• December 14, 2012

    by Joseph Jerome

    Whenever an American citizen interacts with her government, the government’s first concern is increasingly ascertaining whether that individual is a terrorist. The Wall Street Journal’s Julia Angwin reports that top intelligence and law enforcement officials met in March to establish new rules permitting the National Counterterrorism Center (NCTC) “to create a government dragnet, sweeping up millions of records about U.S. citizens -- even people suspected of no crime.”  Flight records, the names of Americans hosting foreign-exchange students, and even casino-employee lists can be stored for up to five years, analyzed for suspicious behavior, and shared with foreign governments all in the name of fighting terrorism.

    According to Angwin, the impetus of the program came in the wake of Umar Farouk Abdulmutallab’s failed Christmas Day 2009 bombing. After President Obama directed government agencies to send NCTC any and all leads on terrorist threats, the Department of Homeland Security provided NCTC with a vast database of information on the condition that any data of innocent U.S. persons be purged within 30 days. The tiny, unknown NCTC was unable to process the number of leads it received, so its solution was to seek unlimited access to any government information with no time limits imposed on the data’s analysis and study. 

    “All of this happened in secret,” the ACLU’s Chris Calabrese bemoans. “No public debate or comment and suddenly, every citizen can be put under the terrorism microscope.”

  • November 27, 2012
    Guest Post

    By Sharon Bradford Franklin, Senior Counsel, The Constitution Project

    As the Department of Homeland Security has evolved over the past ten years, one of its central functions has become to “safeguard and secure cyberspace.”  DHS is the lead agency overseeing cybersecurity for the federal government’s civilian operations.  This role fits well with DHS’s overall homeland security responsibilities, and from a civil liberties perspective, DHS is the federal agency best suited to this job.

    Unless they incorporate adequate civil liberties safeguards, cybersecurity programs that permit the government to collect private communications from computer networks create risks that Americans will be subject to the equivalent of a perpetual warrantless wiretap of their private communications and web browsing.  DHS has demonstrated that it takes these risks seriously, and has involved its Privacy Office in developing and operating cybersecurity programs.

  • September 11, 2012

    by Jeremy Leaming and Dipal Shah

    At a New York Law School symposium examining the impact the 9/11 terrorist attacks have had on civil liberties, John Yoo, former George W. Bush administration attorney who wrote memoranda supporting torture of military prisoners, declared that in the years since the devastating events “civil liberties have grown quite a bit.” Yoo, now a law professor at UC Berkeley Law School, added that civil liberties in the country had been bolstered “because government has been primarily kept out of the way.”

    It was a statement that likely left some of the panelists wondering whether Yoo was being intentionally provocative. Indeed as noted time and again by the Center for Constitutional Rights, Human Rights First, Bill of Rights Defense Committee and law professors like Georgetown’s David Cole, a much stronger argument can be made that too often efforts to advance national security have trumped protections of civil liberties and the humane and lawful treatment of military prisoners.

    The New York Law School Review’s “visual scholarship project” created a short -- less than 14 minutes -- video highlighting some of that symposium and including additional discussions with legal scholars and advocates such as ACS President Caroline Fredrickson, Fordham Law School Professor Martin Flaherty, and Ohio State University law school Professor Peter M. Shane. Watch the NYLS Law Review video here or see below. 

    Shane, for instance said, he has knocked the Bush administration “for always saying that if anyone kind of pushed back against harsh interrogation techniques or rendition they would always say ‘well you want just want the law enforcement paradigm.’ And there’s this kind of attempt always to sort of cast people who are asking questions about particular policies as if they were somehow soft on terrorism, at best, and unpatriotic at worst.”

    Although President Obama, very early in his term, signed an order banning torture of military prisoners, many civil liberties groups blast his administration for following too much of his predecessor’s actions in this area. For instance, the Obama administration has invoked the so-called state secrets privilege to shut down actions brought by prisoners challenging their imprisonment, and has failed to close Guantánamo Bay, where prisoners are still indefinitely held. (Recently another prisoner died there; he was the ninth to do so. The Center for Constitutional Rights in a Sept. 10 press statement called on the administration to “conduct a full and impartial investigation, and treat the body and the family with all proper respect, none of which, regrettably, has consistently occurred in the past.”) Attorney General Eric Holder has also been criticized for failing to prosecute any of the CIA or military officials allegedly involved in torture of military prisoners.

    Shane, in his interview with the NYLS Law Review, said Americans, and possibly people in general, “are often too quick to accept that there is a tradeoff between these two things [national security and civil liberties]; that somehow to be more secure is to be less free.”

