Individual liberties

  • June 6, 2013

    by Jeremy Leaming

    The Obama administration, obsessed with leaks of secret government actions, is likely seething over reporting by The Guardian’s Glenn Greenwald, Ewen MacAskill and Spencer Ackerman on the secretive order granting the federal government sweeping power to collect “telephone records of millions of US customers of Verizon,” regardless of any suspected connection to terrorist groups or activities.

    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.).

  • May 31, 2013
    Guest Post

    by Lisa Heinzerling, Professor of Law, Georgetown Law. Heinzerling is also a Center for Progressive Reform (CPR) Member Scholar. This piece is crossposted at CPRBlog.

    A panel of the Second Circuit Court of Appeals in New York has just taken under consideration the Food and Drug Administration’s motion for a stay of a district court order directing the agency to make levonorgestrel-based emergency contraceptives available to women and girls of any age without a prescription and without other point-of-sale restrictions. In deliberating on this motion, the panel of judges should not, I am sorry to say, take anything the FDA has said in its briefs at face value. The government’s opening and reply briefs on the motion to stay are so full of misstatements and omissions that the court could badly err if it did not take everything the government says with a shaker full of salt.

    One of the factors in deciding whether to grant a stay pending appeal is the likelihood that the moving party will succeed on the merits. The government devotes most of its briefs to this factor. It makes two arguments as to why the court of appeals should find that the government is likely to win on appeal and should thus stay the district court’s order on emergency contraception. Both arguments depend crucially on incomplete and inaccurate renderings of the law and facts of the case.

    Before turning to these arguments, a bit of context is necessary. The levonorgestrel-based emergency contraception at the center of this legal dispute takes two forms. One, Plan B and its generic versions, requires two pills. The other, Plan B One-Step and its generic versions, requires one pill. Both involve the same total dose of levonorgestrel. Despite these obvious similarities, the FDA has worked very hard to treat these drugs very differently; it has made Plan B One-Step available without a prescription to all women and girls over the age of 15, it has apparently blocked nonprescription market access to generic versions of Plan B One-Step for girls under 17, and it has resisted requests to make Plan B and its generic versions available without a prescription to girls under age 17. The district court’s order would make all of these drugs (except Plan B, which is no longer marketed) available without a prescription; the FDA would like to keep treating them differently.

  • May 23, 2013

    by Jeremy Leaming

    President Obama has come a long way since he declared during his first term that in fighting the so-called war on terror we should safeguard our fundamental values “as vigilantly as we protect our security.”

    During his much touted counterterrorism speech at the National Defense University in Washington, Obama tried to return to that lofty rhetoric and even suggested an end would come to the indefinite war on terror. At other times, Obama sounded a bit too much like his predecessor in defending an aggressive approach by the CIA and military to hunt down and kill suspected terrorist overseas by way of drone strikes, even if those actions happen to take out a few American citizens and innocent civilians.  

    “America’s actions are legal,” Obama said. “We were attacked on 9/11. Within a week, Congress overwhelmingly authorized use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war – a war waged proportionally, in last resort, and in self-defense.”

    Regarding drone strikes, which the Department of Justice finally acknowledged has killed some American citizens, Obama offered an equally staunch defense.

    Obama said the “use of drones is heavily constrained. America does not take strikes when we have the ability to capture individual terrorists – our preference is always to detain, interrogate, and prosecute them, America cannot strike wherever we choose – our actions are bound by consultations with partners, and respect for state sovereignty. America does not take strikes to punish individuals – we act against terrorists who pose a continuing and imminent threat to the American people, and when there are no other governments capable of effectively addressing the threat. And before any strike is taken, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.”

    The New York Times reported that the president would supposedly start “shifting control” of the drone strikes from the CIA to the military. But deeper in The Times story, it’s noted that the president “may not explicitly announce the shift in drones from the Central Intelligence Agency in his speech, since the agency’s operations remain formally classified ….” In a piece for Salon, Alex Pareene notes that formal classification, saying, “Maybe the president’s next policy shift can involve the absurd and ridiculous over-classification of everything to do with national security and the actions of our intelligence agencies.”   

    Reporting for The Times in April, Scott Shane said since the start of the Obama administration, nearly 3,000 people have been killed by the drone strikes. As noted here, McClatchy Newspapers also provided an extensive study, based on U.S. intelligence reports revealed that the drone strikes killed thousands of people in Pakistan and Afghanistan and very few were top al Qaeda operatives. 

  • May 22, 2013

    by Jeremy Leaming

    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.”

  • May 20, 2013

    by Jeremy Leaming

    For decades Religious Right activists have cultivated a wobbly narrative, championed by pundits like Bill O’Reilly, of a secular America striving to erase Christianity from the public square.

    These activists, such as the Family Research Council and the American Family Association and televangelists like Pat Robertson and the late Jerry Falwell, often blamed the Supreme Court for leading the way.

    First, they have argued the Supreme Court yanked prayer and Bible readings from the public schools in the cases Engel v. Vitale and Abington v. Schempp. But neither of those cases did such things. Instead the Supreme Court in those cases prohibited organized religion in the public schools. In other words public school teachers and administrators had to stop leading students in religious activities. Those cases did not outlaw prayer or religion in the public schools; they just found that such activities must be truly student initiated.

    There’s also the annual farce dubbed the “war on Christmas,” where, supposedly, secularists roam city halls and public squares demanding the removal of all vestiges of religion. There are also Supreme Court cases involving these clashes between government officials and individuals bent on festooning public spaces with religious and non-religious symbols. The cases can seem a bit absurd, but a takeaway -- if public officials open their public buildings and spaces to say a nativity display they’d better be prepared to open them to displays of other holidays celebrated during the winter and some secular symbols too, like giant candy-canes or snowmen. For too many Religious Right activists, however, it’s not enough to decorate churches and private homes with religious symbols of the holiday season, they must also adorn government buildings with them and if government officials don’t comply they’ll point to a “war on Christmas.”

    Then there are government meetings and activities. From coast to coast there are city and town councils and other government bodies that like to open their public meetings with prayer. The use of prayer in government work has a long history. On the federal level, both chambers of Congress open each day with chaplains providing invocations and a marshal opens Supreme Court sessions, with “Oyez, oyez, God save the United States and this Honorable Court.”

    As the nation has evolved, however, and become more diverse, unsurprisingly you’ve had more and more people question the use of prayer during government sessions. And here again, you have a ripe opportunity for Religious Right zealots to complain about attempts to force government officials to either forgo prayer altogether at their official functions or mix it up and include invocations from all kinds of religious groups.

    The Supreme Court has touched upon prayer during government sessions, and today the Roberts Court agreed to consider a case – Town of Greece v. Galloway – that allows the high court to revisit precedent on government and prayer. The case arises from Greece, N.Y. where Christian prayer has frequently been used to open town board meetings. As The New York Times’ Adam Liptak reports the town’s prayer policy has been in place since 1999 and town officials have said that people of all faiths, including atheists, can offer invocations.