Category Archives: law

You can change laws without changing hearts and minds

Seth Masket writes: In the wake of yet another mass shooting, a rather familiar public debate is playing out. Liberals are calling for restrictions on access to weapons. President Obama, in one of the better examples of the inherent weaknesses of the presidency, gave a statement that gun laws are needed but he knows full well that Congress will never pass them and there’s not a damned thing he can do to about it.

Meanwhile, many of those opposed to gun regulations cited the usual issues. For one, they noted, mass shootings are almost invariably perpetrated by the mentally ill, so we should do a better job caring for or monitoring the mentally ill. But as many others have noted, raising this issue is a dodge. Mental illness is a very serious issue in this country, but no more so than it is in others that have far, far fewer gun-related deaths each year. Besides, even if most shootings are done by the mentally ill, that does not mean that most mentally ill people are prone to violence. We could just as accurately note that mass shootings are almost invariably perpetrated by white men, but singling them out as potential criminals is as morally abhorrent as it is impractical.

But another issue frequently raised is that gun culture runs deep in our nation. America, that is, has a fiercely individualistic culture and access to firearms is a part of that, dating back to the nation’s founding and earlier. Gun violence is a deeply complex and intractable issue in the United States that is rooted in region, faith, race, poverty, and family. You can’t just change the laws without changing our hearts and minds first. [Continue reading…]

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U.S. officials feared they didn’t have enough evidence to build a case against ISIS prisoner but she may be executed

The Daily Beast reports: Umm Sayyaf, a key player in the abduction and enslavement of young women and girls by the so-called Islamic State, will stand trial for her alleged crimes. But probably not for her role in the imprisonment and rape of young American aid worker Kayla Mueller, who died while in the hands of ISIS earlier this year. Nor will Umm Sayyaf, the wife of a top ISIS figure killed in a U.S. raid last May, be held to account in an American courtroom.

U.S. officials told The Daily Beast in several interviews that the decision about how to deal with Umm Sayyaf, the most senior ISIS prisoner in American custody, was the result of both legal and pragmatic considerations. They conceded that while, in the end, there will be justice — perhaps very severe justice — for Mueller, it might not take the shape some had expected or hoped.

Indeed, the handling of the case is highly unusual and poses significant questions about how future ISIS fighters captured overseas will be dealt with by U.S. authorities.

Umm Sayyaf, who is an Iraqi citizen, was captured by U.S. forces in Syria. She was interrogated in Iraq by an American unit that operates outside the traditional criminal justice system. But the decision on where to try her was based largely in deference to Iraqi law. And she will now be turned over not to the government of Iraq in Baghdad, but Iraq’s Kurdish regional government in Erbil, which is expected to “throw the book” at her, and perhaps do much more than that. [Continue reading…]

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A rebuke to military tribunals

An editorial in the New York Times says: In 2008, Ali al-Bahlul, a propagandist for Al Qaeda who has been held at Guantánamo Bay, Cuba, since early 2002, was convicted by the military tribunal there and sentenced to life in prison. But officials had no evidence that Mr. Bahlul was involved in any war crimes, so they charged him instead with domestic crimes, including conspiracy and material support of terrorism.

Last Friday, a panel of the federal appeals court in Washington, D.C., reversed Mr. Bahlul’s conspiracy conviction because, it said, the Constitution only permits military tribunals to handle prosecutions of war crimes, like intentionally targeting civilians. (The court previously threw out the other charges on narrower grounds.)

The 2-1 decision, by Circuit Judge Judith Rogers, was a major rebuke to the government’s persistent and misguided reliance on the tribunals, which operate in a legal no man’s land, unconstrained by standard constitutional guarantees and rules of evidence that define the functioning of the nation’s civilian courts. [Continue reading…]

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Extremist activity: don’t even think about it in the UK pre-crime state

By Maria W. Norris, London School of Economics and Political Science

The UK government has announced plans to bring in a new extremism bill in yet another attempt to strengthen its counter-terrorism powers. If enacted, the bill will join dozens of other pieces of legislation aimed in the same direction.

This latest addition to the already swollen terrorism statute book takes the UK further down a dangerous path, giving the government power to punish citizens even before they commit a crime.

It is hard to imagine that just 15 years ago, the UK did not have a single permanent piece of terrorism legislation. The threat of the IRA was handled with temporary provisions that were renewed each year, rather than with permanent measures.

