.

Second, the permit requirement for advertising would likely have serious unintended consequences. While I guess we might want to keep national forests free of rampaging Don Drapers, the criterion could also apply to, say, the Sierra Club filming an advertisement seeking members. Clearly the Sierra Club offers a “service”: protecting the pristine beauty of our national forests. If the permit requirement dissuades groups like the Sierra Club from engaging in constitutionally protected activity on public lands, which it very well may, it poses concerns of constitutional moment.

Additionally, and I’m not being silly here, I don’t think the rule would apply to Smokey the Bear. If this would allow “only you can stop forest fire” commercials sans permit, but chill private activity, it poses free speech concerns. Consider a rule that says government advertising promoting the Affordable Care Act is permissible in Lafayette Park in front of the White House, but private advertising opposed to the law is verboten absent a costly permit. Granted, in the Smokey example, you’re not imposing a fee on people supporting forest fires, but favoring government speech over private speech is a problem anywhere we find it.

Finally, it’s worth noting one foundational flaw in the regulation—it needlessly picks on photography. The goal of the regulation is clear and laudable: to prevent harm to national forests. Why not just write a rule that imposes rational limits on commercial activity in places where it could harm the forests, irrespective of the activity involved? As is becoming increasingly clear in the cases upholding a constitutional right to record police activity in public, photography has an inherently expressive quality that requires special caution. That it’s being singled out here is a problem.

In any event, the Forest Service will be accepting public comment on the proposed rule until December 3, 2014. We should all urge the Forest Service to fix this troubling proposal. You can do so here.

For One Young Black Man in Newark, ‘The Talk’ was about Police

September 26th, 2014 No Comments   Posted in ACLU Nationwide
By Michael Hobbs

This piece was originally published on

When I was 14, my grandfather sat me down for "the talk" – not the birds and the bees, but "the billy clubs and the bullets."

I brushed him off. I thought that in my majority-black hometown of Newark, racism would not reach me. Little did I realize that a healthy fear of the police would become a survival skill for a young black man.

My wake-up call came at 16.

As I noticed former friends slipping into the traps of my South Ward neighborhood, I was determined to be different. I joined debate club and the law academy, and played on the baseball team at University High School, and I never had run-ins with the police.

But walking home one evening down Hawthorne Avenue my junior year, I spotted a Crown Victoria with tinted windows creeping up behind me. Unsettled, I sped up, hoping to reach the safety of my house. Instead, my quickened pace prompted the car to cut in front of me. Two Newark Police Department officers emerged. One was black. The other was not. He had his gun drawn.

"Get on the wall," one yelled.

Terrified, with my arms up against the metal grate of Bragman's Deli, I asked, "What have I done, sir?"

"Where are you coming from?" an officer growled.

"Baseball practice," I answered as an officer looked through my book bag.

One officer chastised me for presenting a school ID instead of an "authentic" one, which I didn't have at 16. Finally, the cops told me to take a seat on the curb while they ran a check on my ID. For what seemed like an eternity, drivers passed and stared until the police finally let me go. Those slow moments were some of the most embarrassing, humiliating, and terrifying of my life.

Even with my grandparents' lessons in the unwritten rules of conduct awaiting me because of my inherited blackness, I was shocked to be subjected to unprovoked harassment by minority police officers. I now felt unsafe in my neighborhood, and not because of the killings, carjackings, and crime festering in my part of Newark. I felt scared because, for the first time in my life, I knew police abuse could happen to me, and I realized that I was lucky my encounter with police only robbed me of my dignity.

It's one thing to be scared of criminals. It's another thing entirely to be scared of the people who are supposed to protect you. My appearance branded me a menace, even though I hadn't done anything illegal. After being treated like a second-class citizen by the police, you start to believe you are one.

While I didn't have strong feelings about the police before I was wrongly stopped and frisked, being abused the way I was made me want to avoid any contact with cops. Why would a Newarker who suspects illegal activity go to the police when he lives in fear of those same officers every day? A community that doesn't trust the police is one where criminals can run amok, safe in knowing that the citizenry and police are at odds.

Abusive stop-and-frisk policies have no place in a democracy. As a kid, I faithfully believed that routine racial profiling would not happen to me the way it had to my grandfather. Now, seeing "the talk" through the lens of personal experience, I know better. I hope that one day, if I tell my own grandchildren about the dangers of interacting with police, they will be able to brush off my warnings because police abuse will have truly become a thing of the past.

My story is not an anomaly. The more of us who come forward to share what we've been through, the closer we'll get to having a powerful voice in shaping the Newark Police into a department that respects everyone's human rights, no matter what they look like.