    Fredrickson, again for NYLS Law Review, said, “Many would argue that civil liberties are actually a core part of the national security that we give our nation, and that only when we have protections for what we believe are our vital rights as Americans are we actually able to keep ourselves safe.”

  • May 29, 2012

    by Jeremy Leaming

    As a presidential candidate in 2008, Barack Obama leveled broadsides against the counterterrorism efforts waged by the administration of George W. Bush. Deep into President Obama’s term many see a continuation if not drastic advancement of Bush counterterrorism policy.

    In an extensive piece Jo Becker and Scott Shane report for The New York Times that Obama has “preserved three major policies – rendition [where prisoners are sent to secretive sites to undergo harsh, often brutal interrogation], military commissions and indefinite detention – that have been targets of human rights groups since the 2001 terrorist attacks.” 

    The story also states that the president, who as a candidate railed against the military prison at Guantanamo Bay, and promised if elected to close it, did not have a plan to convince Congress to shutter the prison.

    A major piece of The Times reporting focuses on the personal involvement of the president in sessions to determine which terrorist suspects to kill or capture. “It is the strangest of bureaucratic rituals: Every week or so, more than 100 members of the government’s sprawling national security apparatus gather, by secure video teleconference, to pore over terrorist suspects’ biographies and recommend to the president who should be the next to die.” The president, The Times reports, will then sign off on who to target.

    In a piece titled “Obama the Warrior” for Salon, Glenn Greenwald highlights the support Obama has garnered from some of the far right architects of the Bush counterterrorism policy, noting a progressive myth that the far right never lauds the president:

    Virtually every one of the most far-right neocon Bush officials – including Dick Cheney himself – has spent years now praising Obama for continuing their Terrorism policies which Obama the Senator and Presidential Candidate once so harshly denounced. Every leading GOP candidate except Ron Paul wildly praised Obama for killing U.S. citizen Anwar Awlaki without a shred of due process and for continuing to drop unaccountable bombs on multiple Muslim countries.

  • January 24, 2012
    Guest Post

    By Micah W.J. Smith, an associate at O’Melveny and Myers, and Babak Siavoshy, a teaching fellow at UC Berkeley’s Samuelson Law, Technology and Public Policy Clinic. Siavoshy was part of the legal team that represented Antoine Jones while an associate at O’Melveny and Myers, and has not worked on the case in his capacity at UC Berkeley. 

    In June of last year, Chief Judge Alex Kozinski and one of his law clerks wrote a eulogy for the Fourth Amendment, in which they mournfully concluded that “[w]ith so little left private, the Fourth Amendment is all but obsolete.” With the benefit of hindsight, it seems the eulogy may have been premature. On Monday, the Supreme Court handed down its decision in United States v. Jones, and unanimously held that the government violated Antoine Jones’s Fourth Amendment rights by surreptitiously monitoring his vehicle’s movements on public roads for four weeks. The Court’s decision is a ringing endorsement of the Fourth Amendment as a bulwark of liberty — and of the Amendment’s relevance to the surveillance technologies of the twenty-first century.

    As members of Antoine Jones’s legal team in the Supreme Court, we thought we’d offer a few thoughts on the case and its implications. Given the significant amount of commentary that is already available on the blogosphere, we won’t dwell too much on the details. (For readers interested in a more granular analysis, we recommend Tom Goldstein’s post at SCOTUSblog. Or Orin Kerr’s several posts at The Volokh Conspiracy. For readers interested in a broader overview, try Adam Liptak’s article in The New York Times.)

    Prior to Jones, there were good reasons to believe the Fourth Amendment was dying. Since the Court decided Katz v. United States over forty years ago, the Amendment’s protections were commonly understood to apply only when the government intruded on a person’s subjective expectation of privacy that society would deem reasonable. The Court had never explicitly overruled earlier cases that pinned the Fourth Amendment to founding-era property concepts, but any commentator familiar with LaFave’s authoritative treatises would have been tempted to conclude that those cases had lost their vitality, or were, in legal jargon, no longer “good law.”

    The problem was that at the same time it took on Fourth Amendment primacy, privacy was losing some of its power. This was in part because new and fast-changing technologies — think smart phones, sophisticated data mining techniques, and Google — were at once making our lives more and more convenient and less and less private. It was also perhaps because a new generation of Americans has come of age with Twitter and Facebook and YouTube, and many of us now have a much more complicated relationship with privacy. It’s a relationship that takes for granted that privacy might flourish even in public places, and even in information that has been shared with some people but not everyone. And it’s a relationship the law has been too quick to paint as a lack of any privacy at all.