Want To Combat Police Misconduct And Document NYPD's "Stop And Frisk"? There's An App For That

The New York Civil Liberties Union announced “Stop and Frisk Watch,”which it describes as "a free and innovative smart phone application that will empower New Yorkers to monitor police activity and hold the NYPD accountable for unlawful stop-and-frisk encounters and other police misconduct."

Mayor Bloomberg continues to defend the stop-and-frisk policy despite serious concerns that it disproportionately targets young black men. Yesterday, as the New York Times reports, "several thousand demonstrators conducted a silent march" to protest the  policy, "which the organizers say single out minority groups and create an atmosphere of martial law for the city’s black and Latino residents."  

NYCLU Executive Director Donna Lieberman explains that the “Stop and Frisk Watch is about empowering individuals and community groups to confront abusive, discriminatory policing.”

The NYPD’s own data shows that the overwhelming majority of people subjected to stop-and-frisk are black or Latino, and innocent of any wrongdoing. At a time when the Bloomberg administration vigorously defends the status quo, our app will allow people to go beyond the data to document how each unjustified stop further corrodes trust between communities and law enforcement.

Stop and Frisk Watch is available in English and Spanish on Android phones.  An iPhone version will be released later this summer. The app allows bystanders to fully document stop-and-frisk encounters and alert community members when a street stop is in progress.

According to ThinkProgress, since the app’s release last week, more than 75,000 people have downloaded it.

Obama's Evolution

It was inevitable.  President Obama has evolved.  Whether his recalcitrance threatened to become too much of a distraction, particularly after his Vice President got ahead of him, or whether he ultimately realized it was no longer politically risky to do so, Obama has finally endorsed same-sex marriage:  “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.”

As Greg Sargent put it, despite the fact that he had to be pushed into taking this step, it is an historic one -- a civil rights milestone:  "Obama has become the first — and only — sitting president to come out for full equality for gay and lesbian Americans."

This is huge.  Frank Bruni:  "Our highest elected official, our president, said that same-sex couples should have the right to marry, something that none of his predecessors had done, something that he had refused to do since becoming a national political figure. There’s a powerful message in that."

But -- and there's always a "but" with Obama -- the President made sure to emphasize that his position on same-sex marriage reflects his "personal" belief and he "still supports the concept of states deciding issue on their own."  Indeed,  his Administration made sure to clarify that "President Obama believes marriage is a state issue and the federal government does not have a role."  (I'm not sure who he is trying to appease with his states' rights hedge given that the right wing will skewer him anyway.  Indeed, FOX News is already out with its "Obama Declares War On Marriage" headline.)

As a practical matter, until there is a progressive sea change in Congress or the Supreme Court, it is up to the states, not the federal government to regulate marriage and civil unions.  And with the vote in North Carolina yesterday, there are 31 states (including the entire south) that don't allow same-sex couples the rights heterosexual couples take for granted.    

But that doesn't mean the President cannot play an important role as a leader -- the leader -- in the continued struggle for equal rights.  And so, Obama needs to evolve just a little more.  He needs to unequivocally state, as President of the United States, that the deprivation of rights based on sexual orientation is wholly unacceptable -- just as it was wholly unacceptable to deny such rights based on race.  This is not a states rights issue and it is not merely a matter of personal preference.  This is about the fundamental principle of equality.

North Carolina Embraces Discrimination

By Jeremy Leaming, cross-posted from American Constitution Society

The North Carolinians who voted to alter the state’s constitution to ban same-sex marriage were largely moved by fear-tactics fueled by far right religious groups bent on punishing lesbians and gay men. The vote also makes North Carolina, as The New York Times notes, the last state in the South to marginalize gay people with a constitutional ban on same-sex marriage.

Until yesterday’s vote, a string of states had provided victories for marriage equality. (In February, Maryland joined seven other states and the District of Columbia in approving same-sex marriage.) North Carolinians, however, were fueled by an ugly animus toward gay people. Not only did the state’s constitutional amendment ban same-sex marriage it is so vaguely worded that many commentators have argued that it would outlaw domestic partnerships or civil unions.

A group of North Carolina family law professors warned voters about the scope of the antigay amendment.

Maxine Eichner, a law professor at UNC School of Law, in a video focusing on the sweep of Amendment One, said, the amendment would “certainly ban civil unions, it would ban domestic partnerships at the state level, and it would also ban the domestic partner insurance benefits that a number of municipalities and counties currently provide to their employees.” (Eichner is author of an ACS Issue Brief on the Employment Non-Discrimination, aimed at banning employers from discriminating against workers or potential employees based on their sexual orientation or gender identity.)

The Daily Beast blogger Andrew Sullivan in a post dubbed “The Politics of Spite,” slammed the reach and impact of the vote:

Remember how meretricious this assault on gay couples was. They already are banned by state law from marrying. Now their own state constitution bans them from any civil rights as couples whatsoever: no domestic partnerships, no civil unions, nothing. It’s an act of pure punishment of citizens who are gay, a deliberate psychological blow to their self-esteem, their sense of citizenship, their core equality as human beings. A 60 percent majority decided that 2 percent of their fellow citizens are and must remain inferior in law. When gay rights advocates seek recourse in the courts, is it so surprising?

Sullivan noted the involvement of the so-called National Organization for Marriage, a Religious Right outfit that has spent boatloads of money and many years on demonizing gay people and promoting bigotry. The group claims it does not advacne bigotry, but instead protects "marriage and the faith communities that sustain it."

President Obama, who has not embraced marriage equality, but whose administration has stopped defending the so-called Defense of Marriage Act (DOMA) in court and ended the military’s “Don’t Ask, Don’t Tell,” policy said he was “disappointed” in North Carolina’s vote. (DOMA is a Clinton-era federal law that discriminates against lesbians and gay men.) Later today, the president is expected to address gay marriage in an interview with ABC News, according The Huffington Post’s Michael Calderone.

