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Civil Rights Movement Is a Reminder That Free Speech Is There to Protect the Weak

Fri, 26 May 2017 16:45 -0400

If we don’t stand up for the First Amendment when abhorrent speech is censored, the powerless will be hurt most in the end. We at the ACLU are often criticized for our unyielding defense of free speech rights. Even our closest allies complain when we defend the free speech rights of Klansmen and assorted other racists, misogynists, online haters, fake news creators, and other toxic speakers. In particular, we hear that such defenses of free speech rights serve not to protect the weak but to protect the powerful in their attacks on the vulnerable. Recently I’ve been re-reading Taylor Branch’s Pulitzer Prize-winning book “Parting the Waters: America in the King Years,” a history of the civil rights movement with a focus on the life of Martin Luther King. I’d forgotten what a fantastic telling of the civil rights story it and its two sequels are. But also, rereading the story in light of my work at the ACLU, I’ve been struck by the injustice not only of segregation, “separate but equal,” and the deprivation of voting rights, but the key role that egregious violations of free speech rights played in Southern officials’ opposition to the movement. It’s a reminder that when you mess with First Amendment rights, it’s ultimately the weak and powerless who lose out the most, even when those rights do sometimes protect the powerful. All across the segregated South, many thousands of Black Americans went to jail protesting segregation — and many of those who went to prison did so on the grounds that they were violating injunctions against protesting and assorted other unconstitutional restrictions on speech. A key chapter in the movement, for example, was the “Albany Movement” of 1961 and 1962 in Albany, Georgia. At one point, when a group of prominent Black citizens went to pray for justice on the steps of city hall there, they were arrested. For praying. Several months later, Martin Luther King himself was also arrested in Albany for praying outside city hall for an end to segregation.A year later, when the focus of the movement had shifted to Birmingham, Sheriff Bull Connor obtained an injunction from a compliant state judge ordering 133 specific people, including movement leaders, not to engage in “parading, demonstrating, boycotting, trespassing and picketing,” or even “conduct customarily known as ‘kneel-ins’ in churches.” It was King’s violation of this injunction that landed him in prison for the stint during which he wrote the famous “Letter From a Birmingham Jail.” In 1962, Robert Moses, the fearless and zen-like civil rights hero who circulated across Alabama and Mississippi trying to register Blacks to vote, was handing out leaflets in Sunflower, Mississippi, announcing a voter registration drive. He was arrested by police on the charge of “distributing literature without a permit.” In February 1963, a suspicious fire destroyed several black businesses in Greenwood, Mississippi. When one local activist named Sam Block speculated that the fire was a bungled act of arson aimed at the SNCC offices next door, he was arrested by Greenwood police for “statements calculated to breach the peace.” Later that year, John Lewis — the man now serving in Congress whom President Trump slammed as “All talk, talk, talk – no action or results” — was arrested in Selma, Alabama, for carrying a sign outside the courthouse that read “One Man/One Vote.” In all these cases and many others like them, the violations of First Amendment rights were so flagrant that they would be laughable were they not such deadly serious business for the men and women risking their lives confronting segregation. Official defenders of segregation seemed to feel the need to keep up a pretense of legality by wrapping their arrests in a justification of injunctions or patently unconstitutional charges like “distributing literature without a permit.” When activists were arrested for such things, civil rights groups often appealed to the Justice Department, headed by JFK’s brother Robert, b[...]



Yesterday, Charged with Assaulting a Reporter. Today, Charged with Defending the Constitution.

