National security and civil liberties

  • April 29, 2014

    Earlier this morning, the Supreme Court heard oral argument in two cases which raise the question of whether or not police can search confiscated cellphones of arrestees without a warrant. In both cases, the defendants argued that the information obtained from their cell phones by police was in violation of the Fourth Amendment. NPR’s Nina Totenberg discusses Riley v. California and United States v. Wurie.
     
    Yesterday, the Supreme Court denied cert in Jackson v. Louisiana, a case that examined whether or not a non-unanimous jury verdict violates the Sixth Amendment. At CAC’s Text & History Blog, Brianne Gorod explains why the high court’s failure in taking the case “is not only tragic, it’s inexplicable.”
     
    Yesterday, the U.S. Court of Appeals for the Fifth Circuit heard arguments concerning whether a state law can close the last abortion clinic in Mississippi. Writing for MSNBC, Irin Carmon asserts that “what’s at stake stretches far beyond Mississippi.”
     
    At Just Security, Marty Lederman explains why the Director of National Intelligence James Clapper’s Directive 119, which “prohibits employees of the Intelligence Community from unauthorized ‘contacts’ with the media about intelligence ‘sources’ ” isn’t a “clear-cut matter.”
     
    As the 60th Anniversary of Brown v. Board of Education fast approaches, The NAACP Legal Defense and Educational Fund commemorates the Supreme Court’s landmark decision.  
  • April 23, 2014
     
    At The Daily BeastGeoffrey R. Stone, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter, discusses his experience on the President’s Review Group on Intelligence and Communications Technologies and why “constant, rigorous, and independent review is essential if we are to strike the proper balance between liberty and security in a changing world.”
     
    The Supreme Court heard oral argument yesterday in a case involving an “Ohio law that criminalizes the spreading of false information about a political candidate during a campaign.”  The challenge comes after an anti-abortion rights group mischaracterized former Rep. Steve Driehaus’ (D-Ohio) stance on abortion during his 2010 reelection campaign. Robert Barnes at The Washington Post has the story.
     
    Yesterday, the Supreme Court upheld Michigan’s ban on Affirmative Action in Schuette v. Coalition to Defend Affirmative Action. Justice Anthony Kennedy wrote for the plurality while Justice Sonia Sotomayor wrote an impassioned dissent. Writing for SCOTUSblog, Amy Howe details the case.
     
    Peter Hardin at GavelGrab notes that if New Jersey Gov. Chris Christie chooses not to reappoint Chief Justice Stuart Rabner it could “give rise to the perception that Christie was attempting to intimidate judges working without tenure.”
     
    At The New Yorker’s Daily Comment Hendrik Hertzberg explains New York Gov. Andrew Cuomo’s decision to join the National Popular Vote (NPV) interstate compact.
  • April 15, 2014
    At The Daily BeastGeoffrey R. Stone—former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapterexplains why “the press isn’t free if it has fear of prosecution for leaks” and why “it’s time to give reporters the same type of privilege attorneys and doctors have.”
     
    A growing trend of private probation companies is influencing our court and prison systems. Implemented now in ten states, these companies provide an inexpensive means for courts to ensure that fines are paid. However, in what is referred to as the “debtor’s prison,” many of today’s poor are being jailed because they can’t afford to pay their fines. PBS NewsHour reports on this controversial phenomenon which is proving how “without funds to pay fines, minor incidents can mean jail time.” 
     
    Calls for an investigation into the leak of a classified Senate report on torture to McClatchy newspapers continue. The leak came after Senate Select Committee on Intelligence Chair Dianne Feinstein (D-Calif.) accused the Central Intelligence Agency of illegally searching her committee’s computers. Adam Serwer at MSNBC  has the story.
     
    Andrew Cohen at The Atlantic explains why President Obama is right to speak out on voter suppression, “but he needs to preach to someone other than the converted.”
     
    At Roll Call’s Hawkings Here, David Hawking discusses Susan B. Anthony List v. Driehaus and whether lying in political campaigns is unconstitutional. 
  • April 14, 2014
    Guest Post
    by Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, The Ohio State University
     
    * Author's Note: I had the privilege on April 4 of delivering the following remarks as part of a panel on "Creating the Politics of Privacy," a session of the capstone conference for Ohio State's 2013-14 series of campus-wide programs on the distinction between public and private.
     
    ** This post originally appeared at The Huffington Post.
     
    America's cultural turn in recent decades toward a glorification of the private and a denigration of the public has coexisted with what quite obviously is a deterioration in privacy. As individuals, we have dramatically less capacity than in earlier decades to control information about even the most personal aspects of our lives. This is not just historical coincidence. The cultural turn to the "private" has actually hurt privacy.
     
    What I mean by a cultural turn is that, for the last 35-ish years, U.S. law and politics have moved away from the public-regarding orientation of the New Deal and its programmatic outgrowths and toward the individualist orientation of Reaganite small-government conservatism. We can see these moves in a variety of ways that implicate the private/public distinction. For example, we know that public institutions, such as schools, simultaneously create both public value and private value. They help both to benefit society through an educated citizenry and to prepare individuals for economic self-sufficiency. Yet our public policy toward schools has increasingly emphasized only their private value as providing persuasive reasons for their support.
     
    Likewise, private action simultaneously has both private and public impacts. What I do as an individual both serves my personal needs and gratifications and imposes externalities on others. Not all externalities are positive. Yet courts and politicians have increasingly resisted treating negative externalities as a sufficient justification for regulation. Supreme Court decisions limiting Congress' powers to keep guns away from schools or to provide federal remedies for domestic violence are perfect examples. The court's 2012 decision that Congress lacked power under the Commerce Clause to compel the private purchase of health insurance was based on legal arguments that earlier courts would have rejected out of hand.
     
  • April 14, 2014

     
    The Justice Department has accused the Albuquerque Police Department of “a pattern or practice of use of excessive force that routinely violated people’s constitutional rights.” Fernanda Santos at The New York Times reports on the 16-month investigation which found that “too often, the officers kicked, punched and violently restrained nonthreatening people … many of whom suffered from mental illnesses,” while other victims “were disabled, elderly or drunk.”
     
    Last week, the U.S. Court of Appeals for the Tenth Circuit heard oral arguments in Kitchen v. Herbert, a case challenging Utah’s ban on same-sex marriage. State officials filed an appeal after the U.S. District Court for the District of Utah held the ban to be unconstitutional last December. Writing for Jost on Justice, Kenneth Jost comments on the legal and “unmistakably personal” implications of the case.
     
    The Federal Trade Commission won an important victory in a case that challenged its authority to “regulate data security under the FTC Act.” Daniel Solove at Concurring Opinions breaks down Federal Trade Commission v. Wyndham Worldwide Corporation, et al.
     
    In a study conducted by the Center for American Progress, Jenny DeMonte and Robert Hanna reveal that in some areas, impoverished students are “less likely to receive highly effective teaching.” In their report, DeMonte and Hanna provide ways to combat this troubling inequality.  
     
    In an excerpt from Six Amendments: How and Why We Should Change the Constitution highlighted in The Washington Post, former Supreme Court Justice John Paul Stevens discusses the recent shooting massacres, the influence of the National Rifle Association and “the five extra words that can fix the Second Amendment.”