Regardless of what the president thinks of same-sex marriage, the battle to advance equality will continue to be waged largely in the states.

University of Minnesota Law School Professor Richard Painter in a post for Legal Ethics Forum notes the forthcoming battle in his state to ban same-sex marriage, writing, in part, “Most of our law faculties oppose it, at some law schools unanimously. Unlike North Carolina, Minnesota was not one of the original thirteen colonies to fight for liberty in the 1770s, but hopefully this fall we will demonstrate a better understanding of what the continuing fight for liberty is all about.”

Whether other states refuse the despicable path that North Carolina voters took, will depend on lot on whether their voters refuse to be divided and swayed by the hateful rhetoric and strategy that emanates from groups like the National Organization for Marriage.

Ten Things To Know About CISPA

DonkeyHotey

The Cyber Intelligence Sharing and Protection Act, known as CISPA passed the House of Representatives by a vote of 248-168 vote, and now goes to the Senate.  The ostensible goal of the legislation is "to help companies beef up their defenses against hackers who steal business secrets, rob customers' financial information and wreak havoc on computer systems."  It does this by making it easier for the government and private industry to share information about cyber threats.

But it raises legitimate civil liberty concerns. The ACLU warns that the bill is "dangerously overbroad."   Reporters Without Borders notes that "the bill would negate existing privacy laws and allow companies to share user data with the government without a court order."

ThinkProgress tells us what we need to know:

CISPA’s broad language will likely give the government access to anyone’s personal information with few privacy protections: CISPA allows the government access to any “information pertaining directly to a vulnerability of, or threat to, a system or network of a government or private entity.” There is little indication of what this information could include, and what it means to be ‘pertinent’ to cyber security. Without boundaries, any internet user’s personal, private information would likely be fair game for the government.
  
It supersedes all other provisions of the law protecting privacy: As the bill is currently written, CISPA would apply “notwithstanding any other provision of law.” In other words, privacy restrictions currently in place would not apply to CISPA. As a result, companies could disclose more personal information about users than necessary. Ars Technica writes, “if a company decides that your private emails, your browsing history, your health care records, or any other information would be helpful in dealing with a ‘cyber threat,’ the company can ignore laws that would otherwise limit its disclosure.” 

The bill completely exempts itself from the Freedom of Information Act: Citizens and journalists have access to most things the government does via the Freedom of Information Act (FOIA), a key tool for increasing transparency. However, CISPA completely exempts itself from FOIA requests. The Sunlight Foundation blasted CISPA for “entirely” dismissing FOIA’s “fundamental safeguard for public oversight of government’s activities.” 

CISPA gives companies blanket immunity from future lawsuits: One of the most egregious aspects of CISPA is that it gives blanket legal immunity to any company that shares its customers’ private information. In other words, if Microsoft were to share your browsing history with the government despite your posing no security threat, you would be barred from filing a lawsuit against them. Without any legal recourse for citizens to take against corporate bad behavior, companies will be far more inclined to share private information. 

Recent revisions don’t go nearly far enough: In an attempt to specify how the government can use the information they collect, the House passed an amendment saying the data can only be used for: “1) cybersecurity; 2) investigation and prosecution of cybersecurity crimes; 3) protection of individuals from the danger of death or physical injury; 4) protection of minors from physical or psychological harm; and 5) protection of the national security of the United States.” This new version still “suffers from most of the same problems that plagued the original version,” writes Timothy Lee. Because terms like “cybersecurity” are so vague, the bill’s language could encompass almost anything. 


Citizens have to trust that companies like Facebook won’t share your personal information: CISPA does not force companies share private user information with the government. That being said, Ars Technica makes the point that “the government has a variety of carrots and sticks it can use to induce private firms to share information it wants.” For instance, many companies receive federal contracts or subsidies and would be hesitant to deny any request from the government that might jeopardize future business. Companies may not be legally required to turn over information, but they “may not be in a position to say no.” 

Companies can already inform the government and each other about incoming cybersecurity threats: While proponents of CISPA claim it’s needed to allow agencies and companies to share information about incoming cybersecurity threats, opponents of the bill point out that “network administrators and security researchers at private firms have shared threat information with one another for decades.” 

The internet is fighting back: The same online activists who fought hard against SOPA are now engaged in the battle over CISPA. Over 770,000 people have signed a petition by the online organizing group Avaaz that asks Congress to defeat the bill. Reddit, the news-sharing internet community that helped lead the fight against SOPA, is organizing again around CISPA. 

Most Republicans support CISPA, while most Democrats oppose it: The House passed CISPA on April 26 on a mostly-party-line vote, 248-168. Among congressmen that voted, 88 percent of Republicans supported the bill while 77 percent of Democrats opposed it. 

President Obama threatened to veto it: Recognizing the threat to civil liberties that CISPA poses, President Obama announced this week that he “strongly opposes” the bill and has threatened to veto if it comes to his desk. Obama singled out the provisions that allow for blanket legal immunity and do not enough to safeguard citizens’ private information.

Photo Of The Day

President Obama seated in the bus in which Rosa Parks refused to give up her seat.

Watching Gay Marriage Opponents Evolve

By Ty Alper, cross-posted from Huffington Post

I'm a sucker for YouTube videos of politicians who once opposed gay marriage explaining why they have changed their minds. It's a little genre that, happily, is growing.

These accounts tend to follow a pattern. They are often emotional. They almost always reference gay family members, co-workers, or friends -- people whose desire to be accepted as equal activated in the hearts and minds of these politicians the notion, seemingly obvious once it is articulated, that a legislative prohibition on same-sex marriage is discrimination akin to Jim Crow.