Fri, 26 May 2017 16:30 -0400

Greg Gianforte body slammed a reporter in Montana. He’s now a congressman with a duty to defend the First Amendment. Republican Sen. Ben Sasse of Nebraska had it right: “If the First Amendment means anything, it means you can’t body-slam a journalist.” Sadly, that lesson seems to be lost on some of Sen. Sasse’s colleagues. On Wednesday, Greg Gianforte was charged with assaulting a Guardian reporter while campaigning for Montana’s seat in the U.S. House of Representatives. Yesterday, he won that seat, and he’ll now also be charged with defending the Constitution and its promise of ensuring a free and vibrant press. The reporter, Ben Jacobs, approached Gianforte at a campaign rally in Bozeman with a question about the Congressional Budget Office’s assessment of the American Health Care Act. Gianforte, who has been dogged by questions about his stance on the bill throughout his campaign, apparently responded with violence. According to Jacobs himself, and confirmed by Fox news reporters who witnessed the event, Gianforte put his hands around Jacobs’ throat, threw him to the ground, and repeatedly punched him, all the while yelling, “Get the hell out of here!” Jacobs’ audio recording of the event is chilling. This was not an isolated incident. Throughout Gianforte’s campaign, he has been hostile toward the media. The Helena Independent Record wrote in an editorial piece yesterday that Gianforte “has encouraged his supporters to boycott certain newspapers, singled out a reporter in a room to point out that he was outnumbered, and even made a joke out of the notion of choking a news writer.” Newspapers that endorsed Gianforte despite this record of hostility — including the Independent Record, the Missoulian, and the Billings Gazette — all rescinded their endorsements after the attack. Recently, American officials have indulged an extremely disturbing predilection for intimidating members of the press. To take just a few examples: Earlier this month, a reporter in West Virginia was arrested for asking questions about the AHCA to two senior government officials in the state capitol. An Alaska state senator reportedly slapped a journalist over a story he didn’t like. Last week, Federal Communications Commission security personnel pinned a reporter to the wall, and then they proceeded to stalk him out of the building for trying to ask a commissioner a question after a public hearing. Former House Member Michael Grimm was filmed threatening to throw a reporter off a balcony and “break [him] in half.” And journalists covering the protests of President Trump’s inauguration were arrested and charged with felony rioting. Unfortunately, our president has not been helpful in modeling respect for an independent media. President Trump, who famously called the press “the enemy of the people,” has a well-known penchant for calling out reporters in the midst of hostile rallies. Trump’s aide, Corey Lewandowski, was recorded grabbing and yanking a reporter at a press conference — disproving Trump’s suggestion that she fabricated the incident. We must hold our elected officials to a higher standard. When members of Congress take office, they swear an oath to “support and defend the Constitution of the United States,” to “bear true faith and allegiance to the same,” and to “faithfully discharge the duties” of their office. Those are not empty words, but a promise to uphold the ideals on which this country was founded. Freedom of the press, which is expressly protected by the First Amendment, is one of those ideals. The press has historically served as an unofficial “check” in our system of checks and balances — think Watergate, the Pentagon Papers, warrantless wiretaps, and, of course, Trump — holding those in power accountable for their actions. An attack on the press is an attack on our constitutional democracy. If we’re going to entrust public officials with our rights and freedoms, they need to prove that they will uphold their oath. Th[...]



Why Jeff Sessions Is the Best Argument for Reducing Prosecutorial Power

Fri, 26 May 2017 16:15 -0400

When we can’t stop prosecutors like Jeff Sessions from taking power, we can still do a lot better job containing them. Rumors of the demise of the War on Drugs have been greatly exaggerated, but there have been some recent signs of a draw down. Both red and blue states have been taking steps to reduce incarceration for people charged with drug-related offenses. At the federal level, changes to sentencing guidelines and policies giving prosecutors more discretion in prosecuting drug crimes, implemented by former Attorney General Eric Holder, is credited for a major part of the 14 percent drop in the federal prison population. That progress, however, did not sit well with the current attorney general, Jefferson Beauregard Sessions, III. On May 12, Sessions single-handedly resurrected a mass incarceration zombie by revoking the Holder policy and reimplementing an approach that is likely to maximize prison time for any person the federal government charges with a drug crime. Sessions’ move ignores a widespread bipartisan consensus and disregards all available evidence about what actually improves public safety when it comes to drug use (hint: it’s not incarceration). If you are wondering how a single individual has the power to flood federal prisons, ruin lives, and deepen racial disparities all with the stroke of a pen — welcome to the world of prosecutors. As America’s top prosecutor, Sessions and his staff prosecutors have almost unchecked power to determine who goes to federal prison and for how long. Sessions is set to use power in a way that will cause tremendous damage. While the federal prison population is only about 10 percent of the total incarcerated population in the United States, nearly half of the 200,000 people currently in federal prisons are there for drug crimes, a number that may swell under Sessions’ policy. Sessions’ extraordinary authority as a prosecutor is not unique. It’s no different than the power similarly wielded by approximately 3,000 district attorneys and other top local prosecutors throughout the United States. In America’s modern criminal legal system, more than nine out of 10 cases are resolved by plea bargain where a judge has little or no role. Instead, it’s the prosecutor alone who determines who to charge, what charges to bring, and what plea bargain to offer. These decisions are largely hidden from public view and are subject to little or no outside oversight. Attorney General Jeff Sessions has single-handedly resurrected a mass incarceration zombie. Increasing numbers of top prosecutors are moving in the opposite direction of Sessions by unilaterally implementing policies that reduce incarceration. These prosecutors are not only responding to evidence showing that incarceration is costly and often counterproductive, but they are also responding directly to demands from crime victims and voters who overwhelmingly prefer a focus on treatment and rehabilitation over years-long prison sentences. The public’s clamor for a new approach from prosecutors reached deafening levels last week in Philadelphia, where voters in the Democratic primary sent Larry Krasner on to the general election. The criminal defense attorney ran on a platform of reducing incarceration and addressing racial inequalities. That result followed a massive nonpartisan voter education campaign involving numerous community organizations and groups, including the ACLU. The ACLU of Pennsylvania and the ACLU’s national Campaign for Smart Justice focused on educating ACLU members about the power and importance of their local district attorney by sending the most authoritative emissaries possible: people who have been involved in the criminal justice system. It’s an approach the Campaign for Smart Justice plans to replicate across the country in upcoming years. And as communities become more empowered, we expect to see fewer and fewer top prosecutors like Jeff Sessions in office. Indeed, change is already occurring. Sessions’ recent move w[...]



