Civil rights

  • July 1, 2013

    by Jeremy Leaming

    Since disclosure of classified documents revealing the scope of United States’ surveillance programs there has been a collective shrug of the shoulders among mainstream or elite media. As noted here, the verdict from many in the mainstream media is that the surveillance programs revealed by Edward Snowden are a fair or necessary trade-off – we must give up a bit of privacy to ensure that the nation is safe from terrorists.

    Indeed, much of the focus of broadcasters, such as NBC’s David Gregory, has centered on where Snowden is and whether The Guardian journalist-columnist Glenn Greenwald should be viewed as aiding and abetting Snowden. Recently during a “Meet the Press” segment, Gregory asked Greenwald why he shouldn’t be “charged with a crime.” Greenwald, who along with other Guardian staffers, has reported on the material disclosed by Snowden, was hardly rattled by the broadcaster’s preening. Greenwald later tweeted, “Who needs the government to try to criminalize journalism when you have David Gregory to do it?” (For an entertaining takedown of Gregory, see Frank Rich’s response to a question from New York magazine about Greenwald’s role in reporting on the two massive surveillance programs that collect and store telephone communications and Internet communications of Americans. For example, Rich asked, “Is David Gregory a journalist? As a thought experiment, name one piece of news he has broken, one beat he’s covered with distinction, and any memorable interviews he’s conducted that were not with John McCain, Lindsey Graham, Dick Durbin, or Chuck Schumer.”)

    But outside the elite U.S. media, many others are not ready to let this one go, and not just because more information about the nation’s spying apparatus keeps coming. The Guardian recently published NSA documents that show widespread spying of the “European Union mission in New York and its embassy in Washington.” In fact the NSA documents reveal that 38 embassies and missions are being spied on by America’s ever-growing and unwieldy intelligence community. The disclosure is not going over well with some the country’s allies. Germany’s Chancellor Angela Merkel, for instance, said, “We are no longer in the cold war. If it is confirmed that diplomatic representatives of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”

    Capturing and storing massive amounts of information on Americans’ communications should also be unacceptable or least spark sharper, ongoing debate, regardless of how we learned about the massive surveillance schemes. Without those disclosures we’d likely still be in the dark about those programs. In March, Sen. Ron Wyden (D-Ore.) asked Director of National Intelligence James Clapper during a hearing whether the NSA was collecting “any data at all on millions or hundreds of millions of Americans?” As Salon’s David Sirota notes, Clapper responded, “no, sir.”  

    Recently, I sat down with Georgetown Law Professor David D. Cole, a constitutional law and national security expert. (See his wrap-up of the Supreme Court’s latest term for The Washington Post.) I asked him to respond to pundits who argue that the surveillance programs are not terribly troubling and whether he thought the Foreign Intelligence Surveillance Court is a strong enough check on the intelligence community’s voracious appetite for more information about Americans.

    Cole (pictured) said he found the disclosures of the surveillance programs, “stunning and I think raise really serious questions both about our governance and about our privacy. They’re stunning; because I don’t think before The Guardian broke the story that anybody thought that the Patriot Act authorized the government to pick up phone data every time any American picks up the phone to call anywhere.”

    Some pundits express shock that civil rights groups or civil liberties advocates should be stunned by the NSA programs and many argue that they are harmless infringements on privacy that are outweighed by the government’s interest in protecting national security.

    Cole provides a counter.

    “I think there is a great deal to be concerned about,” he said. “We’ve seen in the past that these kinds of tools while adopted in the name of fighting national security inevitably get used more broadly, and abused to target people who the administration finds to be inconvenient or a dissenter or an enemy as President Nixon labeled them. So Cointelpro [Counterintelligence Program], the FBI’s program was initially an anti-Communist program and ultimately involved spying on people in the civil rights movement, the anti-war movement, the women’s movements, and the environmental movements. We don’t want our government to be engaged in that kind of practice and the best way to ensure that it isn’t is to ensure that it has strict limits on its surveillance powers.”

    Regarding the Foreign Intelligence Surveillance Court, which hears NSA surveillance requests in secret, Cole said it was a check, but that we should know more about it.

    “I think the fact the court exists [FISA Court] is a check in-and-of-itself, even if it ultimately, in almost all instances says yes,” Cole said. “However, I think it’s far too secret. Certainty, ongoing operations; there’s a need for secrecy. But the interpretations that the Court has given to the statutes that we think are constraining the government – we ought to know what those interpretations are.”

    While mainstream media outlets concentrate on the whereabouts of Snowden, bloggers, the ACLU and some members of Congress, such as Wyden, are calling for the government to provide more information about the NSA and its spying programs. At some point a few in the mainstream media might also catch on to what is important in this matter.

    See Cole’s entire talk below or by visiting this link.  