The government powers that have accumulated since then have a direct effect on the presumption of innocence – a fundamental legal principle. Most terrorism powers now essentially distribute punishment before someone has even been charged – let alone convicted of a terrorism offence.

The new extremism bill seems to be made up primarily of such administrative measures. It includes banning orders and employment checks aimed at enabling companies to look into whether a potential employee is considered an extremist. The UK does not currently have a working definition of extremism so there is no consensus on what activities, attitudes and beliefs could lead to someone to be labelled an extremist.

Significantly, the new bill includes the creation of extremism disruption orders. These would give the police powers to apply to the high court to limit the “harmful activities” of an extremist individual. Those activities might include the risk of public disorder, harassment, alarm, distress or creating “a threat to the functioning of democracy”.

This is particularly concerning due to its vagueness. What exactly is a threat to the functioning of democracy? Not voting, or encouraging people not to vote, as comedian Russell Brand did in the run up to the 2015 election undermine the democratic process – is that enough for Brand to be subject to such measures?

These powers, dubbed extremism ASBOs by some, were first proposed last March, but were vetoed by the Liberal Democrats. The idea is to “stop extremists promoting views and behaviour that undermine British values” but by criminalising belief and behaviour without the need for a trial, these powers mark another step towards making the UK a pre-crime society.

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Mass incarceration: The silence of the judges

Jed S. Rakoff writes: For too long, too many judges have been too quiet about an evil of which we are a part: the mass incarceration of people in the United States today. It is time that more of us spoke out.

The basic facts are not in dispute. More than 2.2 million people are currently incarcerated in US jails and prisons, a 500 percent increase over the past forty years. Although the United States accounts for about 5 percent of the world’s population, it houses nearly 25 percent of the world’s prison population. The per capita incarceration rate in the US is about one and a half times that of second-place Rwanda and third-place Russia, and more than six times the rate of neighboring Canada. Another 4.75 million Americans are subject to the state supervision imposed by probation or parole.

Most of the increase in imprisonment has been for nonviolent offenses, such as drug possession. And even though crime rates in the United States have declined consistently for twenty-four years, the number of incarcerated persons has continued to rise over most of that period, both because more people are being sent to prison for offenses that once were punished with other measures and because the sentences are longer. For example, even though the number of violent crimes has steadily decreased over the past two decades, the number of prisoners serving life sentences has steadily increased, so that one in nine persons in prison is now serving a life sentence.

And whom are we locking up? Mostly young men of color. Over 840,000, or nearly 40 percent, of the 2.2 million US prisoners are African-American males. Put another way, about one in nine African-American males between the ages of twenty and thirty-four is now in prison, and if current rates hold, one third of all black men will be imprisoned at some point in their lifetimes. Approximately 440,000, or 20 percent, of the 2.2 million US prisoners are Hispanic males. [Continue reading…]

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Behind the Supreme Court’s Obamacare case, the Federalist Society’s hidden hand

By Nina Martin, ProPublica, March 3, 2015

The Supreme Court has no shortage of potentially precedent-shattering cases on its docket this term. But the one the justices are hearing tomorrow, King v. Burwell, could be the most consequential.

King focuses on the issue of whether low-income people who get insurance under the Affordable Care Act’s federal exchanges are entitled to tax subsidies. Much has been said (and written) about what could happen if the justices rule “no”: Millions of people in as many as 37 states could lose their health coverage. The political earthquake could be cataclysmic.

Yet, few reports have highlighted the role of the Federalist Society, the conservative law group whose ideas are at the intellectual heart of the King v. Burwell challenge. That’s not surprising, given that the group’s members have played a mostly behind-the-scenes part in King 2014 and in many of the most significant conservative legal victories of the last 30 years.

In a new book, “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Pomona College political scientist Amanda Hollis-Brusky channels her inner investigative journalist to trace the group’s influence on the courts, and especially, the Supreme Court.

Note: This interview has been edited for clarity and length.

Q. What is the Federalist Society? What did it grow out of?

A. The Federalist Society was founded in 1982 by a small group of conservative and libertarian law students at Yale and the University of Chicago. Many of the founders had worked on the Reagan presidential campaign, and when they arrived in their elite law schools, they noticed a profound mismatch between the ideas that were achieving political ascendancy 2014 about limited government and free markets and states’ rights 2014 and a liberal orthodoxy that was embedded in almost all major legal institutions of the time.

