• April 20, 2015
    Guest Post

    by Sean M. Flynn, Associate Director, Program on Information Justice, and Intellectual Property Professorial Lecturer in Residence, American University Washington College of Law

    The Trade Promotion Authority (TPA) bill that was released last week contains a fascinating Section 8 on “Sovereignty.”  The section appears intended to make all trade agreements with the U.S. not binding to the extent that they contradict any provision of U.S. law, current or future.  If valid, the section would go a long way to calming fears in this country that new trade agreements, like the old ones, could be used by corporations or other countries to force the U.S. to alter domestic regulations.  (See, for example, analysis on how the leaked TPP text could enable challenges to intellectual property limitations and exceptions like the U.S. fair use doctrine).

    Here, I analyze Section 8’s promise using The Washington Post's “Fact or Fiction” Pinocchio scale.  For containing numerous blatantly misleading characterizations of international law, including outright falsehoods concerning the ability of U.S. Congress to determine when international law binds, I give the provision four Pinocchios.

  • April 20, 2015
    Democracy in the Dark
    The Seduction of Government Secrecy
    Frederick A. O. Schwarz, Jr.
    by Frederick A.O. Schwarz Jr., Chief Counsel of the Brennan Center
    Some secrecy is necessary, but too often secrecy is used to hide illegality, embarrassment or conduct departing from American values. Contrary to conventional wisdom, however, these reasons do not explain by themselves why America’s mountains of classified documents grow ever higher. Human nature and bureaucratic incentives favor secrecy over openness.  Secrecy is seductive. Beyond the timeless link between secrecy and power, secrecy limits challenges and risky questions.  It fosters illusions of grandeur.  Fear, awe, jealousy and lethargy all help cement a culture of secrecy.
    Secrecy spawns more secrecy.  The more information increases and secrets proliferate, the more professionals are tempted to use secrecy to get noticed.  If you want your individual snowflake report to be read and not buried by avalanches of paper or blizzards of bytes, you better be sure it is classified and, indeed, escalate its classification to top secret or beyond. Secrecy’s seduction often blinds those with access to secrets to other valuable sources. Even though information from open sources (newspapers, magazines, TV, radio and the Internet) is often unique and valuable, many recipients of intelligence have no interest in such information, only wanting super-secret material from spies and intercepts.  Moreover, secret is often conflated with true.
    Escalating secrecy also adds to institutional prestige, explaining, for example, why CIA leaders fight fiercely to keep the President’s Daily Brief (PDB) super-secret. Prior to 9/11, the Bush Administration reduced PDB circulation to just six people, excluding the Attorney General, FBI Director, and White House counterterrorism chief.  During the summer of 2001, these super-secret submissions to the White House contained many dire al Qaeda predictions that something “very, very, very big” was about to happen; “spectacular”; resulting in “numerous casualties.” Had the White House publically disclosed the gist of the top-secret threat warnings, it is likely lower-level government officials would have acted on information like the disturbing number of individuals of investigative interest attending aviation schools.  Disclosure could also have led to more imaginative thinking about possible terrorist actions.  White House disclosure of the warnings might well have averted 9/11.
  • April 20, 2015

    by Caroline Cox

    ACS President Caroline Fredrickson talks about her new book Under the Bus and the workplace inequalities that the Lean In and Opt Out movements ignore in the WorkLife HUB podcast.

    Richard Gonzales reports for NPR that a pending decision from a federal appeals court in New Orleans will determine whether the president will be able to implement his immigration plan before his term expires.

    Ohio State Representative Kathleen Clyde, former leader for both the ACS Columbus Lawyer Chapter and the Ohio State University Moritz College of Law Student Chapter, argues at that it is time to make voting easier for everyone. Rep. Clyde spoke last year on an ACS panel on protecting women’s reproductive health.

    In The New Republic, Rebeccca Leber discusses how the gender pay gap is particularly bad for women of color.

    Jonathan Brater argues at the blog for the Brennan Center for Justice that the Texas voter ID law has blocked many legitimate voters.

    At Vox, Ezra Klein explains how resistance to the Affordable Care Act is making some states both sicker and poorer. 

  • April 17, 2015

    by Caroline Cox

    On Wednesday, President Barack Obama announced the nomination of Justice Wilhelmina Marie Wright to fill an upcoming vacancy on the U.S.  District Court for the District of Minnesota. Since 2012, Justice Wright has served as an Associate Justice on the Minnesota Supreme Court.

    Months after its opening session, the U.S. Senate made its first judicial confirmation of the year on Monday. In a unanimous vote, the Senate confirmed Alfred Bennett to the United States District Court for the Southern District of Texas. As the Houston Chronicle reports, however, there are still at least two other pending confirmation votes for Texas federal judges.

    The blog for People for the American Way provides commentary on the first judicial confirmation vote. While the confirmation should be celebrated, the post argues, the delay in reaching this point shows how dysfunctional the confirmation process has become.

    There are currently 54 vacancies, and 23 are now considered judicial emergencies. There are 18 pending nominees. For more information see

  • April 17, 2015

    by Caroline Cox

    At Slate, Cristian Farias argues that the Supreme Court ruling in Heien v. North Carolina has set the stage for more incidents like the Walter Scott shooting.

    At the Text & History Blog of the Constitutional Accountability Center, David H. Gans rebuts the argument that conservatives have been bullied in the same-sex marriage cases.

    Stacy Seicshnaydre in the Huffington Post urges the Supreme Court to uphold the disparate impact cause of action available under the Fair Housing Act.

    In The New York Times, ACS Board of Directors member Linda Greenhouse considers Justice John Paul Stevens life at the Supreme Court in light of his upcoming ninety-fifth birthday.

    Cameron Miculka writes in the Guam Pacific Daily News about the community reaction to the Guam attorney general’s decision to issue same-sex marriage licenses in the territory.

    Dan Morse and Robert Barnes report in The Washington Post on Chief Justice John Roberts’ appearance for jury duty in a Maryland court this week.