One of my favorites is the five-minute speech of Republican San Diego Mayor Jerry Sanders, who ran for office on a platform of opposing gay marriage. In 2007, he tearfully announced his support for a city measure supporting gay marriage:

I have close family members and friends who are members of the gay and lesbian community. Those folks include my daughter Lisa as well as members of my personal staff. I want for them the same thing that we all want for our loved ones: for each of them to find a mate whom they love deeply and who loves them back. . . . And I want their relationships to be protected equally under the law. In the end, I couldn't look any of them in the face and tell them that their relationship, their very lives were any less meaningful than the marriage I share with my wife.

Earlier this year, Washington Governor Christine Gregoire announced her support for a bill legalizing same-sex marriage in her state. Her speech was a compelling, and largely dispassionate, argument in favor of marriage equality. It was not until the end of her press conference, when she recounted her previous opposition to gay marriage, that the emotion came through:

It was my children, it was the children of friends, it was friends, it was leaders ... that I finally said to myself, it's time to do the right thing, and let me just tell you, I feel so much better today than I have for the last seven years.

Republican Minnesota State Rep. John Kriesel's conversion on the issue came after a near-fatal accident while serving in Iraq. Lying on the ground, looking at his mangled legs, and thinking he was going to die, he was a changed man:

It made me think about this issue. And say, 'You know what, what would I do without my wife?' She makes me happy. Life is hard. . . . Happiness is so, so hard to find for people. So they find it, they find someone that makes them happy, and we want to take that person away. We want to say, 'Oh no, you can be together, you can love that person, but you can't marry them.' You can't marry them. That's wrong. That's wrong and I disagree with it.

These politicians appear to be thoughtful people who had a block preventing them from seeing the discrimination inherent in same-sex marriage bans. When that block is removed, we see genuine emotion that politicians rarely express. They realize that, as President Bill Clinton explained in 2009, they were hung up on the word "marriage" and what it traditionally meant:

I realized I was over 60 years old, I grew up in a different time, and I was hung up about the word. I had all these gay friends, I had all these gay couple friends, and I was hung up about it, and I decided I was wrong.

For those of us whose support for gay marriage is reflexive and uncomplicated, it can be a struggle even to understand the opposition. Why do they care, we ask. What's it to them if gay people get married? To me, what these videos reveal is that many politicians seem to oppose gay marriage because they think most of their constituents do (so it's good politics), and because that's all they've ever known. It doesn't strike them as something even worth agonizing about. But then something happens; something opens their eyes and they see, they feel, what it means to tell two people who are in love with each other that they are not allowed to get married. That's why these videos are emotional: there is shame for past behavior; relief at the awakening of enlightened views; and gratitude for the opportunity to chart a different and better course.

And you know what? It doesn't work the other way. I scoured the internet and could not find a single video of a politician who once supported gay marriage and now opposes it. I'm sure such people exist (and Mitt Romney may be one of them). But few people wake up and realize they have been treating folks with too much respect, too much dignity. No, this is a march that is headed -- slowly, and with setbacks, to be sure -- in only one direction: towards equality. And that's fun to watch.

Demand "Justice" But Beware The Rush To Judgment In The Trayvon Martin Case

There are many disturbing questions surrounding the shooting of Trayvon Martin, many of them outlined here.  A rigorous independent investigation geared towards answering these questions and determining the extent to which George Zimmerman committed criminal acts is essential.  But as rallies today by civil rights groups and others "demand justice" and call for Zimmerman's "immediate arrest," I want to urge caution.

The disparity in treatment between young African Americans suspected of criminal conduct and George Zimmerman, who we know shot and killed Trayvon Martin, is stark and I share the frustration and the outrage of the protesters.  But, I remain very uncomfortable with the demands and petition drives calling for Zimmerman's arrest and prosecution (not to mention the vigilante response) based only on the selected facts to which we, the public, have become privy. 

There are very good reasons to doubt the good faith of local law enforcement and the prosecuting agencies in this case, and we should certainly be demanding justice.  But we can't know yet what a just response is.  We should await the findings of the special prosecutor -- which may very well spur more legitimate questions and demands -- rather than rush to judgment now based on the limited information filtered down to us from the media.

Far more often than not, in the wake of a tragic death it is the suspicious-looking African American in the hoodie for whom there is this kind of clamor for "swift justice."  

[Stop Racism, Not Hoodies;  The Right Continues To Play To Stereotype]

Quotes Of The Day

The Trayvon Martin case "is obviously about race, and is important on those grounds. Race relations are after all the original and ongoing tension in U.S. history. But it is also about self-government, rule of law, equality before the law, accountability of power, and every other value that we contend is integral to the American ideal." James Fallows, The Atlantic

"I just want to echo this sentiment and expand on it a bit. The approach here is not 'either it's about race or it isn't.'  It's 'this is about race along with. . .'  . . . Moreover, it's worth understanding that this movement toward an absurdly low threshold for self-defense claims is a national one, which is making headway in states where very few black people live. As is often the case, black people bear a spectacular burden for bad public policy. But the burden is never solely--and rarely even mostly--born by black people."

Ta Na-Hesi Coates, The Atlantic

Prop 8 Is Unconstitutional

"Groucho Marx's one-liner, 'Marriage is a wonderful institution . . . but who wants to live in an institution?' would lack its punch if the word marriage were replaced with [domestic parnership]." Perry v. Brown

Proposition 8, a California voter initiative which passed in 2008, amended the state constitution to prohibit  same sex couples from getting married.  In 2010, U.S. District Court Judge Vaughn Walker ruled that the law was unconstitutional. In a fact-based decision, he held that  “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

Today, the United States Court of Appeal for the Ninth Circuit upheld Judge Walker's ruling.  In a 2-1 decision written by one of my heroes, Stephen Reinhardt, the Court ruled that the law “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

Other highlights of the the 128-page ruling:

– All Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimation and social recognition of their committed relationships.

