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American Civil Liberties Union


In Syracuse, A Child Can Be Thrown in Solitary for Singing Whitney Houston

Mon, 26 Sep 2016 10:00 -0400

A NYCLU lawsuit exposes a nightmarish jail where children are kept for months in isolation for minor misbehavior. Charnasha still suffers through sleepless nights because of her experience at the Onondaga County Justice Center. The Syracuse, New York, jail keeps 16- and 17-year-old children — many of whom have mental illness — locked up in solitary, often for weeks or even months for transgressions as insignificant as wearing the wrong shoes or getting into a water fight. For the benign “offense” of speaking too loudly, Charnasha was sentenced to solitary for 32 days. Young girls in solitary at the Justice Center are watched by adult male guards and forced to shower without a curtain. Charnasha described a guard making comments about her naked body and calling her and other girls “little bitches.” Her experience in solitary was so traumatic that Charnasha wrote a letter to her mom telling her she wanted to end her life. “I felt uncomfortable and exposed. I still can’t sleep at night because of the nightmares,” Charnasha said. “No other kids should be allowed to go through what we went through.” Since 2015, at least 86 children were placed in solitary more than 250 times at the Onondaga County Justice Center. Charnasha’s story came to light as part of a lawsuit filed this week by the New York Civil Liberties Union and Legal Services of Central New York on behalf of all children detained at the Justice Center, who are primarily Black and Latino.  Charnasha is one of at least 86 children placed in solitary more than 250 times at the jail since 2015. Children in solitary at the Justice Center are denied anything resembling education or mental health care and are forced to spend 23 hours a day locked in tiny cells. They are allowed just one hour of recreation, often inside small cages. Most of these children haven’t been convicted of any crime. The children are also frequently housed in cells next to adults who sexually harass, threaten, and intimidate them. One client, identified in the lawsuit as R.C., was sent to solitary, where he remains, for singing a Whitney Houston song in his cell. In solitary, guards heard the adult above him shout, “I’m gonna stab you in the showers” and “I’m gonna make you suck my d**k” at all hours of the night.” The guards responded to the threats by moving the adult directly next to him. Just days ago, that same adult threw a cup of urine in R.C.’s face during recreation. And at the same time, the horrors inflicted on youths at the Justice Center are all the more intolerable because they take place against a backdrop of slow but steady progress towards ending solitary confinement for children. That positive momentum is evident in New York itself, where the practice was banned in state prisons as a result of an NYCLU lawsuit. Yet children at the Justice Center, most of whom haven’t been convicted of any crime, are forced to languish in isolation because their families are too poor to afford bail. Though solitary is damaging for anyone, there is a growing international consensus that the punishment is especially traumatic and destructive when inflicted on children. As Charnasha’s experience and that of others makes clear, solitary at the Justice Center, even for a short time, can be life-threatening. The NYCLU and LSCNY argue that the jail’s use of solitary to punish children is unconstitutionally cruel and asks the district court to order the Onondaga Sheriff’s Office to stop using solitary to punish children. As Charnasha’s mom, Yvette Williams, points out, there are more productive ways the jail could deal with the children under its care. “They need to give 16-year-olds chances to go to school,” Williams said. “They shouldn’t be locked in their cells for 23 hours a day and treated like animals.” We couldn’t agree more.[...]