Flash forward 30 years: The Federalist Society has matured into a self-professed “society of ideas” that claims 40,000 to 60,000 members. These include every Republican-appointed attorney general and solicitor general since the 1980s, dozens of federal judges, and four sitting U.S. Supreme Court justices: Antonin Scalia, who was one of the organization’s original mentors at the University of Chicago; Clarence Thomas, Samuel Alito and John Roberts.

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As a matter of law, we do not need the UN’s permission to attack ISIS

As parliament is about to debate whether Britain should go to war with ISIS, human rights lawyer Geoffrey Robertson writes: Isis is a group of international criminals, committing war crimes and crimes against humanity with genocidal intent, and the right – arguably the duty – to protect their victims does not depend on Russian approval in the Security Council.

Isis has been killing innocent civilians because of their religion and issuing blood-curdling incitements to kill “all non-believers”. They have been executing without trial, recruiting children as soldiers, taking and killing hostages. They are, in the Latin phrase used in international law, hostis humanis generis, the enemies of humankind. As with the pirate, torturer and slave trader, no UN approval is necessary for law-abiding states to use force against such barbarity.

But our complicity in the invasion of Iraq has cast a long shadow; Ed Miliband, for example, has evinced a “preference” for a Security Council resolution. This is unnecessary and in fact undesirable – action in humanitarian emergencies should not be vulnerable to the veto of the Chinese, or of President Putin. A resolution was necessary for the invasion of Iraq – a sovereign state where there was no basis for humanitarian intervention. President Bush expressly excluded this justification for his (and our) war. As for last year’s proposal to bomb Syria, it was a one-off punishment reprisal of questionable legality and doubtful purpose and it was sensibly rejected by Parliament (and people). [Continue reading…]

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Judge tosses Muslim spying suit against NYPD, says any damage was caused by reporters who exposed it

n13-iconDan Froomkin reports: A federal judge in Newark has thrown out a lawsuit against the New York Police Department for spying on New Jersey Muslims, saying if anyone was at fault, it was the Associated Press for telling people about it.

In his ruling Thursday, U.S. District Court Judge William J. Martini simultaneously demonstrated the willingness of the judiciary to give law enforcement alarming latitude in the name of fighting terror, greenlighted the targeting of Muslims based solely on their religious beliefs, and blamed the media for upsetting people by telling them what their government was doing.

The NYPD’s clandestine spying on daily life in Muslim communities in the region — with no probable cause, and nothing to show for it — was exposed in a Pulitzer-Prize winning series of stories by the AP. The stories described infiltration and surveillance of at least 20 mosques, 14 restaurants, 11 retail stores, two grade schools, and two Muslim student associations in New Jersey alone.

In a cursory, 10-page ruling issued before even hearing oral arguments, Martini essentially said that what the targets didn’t know didn’t hurt them: [Continue reading…]

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There’s an alarming number of deaths in U.S. jails

Cara Tabachnick writes: Kyam Livingston begged for help. After seven hours of lying on the floor of a jail cell, the 38-year-old mother of two died, her calls unheeded by the correction officers providing security for the approximately 15 female inmates at Brooklyn “central booking” jail this past summer, according to witnesses and court documents.

Witnesses told the family that she had died in the cell among fetid conditions before she was taken to Brooklyn Hospital Health Center on 21 July 2013 where Livingston was pronounced dead at 6:58am, according to police reports. A witness, registered nurse Aleah Holland, told The Daily News, that police at Central Booking ignored her complaints of stomach pains and diarrhea. She said that when she and other inmates banged on the bars calling for help, officers told them Livingston was an alcoholic.

No one knows what happened, and no one wants to say. The NYPD told the family that she died of a seizure, but her family says she never suffered from seizures. This October the family sued the city, the NYPD, and the Department of Corrections in an effort to force systemic change and “responsibility” for her death.

