Nebraska Legislature Overrides Governor’s Veto and Gives Dreamers Their License to Drive

Maria Marquez Hernandez just graduated from the University of Nebraska at Omaha with a degree in psychology, but she still can’t give her younger sister a ride. That’s because she’s a Dreamer — brought to the U.S. by her parents and raised undocumented as a child.

Shortly after the Deferred Action for Childhood Arrivals program was announced in 2012, Maria applied for DACA and received a Social Security number and work authorization card, which ordinarily would have allowed her to apply for a Nebraska driver’s license. But the former and current governor decreed that Dreamers could not qualify for driver’s licenses, even if they presented that documentation. This has made daily life difficult for Maria, but not being able to do what other big sisters do bothered her most.

Buckle up. This week that changed when the Nebraska Senate voted in dramatic fashion to let Dreamers drive.

Maria loves Nebraska, which she has called home since the age of five. But as she has noted, standing up for herself and others in the face of injustice is part of being an American. So when Maria was denied a license because of Gov. Pete Ricketts’ adherence to an unfair and unlawful edict, she joined with several of her fellow Dreamers to challenge it in court. But rather than simply waiting on a court to decide, Dreamers and their allies, including the Nebraska Chamber of Commerce, convinced the legislature to consider a bill to reverse the discriminatory policy.

At first, it seemed like a long shot. Republican members of Congress are trying to scrap DACA altogether. Republican governors and attorneys general in 26 states — including Nebraska — are suing to stop the DACA program from expanding. How were Dreamers going to convince a majority of Republicans to override their Republican governor?

Ask them. Last week, the legislature passed a bill ensuring that Dreamers with DACA — and anyone else with deferred action — are eligible for driver’s licenses. When the governor vetoed the bill, the senators stood strong, and voted 34-10 to override the veto. This vote is a victory for Dreamers, and for all Nebraskans.

But it is also of national significance for two other reasons.

First, it successfully concludes nearly three years of a nationwide, state-by-state legal and political struggle by ACLU and partner organizations to support Dreamers’ fight to win recognition of their right to driver’s licenses. As soon as President Obama announced his DACA initiative in August 2012, most states embraced the opportunity to integrate young immigrants and to ensure that they are trained, tested, licensed, and insured as drivers. Some states, however, vowed to deny driver’s licenses to them. Others stonewalled.

There was more than driving at stake. For states and Dreamers alike, a driver’s license symbolizes belonging, membership, and acceptance. In most cases, recalcitrant state officials relented in the face of strong legal advocacy, organizing, and the broad public consensus favoring fair treatment of Dreamers.

Three states held out: Michigan, Arizona, and Nebraska. Dreamers had little choice but to sue, with the support of ACLU and other partners. Michigan began issuing licenses soon after being sued. Arizona began issuing licenses earlier this year, after the U.S. Court of Appeals for the 9th Circuit found that the state’s policy violated the U.S. Constitution. This left Nebraska standing alone, the last state clinging to discrimination.

Wisely, rather than await yet another unfavorable court ruling, the legislature took the affirmative step of passing a law to end two governors’ losing battle. The law is effective immediately, meaning that Dreamers granted DACA finally have the right to apply for driver’s licenses in all 50 states.

Second, the Nebraska vote brings an underreported trend to the surface: the unwillingness of state legislatures in both red and blue states to penalize Dreamers and others granted deferred action.

Kansas Secretary of State Kris Kobach, the architect of numerous failed anti-immigrant state laws, boasted earlier this year that he was in consultation with lawmakers from a dozen other states about state legislation to target Dreamers and others who benefit from federal executive actions on immigration.

Yet from Kansas to Georgia to Texas, Republicans state legislators are refusing as a matter of state policy to penalize Dreamers. Why? It’s one thing to file a bill attacking Dreamers, and it’s quite another to have to face them, hearing after hearing, and to listen to their stories, which always disrupt simplistic stereotypes regarding “illegal immigration.”

