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Doctors Who Facilitate Torture Must Be Held to AccountPhysicians hold a special position in U.S. society. They are given a place of honor in return for the expectation that they will use their knowledge and skills in the public interest and adhere to a clear set of ethical standards.Under pressure from the government to misuse their expertise, though, some doctors have been willing to rationalize cooperation in unethical behavior. In recent years, nowhere has such ethical deviation been so starkly on display as in the case of the participation of medical professionals in the CIA torture program. The recent release of a CIA report, secured through an ACLU lawsuit, details how doctors willingly and even proudly became complicit in the CIA’s torture program.The warped rationalizations the CIA doctors used to justify their participation reflect a blatantly unprofessional eagerness to violate medical ethics when encouraged by a government agenda. Once they began participating in interrogations — which is clearly prohibited by American Medical Association (AMA) guidelines — CIA medical professionals went to absurd lengths to deny the reality of the abuses and physical and psychological harms they were witnessing and effectively presiding over.At one point, CIA doctors decided that waterboarding actually “provided periodic relief” to one prisoner “from his standing sleep deprivation.” The CIA doctors also claimed that when a different prisoner was forced into a coffin-sized box, this provided a “relatively benign sanctuary” from other torture methods. The descent into complicity with torture was so deep that they lost sight of the clear ethical breach in helping to modulate relative levels of pain infliction.Torture isn’t the only recent example of unethical physician complicity in U.S. human rights violations. Throughout the last century, and into the current one, physicians have participated in all methods of executions, most recently through lethal injection, in violation of professional ethical guidelines. In a number of states that execute prisoners by lethal injection, physicians have continued to consult on lethal dosages, examine veins, start intravenous lines, witness executions, and pronounce death. Some doctors argue that a physician may be able to alleviate suffering during an execution. The presence of a physician, however, lends a veneer of humanity to a practice that is anything but humane. And all of these acts are in violation of ethical guidelines established by the AMA as well as the World Medical Association.As Physicians for Human Rights laid out in its seminal report, “Breach of Trust,” written with the American College of Physicians and other groups, “doctors are trusted to act in the best interests of their patients, and participating in an execution fundamentally violates that trust.”The twisted logic that states use to enlists doctors in executions — by claiming they are “easing the suffering” of those about to be killed — can also be seen in the CIA doctors’ misguided belief that they can lessen the pain of torture. These are merely excuses.Execution and torture are not medical procedures, and they are not within the scope of medical practice. The trust society places in physicians to work for the benefit of their patients and the public is shattered when medical skills are used to facilitate state executions or government-sponsored torture. Justifications for such collusion are further eroded by the secrecy and anonymity that often accompanies this participation. A number of states have adopted laws that provide anonymity for doctors who participate in executions. Some also pay participating doctors in cash to eliminate a paper trail. Going to such lengths to keep identities hidden is an implicit acknowledgment that something that cannot survive professional or public scrutiny is taking place.The medical profession cannot regulate and police itself properly if violators are protected from scrutiny and review. To prevent further stains on the medical profession through complicity in torture or executions, the names of those involved in both practices need to be made public. State medical boards, which are responsible for licensure and discipline, should define physician participation in torture and executions as unethical conduct and take appropriate action against physicians who violate ethical standards. In some cases, they should consider removing the medical licenses of those found to have participated in torture or executions. The CIA report claims that the torture techniques were “reassuringly free of enduring physical or psychological effects.” Those involved should be made to defend this assertion publicly, in light of what we now know. The detainees remaining in Guantanamo, and many of those released, still suffer from severe and disabling Post Traumatic Stress Disorder. In fact, one of the detainees referenced in the report was evaluated by a doctor appointed by the Defense Department who said he was one of the “most traumatized individuals I have seen” among hundreds of torture victims evaluated. The doctors who facilitated his torture should be held to public scrutiny.The betrayal of ethical obligations by doctors in any circumstances should result in public stigma that will serve to deter future such actions. National professional associations should condemn those who collude in abuse and violations of core ethical obligations and remove them from membership if they are identified. Without consequences, we will all suffer a continuing threat posed to the moral standing of physicians.Sign up for the ACLU's Best Reads and get our finest content from the week delivered to your inbox every Saturday.