The Alabama Governor Just Signed a Bill That Will Restore Voting Rights to Thousands of Alabamians

Fri, 26 May 2017 12:45 -0400

Alabama takes a step closer to correcting its discriminatory felon disenfranchisement law. Approved in 1901, the Alabama Constitution disqualifies from voting any citizen convicted of a “crime involving moral turpitude.” That may at first seem racially neutral, but the document as well as the moral turpitude provision were designed with clear racist intent. The drafters intentionally sought to subvert the 14th and 15th Amendments’ protection against racial discrimination in voting by using the moral turpitude provision, in conjunction with discriminatory criminal justice enforcement, to target Alabama’s Black citizens. As the Supreme Court held in 1985, Alabama’s moral turpitude provision was enacted out of racial animus. The court explained, “the delegates to the all-white [1901] convention were not secretive about their purpose,” which was, as the “president of the convention stated in his opening address . . . ‘to establish white supremacy in this State.’”The stench of that discriminatory purpose still lingers today. Under the moral turpitude provision, Alabama currently disenfranchises over 250,000 otherwise qualified citizens — nearly 8 percent of the population — because of a prior conviction. Because of Alabama’s disproportionately high rate of arrest and prosecution of its Black citizens, that includes over 15 percent of the Black voting age population. But yesterday, nearly 120 years later, Alabama took a small step towards reform. Last night, Gov. Kay Ivey signed HB282, restoring voting rights to thousands of Alabamans with a prior felony conviction. The law simply establishes a comprehensive list of felonies involving “moral turpitude,” so that the term cannot be misapplied or interpreted overly broadly. The new law, at minimum, gives voters appropriate notice of which convictions will disqualify them from voting — clarity Alabamians never had before. The list of disqualifying crimes includes serious, violent offenses, like murder, rape, and treason as well as crimes related to dishonesty, like securities fraud and forgery. Critically, it does not include drug possession offenses. Until yesterday, determining which felonies disqualify a citizen from voting was based on amorphous interpretations of “moral turpitude” that varied by county. There was no definitive list of offenses. Instead, there was a 2005 state attorney general opinion setting out categories of crimes determined by the Alabama courts to involve, or not involve, moral turpitude. It included lower level offenses, like possession of marijuana for resale, and crimes that were difficult to identify without a course in criminal law, like all offenses that “have fraud as an element.” The opinion recognized that the attorney general could not “provide an exhaustive list of every felony involving moral turpitude,” which leads you to wonder how the average citizen could have possibly figured out whether their conviction affected their voting rights. The new law, at minimum, gives voters appropriate notice of which convictions will disqualify them from voting — clarity Alabamians never had before. There was also a conflicting 2008 Administrative Office of Courts list, which set out different disenfranchising offenses. For example, the attorney general’s list included income tax evasion, which the AOC’s list did not, and the attorney general’s list included all property theft convictions, while the AOC list excluded lower level property theft. Based on these two non-authoritative statements, county election boards were left to determine independently who could and could not vote.The system was a mess. Before the Alabama Legislature passed and Gov. Ivey signed this law, Alabamans lacked clear information not only on who would be disenfranchised, but how they could apply to restore their rights. Take Pastor Kenneth Glasgow, a community leader, founder of The Ordinary People Society, and formerly incarcerated citizen who [...]