The media rebroadcasts those stories of young people overcoming extraordinary obstacles to contribute actively to their communities, and public opinion turns even further against legislators seeking to punish Dreamers. The Nebraska vote is another strong indication of support, on the ground, for Dreamers and the presidents’ deferred action initiatives. Republicans may disagree with the way in which the president has gone about his reforms, but they appear to agree with the policies themselves.

Either way, Maria Marquez Hernandez, other Dreamers, and their allies will keep fighting — and winning.

All 50 states now recognize Dreamer's right to a driver's license.

Minneapolis Divided: A Tale of Two Cities

Being Black in America today is rough. Turns out being Black and living in Minneapolis, Minnesota, doesn’t make it any easier. Often appearing on “Top 10 Best Places to Live” lists, Minneapolis is billed as a progressive, accessible American city, where residents can work, raise families, and generally live out their own American dream. But if you’re a person of color or of a lower socioeconomic status (or, even worse, both) living in Minneapolis, the numbers tell a different tale – indeed, a tale of two cities.

Picking Up the Pieces – Policing in America,  A Minneapolis Case Study” is an in-depth look at policing in Minneapolis that explores the who, what, when, where, why and how low-level arrests occurred in Minneapolis during a 33-month time span. In recent months the ACLU analyzed data on low-level arrests made by the Minneapolis Police Department between January 2012 and September 2014. To be clear, low-level offenses are those that carry a maximum penalty of one year in jail, a maximum fine of $3000, or both, if convicted.  Many of these offenses are punishment by only a fine.

Results of the ACLU data crunch are staggering, and they make it clear that the most vulnerable populations living in Minneapolis are being policed differently than the more fortunate, resulting in a Minneapolis divided.

According to the data, Black people in Minneapolis are 8.7 times more likely to be arrested for a low-level offense than a white person. Native Americans are 8.6 times more likely to be arrested. And it doesn’t end there.

Youth and homeless populations bear the brunt of unequal policing as well. Black and Native American youth are 5.8 times and 7.7 times more likely, respectively, to be arrested for a low-level offense than white youth. Furthermore, 40 percent of all youth arrests in Minneapolis are for curfew violations. Instead of pushing kids into the jaws of the criminal justice system, law enforcement should guarantee their safety by bringing them home to their parents or to another safe place.

These arrests, and their attendant racial disparities, are not inevitable. Rather they appear to be the product of racially biased policing and broken police practices. Whether caused by implicit or explicit bias, the result is the same. Communities of color in Minneapolis are being pushed further to the margins.

Moreover, the quality and fairness of every interaction with police officers has wide-ranging implications, according to Anthony Newby, the executive director of Neighborhoods Organizing for Change in North Minneapolis. “Political power starts with the police,” he explains. “And that’s most people’s front-line experience with the government.  And when that’s negative, and consistently negative, it informs people’s everyday experience and generally makes people withdraw from wanting anything to do with politics or political power.”

Sadly, any entry point into the American criminal justice system today is a pathway to a more difficult life. Those arrested bear the punishments directly imposed, as well as collateral consequences that can snowball and follow them around, sometimes for life. The financial burdens of fines and fees, loss of employment, ineligibility for certain jobs, the potential housing and financial aid penalties, the social stigma, and the stress of navigating through the criminal justice maze wear people down and make it significantly more difficult to achieve a healthy, fruitful existence.

Moreover, a recent study by the Vera Institute of Justice demonstrated how spending as few as a couple days in jail can “increase the likelihood of a sentence of incarceration and the harshness of that sentence, reduce economic viability, promote future criminal behavior, and worsen the health of the largely low-risk defendants who enter them—making jail a gateway to deeper and more lasting involvement in the criminal justice system at considerable costs to the people involved and to society at large.” Simply put, by unfairly targeting the most vulnerable populations for low-level arrests, police in Minneapolis are making it harder for its own communities to succeed.

Law enforcement exists to serve and protect. But arresting a homeless man of color for panhandling or a young person for a curfew violation doesn’t further this goal. These kinds of arrests achieve the opposite, pushing people further away from health, wealth, and opportunity.