Your Rights in the Border ZoneOn Jan. 19, two Border Patrol agents boarded a Greyhound bus at a Fort Lauderdale station and proceeded to question passengers row by row. The bus, traveling from Orlando to Miami, had not crossed any international borders. Despite its domestic route, the agents interrogated passengers, ultimately detaining a Jamaican national who, Border Patrol claims, had overstayed her tourist visa. This story is not an isolated occurrence, and the practice is hardly new. However, a recent uptick in this type of immigration operation — from New York to Florida — has caused fear among travelers and immigrant communities. It has also raised important questions about the scope of immigration officials’ authority and the rights one has in these encounters.Are immigration officials allowed to stop people in places wholly inside the U.S.?U.S. Customs and Border Protection, the federal agency tasked with patrolling the U.S. border and areas that function like a border, claims a territorial reach much larger than you might imagine. A federal law says that, without a warrant, CBP can board vehicles and vessels and search for people without immigration documentation “within a reasonable distance from any external boundary of the United States.” These “external boundaries” include international land borders but also the entire U.S. coastline.What is a “reasonable distance”?The federal government defines a “reasonable distance” as 100 air miles from any external boundary of the U.S. So, combining this federal regulation and the federal law regarding warrantless vehicle searches, CBP claims authority to board a bus or train without a warrant anywhere within this 100-mile zone. Two-thirds of the U.S. population, or about 200 million people, reside within this expanded border region, according to the 2010 census. Most of the 10 largest cities in the U.S., such as New York City, Los Angeles, and Chicago, fall in this region. Some states, like Florida, lie entirely within this border band so their entire populations are impacted.Are there limitations to immigration officials’ power? The Fourth Amendment to the U.S. Constitution protects against arbitrary searches and seizures of people and their property, even in this expanded border area. Furthermore, as a general matter, these agents’ jurisdiction extends only to immigration violations and federal crimes. And, depending on where you are in this area and how long an agent detains you, agents must have varying levels of suspicion to hold you.We will examine specific scenarios where one might encounter CBP in more depth, but here are your key rights. These apply to every situation, outside of customs and ports of entry.You have the right to remain silent or tell the agent that you’ll only answer questions in the presence of an attorney, no matter your citizenship or immigration status. You do not have to answer questions about your immigration status. You may simply say that you do not wish to answer those questions. If you choose to remain silent, the agent will likely ask you questions for longer, but your silence alone is not enough to support probable cause or reasonable suspicion to arrest, detain, or search you or your belongings.A limited exception does exist: for people who do have permission to be in the U.S. for a specific reason and for, usually, a limited amount of time (a “nonimmigrant” on a visa, for example), the law does require you to provide information about your immigration status if asked. While you can still choose to remain silent or decline a request to produce your documents, people in this category should be aware that they could face arrest consequences. If you want to know whether you fall into this category, you should consult an attorney.Generally, an immigration officer cannot detain you without “reasonable suspicion.” Reasonable suspicion is less robust than probable cause, but it is certainly not just a hunch or gut feeling. An agent must have specific facts about you that make it reasonable to believe you are committing or committed, a violation of immigration law or federal law.If an agent detains you, you can ask for their basis for reasonable suspicion, and they should tell you.An immigration officer also cannot search you or your belongings without either “probable cause” or your consent. If an agent asks you if they can search your belongings, you have the right to say no.An immigration officer cannot arrest you without “probable cause.”That means the agent must have facts about you that make it probable that you are committing, or committed, a violation of immigration law or federal law.Your silence alone meets neither of these standards. Nor does your race or ethnicity alone suffice for either probable cause or reasonable suspicion.Other important factors to keep in mind:If an agent asks you for documents, what you need to provide differs depending on your immigration status. U.S. citizens do not have to carry proof of citizenship on their person if they are in the United States. If you have valid immigration documents and are over the age of 18, the law does require you to carry those documents on you. If you are asked by an immigration agent to produce them, it is advisable to show the documents to the agent or you risk being arrested. If you are an immigrant without documents, you can decline the officer’s request. An agent may likely ask you more questions if you decline a request. No matter what category you fall into, never provide false documents to immigration officials.People who have entered the U.S. without inspection by an immigration official may be subject to expedited removal from the U.S. Expedited removal is a summary deportation that bypasses an immigration judge. The federal government says that it will only attempt to apply expedited removal to individuals who have entered the United States without inspection in the last 14 days, have been encountered by an immigration officer within 100 miles of the border, and meet certain other criteria. If you are told that you are subject to expedited removal but do not fall within that category, you should let the agents know. Also, if you fear persecution if returned to your country of origin, you should immediately inform the agents of your fear.How Does This Work in Real Life?CBP on Buses and TrainsAs part of its immigration enforcement efforts, CBP boards buses and trains in the 100-mile border region either at the station or while the bus is on its journey. More than one officer usually boards the bus, and they will ask passengers questions about their immigration status, ask passengers to show them immigration documents, or both. These questions should be brief and related to verifying one’s lawful presence in the U.S. Although these situations are scary, and it may seem that CBP agents are giving you an order when they ask you questions, you are not required to answer and can simply say you do not wish to do so. As always, you have the right to remain silent.Refusing to answer CBP’s questions may result in the agent persisting with questioning. If this occurs, you should ask if you are being detained. Another way to ask this is to say, “am I free to leave?” If the agent wishes to actually detain you — in other words, you are not free to leave — the agent needs at least reasonable suspicion that you committed an immigration violation to do so. Also, if an agent begins to question you about nonimmigration matters, say to ask about drug smuggling, or if they haul you off the bus, they need at least reasonable suspicion that you committed an offense in order to briefly detain you while they investigate. You can ask an agent for their basis for detaining you, and they should tell you.The longer CBP detains you the more suspicion they need — eventually they will need probable cause once the detention goes from brief to prolonged. If the agent arrests you or searches the interior of your belongings, they need probable cause that you committed an offense. You can ask the agent to tell you their basis for probable cause, and they should be able to articulate their suspicion.CBP at Immigration CheckpointsCBP operates immigration checkpoints along the interior of the United States at both major roads — permanent checkpoints — and secondary roads — “tactical checkpoints”— as part of its enforcement strategy. Depending on the checkpoint, there may be cameras installed throughout and leading up to the checkpoint and drug-sniffing dogs stationed with the agents. At these checkpoints, every motorist is stopped and asked about their immigration status. Agents do not need any suspicion to stop you and ask you questions at a lawful checkpoint, but their questions should be brief and related to verifying immigration status. They can also visually inspect your vehicle. Some motorists will be sent to secondary inspection areas at the checkpoint for further questioning. This should be done only to ask limited and routine questions about immigration status that cannot be asked of every motorist in heavy traffic. If you find yourself at an immigration checkpoint while you are driving, never flee from it — it’s a felony.As before, when you are at a checkpoint, you can remain silent, inform the agent that you decline to answer their questions or tell the agent you will only answer questions in the presence of an attorney. Refusing to answer the agent’s question will likely result in being further detained for questioning, being referred to secondary inspection, or both. If an agent extends the stop to ask questions unrelated to immigration enforcement or extends the stop for a prolonged period to ask about immigration status, the agent needs at least reasonable suspicion that you committed an immigration offense or violated federal law for their actions to be lawful. If you are held at the checkpoint for more than brief questioning, you can ask the agent if you are free to leave. If they say no, they need reasonable suspicion to continue holding you. You can ask an agent for their basis for reasonable suspicion, and they should tell you. If an agent arrests you, detains you for a protracted period or searches your belongings or the spaces of your vehicle that are not in plain view of the officer, the agent needs probable cause that you committed an immigration offense or that you violated federal law. You can ask the agent to tell you their basis for probable cause. They should inform you.CBP Roving PatrolsCBP conducts yet another interior enforcement activity: roving patrols. During these patrols, CBP drives around the interior of the U.S. pulling motorists over. For these operations, the Supreme Court requires CBP to have reasonable suspicion that the driver or passengers in the car they pulled over committed an immigration violation or a federal crime. If they do pull you over, an agent’s questions should be limited to the suspicion they had for pulling you over and the agents should not prolong the stop for questioning unrelated to the purpose of the stop. Any arrest or prolonged stop requires probable cause. You may ask the agent their basis for probable cause, and they should tell you. In this situation, both the driver and any passengers have the right to remain silent and not answer questions about their immigration status.Encounters with CBP, or any law enforcement agent, can be intimidating and scary. It is always best to stay calm and be courteous when dealing with immigration officials. If you believe your rights have been violated, you should contact an attorney.