A Week In, the Pardon Snowden Debate Keeps Heating Up

Fri, 23 Sep 2016 14:30 -0400

Despite government attempts to discredit him, the arguments in favor of Snowden and his whistleblowing continue to mount. It’s been a very eventful week since we launched the Pardon Snowden campaign. Since then, people worldwide have turned their attention back to the most famous whistleblower of our generation. Dozens of news and opinion pieces have considered his role in exposing the contours of U.S. mass surveillance, and moviegoers have watched Joseph Gordon-Levitt portray him in an Oliver Stone-directed film based on his life. The ACLU, Amnesty International, and Human Rights Watch launched the Pardon Snowden campaign with a press conference last Wednesday, with Ed himself appearing via live video. “Never in my wildest dreams would I have imagined, three years ago, such an outpouring of solidarity," he said in profuse thanks to his supporters.Watch his full statement: Privacy statement. This embed will serve content from The launch of the campaign sparked a deluge of commentary, much of it joining the call for pardon or urging leniency in light of Snowden's contributions. We’ve seen the opinion pages of just about every major paper in the country weigh in, with pro-pardon contributions in the New York Times, Time, the Los Angeles Times, USA Today (twice), and many more. Meanwhile, in a cynical move aimed at poisoning an honest discussion about Snowden’s case, the House Intelligence Committee – perhaps fearing the swell of support building behind the whistleblower – sent President Obama a letter arguing against a pardon. The report released with the letter, a three-page executive summary of a classified report, was rife with blatant falsehoods about Snowden’s medical, academic, and professional history – falsehoods easily disproved. That members of Congress would peddle such transparent misrepresentations suggests a vexing disrespect for the truth and the public they purport to represent. The report earned a swift takedown from Barton Gellman, the veteran journalist who led the Washington Post’s reporting on the Snowden disclosures. His response was a gratifying read for Snowden’s many supporters, but also a sad confirmation of the deeply rooted failings of the institutions entrusted with overseeing our intelligence agencies. And we haven’t even gotten to last weekend, when the Washington Post printed an editorial arguing against pardon. The Post, you’ll remember, received the Snowden documents through Gellman, and the paper earned the Pulitzer Prize for public service for its reporting on the disclosures. The irony of the editorial board throwing its paper’s source under the bus after reaping such benefits from him wasn’t lost on anyone. Glenn Greenwald quickly published a blistering response on The Intercept, and the Washington Post itself followed up with two powerful op-eds in favor of pardon – one by media columnist (and former New York Times public editor) Margaret Sullivan, the other by Katrina vanden Heuvel, publisher and editor of the Nation. In Sullivan’s words: Snowden acted carefully, responsibly and courageously — and squarely in the public interest. The Post’s executive editor, Martin Baron, wrote this in 2014 about the revelations whose publication in The Post he championed: “In constructing a surveillance system of breathtaking scope and intrusiveness, our government also sharply eroded individual privacy. All of this was done in secret, without public debate, and with clear weaknesses in oversight.” Five days later, the hubbub over the editorial doesn’t show signs of letting up. Elsewhere, discussions around other aspects of the Snowden disclosures are in full swing – many of them positive, though some have trotted out tired misconceptions about what he revealed to the p[...]

Unprecedented and Unlawful: The NSA’s “Upstream” Surveillance

Fri, 23 Sep 2016 13:15 -0400

Congress has never engaged in a meaningful public debate about Upstream surveillance — but it should. The FISA Amendments Act of 2008 (FAA) — the statute the government uses to engage in warrantless surveillance of Americans’ international communications — is scheduled to expire in December 2017. In anticipation of the coming legislative debate over reauthorization, Congress has already begun to hold hearings. While Congress must address many problems with the government’s use of this law to surveil and investigate Americans, the government’s use of “Upstream” surveillance to search Internet traffic deserves special attention. Indeed, Congress has never engaged in a meaningful public debate about Upstream surveillance — but it should. First disclosed as part of the Snowden revelations, Upstream surveillance involves the NSA’s bulk interception and searching of Americans’ international Internet communications — including emails, chats, and web-browsing traffic —  as their communications travel the spine of the Internet between sender and receiver. If you send emails to friends abroad, message family members overseas, or browse websites hosted outside of the United States, the NSA has almost certainly searched through the contents of your communications — and it has done so without a warrant. The executive branch contends that Upstream surveillance was authorized by the FAA; however, as others have noted, neither the text of the statute nor the legislative history support that claim. Moreover, as former Assistant Attorney General for National Security David Kris recently explained, Upstream raises “challenging” legal questions about the suspicionless searching of Americans’ Internet communications — questions that Congress must address before reauthorizing the FAA. Because of how it operates, Upstream surveillance represents a new surveillance paradigm, one in which computers constantly scan our communications for information of interest to the government. As the legislative debate gets underway, it’s critical to frame the technological and legal issues that Congress and the public must consider — and to examine far more closely the less-intrusive alternatives available to the government. Upstream Surveillance: An Overview As we’ve learned from official government sources and media reports, Upstream surveillance consists of the mass copying and content-searching of Americans’ international Internet communications while those communications are in transit. The surveillance takes place on the Internet “backbone” — the network of high-capacity cables, switches, and routers that carry Americans’ domestic and international Internet communications.  With the compelled assistance of telecommunications providers like AT&T and Verizon, the NSA has installed surveillance equipment at dozens of points along the Internet backbone, allowing the agency to copy and then search vast quantities of Internet traffic as those communications flow past. The NSA is searching Americans’ international communications for what it calls “selectors.” Selectors are, in essence, keywords. Under the FAA, they are typically email addresses, phone numbers, or other identifiers associated with the government’s targets. While this might sound like a narrow category, the reality is much different, as Jennifer Granick and Jadzia Butler recently explained. That’s because the NSA can target any foreigner located outside the United States who is believed to possess “foreign intelligence information” — including journalists, human rights researchers, and attorneys, not just suspected terrorists or foreign spies. At last count, the NSA was targeting more than 94,000 people, organizations, and groups under the FAA. In practice, that means the NSA is examining the contents of each communication for the presence of tens of thousands of different search terms that are of interest to the government. And that list continues to grow, [...]