The ACLU has offered recommendations to officials in Minneapolis, and they have taken note. But much more work lies ahead.

Everyone in Minneapolis has the same right to be free from unequal treatment by the police. Now is the time for Minneapolis to seize the opportunity and build stronger, more inclusive community-police relations, guaranteeing that constitutional rights don’t apply to only some people in some parts of the city. Only then can a tale of two cities become a story of one Minneapolis — unified, fair, and equal.

For more information on “Picking Up the Pieces, Policing in America: A Minneapolis Case Study,” click here: feature/picking-pieces.

ACLU finds overcriminalization, and its disproportionate impact on people of color, in Minneapolis is worse than you thought.

Minneapolis Divided: A Tale of Two Cities

Being Black in America today is rough. Turns out being Black and living in Minneapolis, Minnesota, doesn’t make it any easier. Often appearing on “Top 10 Best Places to Live” lists, Minneapolis is billed as a progressive, accessible American city, where residents can work, raise families, and generally live out their own American dream. But if you’re a person of color or of a lower socioeconomic status (or, even worse, both) living in Minneapolis, the numbers tell a different tale – indeed, a tale of two cities.

Picking Up the Pieces – Policing in America,  A Minneapolis Case Study” is an in-depth look at policing in Minneapolis that explores the who, what, when, where, why and how low-level arrests occurred in Minneapolis during a 33-month time span. In recent months the ACLU analyzed data on low-level arrests made by the Minneapolis Police Department between January 2012 and September 2014. To be clear, low-level offenses are those that carry a maximum penalty of one year in jail, a maximum fine of $3000, or both, if convicted.  Many of these offenses are punishment by only a fine.

Results of the ACLU data crunch are staggering, and they make it clear that the most vulnerable populations living in Minneapolis are being policed differently than the more fortunate, resulting in a Minneapolis divided.

According to the data, Black people in Minneapolis are 8.7 times more likely to be arrested for a low-level offense than a white person. Native Americans are 8.6 times more likely to be arrested. And it doesn’t end there.

Youth and homeless populations bear the brunt of unequal policing as well. Black and Native American youth are 5.8 times and 7.7 times more likely, respectively, to be arrested for a low-level offense than white youth. Furthermore, 40 percent of all youth arrests in Minneapolis are for curfew violations. Instead of pushing kids into the jaws of the criminal justice system, law enforcement should guarantee their safety by bringing them home to their parents or to another safe place.

These arrests, and their attendant racial disparities, are not inevitable. Rather they appear to be the product of racially biased policing and broken police practices. Whether caused by implicit or explicit bias, the result is the same. Communities of color in Minneapolis are being pushed further to the margins.

Moreover, the quality and fairness of every interaction with police officers has wide-ranging implications, according to Anthony Newby, the executive director of Neighborhoods Organizing for Change in North Minneapolis. “Political power starts with the police,” he explains. “And that’s most people’s front-line experience with the government.  And when that’s negative, and consistently negative, it informs people’s everyday experience and generally makes people withdraw from wanting anything to do with politics or political power.”

Sadly, any entry point into the American criminal justice system today is a pathway to a more difficult life. Those arrested bear the punishments directly imposed, as well as collateral consequences that can snowball and follow them around, sometimes for life. The financial burdens of fines and fees, loss of employment, ineligibility for certain jobs, the potential housing and financial aid penalties, the social stigma, and the stress of navigating through the criminal justice maze wear people down and make it significantly more difficult to achieve a healthy, fruitful existence.

Moreover, a recent study by the Vera Institute of Justice demonstrated how spending as few as a couple days in jail can “increase the likelihood of a sentence of incarceration and the harshness of that sentence, reduce economic viability, promote future criminal behavior, and worsen the health of the largely low-risk defendants who enter them—making jail a gateway to deeper and more lasting involvement in the criminal justice system at considerable costs to the people involved and to society at large.” Simply put, by unfairly targeting the most vulnerable populations for low-level arrests, police in Minneapolis are making it harder for its own communities to succeed.