CIA Torture Killed My Father. I Want to Know What They Did With His Body.This piece was originally published by The Washington Post.I believe there are two paths in life — the paths of right and wrong — and that all people know the right path in their hearts. So I believe that people in America, if they can read this, will know the right thing for their government to do is tell me and my family what happened to my father’s body.My father was Gul Rahman. Sixteen years ago, he was wrongfully imprisoned by the CIA because it suspected he was a militant. He was then tortured and killed in a secret CIA prison in Afghanistan — the only person known to have been killed at a CIA “black site.”I was 10 years old when he disappeared. He was a good and ordinary man and a wonderful father to me and my three younger sisters. We were living then in a camp in Pakistan for Afghan refugees fleeing the war in our country. We had little, but we were eating and surviving, and my father always had a positive outlook. He was always working to solve not only my family’s problems but also the problems of others around us who had even less than we did.We were poor, but he had a way of making us feel as though we owned a mountain. Even today, I can picture how he looked when he laughed and get back a little bit of that feeling.But for the past year, the picture of my father in my mind has been crowded out by another image. It is from an article in the Guardian describing a report from a CIA investigation into my father’s death. The report detailed his last hours, as he was freezing to death because he was “shackled . . . on bare concrete while nude from the waist down.” It said at 8 a.m. on Nov. 20, 2002, two hours before he was found dead, a guard saw my father was alive and shivering and that his eyes were “open and blinking.”That is how I learned the terrible final details of what happened to my father between the time he left home one morning on a trip to see a doctor in Islamabad and the time his eyes closed forever. For 15 years, my family had been asking for information from the governments of Pakistan and Afghanistan, pleading to know whether he was alive or dead. In 2010, we heard from American journalists that my father had supposedly been tortured to death in a secret prison in Afghanistan, but no official ever confirmed this was true.My sisters and I came of age during those years. To those around us, my father was dead. My mother was a widow, and we were her fatherless children, which left us in the margins of our society. But we did not know for sure, and he never had a funeral. My grandmother believed until the day she died that her son was alive and would be coming home.For me, the hardest thing about those years was discovering how much I had lost. The more people I met, the more I understood my father’s goodness was an example of the best in Afghan society. Seeing that — and knowing how much that humanity is needed for the future of my country — made it harder for me to accept the rumors that he had been killed. Like my grandmother, I kept alive a small hope that he would come home.Any hope I held on to finally ran out in 2014, when the U.S. Senate wrote a report about secret American prisons torturing men, and how that abuse killed my father.My family and two of the men who survived this torture sued in federal court to try to get some justice. It was during this lawsuit against the psychologists behind the CIA’s torture program that the government released the report that described my father’s last hours. As part of the settlement, my family received a statement that said, “Gul Rahman was subjected to abuses in the CIA program that resulted in his death and pain and suffering to his family.”The truth hurts, but it also helps. We were finally able to gather for a memorial to my father.But that is not the same as a proper funeral, which is considered essential in our culture. We believe people who are not buried and mourned correctly cannot rest in peace. This may be why I am so haunted by the image of my father’s eyes in that report, still open and still blinking.Six months ago, my family filed a request with the U.S. government to give us information about what happened to my father’s body. The government did not answer. Now our lawyers have filed a lawsuit to get that information. I am hoping the American people will join us in asking their government to do what is right, so we can do the right thing for my father.
