Yesterday, the ACLU filed a lawsuit against Utah to force the state to continue recognizing the marriages of more than 1,000 same-sex couples who were legally married in the weeks after a federal court struck down Utah’s bans on allowing same-sex couples to marry. From the moment the federal court in Kitchen v. Herbert issued its decision on December 20, 2013, to the moment the Supreme Court issued a stay of the ruling on January 6, 2014 while the case is appealed, there was an outpouring of same-sex couples across the state who were finally able to express their love and commitment to each other through marriage and to protect their families through the protections and responsibilities that flow from being legally married.
After the Supreme Court stayed enforcement of the district court’s decision Utah’s governor has issued a directive ordering all state agencies to put the recognition of those marriages “on hold.” By terminating recognition of their marriages, the Governor’s directive effectively divorced over 1,000 couples in the eyes of the state, throwing their lives into disarray.
“We’re back at square one, with no idea what’s going to happen to us if one of us is hospitalized,” says Stacia. Her wife JoNell was treated much better when accompanying her during an emergency room visit after they were married than she was the time medical staff ignored and excluded JoNell during a previous hospitalization three years ago. “After 13 years together, we just want the security and peace of mind to know we can be there for each other in the hard times.”
The apologists for the nation’s ever-growing intelligence apparatus continue to ratchet up their rhetoric over the actions of the whistleblower Edward Snowden, but one of the nation's oldest civil liberties group, the ACLU, is not dissuaded, taking more action to try and bring clarity and accountability to a vast and unwieldy spy network.
The lawsuit, Kauffman notes, follows The Guardian’s disclosure of an order from the Foreign Intelligence Surveillance Court granting the NSA power to collect phone information from millions of Verizon customers. Later the newspaper reported on a program that the NSA and FBI are using to capture and collect information from users of the Internet, e-mail, video chat, audio and other actions.
In its lawsuit against the surveillance of phone calls, the ACLU says, “As an organization that advocates for litigants to defend the civil liberties of society’s most vulnerable, the staff at the ACLU naturally use the phone – a lot – to talk about sensitive and confidential topics with clients, legislators, whistleblowers, and ACLU members. And since the ACLU is a VBNS customer, we were immediately confronted with the harmful impact that such broad surveillance would have on our legal and advocacy work. So we’re acting quickly to get into court to challenge the government’s abuse” of a section of the Patriot Act that makes it easier for the spy agencies to obtain permission to collect more information on Americans.
The ACLU’s action is noble work and focuses on what matters: are national security concerns consolidating power in an ever-growing intelligence apparatus at the cost of liberty? The pundits that taking to the airwaves and blogosphere to sanctimoniously blast Snowden are laregely tiresome and irrelevant.
For example, CNN’s legal analyst Jeffrey Toobin knocks Snowden as a “grandiose narcissist who deserves to be in prison.” Toobin groused that there’s right ways to go about challenging the powers-that-be and well, if you don’t follow those strictures you’re a criminal, which is similar to what constitutional law expert Geoffrey R. Stone wrote in his piece for The Huffington Post. Unlike Toobin, Stone is a one of the nation’s leading experts on constitutional law, always worth paying attention to.
Stone focuses on why Snowden’s actions were unlawful – Supreme Court case holds that “not only can government employees constitutionally be required to agree not to disclose classified information, but they can even be required to agree, as a condition of employment, not to publish ‘any information or material relating to … intelligence activities even after they leave the government service without ‘specific prior approval.’ As the Court emphasized an employee’s disclosure of ‘material relating to intelligence activities can be detrimental to vital national interests.’”
The report reveals an order from the secretive Foreign Intelligence Surveillance Court -- created by the Foreign Intellegince Surveillance Act of 1978 (FISA) -- granting power to the even more secretive National Security Agency to collect phone data over a three-month period. As The Guardian reporters and others note we have no idea if the FISA Court order is one in a series of orders granting the NSA ability to collect the information.
Salon’s Alex Pareene notes that the nation’s intelligence agencies have continued to amass power for decades. Both parties and presidents have done nothing to rein in the NSA. “While the fact the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primary issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret. Now we know more. But the recent history of the U.S. and domestic surveillance suggests knowing more won’t lead to doing anything about it.”
The ACLU and other civil liberty groups and a few Senate Democrats have tried to raise concern over the unwieldy and largely unaccountable intelligence apparatus. In a June 5 press statement, the ACLU’s Deputy Legal Director Jameel Jaffer said, “From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents. It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of the unaccountable intelligence agencies.”