– The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.

– That designation [of marriage] is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.

– A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more “unprecedented” and “unusual” than a law that imposes broader changes, and raises an even stronger “interference that the disadvantage imposed is born of animosity toward the class of persons affected.”

From SCOTUSblog:

The opinion contained frequent references to a 1996 Supreme Court ruling, Romer v. Evans, which ruled unconstitutional a state constitutional amendment in Colorado that took away from gays and lesbians political rights that they had shared with other citizens.  The Romer decision was written by Justice Anthony M. Kennedy, who very likely would hold a pivotal vote on same-sex marriage if and when that issue reaches the Supreme Court.  Kennedy was also the author of a broader gay rights ruling in 2003, Lawrence v. Texas; there, the Court ruled that gays and lesbians have a constitutional right of privacy to engage privately in sexual activity by consent among adults.  That Kennedy opinion, though, said the Court was not taking a position then on same-sex marriage.

The decision was narrowly circumscribed and specifically avoided drawing any "grand constitutional right to marriage," the New York Times noted, and instead referred to "California law and its handling of the rights of domestic partnerships, in a way that might make it difficult to extend the logic of the ruling to other states."  Thus, as Lyle Denniston at SCOTUSblog writes, "by fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court."  However, "because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life."

Supporters of the measure can seek rehearing en banc before an 11-judge panel of the Ninth Circuit or bypass that step and file for review in the United States Supreme Court.

Civil Rights Groups Urge Supreme Court To Prohibit Housing Policies That Have Discriminatory Impact

By Keith Kamisugi, cross-posted from Equal Justice Society's website

Several of the nation’s leading civil rights organizations filed amicus briefs this week urging the U.S. Supreme Court to rule in Magner v. Gallagher that the federal Fair Housing Act can be enforced when a seemingly neutral housing policy results in discrimination.

The Opportunity Agenda joined AARP, ACLU, The Lawyers’ Committee For Civil Rights Under Law and the NAACP Legal Defense & Educational Fund in filing briefs with the court. (The Equal Justice Society signed on to the Opportunity Agenda brief.) Twelve state attorneys general also filed briefs in favor of fair housing law enforcement.

The Supreme Court will hear arguments in this case on February 29.

What’s at stake in Magner is the obligation of cities and towns to protect equal opportunity in housing. That responsibility includes avoiding unnecessary policies that discriminate in practice, as well as those that are intentionally discriminatory.

For more than 40 years, our courts have said that the Fair Housing Act prohibits both old school bigotry in housing, and policies that have the unnecessary effect of excluding qualified people based on their race, disability, or other factors. In Magner, the Supreme Court will be deciding whether that longstanding, commonsense interpretation will continue, or whether only intentional discrimination can ever violate the Fair Housing Act.

The plaintiffs in the case are building owners in St. Paul, Minn., who rent their properties to working class people, including many African Americans. They say that the city is trying to push them and other rental owners out of town, in favor of owner-occupied housing, with the practical effect of excluding many African Americans from any housing in the city. According to the property owners, the city is using excessive and often false code enforcement against these owners, but leaving alone owners who live in their homes.

The plaintiffs challenged the City of St. Paul’s policy in federal court under the Fair Housing Act. The Act, part of the Civil Rights Act of 1968, prohibits discrimination in the sale, rental, and financing of dwellings, based on race, color, national origin, religion, sex, familial status and disability.

Passage of the Fair Housing Act was not easy. From 1966 to 1967, Congress was unable to garner a strong enough majority for its passage. The Rev. Dr. Martin Luther King, Jr. was closely associated with the fair housing legislation since the 1966 open housing marches in Chicago. When Dr. King was assassinated on April 4, 1968, President Johnson urged Congress to pass the fair housing act as a tribute to Dr. King.

During this same time period, the deaths of our soldiers in Vietnam fell heaviest upon young, poor African Americans and Hispanics. The families of these soldiers could not purchase or rent homes in certain residential developments on account of their race or national origin. Senators Edward Brooke and Edward Kennedy of Massachusetts argued strongly for the passage of this legislation. In particular, Senator Brooke, the first African American ever to be elected to the Senate by popular vote, spoke personally of his return from World War II and his inability to provide a home of his choice for his new family because of his race.

Despite the progress we’ve made as a nation more than four decades after passage of the Fair Housing Act, significant obstacles to equal opportunity still exist, particularly when it comes to housing and homeownership. There are still some real estate agents, landlords, and others who practice intentional discrimination against people of color, families with children, people with disabilities, and other Americans.

But more often these days, local governments and real estate corporations engage in unjustified and unnecessary practices with the practical effect of discriminating against well-qualified Americans. Some cities and towns, for example, prohibit the building of smaller homes or apartments that working people could afford, which in many places excludes most people of color. That means certain Americans are unfairly and unnecessarily cut off from opportunities like quality schools, jobs, and business possibilities.

That’s bad for all of us, and the Supreme Court should reaffirm that the law forbids it by ruling in favor of the plaintiffs in Magner.

We're Number 27!

By Jim Hightower, cross-posted from OtherWords

Eric Drooker

"USA: We're No. 1!"

Oh, wait — Iceland is No. 1. But we did beat out Poland and Slovakia, right? Uh...no. But go on down the rankings and there we are! No. 27, fifth from the bottom. So our new national chant is, "USA: At Least We're Not Last!"

A foundation in Germany has analyzed the social justice records of all 31 members of the Organization for Economic Co-operation and Development (OECD), ranking each nation in such categories as health care, income inequality, pre-school education, and child poverty. The overall performance by the United States — which boasts of being an egalitarian society — outranks only Greece, Chile, Mexico, and Turkey. Actually, three of those countries performed better than ours in the education of pre-schoolers, and Greece did better than the United States on the prevention of poverty.

