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  • November 30, 2012
    Guest Post

    By Jay Stanley, ACLU Senior Policy Analyst

    November 25 marked the 10th anniversary of the signing of the Homeland Security Act, which created the sprawling Department of Homeland Security. Included in this new behemoth agency was another agency that had been created a year earlier, the Transportation Security Administration. It’s worthwhile to take a look back at the short history of this agency.

    The first and biggest conclusion we can reach is that the vast bulk of the increased security that we’ve obtained since 9/11 has been due to two factors: the securing of airplane cockpit doors, and the fact that no planeload of passengers in a hijacked aircraft will ever again sit back placidly and wait to land in Cuba, or whatever. We’ve been saying this for years and it remains true. It’s hard to believe in light of all that has followed, but a few weeks after the 9/11 attacks, the ACLU issued a press release with the headline, “ACLU Applauds Sensible Scope of Bush Airport Security Plan.” What we were reacting to was a set of commonsense steps the administration had taken such as increased baggage screening and securing those cockpit doors.

    In that same press release, however, we were already noting that far more dubious and intrusive ideas were beginning to circulate. Unfortunately, in the decade that followed we confronted more such proposals and programs than we ever imagined at the time. It’s worth a quick review of some of the lowlights:

    • November 28, 2012

      by Joseph Jerome

      Ten years ago this week, President Bush signed the Homeland Security Act of 2002, which established the Department of Homeland Security. Its formation involved the most extensive reorganization of the federal government since the creation of the Department of Defense in 1947. Throwing together 22 different agencies with the goal of analyzing threats, guarding our borders and infrastructures, and coordinating emergency response would take, in the words of President Bush, “time, and focus, and steady resolve. Adjustments will be needed along the way.”

      A decade later, ACS and the Open Society Foundations brought together a panel of homeland security experts to discuss what adjustments had been made -- and what adjustments were still required to ensure DHS could protect both the security and the civil liberties of American citizens. According to Michael German, Senior Policy Counsel at the ACLU, DHS “rushed right in with an imperative to do something. Not do something effective.”  Seth Grossman, Deputy General Counsel at DHS, cautioned that his department remained a young agency: “We’ve learned a lot of lessons and will continue to.”

      With over 200,000 employees and a budget approaching $60 billion per year, part of the problem -- and opportunity -- that DHS presents is its sheer size and the scope of its work. Moderating the discussion, Professor Stephen Vladeck wondered whether there was any theme that linked together the agency’s diverse responsibilities. Grossman pointed to the Department’s reaction to the devastating earthquake in Haiti in 2010, arguing that having everything from FEMA to immigration services and the Coast Guard under one roof allowed DHS to have “a robust, active, and more coordinated role” in responding to the disaster.

    • November 8, 2012

      by Jeremy Leaming

      As Colorado voters were debating whether to support a ballot measure to legalize small amounts of marijuana, some fretted about fueling drug tourism. But the more obvious difficulty Colorado and Washington State, where a similar legalization measure was approved, face centers on the federal government and its law that sees marijuana as more dangerous than heroine.

      As University of Denver law school Professor Sam Kamin told “60 Minutes” not long before the elections, the federal government has not been easy on the states that have legalized medical marijuana use. The government is employing several tactics to undermine the medical marijuana industry in Colorado – a fairly robust one – despite the challenges. Part of what the federal government does, according to Kamin, is to threaten banks with prosecution under the Controlled Substances Act if they help the medical marijuana industry to expand.

      It seems safe to assume for the moment that the federal government will not look any more favorably on the limited legalization laws in Colorado and Washington than it has on states were medical marijuana has been legalized.

      Alison Holcomb an attorney and leader of the campaign for Washington’s Initiative 502, sounded an optimistic note upon its passage, saying the state had “looked at 70 years of marijuana prohibition and said its time for a new approach,” the Associated Press reported. The Seattle Weekly in a Sept. profile of her work, lauded her for bringing together a “jaw-dropping list of sponsors – including travel guru Rick Steves, City Attorney Pete Holmes and former U.S. Attorney and Bush appointee John McKay – and keeps winning more and more endorsements as time goes on.”

      Washington’s initiative creates a system of state-regulated marijuana growers and allows adults to buy up to an ounce. Colorado’s Amendment 64 will allow those over 21 to buy an ounce of marijuana and permit people to grow a limited amount of marijuana.

    • November 5, 2012

      by Jeremy Leaming

      As noted in a Nov. 2 piece for The Huffington Post by ACS President Caroline Fredrickson, the make-up of the nation’s top court rests on tenuous ground – with one more conservative justice helping its conservative bloc turn the clock back on longstanding precedent protecting an array of rights, such as reproductive rights.

      Fredrickson notes, “As recently as 2007, the Court upheld burdensome restrictions on abortion rights in Gonzales v. Carhart,” and that a “more conservative Court “could easily further restrict women’s reproductive rights, chipping away at Roe v. Wade or undoing it altogether.” (Fredrickson’s post notes the recent ACS paper, “Courts Matter: Justice on the Line,” which provides numerous examples of Supreme Court precedent that could be fundamentally altered with the change in the make-up of the high court.)

      Duke School of Law Professor Neil S. Siegel, also in a piece for The Huffington Post, zeroes in on the importance of the Supreme Court’s role in protecting or eviscerating reproductive rights. Siegel, also co-director of the Program in Public Law at Duke’s law school, writes how close the high court, in the past, has come to overturning the landmark Roe v. Wade. In the 1992 Planned Parenthood v. Casey, Justice Anthony Kennedy had narrowly joined the majority in upholding Roe. But since Casey, Siegel continues, Kennedy “has voted to uphold abortion-restrictive regulations that deny pregnant women the safest method of abortion in medical emergencies.”

    • October 31, 2012
      Guest Post

      By Professor David D. Cole, Professor of Law, Georgetown Law


      What if the government was tapping your phone unconstitutionally and there was nothing you could do about it? You’d be living in the United States of America, at least as understood by the Justice Department. Solicitor General Donald Verrilli, Jr., argued in the Supreme Court on Monday, October 29, that, for all practical purposes, the government’s authority to intercept Americans’ international phone calls and emails could not be challenged by the very people most likely to be harmed by it – lawyers, journalists, and human rights activists who regularly engage in such international communications on the very subjects and with the very people the government is likely to be monitoring. Resolution of the case, Clapper v. Amnesty International, may determine whether the most expansive government spying program ever authorized by Congress will be subject to adversarial constitutional review. 

      The Bush administration famously argued that the president’s actions in “engaging the enemy” in the “war on terror” could not be limited by the other branches. It used that argument to justify a secret warrantless wiretapping program run by the National Security Agency that monitored United States citizens’ international communications, in contravention of a criminal statute.  Richard Nixon similarly asserted, when asked by David Frost why he thought he could authorize warrantless wiretapping during the Vietnam War, that “if the President does it, that means it’s not illegal.” To his credit, President Obama has rejected these theories of uncheckable power.  But in defending the most sweeping electronic surveillance authority Congress has ever enacted, he has sought a similar result by contending that, for all practical purposes, the surveillance cannot be challenged in court.