Law enforcement exists to serve and protect. But arresting a homeless man of color for panhandling or a young person for a curfew violation doesn’t further this goal. These kinds of arrests achieve the opposite, pushing people further away from health, wealth, and opportunity.

The ACLU has offered recommendations to officials in Minneapolis, and they have taken note. But much more work lies ahead.

Everyone in Minneapolis has the same right to be free from unequal treatment by the police. Now is the time for Minneapolis to seize the opportunity and build stronger, more inclusive community-police relations, guaranteeing that constitutional rights don’t apply to only some people in some parts of the city. Only then can a tale of two cities become a story of one Minneapolis — unified, fair, and equal.

For more information on “Picking Up the Pieces, Policing in America: A Minneapolis Case Study,” click here: feature/picking-pieces.

ACLU finds overcriminalization, and its disproportionate impact on people of color, in Minneapolis is worse than you thought.

Victory! UN Crime Commission Approves Mandela Rules on Treatment of Prisoners

Last week I was in Vienna, representing the ACLU at the United Nations Commission on Crime Prevention and Criminal Justice. Meetings of the Crime Commission, as it’s informally known, are sometimes contentious. But the commission’s closing session on Friday afternoon was anything but. Instead, the delegates erupted in thunderous applause as the Mandela Rules on the treatment of prisoners were approved by acclamation — the culmination of years of work by the ACLU and many others.

The Mandela Rules — named in honor of the late South African President Nelson Mandela, who was imprisoned for 27 years by the country’s apartheid regime — are the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, or SMRs. The SMRs are the leading international body of principles on the treatment of prisoners, but they were drafted in 1955 and were badly in need of updating.

The revisions provide that solitary confinement “shall be used only in exceptional cases as a last resort for as short a time as possible and subject to independent review.” Indefinite solitary confinement and prolonged solitary confinement — defined as more than 15 consecutive days — are now prohibited. Solitary confinement will also be prohibited in the case of persons with mental or physical disabilities when their condition would be exacerbated.

The Mandela Rules include other important revisions addressing the treatment of women and persons with disabilities.  The provisions regarding health care are strengthened, and significant safeguards on the use of restraints have been added.

Finally, the resolution approving the Mandela Rules calls for July 18 – the global icon’s birthday – to be known as Mandela Prisoner Rights Day, which will promote humane conditions of confinement and raise awareness of prisoners as a continuing part of society.

One notable feature of this year’s Crime Commission was the positive role played by the United States. The U.S. delegation strongly supported adopting the rules and naming them in honor of Nelson Mandela, whom it called “one of the greatest defenders of human rights and dignity in recent history.” It resisted attempts to reopen the text of the Mandela Rules that had been agreed to in Cape Town earlier this year, and it fought back against efforts to insert language that would allow countries to disregard certain rules for cultural and religious reasons.

Perhaps most important, the U.S. delegation included the corrections directors from Washington and Colorado, two states that have significantly reduced solitary confinement and pioneered other progressive reforms. The two directors described their work at a panel discussion sponsored by the United States, and the duo played a key role in negotiations leading to adoption of the Mandela Rules.

It is important to remember that the outcome is a compromise that was reached after a lengthy intergovernmental process and extensive negotiations, which often attempted to water down progressive revisions. That said, civil society groups as well as independent experts like the UN Special Rapporteur on Torture played a significant role in guiding the process and advocating for progressive human rights-based revisions.

Our work isn’t over yet.

The Mandela Rules still need to be approved by the U.N. General Assembly this fall, although approval is overwhelmingly likely. Unlike a treaty, the rules aren’t binding, although they represent a powerful global consensus on minimum standards.  The real work — ensuring that the Mandela Rules make a difference in the lives of the millions of prisoners throughout the world — begins now. But the unanimous adoption of the Mandela Rules in Vienna last week was an indispensable first step, and a positive development for prisoners’ rights everywhere.

ACLU explains the Mandela Rules, a major victory in solitary confinement protocol.