Our bottom-of-the-heap ranking in social justice confirms the economic and political inequality that the Occupy movement is protesting. It also helps explain why this grassroots uprising in America has spread so rapidly to more than 600 communities and has generated such broad public support. After all, our nation is fabulously rich, ranking well ahead of nearly every other OECD member in national wealth, so there's no excuse for us sitting at the bottom of the list in education, health care, poverty, and other measures of a democratic and egalitarian society.

Bluntly put, We the People have let today's elites abandon America's founding principles of fairness, justice, and equal opportunity for all.

These privileged few have purchased our government, stolen the wealth and economic future of working families, and reduced America to a plastic imitation of the country we thought we had. The Occupy rebellion is long overdue and on target.

Join it.

Jim Hightower is a radio commentator, writer, and public speaker. He's also editor of the populist newsletter, The Hightower Lowdown.

Honorable Robert L. Carter (1917-2012)

"America lost one of the greatest champions of equal opportunity and human rights that our nation has ever known."  -- Alan Jenkins

Robert L. Carter, described in the New York Times as a "leading strategist and a persuasive voice in the legal assault on racial segregation in 20th-century America," died at the age of 94 on January 3rd.  As a lawyer with the NAACP, he was enormously influential in crafting the legal strategy used in the cases that led to the landmark Brown vs. Board of Education decision, and later served with great distinction as a federal judge.

As Alan Jenkins, Executive Director of The Opportunity Agenda, and a former law clerk to Judge Carter writes:

Judge Carter was a primary architect behind the U.S. Supreme Court’s Brown v. Board of Education desegregation decision, crafting an innovative approach that blended constitutional scholarship, social science research, historical knowledge, and strategic litigation. After the victory, he pursued a strategy that helped bring desegregation to the North, where it had long been treated as an open secret. Over his career, he argued 22 cases before the Supreme Court, and won 21 of them.

Tomiko Brown-Nagin, a law professor at the University of Virginia, another former clerk, notes:

Not content to bask in the afterglow of his great achievement, the judge critiqued the legal strategy in Brown. He found a paradox. Brown served the U.S.’s geopolitical interests, and in many ways, propelled race relations forward in this country. But, ironically, in the public schools context, Brown proved a tremendous disappointment. The federal judges charged with articulating rights, and local officials charged with implementing legal remedies, ultimately bear the blame for Brown’s mixed legacy in the schools. However, Judge Carter also found fault with himself and his colleagues. The lawyers, he said, fixated on the constitutional dimensions of Brown, when the case also touched upon critically important matters of educational philosophy and pedagogy. The attorneys did not seriously contemplate, much less adequately define, quality education. That limitation left generations of black students adrift in schools, subject to social experimentation, or worse, educational malpractice.

While Brown received the most notoriety,  two civil liberties cases, NAACP v. Alabama and NAACP v. Button, are vital parts of Carter's legacy:

These cases grew out of Southern states’ efforts to destroy the NAACP. In the first case, Alabama demanded that the association turn over its membership list; in the second, Virginia claimed that the manner in which the NAACP attracted plaintiffs for its test cases violated an ethics rule against soliciting business or “stirring up” litigation. As NAACP counsel in both cases, Carter argued before the U.S. Supreme Court that the states’ demands violated the members’ associational and speech rights under the First and Fourteenth Amendments. Carter’s theory of the case, which rested on creative thinking about the intersections and boundaries of constitutional rights, prevailed against those who argued that civil liberties could be separated from civil rights. Carter’s victories at the Supreme Court saved the organization and affirmed his leadership and courage. Some within the NAACP had not wanted to fight these battles; they were prepared to turn over the association’s membership lists to Alabama, an act that would have left loyal NAACP members exposed to reprisals by the white power structure in a Deep South state. Carter knew better.

Carter "earned a reputation as a man of strong convictions, unyielding principle, and great passion."  As Brown-Nagin further explains:  "Carter earned the reputation when, as Thurgood Marshall’s lieutenant, he consistently took the most “radical” view among LDF strategists, and when he resigned as General Counsel of the NAACP to support a colleague’s right to criticize the Warren Court."  On the other hand, he emphasized that "success in the legal profession requires a clear head, a balanced and context-specific assessment of a problem, and a judicious temperament. He conveyed that passion for one’s work or causes can be productive, only if coupled with strategic thinking and professionalism."

President Nixon nominated Carter to the federal bench in 1972.  According to Jenkins,"as a federal judge, he held litigants to the highest standards, while rigorously guarding equal justice under law."  In "over four decades on the bench, he brought greater inclusion to the New York Police Department and to construction trades that had long excluded people of color and women. And he continued to speak out against injustice wherever he encountered it."

And as Brown-Nagin describes:  "His insistence that lawyers understand legal problems in context — social, political, economic — and work up cases and formulate remedies with subject matter experts, and after clearly defining client interests, left a lasting imprint. This kind of expert-driven, client-centered approach guides the work of some of the most highly regarded public interest lawyers."

Robert Carter, Brown-Nagin concludes, was "a lawyer and judge beyond measure, a visionary and an extraordinary mentor . . . may the great man rest in peace."

Lies, Damn Lies, and Confessions

By Fuzzyone

NPR had a great (in a horrifying way) story the other day on a sixteen year old girl who police coerced into falsely confessing to murdering her thirteen month old son.  (Listen to the audio version, the printed one at the link leaves out a lot.)  After two hours of lies, intimidation, and just abusive interrogation of a minor the police extracted a confession to murder. Fortunately for the girl, Nga Truong, the interrogation was videotaped so the judge hearing her case could see what had occurred and rule the confession inadmissible.

Though there was no physical evidence that a murder had occurred, and there was evidence of illness that could have led to the boy's death, the detectives were convinced that Truong had killed her son, in part because she was present when her three month old brother had died when she was eight. This despite the fact that her brother's death was ruled the result of SIDS by the coroner.  Despite the clearly abusive practices of the Detectives here, they are still working "with the full support of the department" according to the NPR story.