New NYPD Drone Policy Represents a Serious Threat to PrivacyThe New York Police Department announced this week that it will deploy 14 new drones as part of its policing activities across New York City. The use of this highly invasive technology represents a new frontier for both public safety and abuses of power.The department did reach out to the NYCLU to ask us for input on a draft of the policy governing the use of its drones. But while the department did make some changes based on our recommendations, we remain deeply concerned about the policy’s serious shortcomings.First, it’s important to understand just how powerful drones are. The NYPD’s drones are outfitted with cameras equipped with sophisticated technology and 4K resolution. The mere presence of these police cameras can create a chilling effect on people exercising their rights to free speech, protest, and other lawful activities.Because they are so small, nimble, and relatively inexpensive, drones are in many cases much more attractive surveillance tools than, say, police helicopters. Mass-deploying helicopters is prohibitively expensive, but regularly using drones is much more feasible. And, because they are small, they can fly in places helicopters can’t reach, like into a person’s garage or just outside a bedroom window.Given how easy drones make surveillance and the NYPD's troubling history of unlawful spying, it’s critical that the policies that govern their use put strict limits on when and where they can be deployed.The department’s policy allows drones to be used to monitor vehicle traffic and pedestrian congestion at large scale events as well as rooftop security observation at shootings or “large scale events.” But the policy does not clearly define what a “large scale event” is. The department mentioned the Women’s March and Times Square New Year’s Eve celebrations, but it’s unclear what smaller events could trigger the use of drones.One of our biggest fears is that these devices could be used to spy on protesters legally exercising their constitutional rights. The NYPD’s policy does little to quell our concerns.The policy also allows the NYPD’s chief of department to approve requests from officers to use drones for “public safety or emergency situations.” What constitutes public safety or emergency situations remains undefined, leaving wide open the possibility that those terms will be applied to a broad range of instances. We told the department that it should better define these terms, but our recommendation went unheeded in the final policy.One bit of good news in the policy is that it specifically forbids equipping the drones with facial recognition technology. But this good news is tempered by the fact that the policy does not forbid the department from going back and using this technology on the footage captured by the drones’ cameras.Facial recognition technology is incredibly invasive and prone to error, especially when trying to identify young people and people of color. Its use on drone footage, which could potentially capture the movements of hundreds of thousands of New Yorkers, poses a severe privacy risk.We raised our concerns with the NYPD, and the department did end up including a prohibition on using face surveillance on drone footage. But the final policy includes a loophole for this ban in the case of a “public safety concern.” Once again, this term is undefined and could potentially create an exception so big it swallows the rule.Finally, we recommended that the NYPD only keep footage captured by drones for 24 hours, absent specific, well-defined reasons for holding on to it for longer. The longer the NYPD keeps the footage, and the more footage there is, the greater the chances are that it will be misused.The NYPD’s final policy says footage will be kept for 30 days, but it also includes some specific — and one very non-specific — examples of when retention would be extended beyond that limit. The retention period can be extended “if the images are needed for civil litigation, subpoena production, FOIL requests or other legal process.” While “other legal process” is undefined and could constitute another troubling loophole, the other scenarios track with our recommendations. Overall, the NYPD’s drone policy places no meaningful restrictions on police deployment of drones in New York City and opens the door to the police department building a permanent archive of drone footage of political activity and intimate private behavior visible only from the sky. While we appreciate the NYPD’s willingness to meet with us before it announced this program, the department should have done more to engage directly with the communities most likely to be impacted by this new technology.
It’s Time to Close a Loophole in the Constitution’s Double Jeopardy RuleUpdate: Today, December 5, 2018, the Supreme Court hears oral argument in Gamble v. United States, which seeks to eliminate the so-called “dual sovereignty” exception to the Double Jeopardy Clause. The ACLU and ACLU of Alabama co-authored an amicus brief with the Cato Institute and Constitutional Accountability Center to support Mr. Gamble and close the unconstitutional loophole. Other amici from across the ideological spectrum, including Sen. Orrin Hatch (R-UT) and the National Association of Criminal Defense Lawyers, agree with ACLU’s position.The Double Jeopardy Clause of the Fifth Amendment states that no one can be tried more than once for the same crime. The clause is designed to protect people from the danger of multiple prosecutions by overzealous prosecutors. Yet, since 1922, the Supreme Court has undermined this clause with an exception that allows state and federal prosecutors to bring separate charges for the same alleged crime. As a result, people can be prosecuted twice for the same offense — so long as the prosecutors are from separate “sovereigns.” This “dual-sovereignty” loophole should be closed. On Tuesday, the ACLU and ACLU of Alabama, alongside the Cato Institute and the Constitutional Accountability Center, filed an amicus brief in Gamble v. United States urging the Supreme Court to end the exception for good. The case involves Terance Gamble, who was convicted in 2016 by a federal court for weapons possession when he had already been tried and convicted in Alabama state court for the same exact crime. The federal conviction added years to his prison term.For nearly a century, the Supreme Court has operated under the questionable logic that having state and federal prosecutors bring the same case against the same person for the same offense in two different jurisdictions somehow makes it permissible.So, under the current rules, if a defendant like Gamble is found guilty in state court, federal prosecutors, whose criminal statutes generally carry far heavier sentences, can still pursue a second case and substitute their sentencing judgment for that of the state. Even worse, if a defendant is found not guilty in state court — meaning she is legally innocent — federal prosecutors can still prosecute. This is a betrayal of both the spirit and letter of the Double Jeopardy Clause, which was supposed to protect people from just such successive prosecutions.The framers knew that to a defendant accused of a crime, it doesn’t matter who’s doing the prosecuting — only that it should not happen more than once. The Double Jeopardy Clause was derived from a British common law rule that applied to prosecutions by separate sovereigns. And developments over the last 50 years only support closing of the loophole.First, in 1969, the Supreme Court made the Double Jeopardy Clause applicable to the states as well as the federal government. Therefore, no single state can prosecute a person twice for the same crime. Neither can the federal government. There is no reason to let them do together what they cannot do alone — prosecute a person twice for the same crime. The court has not revisited the dual-sovereignty exception since this development in 1969.Second, with the ever-metastasizing federal criminal law — there are now over 4,500 federal crimes on the books — there is tremendous overlap with state law on everything from drug possession to tampering with an odometer. This greatly increases the threat of duplicative prosecutions for a vast and increasing amount of conduct.Third, the use of joint state-federal task forces for investigating and prosecuting crime has been on the rise, roughly since President Richard Nixon initiated the war on drugs in the early 1970s. Under the aegis of these forces, state authorities may lose a case and then hand the file to federal prosecutors the very next day. This prosecutorial piggybacking undermines the claim that separate sovereigns occasionally need to investigate the same crime with separate interests. Often, they are simply prosecuting the same case, twice over.It is true that the federal Justice Department has a standing policy discouraging such follow-on prosecutions. But that federal policy doesn’t stop state prosecutors from following federal cases with their own prosecutions. And in any event, we should not have to rely on the grace of federal or state prosecutors when it comes to fundamental rights. The Constitution bars double jeopardy, period.Of course, a key question in this arena — debated vigorously in the wake of the Rodney King beating and Trayvon Martin killing — is whether elimination of the dual-sovereignty exception will hinder the ability of the Justice Department’s Civil Rights Division to rectify state court failures to hold police officers accountable by bringing federal civil rights prosecutions for the same incidents. This question matters greatly to communities of color reeling from unaccountable police abuse. It is also one the ACLU has wrestled with in the past. But we believe the answer in most cases is no. State crimes like murder and assault, which law enforcement officers sometimes commit, are generally different from the federal statutes the Justice Department uses to later prosecute those officers. If the criminal laws are different, the crimes would not be considered the “same offense,” and a second prosecution would not violate double jeopardy, which bars successive prosecutions only for the “same offense.” The Justice Department would often be free to prosecute if it believes justice was not done.Moreover, the Justice Department and private citizens alike may — and should — institute civil actions against bad state and local actors and the offices that harbor them. And public pressure and the election of reform-minded prosecutors can help ensure that state prosecutions of police brutality and prosecutorial misconduct are done, and done right, the first time, obviating the need for a second trial. In other words, the right decision in Gamble would likely not let Rodney King’s or Trayvon Martin’s assailants off the hook. But it would save countless others from being on the hook twice for the same offense — a recurring injustice that is an affront to marginalized communities and the Constitution alike.