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • June 28, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    The long awaited affirmative action case, Fisher v. University of Texas at Austin, came down with more of a whimper than the expected wail. While much is being made of the limited nature of the decision, the legal battle over affirmative action is far from over.  Indeed, the opinion suggests more of a long-path towards the demise of affirmative action through its shifting language and unclear standards.  And in creating more questions than it answers concerning how to prove the validity of an affirmative action program, and thus leaving more lines open for its attack, the opinion takes the focus away from the need to design programs which ensure that all students benefit from diversity.   

    Indeed, Fisher appears to invite further attack of affirmative action. The Court makes abundantly clear that it takes no position concerning the continued validity of Grutter v. Bollinger, in which the Supreme Court upheld the use of affirmative action in higher education to achieve diversity and the benefits that flow from it. In other words, it remains an open question how long a university’s educational mission that includes creating a racially diverse campus will continue to pass constitutional muster. Instead, the Court in Fisher focuses on how the strict scrutiny standard, which is used in equal protection cases, should be applied in affirmative action cases involving higher education. And, even more narrowly, Justice Kennedy uses the Fisher opinion to clarify how that analysis should work when evaluating a university’s chosen method of implementing its diversity mission.

  • June 27, 2013

    by Jeremy Leaming

    While the Senate’s passage of a comprehensive immigration bill may or may not be historic, it’s certainly remarkable. In an era of hyper-partisanship, it is far easier for the Senate to block action -- unless it’s approval of secret surveillance measures -- than it is to pass meaningful legislation or save the nation from outrageous cuts to social safety net and educational programs.

    But for today 14 Republican senators joined 54 Democrats to pass the expansive measure that provides a 13-year long path to citizenship for 11 million undocumented people in the country, provided stringent enforcement mechanisms are in place. The New York Times provides some highlights of the Senate measure that was approved 68 – 32 late this afternoon. Tens of millions are allotted for enforcement measures, such as 20,000 more Border Patrol agents and “700 miles of fencing along the southern border.” Only after the enforcement measures are in place will undocumented immigrants be allowed to start on the lengthy path to citizenship.

    Senate Judiciary Chairman Patrick Leahy (D-Vt.) lauded the immigration bill, saying it honors “our American values.” He said the immigration measure would help “address a complex problem that is hurting our families, stifling our economy and threatening our security.”

    The National Council of La Raza also praised the Senate measure and called today’s vote a “milestone.” But the group’s President and CEO Janet Murguia also noted that like many compromise measures this one “included painful concessions and certainly puts our enforcement-heavy immigration policy into overdrive. But it finally acknowledges that restoring the rule of law requires a legal immigration system that takes the legitimate traffic out of the black market, allows immigrants to arrive with visas rather than with smugglers and enables immigrants who are working and raising families in the U.S. to come forward, go through criminal background checks, get in the system and get on the books.”

    But the bill is nowhere near President Obama’s desk. The House of Representatives controlled by a Republican Party devoted largely to gridlock is unlikely to prove helpful. Reporting for TPM, Brian Beutler noted that House Speaker John Boehner said the House has no interest in passing a comprehensive measure, let alone the one the Senate just approved. “The House is not going to take up and vote on whatever the Senate passes,” Boehner said. “We’re going to do our own bill through regular order, and there’ll be legislation that reflects the will of our majority and the will of the American people. For any legislation, including a conference report, to pass the House, it’s going to have to be a bill that has the support of a majority of our members.”

  • June 27, 2013
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law

    In  Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it.

    This lawsuit was brought by Shelby County, Ala. This county, along with the rest of Alabama, as well as Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska, Arizona, and parts of seven other states (known as the “covered jurisdictions”) was required under Section Five of the Voting Rights Act to have any change in their election laws approved (or “precleared”) by the U.S. Department of Justice. The covered jurisdictions were selected for the preclearance requirement according to a formula set out in Section Four of the act. The formula considered the jurisdiction’s past history of voting rights violations, current violations, white and minority voting rates, and other factors.  Shelby County argued that both Section Five’s preclearance requirement and Section Four’s coverage formula were unconstitutional. The Court struck down the Section Four formula.

    Chief Justice Roberts' opinion for the five-justice conservative majority relied on two premises. First, the opinion stated that each state is due “equal sovereignty,” that is each state has power to regulate matters left to the states, including voting, to the same extent as other states. As innocuous as that might sound, consider Roberts’s second premise:  “the conditions that originally justified [the preclearance measures that justified differing treatment of states] no longer characterize voting in the covered jurisdictions.” Slip op. at 2.  Roberts pointed to substantial progress in voter participation and the increase in minority elected officials in the time from the passage of the act until now.  Id. at 13-15. Yet, Roberts continued, the current coverage formula does not reflect this reality.  “Coverage today is based on decades-old data and eradicated practices.”  Slip op. at 18.  “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.”  Id.