Victory! UN Crime Commission Approves Mandela Rules on Treatment of Prisoners

Last week I was in Vienna, representing the ACLU at the United Nations Commission on Crime Prevention and Criminal Justice. Meetings of the Crime Commission, as it’s informally known, are sometimes contentious. But the commission’s closing session on Friday afternoon was anything but. Instead, the delegates erupted in thunderous applause as the Mandela Rules on the treatment of prisoners were approved by acclamation — the culmination of years of work by the ACLU and many others.

The Mandela Rules — named in honor of the late South African President Nelson Mandela, who was imprisoned for 27 years by the country’s apartheid regime — are the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, or SMRs. The SMRs are the leading international body of principles on the treatment of prisoners, but they were drafted in 1955 and were badly in need of updating.

The revisions provide that solitary confinement “shall be used only in exceptional cases as a last resort for as short a time as possible and subject to independent review.” Indefinite solitary confinement and prolonged solitary confinement — defined as more than 15 consecutive days — are now prohibited. Solitary confinement will also be prohibited in the case of persons with mental or physical disabilities when their condition would be exacerbated.

The Mandela Rules include other important revisions addressing the treatment of women and persons with disabilities.  The provisions regarding health care are strengthened, and significant safeguards on the use of restraints have been added.

Finally, the resolution approving the Mandela Rules calls for July 18 – the global icon’s birthday – to be known as Mandela Prisoner Rights Day, which will promote humane conditions of confinement and raise awareness of prisoners as a continuing part of society.

One notable feature of this year’s Crime Commission was the positive role played by the United States. The U.S. delegation strongly supported adopting the rules and naming them in honor of Nelson Mandela, whom it called “one of the greatest defenders of human rights and dignity in recent history.” It resisted attempts to reopen the text of the Mandela Rules that had been agreed to in Cape Town earlier this year, and it fought back against efforts to insert language that would allow countries to disregard certain rules for cultural and religious reasons.

Perhaps most important, the U.S. delegation included the corrections directors from Washington and Colorado, two states that have significantly reduced solitary confinement and pioneered other progressive reforms. The two directors described their work at a panel discussion sponsored by the United States, and the duo played a key role in negotiations leading to adoption of the Mandela Rules.

It is important to remember that the outcome is a compromise that was reached after a lengthy intergovernmental process and extensive negotiations, which often attempted to water down progressive revisions. That said, civil society groups as well as independent experts like the UN Special Rapporteur on Torture played a significant role in guiding the process and advocating for progressive human rights-based revisions.

Our work isn’t over yet.

The Mandela Rules still need to be approved by the U.N. General Assembly this fall, although approval is overwhelmingly likely. Unlike a treaty, the rules aren’t binding, although they represent a powerful global consensus on minimum standards.  The real work — ensuring that the Mandela Rules make a difference in the lives of the millions of prisoners throughout the world — begins now. But the unanimous adoption of the Mandela Rules in Vienna last week was an indispensable first step, and a positive development for prisoners’ rights everywhere.

ACLU explains the Mandela Rules, a major victory in solitary confinement protocol.

Death by Debtors’ Prison: Ray Staten’s 16-Day Jail Sentence for Unpaid Court Fees Cost Him His Life

This piece originally appeared at The Guardian.

Ray Charles Staten Sr. should have celebrated his 60th birthday this month. Instead, his family marked the fourth anniversary of his death. It all started, according to a lawsuit that settled in March 2015, when a small debt became a death sentence in the spring of 2011.Unable to pay an outstanding debt of $409 in court fines, Mr. Staten was arrested and sentenced to 16 days in Mississippi’s Harrison County Jail. Shortly after being booked at the jail, Mr. Staten fell seriously ill. Despite his obvious symptoms and his cellmates’ cries for help, the jail’s privately-contracted medical staff allowed his condition to worsen until – on the fifth day of his sentence – he collapsed in his cell and, upon being transported to a medical center, could not be revived. He had suffered acute peritonitis, a life-threatening infection of the abdominal lining for which early treatment is essential.