The Muslim Ban ‘Drips With Religious Intolerance, Animus, and Discrimination,’ Rules Federal Appeals Court

Thu, 25 May 2017 17:00 -0400

The Fourth Circuit’s ruling today affirms that no one is above the law, not even the president.

We should all feel proud today. The Fourth Circuit Court of Appeals refused to allow the Muslim ban to go into effect. Step by step, point by point, the court laid out what has been clear from the start: The president promised to ban Muslims from the United States, and his executive orders are an attempt to do just that.

The bottom-line question, the court recognized, is whether the Constitution establishes the rules for everyone, “rulers and people,” police officers and presidents, “equally in war and in peace.” And the court answered resoundingly that it does. The government, the court explained, had repeatedly asked the court “to ignore evidence, circumscribe our own review, and blindly defer to executive action.” But the court refused: “We cannot shut our eyes to such evidence when it stares us in the face.”

And that evidence is clear and compelling.

While the text of the Muslim ban “speaks with vague words of national security,” the court recognized that in context it “drips with religious intolerance, animus, and discrimination.” The ban’s message of religious condemnation is contrary to the bedrock constitutional requirement that the government remain neutral among religions: “When the government chooses sides on religious issues, the inevitable result is hatred, disrespect and even contempt towards those who fall on the wrong side of the line.”

The framers of the Constitution recognized how dangerous taking sides would be for our country, and the Fourth Circuit today vindicated this fundamental principle.

One of the members of the court, Judge Wynn, pointed out the historical context. “We have matured from the lessons learned by past experiences documented, for example, in Dred Scott and Korematsu,” he explained, referring to the shameful decisions permitting slavery and Japanese internment. “Laid bare,” Judge Wynn explained, “this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims.”

And that is unconstitutional.

We should all feel proud because this is not just a victory for the plaintiffs in this case. And it is not just a victory for millions of Muslims and immigrants and their families, friends, and neighbors. This is a victory for all of us, for the independence of our courts, the force of our Constitution, and the rule of law. No one is above the law, not even the president.

These cases are not over. The Ninth Circuit recently heard arguments in another challenge to the Muslim ban, and a decision is expected soon. And the government may appeal to the Supreme Court. But today is an enormous victory for American values, one we should all cherish.




Right Now We’re Living the ‘Allegory of Bad Government,’ and We Have an Obligation to Resist It