Ahilan Arulanantham, ACLU Immigration Advocate and Newly Minted MacArthur Genius, Explains Why We All Should Care About Immigrants’ Rights

Thu, 22 Sep 2016 16:30 -0400

Arulanantham won the “genius” grant for his groundbreaking work on immigration reform. Q: What inspired you to work on immigrants’ rights? A: I come from a family of immigrants. I was born here but my parents are Sri Lankan Tamils. They came to this country when there was sporadic violence and widespread discrimination against Tamils in Sri Lanka. And when I was 10, the civil war started and most of my extended family left Sri Lanka, and many of them came to live with us for several years. When I was a child, I saw first-hand the pain and the challenges that displacement causes. Some of my cousins came and lived with us for different reasons without their parents. The parallels between that and what’s happening with Central American children are very real and immediate for me. Q: What would you like to do with the prize money? A: I haven’t figured that out yet. I want to give a portion of it to some particular organizations doing good human rights work in Sri Lanka. I feel passionate about those issues but haven’t been able to devote my life’s work to them as I have to immigrants’ rights. Q: What do you think is the biggest misconception about this kind of work? A: I think people looking at our immigrants’ rights work often do not take the time to put themselves in the shoes of the people we represent. They say, “These people are illegal. You break the law, you get what you deserve” — that kind of thinking. If they could just sit for a minute in the shoes of my uncle, whose son was diagnosed with a very serious illness right around the same time the war broke out and they had to flee, or my uncle whose whole nice apartment was just burned to the ground  and feel the terror of that moment. They still might not agree about what the right policy answer is, but they would view all of our work through a slightly different lens. Q: Is there a particular case that you’re most proud of? A: I’m very proud of Nadarajah v Gonzales. It’s the case of a Sri Lankan Tamil refugee who was held as a national security threat for four years. He was wrongly accused of being a member of a Tamil terrorist organization, which he was not — he was a farmer. It was a factual mistake, but the government took the view that they don’t have to give any due process to people stopped at the border seeking asylum. The government’s view was that they could hold him whether or not he was a threat, that people stopped at the border have no rights to be not imprisoned. We won it after almost two years. He got out. He lives in Lancaster, California. He got married; he has a child. Q: What has been your most devastating loss? A: JEFM v. Lynch, just a few days ago. It’s a class action seeking to establish a right to appointed counsel for children who are being deported. The government pays a prosecutor to argue against the child in every case. We’re arguing that due process requires you level the playing field, and the kids should have lawyers too. The case was made more urgent by the dramatic threat of violence in El Salvador, Guatemala, and Honduras over the last several years. It’s not an exaggeration to say there are thousands of children whose lives are at stake. If they receive an attorney, they’re far, far more likely to be able to present and win their claims for asylum. If they do not have an attorney, it’s virtually impossible for them to do that. The court essentially said we had no right to bring this case as a class action for all these children. Instead if children believe that they have a right to an appointed lawyer, they have to appeal that in their individual immigration case and present their claim that way. I think the court really both misread the law and failed to understand the plight of those children. Honestly if I could, I would trade the award in a heartbeat to win counsel for children. Q: How does it feel to win this award on the heels of that loss? I take it as an award for all of the immigrants’ rights [...]