Last night, the ACLU of New Jersey, together with labor, civil rights and community groups, launched Newark Communities for Accountable Policing, or N-CAP, a movement that will push for meaningful citizen participation in the coming reforms of the Newark Police Department. In particular, it has begun to push for the toughest civilian oversight of a police department in the country.

The launch of N-CAP, held at United Vailsburg Services Organization in Newark, featured five Newarkers each telling their own stories of personal encounters with police abuse. Michael Hobbs, the author of this post, shared his all-too-common story during this event.

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DHS Argues It Has Evidence That Locking Up Immigrant Families Deters Migration. One Problem: It’s So Wrong.

September 26th, 2014 No Comments   Posted in ACLU Nationwide
By Eunice Lee, Detention Attorney, ACLU, Immigrants' Rights Project

The Department of Homeland Security (DHS) continues to claim both the incredible and the disgraceful: that Central American mothers and children fleeing danger pose a "national security" threat to the United States and must be locked away.

Relying on a decade-old decision of former Attorney General John Ashcroft called "Matter of D-J-," DHS says immigrant families seeking asylum must be imprisoned and denied bond to send a "deterrent" message to others. But the agency isn't content with hiding behind that Bush-era decision: It wants scientific backing, too.

Citing a report out of Vanderbilt University, DHS claims its policy of detaining immigrant families as "deterrence" is supported empirically by painstaking research. The study, according to DHS's reading, demonstrates that if released, women and their young children would supposedly become part of an "active migration network," encouraging others to flood across the Southwest border.

But guess what? The report's own authors vehemently disagree.

When contacted by ACLU, Dr. Jonathan Hiskey, a professor of political science and one of the principal authors of the report, expressed "complete surprise" at DHS's reliance on his study. As he put it, "Neither my report nor any empirical study that I know of supports DHS's views on active migration networks and the detention of these women and children." And he confirmed that his co-authors agree.

Dr. Hiskey felt so strongly about correcting the record that he wrote a sworn statement of fact supporting the release of these families.

In his detailed affidavit, Dr. Hiskey calls out DHS for its "tremendous leap in logic" and "very superficial understanding of the actual operation of such migration networks." As he explains, the term "active migration networks," also known simply as "the friend and family effect," refers to the social science finding that people tend to migrate where their friends and families are living stable lives. Dr. Hiskey concludes that women and children seeking asylum are in fact among the least likely to form part of such networks, as their situation here remains precarious.

Detaining them to prevent migration networks, it turns out, simply makes no sense.

But imprisoning mothers and their children to send a message to others violates the Constitution and goes against our deepest moral commitments. DHS's hollow assertions of "national security" do little to justify, and even less to hide, the manifest wrongs of such a policy. The Obama Administration should stop arguing that Matter of D-J- permits the reprehensible detention of families. Or better yet, it should immediately stop detaining Central American women and children seeking our protection in the first place.

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Welcoming "the Scrutiny of the World" on Human Rights

September 25th, 2014 No Comments   Posted in ACLU Nationwide
By Jamil Dakwar, Director, ACLU Human Rights Program

Speaking to the United Nations General Assembly in New York this week, President Obama took a moment to reflect on America's domestic human rights record and the situation in Ferguson.

I realize that America's critics will be quick to point out that at times we too have failed to live up to our ideals; that America has plenty of problems within our own borders. This is true. In a summer marked by instability in the Middle East and Eastern Europe, I know the world also took notice of the small American city of Ferguson, Missouri – where a young man was killed, and a community was divided. So yes, we have our own racial and ethnic tensions. And like every country, we continually wrestle with how to reconcile the vast changes wrought by globalization and greater diversity with the traditions that we hold dear.

But we welcome the scrutiny of the world – because what you see in America is a country that has steadily worked to address our problems and make our union more perfect.

While it's heartening that the president did not repeat the usual bromide of "American exceptionalism," his words will prove empty unless they are followed by concrete policies that address structural discrimination against people of color – especially practices like racial profiling and targeting minority communities for surveillance. Indeed, there is much more the Obama administration can do to make good on his promise to lead by the power of example at home.

Recently in Geneva, the U.N. Committee on the Elimination of Racial Discrimination held the administration accountable to U.S. obligations to eliminate racial discrimination, made in a treaty ratified by the United States in 1994. Following hearings with a high-level U.S. government delegation, the U.N. committee of independent human rights experts issued a report highlighting the gaps between the administration's stated commitments and the glaring reality of laws and practices that continue to discriminate against racial and ethnic minorities, women, indigenous peoples, and immigrants. The report urges the government to make significant reforms in areas including voting rights; immigration issues, like unaccompanied children and deadly use of force; and criminal justice issues, like racial profiling, police brutality, and disparities in sentencing.