What is so important about this story is that it is not unique. In May the United States Court of Appeals for the Ninth Circuit reversed the conviction and life sentence imposed on Jonathan Doody.  [Full disclosure: I worked for the firm that represents Doody for a few years in the early-mid 90s and did some work on his case.] Doody was seventeen when he was accused of murdering nine people, including six monks, in a Thai Buddist Temple in Arizona in 1991.  Police initially arrested and obtained confessions from four other men.  When it became clear that they were innocent police arrested Doody based on a tip and extracted a confession from him in an interrogation that lasted 12 hours. The Ninth Circuit found that Doody's Miranda rights had been violated and that "nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary." The court knew this because Doody's interrogation had also been recorded

False confessions are particularly pernicious because they are so convincing.  Why, after all, would anyone confess to a crime that they did not commit? But people do and juries believe the false confessions.  The Innocence Project found that 25% of DNA exonerations were the result of false confessions.

The best way to solve this problem is what saved Truong and Doody: record all police interrogations. Some states have made reforms in this direction but not enough.  Such a reform was recommend here in California by the Commission on the Fair Administration of Justice, but so far no action has been taken.

The other much need change is in that police departments and prosecutors need to change their attitudes. There is no indication that any discipline was given to the officers involved in these case, indeed, as in most such cases the police and prosecution deny wrongdoing even after losing in court.  That is no way to run a justice system.  Without these simple changes more wrongful convictions are virtually assured.

Keep Your Distance: Ron Paul Is A "Full Bore Crank"

DonkeyHotey

There is nothing charming about Ron Paul.  Much like a broken clock, he gets a couple of things right -- anti-war and anti-torture.  But that does not make him interesting or credible or anything close to a reasonable candidate for President.

I couldn't agree more with Kevin Drum who describes Paul as "a full bore crank. In fact he's practically the dictionary definition of a crank: a person who has a single obsessive, all-encompassing idea for how the world should work and is utterly blinded to the value of any competing ideas or competing interests."

This obsessive idea has, at various times in his career, led him to: denounce the Civil Rights Act because it infringed the free-market right of a monolithic white establishment to immiserate blacks; to dabble in gold buggery and advocate the elimination of the Federal Reserve, apparently because the global economy worked so well back in the era before central banks; suggest that the border fence is being built to keep Americans from leaving the country; claim that Social Security and Medicare are unconstitutional and should be dismantled; mount repeated warnings that hyperinflation is right around the corner; insist that global warming is a gigantic hoax; hint that maybe the CIA helped to coordinate the 9/11 attacks; oppose government-sponsored flu shots; and allege that the UN wants to confiscate our guns.

It is one thing to be non-interventionist, but taken to the extreme views that Paul holds, it would mean that U.S. participation in World War II was misguided.  On the domestic front, Paul notoriously asserted his belief that FEMA should not have responded to Hurricane Katrina. And more recently confirmed his view that there is no need for sexual harassment laws in the workplace.

And that's not all. "As we've all known for the past four years, you can layer on top of this Paul's now infamous newsletters, in which he supported a political strategy consciously designed to appeal to the worst strains of American homophobia, racial paranoia, militia hucksterism, and new-world-order fear-mongering."

The "bottom line," as Drum says, is that Paul is not merely a "flawed messenger" for anti-war and civil liberties positions, "he's an absolutely toxic, far-right, crackpot messenger for these views."  As  Drum concludes, "if you truly support civil liberties at home and non-interventionism abroad, you should run, not walk, as fast as you can to keep your distance from Ron Paul."

G.O.P. Candidates Flunk The Civil Liberties Test

Obama doesn't exactly pass the Candidate Report Card On Civil Liberties with flying colors but what a contrast to the Republican field.  As Digby puts it so well:  "Unless Paul unexpectedly gets the GOP nomination or Johnson suddenly surges as a third party candidate, we are assuredly looking at GOP nominee who is basically an authoritarian nutcase across the board. There's not even the tiniest bit of daylight there. Good God."

"Serious Reservations" About President Obama

It hardly matters that President Obama may have "serious reservations" about the indefinite detention provisions that he just signed into law as part of the defense spending bill.  And it provides little comfort that his signing statement purports to clarify that his "Administration will not authorize the indefinite military detention without trial of American citizens,” or that he believes "that doing so would break with our most important traditions and values as a Nation."

The problem, as David Dayen points out "was always about the codifying of indefinite military detention into the law, available for any future President to pick up and use."  Or as the ACLU puts it: "the statute is particularly dangerous because it has no temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield."
 
Dayen further explains:

The vagaries of the language in the statute, which allows for detentions of people “associated” with Al Qaeda, and the burden on Presidential waivers to avoid military detentions rather than an opt-in kind of process, make the language extremely unadvisable from the standpoint of the civil liberties community. However, it’s important to recognize that the Obama Administration really was already in practice allowing for the indefinite military detention of terrorist suspects. They didn’t want language that hindered their counter-terrorism processes, particularly those of the FBI. That’s what they got out of the changes, so the codification really didn’t matter to them at that point. There are painfully few political actors in Washington opposed to this complete breach of the Constitutional right to due process.

So, President Obama, how about some Wilco to close out 2011?  Unfortunately, unlike the lyric, I do have reservations about you.  Serious reservations.

Last Call For Obama To Veto The NDAA

By Nicole Flatow, cross-posted from American Constitution Society

Following Congress’s enactment of the National Defense Authorization Act with some tweaks to the detainee provisions, the White House put out a statement that President Obama’s advisers would no longer recommend he veto the law.