Wed, 24 May 2017 14:00 -0400

A series of 14th century paintings holds up a mirror to the threats to our democracy. On April 25, I was thrilled to deliver a TED Talk in Vancouver. I’m a lover of Italian art, and one of my favorite old masters is Ambrogio Lorenzetti. In 1339, Lorenzetti finished a series of frescos whose message resonates with us today as President Donald Trump attacks the values that define America.Lorenzetti’s “Allegory of Good and Bad Government” is a reminder that good government is characterized by Justice, Concord, Peace, and Wisdom while bad government is animated by Division, Avarice, Fury, Vainglory, even Tyranny. When good government reigns, all is well. When bad government plagues the realm, the Tyrant usurps the power of the people and the citizens suffer.For me, and I hope for you, the paintings are a call to action. Democracy, as I say in the talk, is not a spectator sport. Since January 20, bad government is ascendant. But good government — in the form of people taking to the streets and the courts working as they should — has shown that the American people and our form of government will persevere if we stay vigilant and jealously guard our liberties. Our choice is clear: We can either stay in the streets or find ourselves painted into Lorenzetti’s “Allegory of Bad Government.” %3Ciframe%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22315%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2FAhUhpfKeLus%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22%2Ffiles%2Fweb17-adrted-thumb.jpg%22%20width%3D%22560%22%3E%3C%2Fiframe%3E Privacy statement. This embed will serve content from youtube.com. Here is the text of my TED Talk: Silicon Valley is obsessed with “disruption.” But these days, the biggest disruptor didn’t come out of Silicon Valley. It came out of steel towns in Ohio, rural communities in Pennsylvania, the Panhandle in Florida. This last presidential election was the mother of all disruptions. Once again, politics is personal. Millions of Americans became activists overnight, pouring into the streets, in record numbers, in record time. The election did to family holiday dinners what Uber did to the New York City taxi system.Couples have broken up. Marriages disrupted. And the election is doing to my private life what Amazon is doing to shopping malls. These days, the ACLU is on the front lines 24/7. If I try to sneak away for a few miles on the treadmill, any cardio benefit is instantly obliterated by the blood pressure spike that comes with reading another presidential tweet on the headline scroll. Even my secret pleasure of studying the Italian painters has been infected by politics. “Art is a lie that makes us realize truth,” said Picasso. I study, even stalk, the old masters. This is my desk — with my postcard exhibition of famous and obscure paintings — mostly from the Italian Renaissance. Art used to provide a necessary escape from the hurly burly of politics and my work at the ACLU. Not anymore. I was at the women’s march in San Francisco the day after inauguration. The crowd was chanting, “This is what democracy looks like.” Suddenly, I flashed on an old Italian fresco that first captivated me many years ago. Holding my sign and umbrella in the rain, I struggled to remember all the different pieces of an actual painting of good and bad government. It's almost like the old master was taunting me, "You want to know what democracy looks like? Go back and look at my frescoes." So I did. In 1339, Ambrogio Lorenzetti finished a monumental commission in the governing council chamber of Sienna’s Palazzo Pubblico. His paintings still speak to us — even scream to us — 800 years later. “Art is a lie that makes us realize truth,” said Picasso. And as we search for the truth about government, we should keep Ambrogrio’s work — not a lie but an allegory — in our collective mind’s eye. In [...]



Attorney General Jeff Sessions Is More Dangerous Than Trump

Wed, 24 May 2017 13:00 -0400

Sessions' first 100 days at the Justice Department shows he wants to take us back to the pre-civil-rights era. This piece originally appeared at The New York Review of Books.  Tangled in self-inflicted chaos, President Donald Trump has been unable to accomplish much during his first four months in office. His signature executive orders have been stymied by the courts. His legislative efforts have stalled. And now he faces a special counsel investigating him over the Russia affair. But Trump’s attorney general, Jeff Sessions, is another story. Even amid the scandal of the firing of FBI director James Comey — an action in which Sessions himself had a central part — Sessions has quietly continued the radical remaking of the Justice Department he began when he took the job. On May 20, Sessions completed his first hundred days as attorney general. His record thus far shows a determined effort to dismantle the Justice Department’s protections of civil rights and civil liberties. Reversing course from the Obama Justice Department on virtually every front, he is seeking to return us not just to the pre-Obama era but to the pre-civil-rights era. We should have seen it coming; many of his actions show a clear continuity with his earlier record as a senator and state attorney general. Sessions has been especially focused, and particularly retrograde, on criminal justice. In the Senate, he was to the right of most of his own party and led the charge to oppose a bipartisan bill, cosponsored by Republicans Charles Grassley and Mike Lee, that would have eliminated mandatory minimums and reduced sentences for some drug crimes. As attorney general, he has rescinded Eric Holder’s directive to federal prosecutors to reserve the harshest criminal charges for the worst offenders. Sessions has instead mandated that the prosecutors pursue the most serious possible charge in every case.Prosecutors ordinarily have wide latitude in deciding how to charge a suspect — they can select any of a number of possible crimes to charge, decline to pursue charges altogether, or support a diversion program in which the suspect avoids any charges if he successfully completes treatment or probation. Not all crimes warrant the same response, and prosecutorial discretion makes considered justice possible. Yet Sessions has ordered prosecutors to pursue a one-size-fits-all strategy, seeking the harshest possible penalty regardless of the circumstances. That's our attorney general: willing to throw the book at drug offenders and undocumented immigrants, but unwavering in his defense of a president who brags about assaulting women and targeting Muslims. At the same time, Sessions has promised to reduce the Justice Department’s critical oversight of policing. Under previous administrations of both parties, the Justice Department’s Civil Rights Division has responded to reports of systemic police abuse in cities like Los Angeles, Cincinnati, New Orleans, Chicago, Baltimore, and Ferguson by investigating, reporting, and entering “consent decrees” — court-enforceable agreements with local police departments — designed to reduce or eliminate abuse. Before his confirmation, Sessions condemned such consent decrees as “dangerous” and an “end run around the democratic process.”As attorney general, he has ordered a review of all such decrees, expressing concern that they might harm “officer morale,” about which he seems to care more than about the constitutional rights of citizens. In April, Justice Department lawyers voiced skepticism about and sought to delay court approval of a consent decree that had been fully negotiated and agreed to by the city of Baltimore and the Justice Department before Sessions became attorney general. The court rejected the Justice Department request and enforced the consent decree. But such decrees require active monitoring by the Justice D[...]