The president also declared that America is "willing to criticize ourselves when we fall short," and that "we hold our leaders accountable… with respect for the rule of law." These are indeed the hallmarks of a healthy democracy, but unfortunately the commitments of this administration have not always matched its actions, especially when considering the issue of transparency and accountability for torture. A current example is the battle between the White House and the Senate Intelligence Committee over redactions to the committee's comprehensive report on the CIA's torture program.

Just as President Obama acknowledged our shortcomings in Ferguson and pledged transparency in investigating the killing of Michael Brown, so too must his administration exercise transparency in disclosing information about the torture our country perpetrated during the Bush administration and hold those responsible accountable.

In November, the United States will appear before the U.N. Committee Against Torture, which will assess U.S. compliance with the international anti-torture treaty the U.S. ratified in 1994. The Obama administration has an opportunity to clearly and credibly demonstrate to the world its firm commitment to torture prohibition, and meet its human rights obligations to fully investigate acts of torture and provide redress to victims. Failure to do so will set a dangerous precedent for future presidents to sidestep accountability for human rights violations and open the door for barbaric abuses to reoccur.

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Countering Violent Extremism: Time for the Administration to Get It Right

September 24th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Zak Newman, ACLU Washington Legislative Office

Today President Obama took the unusual step of chairing a meeting of the U.N. Security Council. He went seeking international support for the campaign against the group known as the Islamic State in Iraq and Syria (ISIS), including a U.S.-sponsored resolution that, among other things, urges governments to "counter violent extremism"—an approach that the United States is also taking here at home.

That may sound prudent – but far too often in recent years the fight against "extremism" has involved targeting and abusing innocent Americans on the basis of their political activism and religious observance.

When the Obama administration announced its plan for a White House summit on violent extremism last week, the Department of Justice said that the summit was meant to "highlight" efforts of U.S. attorneys to "facilitate communication in their neighborhoods and districts" on the issue of domestic violent extremism.

Given the recent history of abuses by federal, state, and local law enforcement –particularly the FBI and the NYPD – it is absolutely necessary that the administration use the summit as an opportunity to show a decisive commitment to civil liberties and religious freedom, particularly for American-Muslim communities. The summit is an opportunity for the White House to reject racial, ethnic, or religious profiling of American Muslims and other minority groups.

Further, the administration must avoid describing the summit in terms that have the effect of stigmatizing American-Muslim communities. Already, there are reports of groups using the atrocities committed by ISIS to spread messages of anti-Muslim hate. As we explained in our letter to the White House regarding the planned summit:

Crimes motivated by religious, racial, or other biases do not occur in a vacuum. They occur in the context of a broader public discourse in which members of minority communities are frequently vilified, stereotyped, and demeaned. Particularly in the current climate of heightened public concern, [administration] officials can profoundly impact the way that Americans understand racial, ethnic, and religious differences.

In recent years, American-Muslim communities have suffered a litany of abuses by federal law enforcement and intelligence officials based on the false premise that religious observance can serve as an indicator of potentially violent behavior. These programs have fueled distrust in government and have obstructed rather than supported engagement between federal officials and the American-Muslim community. Some American Muslims justly fear that engaging with law enforcement could lead them to be targeted – either to become an informant or to be prosecuted.

Such abuses have been well documented in ACLU reports and litigation. As our letter states:

Under the guise of community outreach, the FBI has targeted mosques and Muslim community organizations for intelligence gathering. It has pressured law-abiding American Muslims to become informants against their own communities, often in coercive circumstances. It has sent undercover FBI employees and informants to infiltrate mosques and community centers in what appear to be virtual fishing expeditions. It has targeted individuals for sting operations based on their religious or political beliefs …

The planned White House summit can and must show that the administration's efforts are consistent with the civil liberties guaranteed to American Muslims – like all Americans – under our Constitution.

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Television Directing’s Still a Boys Club

September 24th, 2014 No Comments   Posted in ACLU Nationwide
By Melissa Goodman, National Security Project & Ariela Migdal, ACLU Women's Rights Project

This blog was cross-posted from the ACLU of Southern California.

The Directors' Guild of America has released its annual diversity report on TV directing, and it confirms what reports have shown over the past many years: calling "Action!" is still the province of white men, with no improvement for women or women of color since last year.

