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How an Irish Court Ruling Could Affect U.S. Spying

Fri, 20 Apr 2018 17:45 -0400

The decision sets the stage for a showdown between tech firms and the government on NSA surveillance. Amidst all of the coverage of Mark Zuckerberg’s congressional testimony last week, you may have missed another consequential headline for Facebook — and for everyone who uses the internet. An Irish court ruled that U.S. surveillance programs result in the “mass indiscriminate” processing of Europeans’ private data, and it expressed serious concerns about the lack of legal remedies for this surveillance. If the European Union’s highest court agrees, it may limit the ability of companies to easily move data from the EU into the U.S. In other words, NSA spying could have a major impact on the profits of Facebook and other Silicon Valley giants. One of the central issues in the case, known as the Schrems litigation, is whether the breathtaking scope of NSA surveillance violates users’ rights. That’s because under European law, companies face restrictions on transferring data to countries with weaker privacy rules. To address those restrictions, in the 1990s, the EU and the United States negotiated an agreement known as “Safe Harbor,” which allowed companies doing business in the EU to transfer data to the U.S. based on the principle that the U.S. ensures an “adequate” level of protection for that information. In 2013, Edward Snowden’s revelations made clear that NSA spying programs involve massive violations of privacy. An Austrian lawyer and privacy activist, Max Schrems, took note. Schrems brought a suit against Facebook Ireland, which relied on the Safe Harbor agreement to transfer data to Facebook in the U.S. He argued that as a result of NSA spying, the U.S. failed to adequately protect Europeans’ data. The case made its way to the Court of Justice of the European Union, the highest court in matters of EU law. The court invalidated the Safe Harbor agreement in 2015, based in large part on the court’s concerns about the vast extent of U.S. government surveillance. Unsurprisingly, that landmark ruling resulted in substantial fallout for American tech firms and multinationals that do business in the EU. Afterward, the U.S. and EU rushed to negotiate a new agreement, called Privacy Shield, with the hope that it would withstand scrutiny by the EU’s high court. Some companies also began relying on alternate protocols to transfer data to the U.S. In 2015, Schrems filed a new complaint in Ireland, this time challenging Facebook’s reliance on one of these alternate protocols to transfer data, once again raising concerns about U.S. government spying. In court in Dublin, Facebook argued that its users’ data is sufficiently protected and that if European citizens are illegally spied on, there are sufficient remedies available. However, as I explained in expert testimony for Schrems, those claims are completely divorced from reality. When people’s data is transferred from Europe, it is vulnerable to warrantless mass surveillance by the NSA and other agencies under two broad spying authorities: Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12,333. The U.S. can target law-abiding Europeans under programs such as PRISM, which pulls information from American tech firms, and Upstream, which grabs communications directly from the internet’s physical infrastructure as they’re in transit. And in practice there are few, if any, effective remedies because the U.S. government almost never officially notifies the millions of people it subjects to this spying. Without notice, it is extremely difficult to challenge this surveillance in court.    In light of these facts, the Irish court rejected several of Facebook’s arguments. It ruled that the U.S. government engages in mass surveillance and found that people subject to U.S. surveillance do not receive notice. In addition, it concluded that concerns about the lack of remedies are “well-founded.” The court also referred 11 legal questions to the European Court of Justice, including questions about the broader Privac[...]



Trump’s Inquisitor

Fri, 20 Apr 2018 11:00 -0400

Jeff Sessions has done everything he can to carry out Trump's radical policies, yet Trump still views him with disdain.

This piece originally appeared in The New York Review of Books.

In February, President Donald Trump took to Twitter once again to attack his attorney general, Jeff Sessions. He decried as “DISGRACEFUL” Sessions’s referral to the Justice Department’s inspector general of a Republican accusation that department lawyers had acted improperly in seeking a Foreign Intelligence Surveillance Act (FISA) warrant in October 2016 to eavesdrop on Carter Page, a Trump campaign aide. Trump insisted that Sessions should have investigated the charges himself. This was only the latest in a long line of public recriminations Trump has unleashed against his attorney general, in what New York Times reporters Peter Baker and Katie Benner aptly described as “an almost Shakespearean rift.”