President Trump Is Accelerating the Militarization of the Southwest BorderFor decades, the ACLU has fought back against the militarization of domestic law enforcement agencies and the use of the military in our communities. Nowhere is this militarization more pronounced than on the border between the U.S. and Mexico — and President Trump is only making it worse.The creation of the Department of Homeland Security after 9/11 accelerated the government’s operations on the U.S.-Mexico border. U.S. Customs and Border Protection (CBP), a division of DHS, grew in size and scope under the Bush and Obama administrations, gaining additional powers and hiring thousands of new personnel despite a “shocking” pattern of serious misconduct among its officers, including child abuse, sexual assault, wanton cruelty, and murder.The number of Border Patrol agents more than doubled between fiscal year 2000 and 2011, and by the year President Trump took office, CBP reported 19,437 Border Patrol agents on staff nationwide. This rise in Border Patrol agents, however, does not include thousands of other CBP officers on the border or personnel from other federal, state, and local agencies deployed to the border. Shortly after his inauguration, Trump called for the hiring of an additional 7,500 border agents and 10,000 Immigration and Customs Enforcement (ICE) officers, despite the serious concerns over lack of safeguards in hiring procedures and past corruption and criminality among border agents.On top of that, Trump joined Bush and Obama in authorizing the deployment of National Guard troops to the border, sending some 4,000 National Guard troops in 2018. Recently, Trump went even further, sending 5,900 military troops to the Southwest border just prior to the midterm election. The directive, ostensibly to address the arrival of the so-called migrant “caravan,” was clearly an effort to stoke fear of immigrants and influence the election. At the time, the caravan was over 1,000 miles from the border, and the number of unauthorized border crossers was one-third the level seen over a decade ago.The troops will now remain deployed to the border through at least January, even though there is no border crisis requiring a military presence. Despite Trump’s rhetoric, apprehension numbers are at historic lows, and a significant number of apprehensions are family units and unaccompanied children, who, when crossing in-between ports of entry, commonly seek out Border Patrol agents and turn themselves in expressing intentions to seek asylum. This explains why the deployment was rightly panned by military experts as a “blatant political stunt” and a “profound betrayal of our military.” To make matters even worse, the Trump administration has also attempted to expand the military’s authority to use force, including lethal force, along the border.As government forces, most notably CBP, have gained more authority, personnel, and resources at the U.S.-Mexico border, the result has been an increase in civil rights and liberties violations. In a recent show of force, CBP officers used tear gas on a crowd of largely peaceful men, women, and children seeking asylum, a cruel and unnecessary escalation that violated U.S. obligations under international human rights law to process asylum seekers.CBP officials also regularly act like the Constitution does not apply in border areas, operating lawlessly and frequently disregarding the Fourth Amendment’s protection against unreasonable searches and seizures in its “100-mile border zone.” The agency’s wrongheaded practice of racial profiling means that people of color face a disproportionate level of constitutional violations along the Southwest border.But the government’s militarized approach to the border doesn’t only lead to more civil liberties and rights violations — it also leads to more avoidable tragedies.According to The Guardian, 97 people have died following lethal encounters with CBP personnel since 2003. Such encounters include shootings, car chases ending in deadly crashes, and CBP agents forcing a young man to drink liquid methamphetamine. On May 23, 2018, 20-year old Claudia Patricia Gómez González was shot in the head by a Border Patrol agent shortly after crossing into the U.S.Trump’s dangerous promise of a 1000-mile border wall is also likely to cause migrant deaths and more human suffering, devastate the environment, waste taxpayer dollars, and damage border communities. His plans build on years of misguided border fencing policies, including the 700 miles of fence construction approved by Bush and completed under the Bush and Obama administrations.Contributing to the intensification of border security resources has been a lack of political will to create a common-sense immigration system that acknowledges the contributions of immigration and prioritizes the human right to family unity. Coupled with President Trump’s use of the border and immigration issues to drum up racial animosities among voters, the United States continues its slide towards a fully militarized border region that will further erode constitutional protections and human rights in our borderlands.Pompa will testify before the Inter-American Commission on Human Rights on the militarization of the U.S.-Mexico Border tomorrow, Dec. 6, between 10:15-11:15 a.m. ET. ACLU testimony before the commission is part of a regional hearing on “Militarization of Public Security in the Americas.” To tune into the testimony, visit:
The Government Is Trying to Keep Key NSA Spying Rules SecretA federal appeals court in New York will hear oral argument on Tuesday in our lawsuit fighting for the public’s right to know the legal justifications for government spying.The Freedom of Information Act suit seeks the release of secret memos written by government lawyers that provided the foundation for the warrantless surveillance of Americans’ international communications. In essence, these memos serve as the law that governs the executive branch. By withholding them, the government is flouting a core principle of democratic society: The law must be public. The memos cover the government’s legal interpretations of Executive Order 12333, which was issued by President Ronald Reagan in 1981. It’s the primary authority under which the NSA conducts surveillance, and it encompasses an array of warrantless, high-tech spying programs. While much of this spying occurs outside the United States and is ostensibly directed at foreigners, it nonetheless vacuums up vast quantities of Americans’ communications. That’s because in today’s interconnected world, communications are frequently sent, routed, or