In a piece for Cato at Liberty, Jim Harper looks at the indifference Americans have toward the FISA Court and the power of the nation’s intelligence apparatus. He notes that last summer and then in late December Congress reauthorized, expanded FISA powers for another five years, “continuing the government’s authority to collect data like this under secret court orders.” One of the staunchest supporters of expanding FISA powers was Sen. Dianne Feinstein (D-Calif.).
President Obama’s address to the National Defense University was quickly embraced by many high-profile pundits as evidence the 44th president would actually and finally offer change one could believe in. Specifically, change from the way his predecessor presided over a never-ending war on terror.
As noted here, during his May 23 speech the president provided some lofty rhetoric suggesting significant change was underway to counter intensifying criticism from civil libertarians and human rights advocates that the Obama administration is trampling fundamental constitutional principles and values while waging the so-called war on terror.
The New York Times editorial board lauded Obama’s speech as “the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post 9/11 America. For the first time a president stated clearly and equivocally the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.”
Many other pundits also heralded the speech as a major shift in policy, while others, such as Alex Pareene warned that those concerned about human rights and civil liberties would likely be seriously disappointed.
Today, The Timesreported that Pakistani officials said a CIA drone strike had supposedly “killed a top member of the Pakistani Taliban, an attack that illustrated the continued murkiness of the rules that govern the United States’ targeted killing operations.” Before his much-trumpeted counterterrorism speech, The Times reported that the administration would start shifting control of the drone strikes from the CIA to the military.
Obama’s speech received a lukewarm response from the ACLU, which has fought to obtain more information about the administration’s drone warfare. This blog also noted that a mere speech without action would not squelch criticism of counterterrorism efforts that violate U.S. and international law. The president declared early in his first term that we must protect fundamental values, such as due process under the law, as vigilantly as we wage war against terrorists. But such talk has too often proven hollow.
In a piece for The Guardian, Glenn Greenwald scored the president for a trend of advancing rhetoric that doesn’t reflect reality. Greenwald wrote, “what should be beyond dispute at this point is that Obama’s speeches have very little to do with Obama’s actions, except to the extent that they often signal what he intends not to do. How many times does Obama have to deliver a speech embracing a set of values and policies, only to watch as he then proceeds to do the opposite, before one ceases to view his public proclamations as predictive of his future choices?”
Some legal scholars and defenders of the indefinite war on terror are coming, mostly with strained arguments, to the defense of the Obama administration’s abuse of freedom of speech. The First Amendment’s speech clause includes protection for a free press, a fairly fundamental way people communicate.
But the Obama administration, which has carried on some of the Bush administration’s counterterrorism tactics, and escalated others, such as the drone war, is obsessed with going after public officials and others suspected of leaking important details of counterterrorism activities and other national security concerns.
The Department of Justice has trolled the phone records of Associated Press reporters in a leak investigation of the AP’s coverage of a foiled terrorist plot in Yemen, and spied on the work of Fox News correspondent James Rosen, in another leak case involving a 2009 story about North Korea’s announcement of launching a nuclear missile. The Washington Post reported that the DOJ “used a security badge to access records to track the reporter’s comings and goings from the State Department… and “traced the timing of his calls with a State Department security adviser suspected of sharing the classified report.” The DOJ, The Post continues, obtained a search warrant for Rosen’s personal e-mails. The DOJ didn’t stop there. It’s arguing that Rosen may have been a co-conspirator in the leak. So now you have the federal government using the Espionage Act to go after alleged leakers, and a journalist, whose job partly entails keeping the public informed about its government.
Gabe Rottman for the ACLU’s Blog of Rights says “never before has the government argued that newsgathering – in this case, asking a source to provide sensitive information – is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony.”
Last week, when taking questions about his administration’s leak investigation involving secretly culling AP phone records, Obama said no apologies were necessary and provided a tired defense of his administration’s obsession with investigating and prosecuting leaks. Essentially Obama said trust the executive branch and leakers are bad.
But as noted here before war, as George Orwell once wrote has the effect of not meshing terribly well with individual liberties. In Homage to Catalonia about the Spanish Civil War, Orwell wrote, “The fact is that every war suffers a kind of progressive degradation with every month that it continues, because such things as individual liberty and a truthful press are simply not compatible with military efficiency.”