The most recent complaint and the long-standing rift are curious for several reasons. First, Sessions was one of Trump’s earliest and most loyal supporters. He was the first member of the Senate to back Trump’s presidential campaign. He was also one of the very few willing to defend Trump in the immediate aftermath of the release of the Access Hollywood tape, on which Trump boasted that, as “a star,” he could “grab [women] by the pussy.” Asked by a reporter whether Trump’s actions would constitute sexual assault, Sessions replied, “I don’t characterize that as sexual assault. I think that’s a stretch.”

Second, Sessions’s referral of the allegedly improper FISA warrant to the inspector general was the correct course, as that office, which is responsible for investigating complaints against Justice Department employees, was designed to have a degree of independence, precisely to avoid the appearance of a conflict of interest.

Third, if the president disagrees with a decision the attorney general has made, he can simply pick up the phone; he need not resort to Twitter and share his concerns with 49 million followers. Yet Trump has repeatedly condemned his attorney general in public statements, often on Twitter.

Of course, the reason for Trump’s pique could not be clearer. He has admitted that he rues the day he selected Sessions as attorney general because of a single decision Sessions made: to recuse himself from the investigation of Russia’s interference in the 2016 presidential election. The attorney general’s job is to “protect” the president, Trump told The New York Times in December. But Sessions really had no choice in the matter, because he had personally met, while an adviser to the Trump campaign, with the Russian ambassador, and had lied about it to the Senate Judiciary Committee considering his nomination to become attorney general. That recusal, however, led to the appointment as special counsel of Robert Mueller, whose investigation Trump has been obsessed with ever since.

The fact that this decision, which Sessions was ethically bound to make, so colors the president’s view of his attorney general is all the more remarkable because Sessions is almost certainly the single most effective implementer of Trump’s vision in the entire administration. No cabinet member has been more diligent and single-minded in pursuing Trump’s policies.

Continue reading at The New York Review of Books.




Court’s Ruling Holding Kobach in Contempt Is Well-Deserved

Thu, 19 Apr 2018 17:30 -0400

The time is up for Kobach to follow the law. In a scathing decision issued on Wednesday evening, a federal judge held Kansas Secretary of State Kris Kobach in contempt for repeatedly and willfully disobeying court orders that he comply with federal voting rights law. The contempt ruling by Chief Judge Julie Robinson, who was appointed by George W. Bush, follows years of attempts by Kobach to evade, undermine, or ignore the court’s directive that he register and notify all eligible voters in accordance with the National Voter Registration Act. The judge lambasted Kobach for his “history of noncompliance and disrespect for the Court’s decisions in this case.” Kobach’s Long History of Defying the Law Before Kris Kobach took office as secretary of state, Kansans could register to vote the same way that people do in virtually every other state in the country: by submitting a sworn oath of citizenship under penalty of perjury. In 2013, Kobach implemented a pet law he had drafted and pushed through the Kansas Legislature, requiring people to track down a citizenship document — such as a passport or birth certificate — before they could be registered to vote. The burden of Kobach’s law on voters was devastating. Large numbers of citizens — disproportionately minorities — don’t have a passport or birth certificate and don’t have the money to obtain replacement documents. By December 2015, more than 30,000 Kansans had been disenfranchised, approximately 12 percent of all registration applications since the requirement went into effect. The NVRA, popularly known as the Motor-Voter law, prohibits unduly harsh registration rules and requires that states make voter registration easy and straightforward. In May 2016, Judge Robinson issued a preliminary ruling blocking Kobach’s law as illegal under the NVRA. The ruling was grounded in the clear text of the NVRA and was consistent with a 2013 Supreme Court decision written by Justice Antonin Scalia that had already rejected Kobach’s legal theory for his documentation requirement. Kobach’s Second Chance After issuing her decision, Judge Robinson took pains to give Kobach an opportunity to file an emergency appeal requesting a stay of her preliminary injunction so that a higher court could determine if her ruling was in error. Kobach’s stay request was swiftly rejected by the 10th Circuit Court of Appeals. Judge Robinson ordered Kobach to register the voters covered by her injunction and notify them that they could vote. She wrote: “the Court is confident that the Secretary will be able to fashion a conspicuous, easily understood notice that will apprise voters of the status of their registrations and their right to vote in federal elections in 2016.” Any trust in Kobach was plainly misplaced. As the 2016 election approached, it became clear that Kobach had no intention of actually registering voters as the court had directed. Kobach refused to add voters to the state’s registration list. Instead he sent deceptive and confusing notices telling individuals that they could not become registered until they had produced citizenship papers. Kobach made statements in separate court proceedings and in the media that he needed to keep these voters unregistered so that it would be easier for him to eliminate them from the voter rolls if he later won on appeal. It was only after the court ordered Kobach to appear at a contempt hearing requested by the ACLU that Kobach agreed to comply one day before the hearing. Kobach’s Third Chance In extending him yet another chance to follow the law, Judge Robinson was clear that Kobach must treat all voters covered by her injunction as any other registered voter. This meant providing them with the standard postcard notification that all Kansas voters receive, confirming they are registered and advising them of their polling location. Kobach expressly promised Judge Robinson on the record that he would ensure that any voter who was previously suspended would get th[...]