A Revamped ACLU Takes on Today's Fights

Wed, 24 May 2017 11:00 -0400

This is the story of the ACLU’s 10-year plan, the Strategic Affiliate Initiative, which readied us for the Trump years.

This piece originally appeared in the Summer 2017 issue of the Stanford Social Innovation Review

On January 27, 2017, President Donald Trump signed an executive order banning the citizens of seven Muslim-majority countries from entering the United States. The broad language of the decree included those with valid visas, refugees who had been cleared for entry, and even green card holders. The ACLU was at the ready with legal arguments against such a move and, together with its allies, immediately mobilized a challenge. Meanwhile, thousands of Americans flocked to major airports across the country to protest the ban and to demand the release of hundreds of detained travelers.

One day after the ban went into effect, a federal judge granted the ACLU’s request for an emergency hearing, blocking the deportations and ordering customs officials to provide a list of individuals who had been detained as a result of the ban. It was the first successful challenge of a Trump executive order and the fulfillment of a promise the ACLU made two days after Trump was elected: “We’ll see you in court.”

As expected, during his first month in office, Trump wasted no time implementing an unconstitutional agenda to undo many of the civil liberties gains of the past quarter century—from immigrants’ rights to reproductive freedom to LGBT rights. His actions validated an unprecedented outpouring of support following his election for the ACLU and its nonpartisan mission to defend civil liberties and uphold the US Constitution and the Bill of Rights in every town, city, and state in America. Since Trump was elected, our membership has quadrupled to 1.6 million, and our activist alert e-mail list is 2.2 million and growing. Trump’s travel ban alone provoked a record fundraising haul of $24 million from 356,000 online donations.

To continue reading this piece at the Stanford Social Innovation Review, click here.




Victory! Court Allows Wikimedia’s Challenge to NSA Surveillance to Go Forward

Tue, 23 May 2017 17:15 -0400

We’re one step closer to ensuring that secret, warrantless spying will be subject to scrutiny in the public courts. In a critical victory for privacy and the rule of law, a federal court of appeals ruled unanimously today that an ACLU challenge to NSA internet surveillance, Wikimedia v. NSA, can go forward. As the court explained, Wikimedia, the lead plaintiff in the lawsuit, persuasively argued that its communications are searched by the NSA. As a result, we’re one step closer to ensuring that secret, warrantless spying will be subject to scrutiny in the public courts. At issue is the NSA’s “Upstream” surveillance, which involves the continuous monitoring of international internet communications. With the help of companies like AT&T and Verizon, the NSA conducts this spying by tapping directly into the internet backbone inside the United States — the physical infrastructure that carries Americans’ emails, online chats, and web browsing. The agency then copies and combs through vast quantities of the international internet traffic whizzing by. And it does all of this without a warrant. (See this comic for a more detailed explanation of how Upstream works.) The government claims that Upstream surveillance is authorized by Section 702 of the Foreign Intelligence Surveillance Act. That law allows the NSA to engage in warrantless surveillance of Americans when they are communicating with over 106,000 so-called “targets” abroad. But no judge signs off on these targets, who need only be foreigners abroad likely to communicate “foreign intelligence information,” which is defined incredibly broadly. Targets can include people who have no connection to terrorism and are not accused of any wrongdoing whatsoever, like journalists, lawyers, and human rights researchers. As a result, the NSA secretly vacuums up millions of communications every year. While the government recently suspended one element of this program — which collected communications about targets, not just to or from them — it continues to scour internet traffic for communications associated with its tens of thousands of targets. Moreover, the government has not disavowed the possibility of reviving “about” collection in the future. The government’s continuing surveillance under Section 702 of FISA is one of the reasons why it’s so important that our challenge to Upstream is going forward. Three key takeaways from today’s opinion: 1. Wikimedia’s allegations that its communications are subject to Upstream surveillance are “plausible,” not “speculative.” In October 2015, a federal district court in Maryland dismissed our suit on “standing” grounds, concluding that our clients had not plausibly alleged that their communications were monitored by the NSA. Without standing, none of the plaintiffs would have their day in court to contest Upstream on the merits. The district court’s opinion relied heavily on the Supreme Court’s decision in a previous ACLU lawsuit, Clapper v. Amnesty International USA, another challenge to warrantless surveillance under Section 702. In February 2013, the Supreme Court dismissed that case, reasoning that the plaintiffs could only “speculate” as to whether they were subject to that surveillance. But as we explained in court, our current challenge to the NSA’s warrantless spying is very different from the last one. Among other reasons, Clapper was decided prior to the Edward Snowden revelations and extensive government disclosures about Upstream surveillance — public disclosures that make it very clear that our plaintiffs’ communications are swept up by the NSA. The Fourth Circuit Court of Appeals agreed with us with respect to Wikimedia, in part because of the tremendous volume and distribution of Wikimedia’s international internet communications. Rejecting the[...]