Whenever the government locks someone in jail, it has a constitutional duty to provide adequate medical care, a responsibility that can’t be evaded simply by contracting it out to a for-profit company. Unfortunately, Mr. Staten’s is a familiar story: the ACLU is currently litigating a case in a Mississippi prison that challenges, in part, the dangerously inadequate health care provided by Health Assurance, a private corporation also responsible for Mr. Staten’s medical treatment — or lack thereof.

To continue reading, please click here.

Every day, Americans in debt over government fees and fines are sent to jail, imprisoned only because they’re poor.

Death by Debtors’ Prison: Ray Staten’s 16-Day Jail Sentence for Unpaid Court Fees Cost Him His Life

This piece originally appeared at The Guardian.

Ray Charles Staten Sr. should have celebrated his 60th birthday this month. Instead, his family marked the fourth anniversary of his death. It all started, according to a lawsuit that settled in March 2015, when a small debt became a death sentence in the spring of 2011.Unable to pay an outstanding debt of $409 in court fines, Mr. Staten was arrested and sentenced to 16 days in Mississippi’s Harrison County Jail. Shortly after being booked at the jail, Mr. Staten fell seriously ill. Despite his obvious symptoms and his cellmates’ cries for help, the jail’s privately-contracted medical staff allowed his condition to worsen until – on the fifth day of his sentence – he collapsed in his cell and, upon being transported to a medical center, could not be revived. He had suffered acute peritonitis, a life-threatening infection of the abdominal lining for which early treatment is essential.

Whenever the government locks someone in jail, it has a constitutional duty to provide adequate medical care, a responsibility that can’t be evaded simply by contracting it out to a for-profit company. Unfortunately, Mr. Staten’s is a familiar story: the ACLU is currently litigating a case in a Mississippi prison that challenges, in part, the dangerously inadequate health care provided by Health Assurance, a private corporation also responsible for Mr. Staten’s medical treatment — or lack thereof.

To continue reading, please click here.

Every day, Americans in debt over government fees and fines are sent to jail, imprisoned only because they’re poor.

Scaremongering about the Patriot Act Sunset

In a last-ditch effort to scare lawmakers into preserving unpopular and much-abused surveillance authorities, the Senate Republican leadership and some intelligence officials are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security. (One particularly crass example from Senator Lindsey Graham: “Anyone who neuters this program is going to be partially responsible for the next attack.”) Some media organizations have published these warnings without challenging them, which is unfortunate. The claim that the expiration of Section 215 would deprive the government of necessary investigative tools or compromise national security is entirely without support.

First, there’s no evidence that the call-records program is effective in any meaningful sense of the word. The Privacy and Civil Liberties Oversight Board, which reviewed classified files, “could not identify a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” The President’s Review Group, which also reviewed classified files, determined that the call-records program had “not [been] essential to preventing attacks,” and that, to the extent the program had contributed to terrorism investigations, the records in question “could readily have been obtained in a timely manner” using targeted demands. Although government once made far grander claims to the FISA court, the strongest claim that leaders of the intelligence community now make in support of the call-records program is that it provides “peace of mind.” Whatever this claim means—peace of mind to whom?—it’s not a claim that the program is necessary.

Second, there’s no evidence that other forms of collection under Section 215 have been any more effective. If intelligence officials could cite instances in which collection under Section 215 had been crucial to terrorism investigations, you can be sure they would have cited them by now. They certainly would have cited them to the Justice Department’s Inspector General, but a report by the Inspector General released this past week states that FBI personnel were “unable to identify any major case developments that resulted from use of the records obtained through use of Section 215 orders.” FBI personnel didn’t say that collection under Section 215 had been entirely useless—they said it had been useful in corroborating information already in their possession, for example—but they certainly didn’t say, or even come close to saying, that the expiration of Section 215 would compromise national security.