In Its Zeal to Deport Immigrants, the Justice Department Scraps Due Process

Thu, 19 Apr 2018 11:45 -0400

Sessions is attempting to strip immigrants of their fundamental right to have a day in court. In the past month, the Department of Justice has issued a series of stunningly senseless, wasteful, and cruel immigration policies. It ended a program to notify immigrants of their rights in deportation cases. It set an arbitrary and unreasonable quota for immigration judges. It enabled judges to make asylum decisions without a hearing. And it doubled down on a failed “zero tolerance” policy that aims to prosecute everyone accused of crossing the border without authorization. Like other Trump administration moves, these policies distort the facts, dehumanize immigrants and inflict fundamental damage on the legitimacy of our legal system. On April 10, the Justice Department announced that it is ending its Legal Orientation Program, which started during the George W. Bush administration to provide people who are detained and facing deportation with basic information about immigration laws and their rights. The LOP was an important yet inadequate lifeline, since only 14 percent of detained immigrants manage to obtain an attorney, and others must defend themselves against government lawyers who specialize in the infamously complex immigration code. The LOP has long had bipartisan support from Congress, and from the National Association of Immigration Judges, because it was also a lifeline for the under resourced immigration courts. Without providing this basic information to immigrants, immigration judges would find it even more difficult to do their job of ensuring that people understand their rights and are making informed decisions. But in today’s Justice Department, even that flimsy lifeline has been cut. The aim is clear: to speed up deportation, without due consideration of the law or facts in a person’s case. The impact of LOP’s end is multiplied by Sessions’ other recent policies. On March 5, he took the unusual step of unilaterally reversing a 2014 decision by the Board of Immigration Appeals that had required immigration judges to hold a hearing before deciding asylum cases. This cleared the way for asylum applicants — most of whom don’t have lawyers, don’t understand the legal system, and may not speak English — to be deported without ever having a chance to state their case to a judge. Soon after, he announced that immigration judges should meet an arbitrary quota of deciding 700 deportation cases a year. Sessions has said his intent is to clear a backlog in immigration courts. But his chosen methods undermine the fundamental role of those courts: to determine whether the government is correct in its assertion that a person is deportable or has a legal right to remain, such as a valid asylum claim. What’s behind Sessions’ “streamlining” ideas? He wants to falsely cast immigrants and refugees as criminals. He made that clear with the last of his April announcements when he called for a “zero tolerance” policy mandating criminal prosecution of every person accused of crossing the border without authorization. In an April 11 speech to the Texas Border Sheriffs’ Coalition and the Southwestern Border Sheriffs’ Coalition, Sessions justified charging anyone who crosses the border with a misdemeanor by suggesting they are all violent criminals and drug smugglers. In fact, illegal entry and reentry — now holding third- and first-place among all federal crimes charged in the United States — by definition do not entail violence or drugs. Between March 2017 and February 2018, prosecutions of illegal entry increased more than 448 percent, even though border crossings are at an all-time low. Our government is spending an estimated $1 billion a year just on the cost of incarcerating people convicted under these statutes, which does not include the costs of diverting federal agents, prosecutors, and court resources from actually stopping violent crimes. And Border Patrol’s claim that these prosecutions deter people[...]