Livingston was one of the few hundred jail deaths that happen across the country. In 2011, (the latest available numbers) 885 inmates died (pdf) in the custody of local jails, the Justice Department’s Bureau of Justice Statistics reported. Notice I said jails. These are different from prisons. Prisons are for people who have been convicted of a crime and sentenced. There are roughly 3,000 jails nationwide and each facility is set up to process people that have been arrested before they are arraigned or go to trial. Some will serve a misdemeanor sentence (of under a year). The majority will be let go because the charges against them won’t stick as they move through the legal system. Others will remain in jails while waiting to go to trial too poor to make bail – yet to be convicted of anything. Regardless, they will be treated as criminals. [Continue reading…]

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I challenged the NSA in court because it’s a totalitarian attack on human rights

Tea Party activist Larry Klayman writes: Shortly after it was disclosed by then Guardian journalist Glenn Greenwald and NSA whistleblower Edward Snowden that the NSA was running roughshod over the constitutional rights of the American people, I filed two class action lawsuits, on behalf of myself and a client, Charles Strange, who lost his son, a NSA cryptologist, in the Afghan war. These lawsuits not only ask for large monetary damages, but also for an injunction against the US government spying on over 300 million citizens in violation of the Patriot and Foreign Intelligence Surveillance Acts.

The laws make it crystal clear that the NSA, CIA, FBI or any other American government agency can only eavesdrop on persons who are under investigation for being in contact with foreign terrorists, or who are under criminal investigation. What Greenwald, the Guardian and Snowden revealed was a massive ongoing NSA program that collects so-called metadata, which intrudes into the most intimate details of a person’s life, accessing the cell phone, internet and social media communications of nearly the entire US populace. It is, in effect, the biggest and most dangerous violation of constitutional rights in American history.

The obvious effect of this outrage is to chill the free speech, associational and due process rights of all Americans, as now they are under constant surveillance by a government that over 80% of the people, according to Pew Research polling, distrusts, after decades of scandal and corruption by our executive and legislative branches. [Continue reading…]

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After help from CBS, the NSA’s PR campaign takes a major legal hit

Michael Scherer writes: The National Security Agency began the week with a public relations coup: a favorable segment on the spy agency by the CBS News program 60 Minutes. The segment was authored by CBS correspondent John Miller, an intelligence community veteran and former public affairs officer for the Federal Bureau of Investigation, who failed to disclose to viewers that he was eyeing a return to his career in law enforcement when the episode aired, a fact that was first reported by the New York Post.

In the segment, Miller described the controversy over the NSA’s collection of telephone metadata as partly the result of confusion. “So you understand then, there might be a little confusion among Americans who read in the newspaper that the N.S.A. has vacuumed up, the records of the telephone calls of every man, woman and child in the United States for a period of years—that sounds like spying on Americans,” Miller said, in one of his questions to NSA Director Keith Alexander.

Miller’s apparent suggestion here, endorsed by Alexander, was that the collection of metadata phone records does not amount to domestic spying, because the records do not include the content of calls and the records are searched only when there is a suspected terrorist target. “Metadata has become one of the most important tools in the NSA’s arsenal,” said Miller.

This is precisely the message the NSA has been trying to get out, ever since its contractor, Edward Snowden, stole and released documents disclosing the once classified program. And there is a clear urgency to the NSA mission. The public relations war matters because Congress is now considering reform bills that could put an end to the program. Sometime next year, public polling about how American’s feel about their information being collected will play a role in determining the outcome of the debate.

But the NSA’s moment of glory was short-lived. Hours after the show aired, Federal District Judge Richard Leon, an appointee of George W. Bush, ruled that the very same program was likely unconstitutional under the Fourth Amendment, a fact that lead newscasts and newspapers on Tuesday. [Continue reading…]

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Federal judge questions legality of NSA phone records

The New York Times reports: A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

Judge Richard J. Leon of the District of Columbia ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But the judge, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, a matter that he said could take at least six months. The case is the first in which a federal judge who is not on the Foreign Intelligence Surveillance Court, which authorized the once-secret program, has examined the bulk data collection on behalf of someone who is not a criminal defendant.

The Justice Department has said that 15 separate judges on the surveillance court have held on 35 occasions that the calling data program is legal. It also marks the first successful legal challenge brought against the program since it was revealed in June after leaks by the former N.S.A. contractor Edward J. Snowden.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures. [Continue reading…]

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NSA tracking cellphone locations worldwide

The Washington Post reports: The National Security Agency is gathering nearly 5 billion records a day on the whereabouts of cellphones around the world, according to top-secret documents and interviews with U.S. intelligence officials, enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable.