Third, the sunset of Section 215 wouldn’t affect the government’s ability to conduct targeted investigations of terrorist threats. This is because the government has many other tools that allow it to collect the same kinds of things that it can collect under Section 215. It can use administrative subpoenas or grand jury subpoenas. It can use pen registers. It can use national security letters. It can use orders served under the Electronic Communications Privacy Act. If Section 215 sunsets, it can use the provision that Section 215 amended, which will allow it to collect business records of hotels, motels, car and truck rental agencies, and storage rental facilities.

The sunset of Section 215 would undoubtedly be a significant political loss for the intelligence community, and it would be a sensible first step towards broader reform of the surveillance laws, but there’s no support for the argument that the sunset of Section 215 would compromise national security. Against this background, it’s not surprising the FBI Director reacted the way he did to a question about the possible sunset of Section 215. “I don’t like losing any tool in our toolbox,” Comey said, “but if we do, we press on.”

This was originally posted at Just Security.

Surveillance opponents are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security.

Scaremongering about the Patriot Act Sunset

In a last-ditch effort to scare lawmakers into preserving unpopular and much-abused surveillance authorities, the Senate Republican leadership and some intelligence officials are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security. (One particularly crass example from Senator Lindsey Graham: “Anyone who neuters this program is going to be partially responsible for the next attack.”) Some media organizations have published these warnings without challenging them, which is unfortunate. The claim that the expiration of Section 215 would deprive the government of necessary investigative tools or compromise national security is entirely without support.

First, there’s no evidence that the call-records program is effective in any meaningful sense of the word. The Privacy and Civil Liberties Oversight Board, which reviewed classified files, “could not identify a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” The President’s Review Group, which also reviewed classified files, determined that the call-records program had “not [been] essential to preventing attacks,” and that, to the extent the program had contributed to terrorism investigations, the records in question “could readily have been obtained in a timely manner” using targeted demands. Although government once made far grander claims to the FISA court, the strongest claim that leaders of the intelligence community now make in support of the call-records program is that it provides “peace of mind.” Whatever this claim means—peace of mind to whom?—it’s not a claim that the program is necessary.

Second, there’s no evidence that other forms of collection under Section 215 have been any more effective. If intelligence officials could cite instances in which collection under Section 215 had been crucial to terrorism investigations, you can be sure they would have cited them by now. They certainly would have cited them to the Justice Department’s Inspector General, but a report by the Inspector General released this past week states that FBI personnel were “unable to identify any major case developments that resulted from use of the records obtained through use of Section 215 orders.” FBI personnel didn’t say that collection under Section 215 had been entirely useless—they said it had been useful in corroborating information already in their possession, for example—but they certainly didn’t say, or even come close to saying, that the expiration of Section 215 would compromise national security.

Third, the sunset of Section 215 wouldn’t affect the government’s ability to conduct targeted investigations of terrorist threats. This is because the government has many other tools that allow it to collect the same kinds of things that it can collect under Section 215. It can use administrative subpoenas or grand jury subpoenas. It can use pen registers. It can use national security letters. It can use orders served under the Electronic Communications Privacy Act. If Section 215 sunsets, it can use the provision that Section 215 amended, which will allow it to collect business records of hotels, motels, car and truck rental agencies, and storage rental facilities.

The sunset of Section 215 would undoubtedly be a significant political loss for the intelligence community, and it would be a sensible first step towards broader reform of the surveillance laws, but there’s no support for the argument that the sunset of Section 215 would compromise national security. Against this background, it’s not surprising the FBI Director reacted the way he did to a question about the possible sunset of Section 215. “I don’t like losing any tool in our toolbox,” Comey said, “but if we do, we press on.”

This was originally posted at Just Security.

Surveillance opponents are warning that allowing Section 215 of the Patriot Act to sunset would compromise national security.

What Congress Needs to Do Now for Real NSA Spying Reform

This was originally posted at The Daily Beast.

One section of the Patriot Act has been ritually abused. Americans want it changed. With a few days left to kill, amend, or reauthorize the bill, the ACLU’s legislative counsel says the latter is no longer a viable option.

Congress has just a handful of legislative left days to decide whether to amend, extend, or simply let provisions of the Patriot Act expire on June 1. And, for now, the ball is in the Senate’s court.