This Law Makes It Nearly Impossible to Police the NYPD

Wed, 18 Apr 2018 17:30 -0400

Leaked NYPD documents provide a necessary window into the secret world of how the department deals with abusive officers. This week, Buzzfeed released a trove of leaked records for 1,800 New York Police Department employees who were charged with misconduct between 2011 and 2015. These records do not make for easy reading, but they are undoubtedly in the public interest. For instance, the public has a clear interest in knowing that at least 319 NYPD employees were allowed to keep their jobs, even after committing offenses that NYPD leaders have always assured us were fireable. Those pushing for more police in schools in the wake of the school shooting in Parkland, Florida, might want to know that three school safety officers found guilty of using excessive force against students were punished with just five lost vacation days. And anyone concerned about false information leading to wrongful convictions might like to know that more than 100 employees accused of “lying on official reports, under oath, or during an internal affairs investigation” were punished with as little as a few days of lost vacation. Much of this information would have been made publicly available up until recently. But in 2016 the NYPD suddenly decided, after decades of posting so-called police “personnel orders,” that doing so violated section 50-a of the New York State Civil Rights Law, which limits the release of certain police personnel records. The law says that personnel records used to evaluate an officer’s performance toward continued employment or promotion are confidential, and it’s constantly and increasingly used as a tool by the police establishment to thwart police accountability and transparency statewide. Police departments and unions have argued that, unlike basically every other exemption in the Freedom of Information Law, 50-a categorically blocks the release of any portion of these records — even if they’ve been redacted and even if they serve a vital public interest. And their definition of the types of documents that count as “personnel records” keeps growing. Recent examples from New York City demonstrate why legislators in Albany should repeal the law to ensure that officer disciplinary records aren’t disappeared into department memory holes. Currently, the NYPD is fighting NYCLU in court to block the release of redacted judicial opinions in NYPD disciplinary trials. The NYPD cites 50-a as its reason for insisting the records remain secret. Then there’s the Patrolmen’s Benevolent Association, the union representing the department’s rank-and-file officers, which used 50-a to win a court order this month that temporarily blocks the NYPD from releasing even anonymized summaries of disciplinary proceedings. The PBA also filed a lawsuit in January arguing that 50-a’s definition of personnel records should be expanded to prevent the NYPD from releasing police body-camera footage without an officer’s consent. And, right on cue, the PBA threatened to sue Buzzfeed for releasing the records in its possession because the documents would create “the perfect tool for unstable individuals with a grudge against cops to identify and go after police officers and their families.” You can bet 50-a will be the central pillar of any such litigation. The argument that Buzzfeed’s database will put officers in danger is belied by the fact that police departments across the country regularly release this type of information. In fact, keeping this information hidden makes it easier for the NYPD to avoid holding its officers accountable, which can put New Yorkers’ lives in danger. One of the officers in the database is Daniel Pantaleo. Before Pantaleo put Eric Garner in a fatal chokehold in 2014, he had seven disciplinary complaints and 14 individual allegations made against him. The Civilian Complaint Review Board, the New York City agency that investigates police misconduct complaints filed by the publi[...]



The Trump Administration Is Trying to Forcibly Send a Detained US Citizen to Another Country

Wed, 18 Apr 2018 16:30 -0400

The White House believes it can sidestep Americans due process rights by simply invoking “national security.” For more than seven months, the Trump administration has been unlawfully detaining an American citizen in Iraq. Rather than charge him with a crime or set him free, the government wants to transfer him, involuntarily, to a third country. The ACLU is going to court on Thursday to stop the transfer and fight the government’s dangerous claims that it has the authority to violate an American’s constitutional rights. The Trump administration claims that the citizen, who was detained in September by Kurdish forces in Syria and transferred to U.S. custody, is a fighter for ISIS — an allegation he denies. The ACLU began representing him in January after a federal court ordered the government to allow us unmonitored access to him. This came after the government insisted, over several months, that it did not need to respect the man’s wishes to challenge his detention or to speak with a lawyer. After reports emerged that the government was seeking to send the man to Saudi Arabia, Judge Tanya Chutkan of the federal district court in Washington, D.C., ruled in late January that the government must provide notice 72 hours before any transfer. On Monday night, the government filed that notice under seal, with a redacted version made public yesterday. (The public notice redacts the name of the destination country.) In response, the ACLU immediately filed a challenge to the transfer announcement, with a hearing scheduled for Thursday. The case has raised high-stakes questions about the extent of the government’s legal authority to wage war and, by extension, detain citizens as “enemy combatants.” The Trump administration wrongly claims that various legal sources give it that power. First, it alleges that the 2001 Authorization for Use of Military Force, passed in the days after 9/11, gives it the authority to detain ISIS suspects. That statute, however, extends to those responsible for the 9/11 attacks — namely al-Qaida and the Taliban. ISIS didn’t exist at the time, and today it is openly at war with al-Qaida. The government also claims that a subsequent AUMF, passed in 2002 to authorize the war against Saddam Hussein in Iraq, justifies the detention of our client. By that logic, the government claims it has the authority to indefinitely wage war against anyone it deems a threat in Iraq. Lastly, the government says that the president’s commander-in-chief authority to detain U.S. citizens gives the military the right to detain the man. That is an evidently dangerous claim that seeks a carte blanche to suspend citizens’ due process rights — anytime, anywhere — by simply invoking national security. Why the U.S. War on ISIS Is Illegal The fact that the government has no authority to detain ISIS members also means that its incorrect allegations against our client are irrelevant. Before this case, no court had considered the legitimacy of the government’s claims that it is authorized to use force against ISIS. However, rather than wait for a ruling, the government prefers to wash its hands of the matter by illegally and forcibly rendering him to another country. As shown by the recent missile strikes against Syria, this administration does not seem interested in following the rules when it comes to military action. It isn’t surprising that a government that claims it can wage war and detain citizens without limits would want to avoid a court decision that might rein it in. But we aren’t going to allow it a free pass.[...]