Poverty Is Not a Crime, so Why Are People Being Trapped in Immigration Detention for Being Poor?

Wed, 21 Sep 2016 13:15 -0400

Immigrants shouldn’t be locked up just because they can’t afford bail.

You shouldn’t be imprisoned for being poor. But that’s what’s happening to thousands of immigrants across the country who are unable to afford to pay a bond to be released from immigration detention. People accused of immigration violations — who have no criminal record whatsoever — can be assigned exorbitantly high bail that leaves them trapped in detention for years.

Today, members of Congress introduced legislation to prevent immigration detainees from being overcharged for bail. The Immigration Courts Bail Reform Act, co-sponsored by Reps. Jose Serrano (D-N.Y.), Luis Gutierrez (D-Ill.), Zoe Lofgren (D-Calif.), John Conyers (D-Mich.), and 25 other lawmakers, is critical to ensure that no immigrant — whether a legal resident, asylum seeker, or undocumented person — is imprisoned solely because he or she can’t afford to get out.

Bail is not supposed to keep a defendant in jail — but to allow the defendant to leave. The American Bar Association says that judges should use bail to “ensure that defendants will appear for trial and all pretrial hearings for which they must be present.”

In the federal criminal justice system, judges consider the defendant’s financial circumstances when they set bail to ensure that the amount is reasonable. Depending on the case, they can also use alternative conditions of supervision, such as check-ins and travel restrictions, to help guarantee that a person will show up for court.

But outside of the criminal system, immigrants in detention centers are not afforded these same protections.

Take, for example, Cesar Matias. He was arrested by immigration agents in 2012. Matias argued that as a gay man, returning to Honduras — a place of widespread discrimination and deadly violence against LGBT people — could put him at tremendous risk.

The judge in Matias’ case found that he neither posed a risk to public safety or national security nor was a flight risk requiring detention, so the judge granted Matias’ release on a $3,000 bond. Yet Matias went on to spend four years behind bars while his asylum case was pending simply because he could not afford to bail.

Imprisoning people because they are poor is a gross violation of due process and equal protection under the law. In fact, even the Justice Department has argued — on multiple occasions — that jailing someone in this way is unconstitutional. And a growing number of federal courts have agreed.

The ACLU filed a lawsuit on behalf of Matias — and other immigrants like him detained in the Los Angeles area — asserting that judges must take the financial circumstances of immigrants into account when setting bail. Now Congress is offering a political solution to the problem.

Congress should swiftly pass this legislation. Matias has already lost four long years of his life in jail waiting for relief, but we can prevent others from suffering the same senseless loss. 

Let There Be Light: Cities Across America Are Pushing Back Against Secret Surveillance by Police