stored abroad — where they may be collected, often in bulk, in the course of the NSA’s spying activities.For example, the NSA has relied on EO 12333 to collect nearly 5 billion records per day on the locations of cell phones, as well as hundreds of millions of contact lists and address books from email and messaging accounts. It also intercepted private data from Google and Yahoo user accounts as that information traveled between those companies’ data centers located abroad.Despite its breadth, surveillance under EO 12333 is not subject to meaningful oversight by Congress or the courts. This makes learning how EO 12333 works even more important. We’re seeking basic information about the government’s interpretation of the legal boundaries of the executive order and the supposed protections for Americans whose communications are ensnared in this largely unchecked surveillance.Although the government has disclosed some of this information over the course of the case, it’s improperly withholding key parts of a Justice Department memo that provided the basis for President George W. Bush’s unconstitutional warrantless wiretapping program. It’s also withholding six other memos that set out the legal basis for surveillance activities under the order.The government claims that these documents should be kept secret because the memos didn’t expressly and officially impose legal limits that spy agencies had to abide by. But because the memos contain what’s known as “working law” — essentially the rules of the road for what the government does — they shouldn’t be withheld from the public. Working law includes the legal analyses that agencies accept and rely on as a basis for their actions.The legal reasoning in these memos is precisely the kind of information that Congress intended to make public through the Freedom of Information Act. The Supreme Court has issued rulings supporting that principle, saying that “the public is vitally concerned with the reasons” undergirding agency actions. FOIA requires the government to make these reasons public whenever possible. Yet the district court wrongly decided in this case that the government could keep the documents hidden.While the government might rightly withhold the operational details of EO 12333 programs for national security reasons, the public has a right to know the basic legal contours under which the NSA and CIA are gathering our personal communications.When the government operates a massive surveillance apparatus in the shadows without meaningful legislative or judicial oversight, it undermines accountability to the people. Secret law has no place in a democracy.
Under This Law, Encouraging Undocumented Immigrants to Seek Shelter Could Be a CrimeAs wildfires raged across Northern California last week, Sen. Kamala Harris (D-Calif.) took to Twitter to encourage those in need to seek shelter, even if they didn’t have lawful immigration status.Senator Harris’s desire to protect all her constituents is admirable. It also may be a crime.A section of the federal Immigration and Naturalization Act states that any person who “encourages or induces” a non-citizen to “come to, enter, or reside” in this country in violation of the law is guilty of a felony, and may be imprisoned for up to five years. For a person to be found guilty, the prosecution must show that the person knew or recklessly disregarded the fact that the non-citizen’s action was unlawful. Harris’s tweet arguably “encouraged” undocumented immigrants to “reside” in the country. That’s precisely the type of speech a zealous federal prosecutor could target for criminal sanction under this law.Senator Harris is in good company. Other potential “criminals” include:A woman who tells her undocumented housekeeper that she should not depart the U.S. or else she won’t be allowed back in. (A former U.S. Customs and Border Protection official stood trial in just such a case.)A university president who publishes an op-ed arguing that DACA recipients should consider her campus to be a “sanctuary” after their deferred action expires.A community organization that announces its shelters and soup kitchens are open to homeless undocumented youth in their area.This law clearly oversteps the First Amendment, which does not allow the government to criminalize these kinds of speech. The Supreme Court has stated clearly: “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.” That’s why the ACLU yesterday submitted an amicus brief to the U.S. Court of Appeals for the Ninth Circuit arguing that this law is unconstitutional.The government can only prohibit “unprotected” speech, like incitement to violence or speech that itself constitutes a crime, like harassment. Speech “encouraging” immigration violations does not qualify. This makes the law we challenged “presumptively unconstitutional,” because it regulates the content of things we can say.The ACLU filed its brief in a criminal case against Evelyn Sineneng-Smith, an immigration consultant from San Jose, California. Ms. Sineneng-Smith was convicted in 2013 for filing labor applications for clients she knew were not eligible for green cards at the time. Despite the fact that all the information Ms. Sineneng-Smith filed was accurate — including disclosure of the fact that her clients had been in the country illegally for years — she was convicted of “encouraging or inducing” her clients to remain in the U.S. She has appealed her conviction.Our brief argues that the First Amendment protects the right of an individual — whether Evelyn Sineneng-Smith or Sen. Kamala Harris — to speak their mind on this hotly debated, sensitive subject without fear of prosecution. This includes speaking with and advocating for undocumented individuals who must navigate the complex web of U.S. immigration law. With this anti-encouragement law on the books, the only sure way to avoid prosecution for such speech is self-censorship.Now, as ever, immigration is an issue of enormous public concern and controversy, especially given the hostile stance of the Trump administration and some state officials toward immigrant communities. For those in our communities who are undocumented immigrants, or whose loved ones are undocumented immigrants, there is nothing more important than speaking on these issues. The last several months have demonstrated precisely how movements for immigrant justice rely on robust political speech: organizing rallies against deportation, speaking to undocumented people about how to avoid being separated from their families, and more.Freedom of speech is at the foundation of these efforts, and we must strive to keep it that way.