Who Should Review Michael Cohen’s Files Under the Fourth Amendment?

Tue, 17 Apr 2018 15:00 -0400

Lots of lawyers are arguing over who should review the documents seized from Trump's lawyer. The decision will affect us all. Since the search last week of the office, home, hotel room, and safe deposit box of Michael Cohen, President Trump’s personal attorney, lots of lawyers have been squaring off about an important legal issue that rarely gets banner-headline billing: How does the government, armed with a warrant for a criminal suspect’s digital files, go about sorting through those files in a way that ensures that constitutional and legal rights are not violated? The risks of wrongful privacy invasions are too great to leave to the prosecutors when the government seizes digital data. Such files should be reviewed in the first instance by a neutral party, or “special master,” appointed by and answerable to the court, to ensure that the prosecutors and investigators get the evidence they are authorized to look for. They should not be allowed to roam widely through digital files that may contain terabytes of private information. Cohen has claimed that because he is an attorney — for Trump and others — some of the seized files may be entirely off-limits to the government because they are protected by the attorney–client privilege. President Trump’s lawyers have made similar arguments. Both have asked the court to allow their legal teams to have the first cut at the seized files in order to review them for privilege, and then to produce the remainder to the government or a special master. The government has countered that the court should allow a so-called “taint team,” made up of prosecutors who are not assigned to the case and who are technically walled off from those working on the case, to do the sorting. The court is now considering the parties’ arguments and is expected to rule quickly. How the court decides this issue is not just of interest to Trump and Cohen, but to everyone. As we continue our march into an ever-more-digital world, how the Fourth Amendment adapts to account for major changes in how we store our “papers” and other constitutionally protected materials will significantly shape our society’s notions of privacy, justice, fairness, and government power. We’ve always had concerns about government overreach in criminal investigations, and those concerns are heightened when prosecutors and police can seize massive amounts of data — the equivalent of every file in your office, your photo albums, your diaries, your personal letters, the contents of your dresser drawers, and more, all at once. The Cohen case has so far been seen through the lens of the attorney–client privilege. Invoking the attorney–client privilege is not an absolute shield from being subject to government search warrants. However, the fact that the search yielded so many electronic devices makes this an issue of even broader constitutional importance. According to Cohen’s attorney, in addition to 10 boxes of paper documents, the government seized more than a dozen of Cohen’s electronic devices in its search of his office, home, hotel room, and safe deposit box. As the government’s lawyer, Thomas McKay, conceded in court on Monday, the “real volume” of material will come from electronic files. That’s because a single large hard drive could contain libraries’ worth of stuff. And the immense storage capacities of digital drives, computers, and phones mean that all of the information covered by a given warrant will reside alongside a great deal of other information that the government has no justification to have at all. This state of affairs creates a serious risk — as in any case involving the seizure of digital information — that the government might see files or other information that were never covered by the original warrant. Under the Fourth Amendment, a warrant must be based on two important elements: probable caus[...]