Wed, 21 Sep 2016 13:00 -0400

Big Brother is watching local communities, some more than others. Think about how it feels when you are driving down a road, look in your rearview mirror, and notice a police car driving directly behind you. You tense up. You slow down. You try not to drift too much in your lane as you drive. One false move and those red flashing lights will switch on. Only after the police car drives past can you finally relax and exhale. As internationally renowned security technologist Bruce Schneier observed in his book "Data and Goliath," this is what surveillance feels like. But for many Americans who live in communities that are disproportionately targeted by police surveillance technologies, that feeling never goes away. There is never a time to exhale. Who are these disproportionately targeted communities? Not surprisingly, they are comprised of the same individuals who have traditionally been the targets of over-policing and over-surveillance: persons of color, of certain ethnicities and certain religions, of low-income, and those whose political activities challenge the status quo. In many of these targeted communities, attracting the attention of the police  — the likelihood of which is increased by the widespread deployment of surveillance technologies — is a no small matter. There is ample evidence on YouTube alone that drawing police attention — even for minor transgressions like selling loose cigarettes in Staten Island, New York or having a broken taillight in North Charleston, South Carolina — can lead to one’s arrest or even result in fatal consequences. Always wondering if you are being watched, and if you may be moments away from a police encounter, produces constant anxiety. Living with that level of trepidation, like a police car is always driving right behind you, is no way to live. That is not freedom.  The list of surveillance technologies currently being used by local law enforcement reads like something out of a George Orwell novel. You can learn about many of them in the ACLU’s newly released Technology 101 primer, but be forewarned: You may never walk the streets or surf the internet with the same feeling of anonymity again. You’ll learn that local police use cell site simulators (a.k.a. Stingrays) to capture information from our cell phones and track our location. Their automatic license plate readers and our own cars’ E-ZPass tokens enable them to track where we drive. They use light aircraft (and perhaps soon, drones) with high-definition cameras to watch us from the sky, while their closed circuit television cameras and surveillance-enabled light bulbs monitor us from the ground. Advanced hardware and computer software enable them to peer through the sides of our cars and through the walls of our homes, to hack into our electronic devices, and to monitor our activities online.  All these technologies are coming soon to a city near you, if they are not there already.Given the potential for controversy, local police forces have largely taken to acquiring and using surveillance technologies in secret. Of course, when the police conceal their use of surveillance technologies, they also greatly enhance their ability to conceal its misuse, such as using a surveillance technology without a properly obtained warrant or in a discriminatory manner. Just last month alone, two of these secret efforts were revealed in a single American city: Baltimore. First, in a legal complaint filed with the Federal Communications Commission, it was revealed that the Baltimore Police Department frequently deploys cell site simulators to track people’s locations and gather data from their phones and that these deployments are almost exclusively in Black neighborhoods. The following week, a report by Bloomberg News revealed that BPD was operating a secret program of using planes armed with ultra-high definition cameras to record the com[...]

Kids Like Esme Shouldn’t be Behind Bars

Tue, 20 Sep 2016 16:45 -0400

These kids asked for asylum. The U.S. government locked them up. They need a fair hearing.

Nine-year-old Esme (a pseudonym) came to the United States with her mother and two siblings seeking asylum from violence in Central America. But rather than finding a safe haven, U.S. officials picked up Esme and her family and put them in immigration detention. The family has been locked up in Pennsylvania for the better part of a year, which means her baby brother’s been behind bars for nearly half his life. 

Instead of shopping for school supplies and wondering about what’s in her lunch box, Esme is thinking about things no kid should have to consider. She worries about guards waking her up at night, whether the prison food will make her sick, and whether her family will ever be free and safe. 

Esme doesn’t understand why the government is locking her up. But her mother is one of 28 Central American women with children whose asylum applications were rejected and who sued in federal court seeking new hearings because their initial asylum hearings were conducted improperly.

An appeals court rejected their petitions, saying they had no right to sue. The ACLU is working to get that decision overturned, saying it violates their basic constitutional right to challenge the legality of the government’s restriction on their liberty. Over this country’s long history, that right has been guaranteed to all noncitizens subject to deportation or exclusion at our borders as well as to alleged “enemy combatants” held at Guantanamo Bay in Cuba.

Esme’s mom brought her here to escape violence in a place where police can’t or don’t help. Esme has a different sort of world in mind. When she grows up, she wants to be a police officer so she can “catch bad guys.” 

To find out more about the plight of these Central American women and children, read this piece in The New York Times.