Last week, the House of Representatives overwhelmingly passed the USA Freedom Act, a bill that proposes scaling back—but still extending—the expiring provisions. While it would limit some forms of abuse, the bill unfortunately still leaves room for the government to collect the information of thousands of innocent Americans.

In short, it simply doesn’t go far enough. And, it is out of touch with the views of the public.

A new ACLU-commissioned poll released this week finds that voters want the Patriot Act to be modified to protect Americans’ privacy—by nearly two-to-one margin. The poll also notes that more than 80 percent of likely voters are concerned that the government is collecting and storing personal information such as phone records, emails, and bank statements. Almost the same percentage of people says that a warrant should be required to search those types of records.

It’s clear what the public wants: a retooled, less invasive Patriot Act.

The USA Freedom Act—a modest, inadequate rollback of some of the NSA’s authorities just passed by the House—faces an uncertain future in a divided Senate. Some Senators have rallied around the bill, framing it as the only viable reform option on the table. Senate Republican leadership, however, appears to have rejected the notion of reform and supports reauthorizing the expiring provisions for five years or, at least, temporarily.

Both approaches are misguided. Unless the Senate can make substantial improvements to the USA Freedom Act, Congress should simply let the provisions of the Patriot Act expire instead.

The expiring provisions – including Section 215 – were never intended to be permanent. In the wake of 9/11, Congress included sunset dates precisely to ensure that our country debated not only whether these provisions were still necessary, but also whether they were used in a way that violated the law and Constitution.

Over a decade after 9/11, we can no longer turn a blind eye to how these provisions have been abused.

We now know that Section 215 has been used to create massive surveillance programs that far eclipse the original intent of the law.

Under Section 215, the government collects information about every call made to or from an American. This includes every call made to a doctor, suicide hotline, journalist, or even place of worship. In addition, Section 215 has also reportedly been used by the FBI and CIA to collect large numbers of other records, including financial records.

This month in a landmark decision, a federal appeals court ruled that the call records program operated under Section 215 is illegal. This ruling aligns with recommendations made by an independent government oversight board, which found in early 2014 that the program had not made a substantial impact on any terrorist investigation and should be discontinued in its present form.

Given this, the question is not whether we should let Section 215 sunset, but why are we even considering letting it continue?

If Congress elects to move forward with the current bill instead of allowing Section 215 to sunset, it must be strengthened substantially to provide meaningful protections for Americans.

The language of the bill should further narrow the ability of the government to collect the information of people with no nexus to terrorism. As the federal court opinion made clear, Section 215 was never intended to allow the government to amass and data mine the records of Americans with no connection to a specific investigation. It was used that way anyway for over a decade.

The bill also needs to require that the government promptly purge all irrelevant records to ensure that government databases containing the information of innocent Americans do not continue to balloon.

Any bill worth passing should include widely supported reforms to prevent the government from using Section 702 of the Foreign Intelligence Surveillance Act—another controversial surveillance authority—to obtain information about Americans. Specifically, the bill should close the so-called “backdoor search loophole,” and require the government to obtain a warrant prior to searching through the Section 702 database for information about Americans.

Positive legislation also has to change other provisions of the law, like the administrative subpoena authorities. Until 2013, these were also used to collect Americans’ call records en masse. As the federal court of appeals made clear, laws that permit the government to collect records “relevant” to an investigation are not a blank check for the government to engage in mass surveillance.

And, a reform bill should eliminate loopholes in the transparency provisions to ensure that members of Congress and the public are never again left in the dark about the NSA’s surveillance activities. Specifically, the government should be forced to report the full scope and total number of individuals impacted under Section 215, as well as under Section 702.

Without these improvements, the bill falls short of providing the meaningful surveillance reform the public demands and our country deserves.

Section 215 was supposed to expire when it became clear that it was no longer serving the best interests of our country.  That has happened. Let it expire, as so many Americans want it to.

One section of the Patriot Act has been ritually abused. Americans want it changed.