Florida Sheriff Worked with ICE to Illegally Jail and Nearly Deport US CitizenPeter Sean Brown is a U.S. citizen who lives in the Florida Keys. He was born in Philadelphia and has lived in Florida for 10 years. Before this year, he had never heard of Immigrations and Customs Enforcement, or ICE.That changed abruptly in April, when the Monroe County Sheriff’s Office held him in jail so that ICE could try to deport him — even though he’s a U.S. citizen. The ACLU, the ACLU of Florida, the Southern Poverty Law Center, and Gibson, Dunn & Crutcher LLP filed a lawsuit today against the sheriff’s office for violating Peter’s Fourth Amendment rights. His experience — being locked in jail away from his family, friends, and job to facilitate an illegal deportation — is a stark example of what can go wrong when local law enforcement does ICE’s bidding. The saga began when Peter reported to the Monroe County Sheriff’s office for violating probation with a low-level, marijuana-related offense. Instead of quickly releasing him, the Monroe County Sheriff’s Office told Peter that they were keeping him locked up to facilitate his deportation. ICE had faxed a request, known as a “detainer,” asking the sheriff to lock Peter up, so it could deport him to Jamaica.Peter was terrified. He knew almost nothing about Jamaica, having only visited the country once on a cruise. And yet Monroe County jail officers told him he was being sent to a Jamaican prison.Peter started frantically telling jail officers he was a U.S. citizen and asked to show them his birth certificate. He filed multiple written grievances. He called ICE, but no one ever answered the phone. His manager at work called the jail attesting to Peter’s citizenship.Jail officers ignored him entirely. None of them helped him cancel the detainer or even looked into his claims, even though the jail’s own records listed Peter as a U.S. citizen. Many officers even mocked him, telling him in a Jamaican accent that everything was “gonna be alright.” Officers sang him the theme song to the TV show the Fresh Prince of Bel Air—“West Philadelphia born and raised”—after he repeatedly told them he was from Philadelphia and had no ties to Jamaica.The officers told Peter that their practice was to hold everyone that ICE asks for, no matter what. In fact, the sheriff himself announced his enthusiastic support for ICE’s deportation policies in a press conference earlier this year. Following his lead, his officers told Peter that it didn’t matter what evidence Peter had. If ICE wanted to deport him, they would oblige.After Peter filed a second written complaint, the sheriff’s office made clear it was holding him regardless. Its written response read, “It is not up to us to determine the validity of the ICE hold. That is between you, your attorney and ICE.”This nightmare lasted for weeks, until the moment finally came when the sheriff did turn him over to ICE. Peter was taken to an ICE facility in Miami. He was days from being put on a plane when ICE finally agreed to look at his birth certificate. When ICE realized Peter was, in fact, a U.S. citizen, the agency quickly released him, leaving him in Miami without even offering transportation home to Key West.Peter’s frightening story should make sheriffs and police chiefs think twice before agreeing to hold people for ICE. In recent years, ICE has asked local jails to hold hundreds (if not thousands) of U.S. citizens for deportation. Each one probably felt the same panic as Peter. Study after study has documented this troubling pattern of targeting U.S. citizens with ICE detainers.By facilitating these efforts, local sheriffs are putting themselves on the hook for enormous financial liability. Dozens of them have faced costly litigation and been forced to pay six-figure settlements because of their collaboration with ICE. Monroe County is just the latest in a long string of counties that have violated people’s rights at ICE’s request. And ICE does not reimburse any of these expenses.Funneling people to ICE also facilitates an ever-more-arbitrary deportation system. The Trump administration is targeting people who have lived in the United States for decades, sometimes their entire lives. It has plucked parents off the street in front of their children, canceled protections for people who grew up here, and taken status away from people who fled wars and natural disasters 30 years ago. Just like Peter, their families, homes, and careers are in the United States. The cruelty of deporting them is hard to overstate.Learn more about the caseSheriffs do not have to abet these efforts. They all have a choice. They can focus on solving crimes and serving the needs of their own communities. Or they can spend scarce time and jail space responding to ICE’s detention requests, and face whatever financial consequences may result.Peter’s story should prompt the Monroe County Sheriff’s Office to reconsider its choice to join ICE’s runaway deportation force. It should also serve as a warning to other law enforcement to stay out of the deportation business. It’s simply not worth the financial and human cost.
There’s No Real Difference Between Border Walls and Border FencesSometime between now and Dec. 7, when the current appropriation for the Department of Homeland Security will expire, Congress needs to provide the agency with another’s year’s funds. A single word has become a sticking point for the politicians who will vote on that funding: “wall,” as in President Trump’s border wall. Trump and his Republican allies are demanding billions of dollars for walls along the U.S.-Mexico border. Democrats, wanting to be seen as opposing Trump, say that they won’t vote for border walls. But they, led by Senate Minority Leader Chuck Schumer, are willing to vote for “fences.”The current Senate iteration of the DHS appropriations bill contains $1.6 billion for 65 miles of either border walls or border fences — depending on one’s party affiliation — in the Rio Grande Valley of South Texas. This is an area that received 54 miles of either border wall or border fence in between 2009 and 2010. I live in the Rio Grande Valley, a few miles north of the 2009 border wall and in the vicinity of the new ones: No one here has ever called it a fence. Sen. Schumer recently took to the floor to split the fence/wall hair, saying that, “It’s just what we’ve done in previous years — funding for fencing on the border where experts say it makes the most sense. It would protect our border far more effectively and far more quickly than any wall.”He has also repeatedly said that Democrats have successfully opposed Trump's "concrete wall" — meaning DHS's recent prototype barriers erected near San Diego — which is cold comfort for those of us who live in the path of construction that is every bit as damaging. It also ignores the fact that one of the designs set for construction in South Texas is, in fact, full of concrete and steel.Levee-border wall topped with bollards under construction in the Lower Rio Grande Valley National Wildlife Refuge. (2009)The previous funding that Sen. Schumer is referring to is the omnibus bill passed just last spring that also gave Customs and Border Protection (CBP) $1.6 billion. When they describe the thing that they will be building through farms and wildlife refuges in South Texas, they do not use the word “fence.”Instead, CBP says that they plan to build two types of border wall, first 25 miles of what they call “levee wall [which] would be a concrete wall to the approximate height of the levee crest