The records feed a vast database that stores information about the locations of at least hundreds of millions of devices, according to the officials and the documents, which were provided by former NSA contractor Edward Snowden. New projects created to analyze that data have provided the intelligence community with what amounts to a mass surveillance tool. [Continue reading…]

How the NSA is tracking people right now (infographic)

Andrea Peterson writes: In conversations with The Washington Post over Barton Gellman and Ashkan Soltani’s recent story on cellphone location tracking, an intelligence agency lawyer told Gellman, “obviously there is no Fourth Amendment expectation in communications metadata.” But some experts say it’s far from obvious that the 1979 Supreme Court case on which the administration bases this view gives the government unfettered power to scoop up Americans’ cellphone location data. [Continue reading…]

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America’s ‘army of lawyers’ is almost as deadly as its drones

Dawood Ahmed writes: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.” Some ascribe this quote to Nazi propagandist Joseph Goebbels; others say Hitler authored the idea. In Mein Kampf he did speak of the invention of a lie so “colossal” that few would believe that someone “could have the impudence to distort the truth so infamously”.

Whoever coined the idea, the point is this: controlling the narrative matters immensely.

Military prowess is not enough in this age. And the United States knows it. America’s “other army” – its less visible but equally potent cadre of skillful lawyers (in government and even in private institutions) – dutifully got busy crafting appropriate international law narratives for the War on Terror. They realized that winning the battle for defining “legality” on the world stage was critical.

This is something states in the developing world would do well to understand. And particularly, governments of countries that bear the brunt of US military interventions touted as “self-defense” and “counter-terrorism” – Pakistan, Yemen, Somalia, Afghanistan and Iraq. Such states need to build intellectual-professional capacity to counter precedent-setting international legal arguments strategically employed (or better said: deployed) against them.

No contemporary political discourse provides us with a clearer illustration of this than the heated debate about the (ill)legality of drones and targeted killings. [Continue reading…]

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FISA judge: ‘NSA exceeded the scope of authorized acquisition continuously’

Ars Technica reports: Yet another Foreign Intelligence Surveillance Court (FISC) judge has blasted United States government and intelligence officials for disregarding the court’s guidelines for domestic surveillance of American e-mail metadata traffic, a program that ran for around a decade before ending in 2011.

“As noted above, [National Security Agency’s] record of compliance with these rules has been poor,” wrote Judge John D. Bates, in a 117-page opinion (PDF) whose date was redacted. The opinion is just one of a series of documents released and declassified late Monday evening by the Office of the Director of National Intelligence (ODNI).

“Most notably, NSA generally disregarded the special rules for disseminating United States person information outside of NSA until it was ordered to report such disseminations and certify to the FISC that the required approval had been approved. The government has provided no meaningful explanation why these violations occurred, but it seems likely that widespread ignorance of the rules was a contributing factor.” [Continue reading…]

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NSA: our analogue spying laws must catch up with the digital era

Kenneth Roth writes: News that US intelligence services tapped the phones of allied leaders has generated understandable outrage in Europe. But far more significant is the American government’s practice of monitoring the communications of millions of ordinary people, who have no legal redress in the United States because they are foreigners.

Electronic surveillance has become easy. Authorities can reconstruct someone’s life with a simple request to their mobile phone provider, while the costs of storing and processing massive amounts of data have declined dramatically. We already live much of our lives through digital communications, and the trend will only accelerate, so we need swift reform, or the problems will escalate. The issue is not just our emails and mobile phones but also our calendars, address books and medical and banking records. Governments and corporations are increasingly able to track people’s location, associations and communications.

Existing legal frameworks were devised in an analogue age, when cross-border communication was rare and online communication and social media were unheard of. In that pre-internet age, surveillance techniques were labour-intensive and time-consuming, which helped to constrain arbitrary and abusive practices. The law has to catch up. [Continue reading…]

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U.S. tells terror suspect it will use surveillance evidence, setting up possible legal challenge

The Washington Post reports: The Justice Department on Friday informed a terrorism suspect in Colorado that it intends to use evidence against him gathered through the government’s warrantless surveillance program, a move that will likely lead to a constitutional challenge to the law.

It is the first time the government has informed a criminal defendant that it intends to use “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act.”

It is important because the Supreme Court last term declined to consider the constitutionality of the law amended five years ago because it said those who brought a lawsuit against it could not prove they had been subject to its provisions.

With the filing Friday, “it’s the first time since 2008 when the act was signed into law that the government has acknowledged the use of surveillance derived from the law in a criminal prosecution,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union.

Jaffer, who argued the previous case at the Supreme Court, said it was a “big deal” that “will undoubtedly set up a constitutional challenge to it.” [Continue reading…]

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