Waiting While Black in Philadelphia Can Get You Arrested

Tue, 17 Apr 2018 10:30 -0400

What happened in a Philadelphia Starbucks is another example of the indignities Black people face every day. Late last week, two Black men in Philadelphia were doing what people do every day in this city — they waited in a coffee shop to meet an associate. While they were engaged in this mundane activity, they were removed from the Starbucks cafe at 18th and Spruce Streets in handcuffs by Philadelphia police officers. This is another example of the kind of daily indignities that African-Americans face every day in Philadelphia and around the country. We can’t even wait in a coffee shop for a friend without the possibility that someone will call the police. Two days after the news broke of the incident, I’m angrier now than I was when I first heard about it. The neighborhood where this incident occurred is known as Rittenhouse Square. For those not familiar with Philadelphia, it’s a tony neighborhood of beautiful townhouses and high-end apartment buildings. It’s also the neighborhood with the highest rates of racial disparities in stops and frisks by police in all of Philadelphia. In 2010, the ACLU of Pennsylvania sued the city because the Philadelphia Police Department’s use of stop-and-frisk was discriminatory. Our data showed that African-Americans were far more likely to be stopped and frisked than their white counterparts. Making matters worse, those stops were often without any justifiable cause. A year later, the city agreed to a consent decree to settle the case. That agreement requires the city to collect data on the PPD’s use of stop-and-frisk — including the demographic information of people who are stopped and the reasons why they were stopped — as well as to train officers to eliminate bias-based policing. The police service area where the Starbucks is located has a Black population of just 3 percent. But 67 percent of the stops that occurred there in the first half of 2017 were of African-Americans. The two other police service areas in this district — known as District 9 — show similar lopsided disparities. In one of the bordering police service areas, a whopping 84 percent of pedestrians stopped were African-Americans in a neighborhood with a Black population of 16 percent. Seven years after the city agreed to do better, we still see consistent racial disparities in stops and frisks. Yet, in a video statement in response to the incident, Philadelphia Police Commissioner Richard Ross had the nerve to say that his officers “did absolutely nothing wrong.” His statement, the data the city has collected on stops, and this incident all lead me to wonder if Ross and his department leaders in this district and this police service area, Capt. Danielle Vales and Lt. Jeffrey Rabinovitch, are serious about ending racial profiling in this neighborhood and throughout the city. There was no need for a Starbucks employee to call 911 because two men were waiting for an associate in their store. And even after the police were called, the police did not have to end the situation by arresting these men. If Commissioner Ross is right that these officers followed policy, then the policy needs to change. Starbucks may be able to decide who sits in its store, but only the police could decide to arrest these men. Racial bias and discrimination are so steeped in American culture that those of us who experience it on a regular basis have learned to live as second-class citizens in the country of our birth. Many folks have expressed pride or relief because the two men remained calm. I get that. I am glad, too. We have seen far too many incidents that have quickly spiraled out of control. But there is an ugly side to that as well. Black people, men in particular, are not allowed the full range of emotional expression in public spaces. Even when an emotion other than being calm is warranted, we have been taught and have [...]



California Can Reduce the Number of Police Shootings. Here’s How.

Mon, 16 Apr 2018 15:30 -0400

A bill in the state legislature would help ensure that police officers use deadly force only as a last resort. Police in California have a problem with deadly force. Last year, police shot and killed 162 people in the state, half of whom did not have guns. California departments have some of the highest rates of killings in the nation. In a 2015 report, for example, the Guardian identified central California’s Kern County as the place where a member of the public is most likely to die at the hands of police.Those figures are alarming, but even more shocking were the sentiments expressed by Kern County Sheriff Donny Youngblood in a recently-unveiled video from 12 years ago. During a meeting with the county’s Detention Officers Association, Youngblood told the audience that it is better financially for the county when his deputies kill someone rather than injure them.“If we cripple them we get to take care of them for life, and that cost goes way up,” he told the union members. “You know what happens if a guy makes a bad shooting on somebody — kills them?” Youngblood asked the audience. “Three million bucks, and the family goes away.” Sheriff Youngblood’s comments show what families and communities affected by police violence already know: There is little recourse for victims of police shootings and little incentive for officers and police departments to change. This is unacceptable. And yet, under California law, it is perfectly legal for a police officer to shoot and kill someone, even if other alternatives are available and even if the killing wasn’t necessary to keep officers or the public safe. Officers are rarely held accountable because the law allows police to use deadly force whenever an “objectively reasonable” officer would have done so under the same circumstances, and courts have said that police don’t have to use the least amount of force possible for their conduct to be “reasonable.” The results?Police officers who kill people are seldom prosecuted and, so far as we know, seldom even disciplined. Between 2005 and 2016, only two police killings carried out during an arrest were deemed unjustified out of nearly 1,200 reported by local police departments, according to California Department of Justice data. It’s time for California to adopt a new, commonsense standard that recognizes the value of preserving human life. Police officers should be prohibited from using deadly force unless necessary, instead of whenever “reasonable,” and they should be required to use “de-escalation” tactics to defuse a situation or other alternatives to deadly force where possible.Assembly Bill 931, authored by Assembly Member Shirley Weber, would enshrine that rule in state law and help ensure that police use deadly force only as a last resort. The bill would also require that decision makers from police chiefs to juries look at officers’ entire conduct leading up to their decision to pull the trigger. That way, officers can be held accountable for gross negligence when they escalate a situation that ends with someone dead. These requirements are becoming more and more common across the country. A number of individual police departments have already implemented variations of AB 931’s provisions, including the FBI, and some have adopted all of them. The San Francisco Police Commission recently approved a use of force policy with a necessity standard. The policy requires that officers use de-escalation techniques and alternatives to deadly force. And when a deadly shooting does occur, officers are judged on their entire conduct leading up to the shooting, not just when they pull the trigger.Several departments have adopted similar use of force policies under the guidance of the U.S Department of Justice, including Seattle and Chicago. Two major law enforcement groups, the[...]