Why the ACLU Has Called for an Investigation but Not Impeachment Now

Tue, 23 May 2017 15:00 -0400

The rule of law demands we not rush to judgment. President Trump can only be impeached if the facts support it. The recent credible allegations that President Donald Trump sought to interfere with an ongoing investigation regarding Russia’s meddling in the U.S. election, and the Trump campaign’s potential collusion therein, have prompted some to call for the president’s impeachment. The ACLU has not advocated impeachment. Rather, we have demanded a full and public investigation of the allegations, including potential crimes by Trump campaign officials and advisers and potential obstruction of justice by President Trump himself. Here’s why. While the allegations of obstruction of justice and collusion with the Russians to affect the electoral process could, if proved true, constitute grounds for impeachment, we believe, guided by our commitments to the rule of law and the presumption of innocence, that the facts as we know them to this point warrant investigation, but not impeachment. The allegations are grave, to be sure. But allegations are not established facts. Here's why we think an investigation is warranted.The president allegedly asked FBI Director James Comey to drop his investigation into the Russian ties of Michael Flynn, Trump’s former national security adviser. He allegedly did so only after dismissing all other national security officials from the Oval Office. When Comey did not drop the investigation but instead sought more resources for it, Trump fired Comey. With the collusion of Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, Trump concocted a patently pretextual excuse for doing so — that Comey had mishandled the investigation into Hillary Clinton’s email server. Trump soon admitted that he fired Comey not for how he treated Clinton, but because of the investigation into collusion with Russia. And he then reportedly bragged to top Russian officials that he had fired Comey and that doing so had relieved “great pressure” from the Russia inquiry. Most recently, it has been alleged that President Trump asked intelligence officials to issue statements denying any connection between the Trump campaign and the Russians. Our longstanding defense of the rights of persons accused of crimes leads us to resist a rush to judgment that does not take the time to look for and analyze critical facts. These and related allegations strike at the heart of the democratic process and the rule of law, and therefore implicate core concerns of the ACLU — and the nation. The president has the power to fire the FBI director, of course, but he doesn’t have the authority to do so for impermissible reasons, such as to hinder an investigation that might prove embarrassing or worse for the president and his campaign. But these are still only allegations. We have not heard testimony under oath; we have not seen the contemporaneous memos that might corroborate or disprove the allegations. We must know more before we have a sound basis for judgment.Our longstanding defense of the rights of persons accused of crimes leads us to resist a rush to judgment that does not take the time to look for and analyze critical facts. That’s why we’ve called for, not just the appointment of a special counsel, but also of a select congressional committee focused on these allegations. We are pleased that a special counsel has been appointed. But the special counsel will conduct his investigation in secret, as criminal investigations are generally conducted. A select committee, by contrast, could hold a public inquiry. The latter is critically important, given the gravity of the allegations and their relevance to the rule of law and democratic legitimacy. This issue is too important to leave to a confidential investigation. But it is also too important to call[...]