Most have viewed this as an indirect announcement from Obama himself that the veto is off the table. But the Brennan Center for Justice’s Elizabeth Goitein reminds Obama in a column for The Hill that he alone will make the decision, and that it’s not too late to “reject this historic affront to our liberty and our security.”

“It would be extraordinary for the president to change course now,” writes Goitein, co-director of the Brennan Center’s Liberty and National Security. “But to sign a bill that permits the indefinite detention of U.S. citizens without charge, erects pointless barriers to law enforcement’s counterterrorism efforts, and requires the detention of innocent people would be even more extraordinary.”

Disappointment among civil libertarians has been widespread, with the Center for Constitutional Rights saying Obama has made a “choice with chilling consequences” and Human Rights Watch’s Kenneth Roth warning, "By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law."

Georgetown University Law Professor David Cole explains in The New York Review of Books why the bill, even as amended, “continues to contain extraordinarily dangerous principles”:

It creates a presumption in favor of indefinite military detention for foreign al-Qaeda suspects, even if a criminal arrest and prosecution would be the preferred course. And it imposes this presumption even for foreigners caught within the United States. While the law permits the president to waive that, the presumption is still wrong: given its inconsistency with basic principles of due process, indefinite military custody should be the last, not the first resort.

Equally problematic, the law puts Congress’s stamp on a dubious—and untested—interpretation of military detention authority. The law provides that indefinite detention without charge may be imposed on anyone who has provided “substantial support” to groups that are “associated forces” of al-Qaeda; but it leaves undefined what constitutes “substantial support” and which groups might qualify as “associated forces.” Thus far, the lower federal courts have upheld detention of al-Qaeda or Taliban members, but not mere supporters, much less supporters of associated forces. And there is much dispute about whether the laws of war permit detention in those circumstances. Now Congress has essentially predetermined that question. Unless this and future administrations construe these provisions as limited by the laws of war, they risk authorizing detention that the laws of war would not.

Most disturbingly, the law still effectively prevents President Obama from closing Guantanamo. He can’t use any funds to build or modify a facility in the United States to house Guantanamo detainees—a necessary precondition to closing the prison. He cannot transfer any Guantanamo detainee to the United States, even to face criminal trial. And he cannot release any detainee to another country without meeting onerous certification requirements regarding that country’s security measures that, until now, have proven impossible to meet. (To its credit, the administration did get the conference committee to water down the certification requirements somewhat, but it still seems unlikely that they will be met.)

Drones Are Coming To America

The ACLU has released an important report on the domestic use of drone aircraft by law enforcement and what protections must be implemented to protect our privacy.

Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft

Cross-posted from the ACLU website

Unmanned aircraft carrying cameras raise the prospect of a significant new avenue for the surveillance of American life. Many Americans have heard of these aircraft, commonly called “drones,” because of their use overseas in places like Afghanistan and Yemen. But drones are coming to America, and, as an ACLU report concludes, protections must be put in place to guard our privacy. Download the report »

As technology is quickly becoming cheaper and more powerful, and interest in deploying drones among police departments is increasing around the country, our privacy laws are not strong enough to ensure that the new technology will be used responsibly and consistently with democratic values.

In early 2012, the Federal Aviation Administration is expected to propose new rules to make it much easier for law enforcement agencies to gain permission to use drones in the U.S. If the FAA is unable to implement the needed reforms, then Congress must act.

The ACLU’s report outlines a set of protections that would help protect Americans’ privacy in the coming world of domestic drones. The report recommends that drones should not be deployed unless there are grounds to believe that they will collect evidence on a specific crime. If a drone will intrude on reasonable privacy expectations, a warrant should be required. The report also calls for restrictions on retaining images of identifiable people, as well as an open process for developing policies on how drones will be used. Download the report »

Routine aerial surveillance in American life would profoundly change the character of public life in the United States. Rules must be put in place to ensure that we can enjoy the benefits of this new technology without bringing us closer to a “surveillance society” in which our every move is monitored, tracked, recorded, and scrutinized by the authorities.

Download the report, “Protecting Privacy From Aerial Surveillance: Recommendations for Government Use of Drone Aircraft” »

The Trial Of Bradley Manning: Intimidation, Retaliation, Retribution

By Ann Wright, cross-posted from WarIsACrime.org (formerly AfterDowningStreet)

Yesterday, December 16, 2011, 40 supporters of Bradley Manning saw him in person in the military courtroom at Fort Meade, Maryland and another 60 saw him on a video feed from the court, the first time Manning has been seen by the public in 19 months.  Over 100 other supporters, including 50 from Occupy Wall Street who had bused down from New York City, were at the front gates of Fort Meade in solidarity with Manning.

Hundreds of supporters will gather today, Saturday, December 17, for a large rally and march.
For his first court appearance, Bradley was in what looked to be a new military uniform and typically military, he had a fresh haircut.  He was not in shackles in the courtroom, but it appeared in a photo that he was shackled in the van that brought him to the court. Manning talked freely with his civilian defense counsel and his two military legal counsels.

He did not turn around and look at the people in the court, but as he was brought in and taken out during the various recesses of the court, he no doubt noticed supporters in Bradley Manning t-shirts.
Bradley Manning has been imprisoned for 19 months, since May, 2010, without a trial.  Yesterday, December 16, 2011, an Article 32 hearing began at Fort Meade, Maryland, in which an investigating officer will determine whether there is sufficient evidence of the crimes with which the military has charged him for the case to be referred to a General court-martial.

In July, 2010, Manning was charged with transferring classified information onto his personal computer and communicating national defense information to an unauthorized source.  22 more crimes were charged in March 2011, including "aiding the enemy," a capital offense.  Defense Department prosecutors said they would not seek the death penalty. In April, 2011, Manning was found fit to face a court martial.