Don’t Let Congress Give Trump a Blank Check to Declare Worldwide War

Fri, 13 Apr 2018 18:30 -0400

Sen. Bob Corker reportedly will introduce legislation to effectively give Trump, not Congress, the ability to declare war. Under a proposal expected to be introduced in the Senate very soon, President Trump would get a blank check from Congress to go to war virtually anywhere on the planet. The ACLU has sent a letter to all senators strongly opposing this new Authorization for Use of Military Force, also known as the AUMF. It would be hard to overstate the depth and breadth of our concern about this new AUMF as it has been described in reports. The resolution sponsored by Sen. Bob Corker (R-Tenn.) would almost irretrievably cede to the president the most fundamental power that Congress has under Article I of the Constitution: the power to declare war. It would give the executive branch the sole authority to send American troops to countries where we are not currently at war and to use military force against groups that the president alone decides are enemies. The resolution would reportedly have no restrictions against using lethal force anywhere, whether missile attacks or American troops on the ground. Meanwhile, the Senate Foreign Relations Committee, chaired by Corker, has largely ignored the consequences of authorizing the use of military force against Syria, while Trump continues to tweet threats of action. With the stakes for catastrophic war so high in Syria, it would be a dereliction of duty for Congress to cede such extraordinary power to the executive. An AUMF and a declaration of war are the two methods that Congress has used to exercise its exclusive power to declare war. The two most recent AUMFs were passed in 2001 to authorize the use of military force in Afghanistan against the perpetrators of the 9/11 attacks. In 2002, a resolution was passed to use military force against the Saddam Hussein regime in Iraq. Through three presidents, both of these authorizations have been used for purposes far removed from its intent and language. But the answer to rein in these overly expansive authorizations is for Congress to repeal or roll back the current AUMF — not to pass something that is far broader and more dangerous than current law. The Corker AUMF would reportedly authorize force — without limitations — in at least six countries and against a long list of organizations. The president would be able to add additional countries as well as additional enemies, including groups that do not even exist yet. The president could even add the U.S. to the list of places where lethal military force can be used. The additions — which are very similar to new declarations of war — would simply have to be reported to Congress to take effect. In order for Congress to bar an expansion, it would require a two-thirds majority in both houses, given that the president would presumably veto legislation to curtail an expansion that he ordered. This aspect of the legislation would permanently upend the Constitution’s process for going to war. Article I of the Constitution provides that Congress can authorize war with a majority vote and the signature of the president. By contrast, the Corker resolution would authorize the president to go to war with the stroke of a pen. To make matters worse, unlike other congressional measures that give significant authority to the executive branch, this legislation reportedly has no expiration date. This proposal would cause colossal harm to the Constitution’s checks and balances, would jeopardize civil liberties and human rights at home and abroad, and would lead to a breathtakingly broad expansion of war without meaningful oversight. It would represent a sharp break from U.S. adherence to international law, including the United Nations charter. The ACLU, along with other human rights, civil liberties, and religious organizations will make it [...]