Women directed only 14 percent of all episodes in 2013, and women of color directed only 2 percent of episodes, both unchanged since 2012. A full seventy of the 225 TV series analyzed – nearly a third of all shows on TV – did not hire a woman to direct a single episode.

This shut-out of women directors is an equality and civil rights issue that should concern all members of the viewing public, especially when viewed in the context of women's under-representation in the entertainment industry more broadly.

Women, and women of color most egregiously, are overwhelmingly excluded from directing in both TV and film. This kind of gender segregation would be concerning in any industry, but it's especially troubling because the sector is so dominant in southern California (indeed, it's simply known as "the industry").

But it is also concerning because what this industry produces so profoundly shapes and influences our culture. The longstanding exclusion of women and people of color (men of color directed 17 percent of episodes, up 3 percent from last year, an improvement attributable entirely to Tyler Perry directing his own shows) is more than an employment discrimination issue. It also means that the cultural content watched by millions of Americans in their homes is created almost exclusively by white men. Recently released studies once again document how this gender disparity negatively affects how women are portrayed on the screen, which, in turn impacts how women and young girls perceive themselves and their opportunities in life.

The "celluloid" ceiling is shockingly hard to crack. Recent reports have shown that what's true for directors is true for behind-the-camera jobs more broadly. One report recently showed that women make up only 23 percent of film crews, and only 2 percent of directors on 2013's 100 top-grossing movies, and only 5 percent of workers in cameras and electrical departments.

Women directors have begun to speak out about the pervasive discrimination they face. This is important, as it's increasingly clear that the old boys' network in TV and film directing will not change on its own.

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Fearmongering NSA Reform

September 24th, 2014 No Comments   Posted in ACLU Nationwide, Washington Markup
By Neema Singh Guliani, ACLU Legislative Counsel

On June 5, 2013, Edward Snowden shocked the world, providing proof that Americans were being spied on by their own government. Some praised him as a hero, others condemned him as a traitor, but there was general consensus that the NSA had severely overstepped its bounds.

Reform was needed, fast.

Over the course of the last year, we saw strong reform proposals introduced into Congress, only to be eviscerated in the eleventh hour. We saw Republicans and Democrats, who don't agree on much, join together on NSA reform – even though they were opposed by a group of powerful pro-surveillance hawks.

And, in July, we saw this do-nothing Congress accomplish something remarkable – take a step closer to actually addressing this important issue. A bipartisan group of 19 senators introduced a new version of the USA Freedom Act, a bill aimed at reining in the NSA. The bill garnered the support of many privacy groups, technology companies, and the intelligence community.

But now there's a new threat to passing this important bill: ISIL. Or rather our fear of ISIL.

Now, a few senators who oppose surveillance reform and seek to derail the bill are arguing that passage of the bill would adversely impact our fight against this radical group in Iraq and Syria.

Nothing could be further from the truth.

First and foremost, the USA Freedom Act would not restrict the government's ability to conduct surveillance abroad or on the battlefield. The bill doesn't touch the authorities that govern surveillance abroad, so the United States would still be able to collect communications in Syria to aid air strike operations. Nor would it prevent the government from targeting the communications of suspected ISIL operatives in Iraq and Syria or collecting communications in an emergency – like the Boston marathon bombing – to protect American lives.

What the law would do is restrict the government's ability to spy on Americans, particularly by requiring the government to justify programs that collect details of the call or Internet use of all citizens under Section 215 of the Patriot Act and other parts of the Foreign Intelligence Surveillance Act. Some say we need these programs to fight terror. Yet an assessment by the Privacy and Civil Liberties Oversight Board, an independent government oversight body, found that there were no instances where the nationwide call-metadata program conducted under Section 215 prevented an act of terrorism.

Put another way: Our country has spent billions on programs under Section 215 that trample the rights of Americans, hamper journalists, and take resources away from more effective counterterrorism efforts – and we have nothing to show for it.

Further, even the intelligence community says unequivocally that passage of the Senate version of the USA Freedom Act would not impair national security. In a letter indicating their support of the bill, Attorney General Eric Holder and Director of National Intelligence Eric Clapper said that the USA Freedom Act preserves "essential Intelligence Community" capabilities. Given these statements, the national security concerns expressed by some members of Congress ring hollow.

In times of war, there is always a temptation to barter with Americans' freedoms. But more surveillance does not translate into more security. In this era of perpetual war, we should be extra cautious about signing away our rights in exchange for hollow promises of enhanced safety.

Further delaying NSA reform won't help us stop ISIL. But passing the USA Freedom Act will help us protect a vital part of America.

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