Defense Challenges Impartiality of Investigating Officer

On Friday, December 16, Manning’s civilian lawyer, David Coombs challenged the impartiality of the investigating officer US Army Reserve Lieutenant Colonel Paul Almanza, citing Almanza’s civilian employment as a lawyer in the Department of Justice which has conducted investigations on Manning, Julian Assange, and Wikileaks. The defense team had requested that 38 witnesses be allowed to testify in the Article 32 hearing. Coombs also said that the decision of Almanza to allow only two defense witnesses other than the10 the prosecution wanted demonstrated a bias by Almanza.

Coombs told Almanza,  “That simple fact alone, without anything else, would cause a reasonable person to say, ‘I question your impartiality.’ ” Stating that his office of child exploitation in the Department of Justice had nothing to do with the Wikileaks investigation or with national security issues, Almanza denied Coombs’ request for recusal.

Almanza told Coombs and Manning, “I do not believe a reasonable person, knowing all the circumstances, would be led to the conclusion that my impartiality would be reasonably questioned.  I thus deny the defense request to recuse myself.”

After that, Coombs filed a writ with the Army Court of Criminal Appeals to stay the proceedings until a decision can be made on whether Almanza should continue to preside. According to military law experts, the hearing can proceed while the appeals court makes its determination.

Manning under harsh imprisonment at Quantico reeked of intimidation and retaliation

The military’s treatment of Manning has reeked of intimidation and retaliation.

Until citizen activist protests six months ago in March, 2011, brought sufficient attention to the harsh conditions of his pre-trial confinement, the US military was treating  him as if he were beyond the scrutiny of the law — as if he were an "enemy combatant" in Guantanamo or Abu Ghraib.  Amnesty International and the United Nations Special Rapporteur on Torture expressed great concern about the conditions under which Manning was being held — in a maximum-security, single-occupancy cell, placed on a prevention-of-injury order and allowed to wear only a suicide-proof smock at night.

Independent UN expert on torture calls for unrestricted access to Manning and other US detainees 

On July 12, 2011, Juan Mendez, the United Nations Special Rapporteur on Torture, stated that it was "vital for him to have unmonitored access to Bradley Manning." Mendez said,

"I am assured by the US Government that Mr. Manning's prison regime and confinement is markedly better than it was when he was in Quantico, however, in addition to obtaining firsthand information on my own about his new conditions of confinement, I need to ascertain whether the conditions he was subjected to for several months in Quantico amounted to torture or cruel, inhuman or degrading treatment or punishment. For that, it is imperative that I talk to Mr. Manning under conditions where I can be assured that he is being absolutely candid."

At the request of Mr. Mendez and after several meetings, the US Department of Defense said it would allow him to visit Mr. Manning, but warned that the conversation would be monitored.

Mendez said such a condition violated long-standing rules that the UN applies for prison visits and for interviews with inmates everywhere in the world. On humanitarian grounds and under protest, Mr. Mendez, through Mr. Manning's counsel, offered to visit him under these restrictive conditions, an offer Manning declined.

Mr. Mendez said, "The question of my unfettered access to a detainee goes beyond my request to meet with Mr. Manning -- it touches on whether I will be able to conduct private and unmonitored interviews with detainees if I were to conduct a country visit to the United States."

Additionally, Mr. Mendez has requested several times since his appointment in November, 2010, that the US Government allow him to visit the US military prison at Guantanamo Bay, Cuba. However, the US government has not responded to his requests.

Best Military Legal System in the World?

Despite the military’s mantra of having the best military legal system in the world, the past treatment of Manning—keeping him in solitary confinement, forcing him to stand naked while in pre-trial confinement and the lack of compliance with the norms of the military legal system of a "speedy" trial have added to the low points of Abu Gharib and Guantanamo in the history of military “justice.”
The federal courts have long established mechanism of dealing with classified information in national security cases.

The military’s contention that it took 19 months to figure out how to try him while protecting classified materials reeks of intimidation, retribution and retaliation. 

Ann Wright is a retired US Army Reserve Colonel and a former US diplomat who resigned in 2003 in opposition to the Iraq war.  She is a member of Veterans for Peace and is on the Advisory Board of the Bradley Manning Support Network

Obama To Enshrine Indefinite Detention Into Law

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.  -- Presidential Proclamation, Bill of Rights Day, 2011

More irony from the Obama Administration.  As the President proudly commemorates the 220th anniversary of the adoption of the Bill of Rights, he shamelessly plans to sign the Defense Authorization Act despite provisions which will allow him -- or any future president -- to indefinitely imprison, without a criminal charge or court hearing, any suspected terrorist who is captured within the United States -- including American citizens.

Obama previously threatened to veto the bill but -- oh, what a surprise -- he has reconsidered after provisions "mandating" military custody of non-citizen terrorism suspects arrested on US soil were rendered optional.

Senator Patrick Leahy (D-VT) who strongly opposed these provisions issued a statement which reads in part:

Supporters of this measure will argue that this language simply codifies the status quo. That is not good enough.  I am not satisfied with the status quo.  Under no circumstances should the United States of America have a policy of indefinite detention.   I fought against Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy.  And I strongly opposed President Obama’s executive order on detention when it was announced last March, because it contemplated, if not outright endorsed, indefinite detention.

The ACLU asserted that the bill contains “harmful provisions that some legislators have said could authorize the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world” and added: “if President Obama signs this bill, it will damage his legacy.”

Human Rights Watch said that Obama’s decision “does enormous damage to the rule of law both in the US and abroad” and that “President Obama will go down in history as the president who enshrined indefinite detention without trial in US law.”

As Adam Serwer concludes:

The administration had said that the military detention provisions of an earlier version of the NDAA were "inconsistent with the fundamental American principle that our military does not patrol our streets."
The revised NDAA is still inconsistent with that fundamental American principle. But the administration has decided that fundamental American principles aren't actually worth vetoing the bill over.

 Happy Bill of Rights Day, everyone.