Why President Obama Should Pardon Edward Snowden

Mon, 19 Sep 2016 16:30 -0400

Edward Snowden did the right thing. It's not too late for President Obama to follow his example. This was originally published by the Los Angeles Times. Cases like Edward Snowden’s are precisely the reason the president’s constitutional pardon power exists. Historically, outgoing presidents have often invoked this power in the last days of their terms — at times on behalf of people who’ve committed reprehensible acts — under the premise that mitigating circumstances outweigh the rationale for punishment. President Obama now has the opportunity to use this power proudly, in recognition of one of the most important acts of whistleblowing in modern history. Since Snowden first disclosed documents in 2013 detailing the National Security Agency’s mass surveillance programs, we’ve seen an unprecedented global debate about the proper limits of government spying. This debate has had a transformative effect: on privacy laws and standards, on the security of the devices we depend on to communicate with one another and store sensitive information, and on how we understand our relationship to the institutions that govern us. Snowden's influence cannot be overstated. In response to an ACLU lawsuit, a federal appeals court found the NSA's mass phone surveillance program illegal.  There is wide consensus that these developments have benefited our democracy and our security. Snowden’s influence cannot be overstated. In response to an ACLU lawsuit, a federal appeals court found the NSA’s mass phone surveillance program illegal. Congress passed an intelligence reform bill restricting the NSA’s authority for the first time in 40 years. Polls have shown a sea change in how the public views online privacy. Tech companies such as Apple and Facebook are now devoting significant resources to safeguarding their customers’ security through encryption. This helps protect private consumers, American companies, and the government from malicious actors looking to exploit weaknesses in our communications infrastructure. The journalism produced from Snowden’s disclosures has been awarded almost every prize imaginable, including the Pulitzer Prize for the reporters at the Washington Post and the Guardian, and an Academy Award for Laura Poitras’ documentary “Citizenfour.” Yet the young man behind these historic reforms remains in exile, with decades in prison hanging over his head. Lately, Snowden’s critics have tried to curtail the nascent pardon movement. Several members of Congress sent a letter to Obama on Thursday arguing that Snowden is “not a whistleblower” or “a patriot” but “a criminal,” and contending that he should have availed himself “of the many lawful avenues to express legal, moral, or ethical qualms with U.S. intelligence activities.” That letter, and the report accompanying it, are filled with falsehoods that Snowden has already rebutted persuasively. It's worth noting here, however, that the House committee failed to acknowledge that as a private contractor, Snowden was not entitled to the protections afforded to federal government employees. Further, previous whistleblowers such as Thomas Drake, who should have been protected, were met with career-ending retaliation when they tried to sound the alarm about NSA overreach. It’s frankly laughable to pretend that if Snowden had only used “lawful avenues” to express his “ethical qualms,” anything would have been done to change programs and practices approved at the highest level of government.  Critics have also insisted that Snowden should come home and make his case to a jury. Unfortunately that’s impossible under the draconian and unjust Espionage Act. If prior district court rulings are any guide, all of Snowden’s defenses would be considered irrelevant and inadmissible in court. The jury would never hear his patriotic m[...]

At the UN Refugee Summit, Americans Should Examine Our Treatment of People Seeking Asylum — Not Just on a Boat in the Mediterranean, but at Our Border

Mon, 19 Sep 2016 10:45 -0400

The U.S. imagines itself as protector of the dispossessed, but that portrait doesn’t reflect reality. Around the world, more than 65 million people are currently displaced by conflict, amounting to the worst worldwide refugee crisis since World War II. This week, heads of state are gathering at the United Nations headquarters in New York “with the aim of bringing countries together behind a more humane and coordinated approach” to the global refugee and migration crisis. President Obama is hosting his own meeting with world leaders to increase funding for U.N. programs and international organizations serving refugees and expanding the number of refugee resettlement places worldwide. But as the United States urges other countries to take more action in response to the global refugee crisis, we should examine our own treatment of those who come to our borders seeking asylum and protection. Even as the U.S., the most powerful country in the world, seeks to establish leadership on refugees, we continue to block Central American asylum seekers from coming to us and punish those who arrive. President Obama fought to admit 10,000 Syrian refugees this year — still a drop in the bucket of almost 5 million registered with the U.N. — and defended his plan against nativist attacks. Thirty state governors attempted to halt refugee resettlement of Syrians in their state, citing security concerns; federal courts blocked the most serious attempts in Texas, Indiana, and Alabama. Almost 50 anti-refugee bills in 19 states have been introduced in state legislatures, most of which attempt to block resettlement altogether. President Obama has stayed true to his commitment, and the administration recently announced plans to increase overall refugee admissions by 30 percent. The president’s efforts to help Syrians only make his administration’s abusive policies toward Central American asylum seekers arriving at the U.S. southern border more dismaying. This administration is the first to lock up asylum-seeking families with children in mass detention facilities (many run by private prison corporations), a policy it has vigorously defended in international forums. Some families — mostly from El Salvador, Honduras, Guatemala, Mexico, and Haiti — have now been detained in remote, prison-like facilities for over a year. In less than five years, this president has more than quadrupled the number of asylum-seekers in detention, to a high of 44,000 in fiscal year 2014. More generally, the number of noncitizens detained by immigration authorities has skyrocketed. The average daily population in civil immigration detention has increased from 28,449 in fiscal year 2015 to over 33,000 in fiscal year 2016, with up to 38,000 immigrants in detention each day during the summer 2016 months. The majority of the people locked away in immigration detention have no criminal convictions and include many asylum seekers who have fled extreme violence. For them, detention may exacerbate existing trauma and prevent recovery. Asylum seekers in the United States, including young children, may be quickly deported without a hearing when apprehended at or near the U.S. border. As the ACLU documented in 2014, asylum seekers who are supposed to be given the opportunity to ask for protection upon arrival have been instead sent back to the very dangers they fled — sometimes with deadly consequences. Courts have denied families the opportunity to challenge these deportation orders, even when they did not get the chance to apply for asylum. As the U.S. government insists that there is no right to appointed counsel for immigration proceedings, even children have had to navigate their asylum interviews and hearings without legal assistance. Beyond its human rights abuses at home, the United States has also begun exporting its border enforcement re[...]

Religious Freedom Follies: Invoking Faith to Discriminate in Health Care

Fri, 16 Sep 2016 12:15 -0400

Religious freedom laws are a shield and not a sword to wield when seeking license to discriminate. On September 16, ACLU filed a motion to intervene in Franciscan Alliance v. Burwell on behalf of the ACLU of Texas and the River City Gender Alliance. In this three-part blog series, we examine why this case matters from a transgender rights, reproductive rights, and religious freedom perspective. Yet again, opponents of critical civil rights measures are trying to turn back the clock and undo important equality gains under the guise of religious liberty. This time, the main targets are transgender people seeking health care and women seeking reproductive health care. But while the details may change, the underlying principle doesn’t: Religious freedom is an essential right, but it shouldn’t be a license to discriminate. The latest civil rights assault comes in a new lawsuit filed in Texas by five states and several religiously affiliated health care organizations, Franciscan Alliance v. Burwell.  The groups are challenging a federal regulation implementing Section 1557 of the Affordable Care Act, which bars insurance companies and health care providers from discriminating on the basis of race, national origin, sex, age, or disability. Among other things, the regulation clarifies that health care institutions can’t discriminate against transgender people or deny them insurance coverage or medically necessary health services.  It also clarifies that sex discrimination includes discrimination based on pregnancy and termination of pregnancy.  This week, we joined the case to help defend the regulation against baseless attacks that would distort, and ultimately undermine, true religious liberty. Battles over rights of conscience in the U.S. are hardly new. Since the founding of the nation, we’ve struggled to realize our deep, abiding commitment to religious freedom.  Our country has made great strides to ensure that religious liberty can thrive, without governmental interference or favoritism. The right to practice one’s faith, or to follow no faith at all, remains among our most precious, zealously guarded freedoms. Along those lines, we at the ACLU have been working for nearly a century to secure the right to religious exercise and expression. Just last month, for example, we went to court in Alabama to protect a devout Christian woman’s right to wear her religious garb in a driver’s license photo. But time and again, our society has rejected efforts to transform religious freedom from a shield into a sword to attack the rights and well-being of others. In the past, when employers insisted on a religious right to pay women workers less than men, based on a biblical view of husbands as heads of the household; when restaurant owners invoked their faith to refuse to serve African-American customers; or, more recently, when county clerks sought to deny eligible same-sex couples the right to marry;  the courts have said no, recognizing that religious liberty doesn’t confer an unfettered right to discriminate against the underserved and vulnerable.The answer should be the same in the Texas case. And the stakes here are enormous. The organizations and states involved run a vast array of hospitals and health care facilities, and they employ hundreds of thousands of health care workers. By its own account, one of the plaintiffs in the new lawsuit, a large Catholic-affiliated hospital system, gets about $900 million annually from the federal government in Medicare and Medicaid reimbursements, performs four million outpatient services, and treats more than 80,000 inpatients every year. In these circumstances, allowing discrimination against trans people — or against women seeking reproductive health care— would have far-reaching, potentially devastating consequence[...]