with 18-foot tall bollards installed in the top of the levee wall,” and 8-12 miles of “bollard wall [which] would be 20- to 30-feet high utilizing 6”x6” concrete filled steel bollards.”Bollard border walls in the town of El Calaboz, Texas. (2009)But Democratic members of Congress who don’t want to own up to giving Trump his border wall, largely seen as a symbol of racism and xenophobia, still cling to the semantic game in an effort to avoid culpability. Those of us who have been forced to live with border walls know first-hand that whatever name is applied, they inflict tremendous damage. I detailed this damage and the likely harm that new walls would inflict in a recent report for the ACLU and other organizations, which can be read here. I would encourage members of Congress to read it before they vote on border wall funding.The funds approved by Congress last spring will build the levee walls through the National Butterfly Center, Bentsen State Park and World Birding Center, and the Lower Rio Grande Valley National Wildlife Refuge. Thirty-foot-tall walls of concrete and steel will cut off worshippers from the historic La Lomita chapel, leading the Diocese of Brownsville to assert that "church property should not be used for the purposes of building a border wall [which] would in fact be a sign contrary to the Church’s mission." Farmers, some of whom have held property in their families since the 1760s, will lose riverfront land. Bollard border walls will be built in the Rio Grande floodplain, where they will put communities on both sides of the river at risk of worsened flooding, potentially leading to property damage and deaths. And as walls go up, migrants are pushed into more dangerous border crossings, leading to more and more deaths. Calling a 30-foot-tall concrete and steel monstrosity a fence does not change its nature. Those of us who live along the border would at the very least appreciate honesty in Congressional debates. Members of Congress can vote for border walls or they can vote against border walls, but either way, they need to own their vote and its on-the-ground impacts.Semantic games are not appreciated by those of us who will have to live with the consequences. Scott Nicol is the co-author of the recent report Death, Damage, and Failure: Past, Present and Future Impacts of Walls on the U.S.-Mexico Border released by the American Civil Liberties Union and partnering organizations. He lives and teaches in McAllen, Texas.
How Trump Weaponized the Government’s Refugee Resettlement AgencyBack in April, Immigration and Customs Enforcement and Customs and Border Protection, both under the Department of Homeland Security, entered into a memorandum of agreement with an obscure government agency known as the Office of Refugee Resettlement, a division of the Department of Health and Human Services. The office, known by its initials ORR, had traditionally served vulnerable immigrant youth coming to the United States without an adult. The agency took custody of those children while it worked to place them with a sponsor, often a relative, who would care for them. But thanks to the Trump administration’s family separation policy, ORR also began taking custody of the thousands of immigrant children forcibly separated from their parents in the past year.The memorandum of agreement (MOA) transformed ORR from an agency intended to protect the best interests of children into an arm of the government’s deportation force with devastating consequences for children and sponsors alike, as the Associated Press reported on Wednesday. Thanks to the MOA and a new information-sharing system under which ORR is essentially conducting surveillance for DHS, there has been a nearly sixfold increase in children detained by the Trump administration. The ACLU strongly objected to these policy changes when they were first proposed.In the past, ORR screened potential sponsors for children to evaluate their ability to provide for a child’s safety and well-being. ORR’s focus was, correctly, to ensure the care of children who had come to the U.S. seeking relief and protection. The agency did so by reuniting the majority of children who came alone to the U.S. with relatives already here. Most importantly, ORR had recognized that a potential sponsor’s immigration status does not determine whether a child will be safe and cared for by a sponsor. For ORR, the safety of the child was paramount.The Trump administration, however, changed all this.Now, DHS collects information about sponsors from ORR and is explicitly authorized to use that information to carry out arrests and deportations of sponsors and anyone living in their household. Moreover, instead of upholding protections for vulnerable children who might otherwise be forced into labor, prostitution, or other abusive situations, the Trump administration has moved to undermine critical protections for those children. Instead, it is instituting new ways to criminalize and detain immigrant children and chill potential sponsors for detained children from coming forward.The consequences stemming from the ORR policy change have been as predictable and they have been cruel. Because of ORR’s information-sharing agreement with ICE and CBP, potential sponsors, including those lawfully present here, have been deterred from coming forward to avoid exposing themselves or others in their household to DHS. And DHS has made clear its MOA with ORR isn’t an empty threat. The agency has already arrested dozens of undocumented immigrants who came forward as sponsors and “is pledging to go after more.”The result has been a record-setting number of children being held by ORR. The number of children — as young as babies and toddlers — detained by our government has skyrocketed, from 2,400 in May 2017 to more than 14,000 in November 2018. Children are also being detained for longer periods of time, dramatically increasing the chances they will suffer severe and irreparable harm, according to the American Academy of Pediatrics. Meanwhile, there has been an influx of business to companies detaining children to the tune of over a billion dollars.Right now, children continue to languish in ORR facilities when they could otherwise be released to relatives who could provide them with a safe and loving home. Faced with the possibility of detention, some children with valid asylum claims may completely abandon them and get deported back into harm’s way. The government has even forced some children into tent cities, like the one in Tornillo, Texas, with ORR facilities filled to capacity.On Wednesday, the ACLU and over 100 civil rights, immigrant rights, privacy, and government transparency organizations sent a letter to Secretary of Homeland Security Kirstjen M. Nielsen and Health and Human Services Secretary Alex Azar demanding a reversal of these policies. The Trump administration is going after incredibly vulnerable children. It is unconscionable that the government would use information provided in order to facilitate a child’s reunification with a relative or other sponsor only to turn around and arrest the sponsor or members of their household.The cruelty of the Trump administration knows no bounds. The solution to yet another Trump manufactured crisis is clear — it must rescind these policies and return ORR to its original mission of ensuring child safety and well-being. And if the administration doesn’t have the common decency to do so, Congress must check the executive and force its hand through legislation and cutting its funding.
This Woman’s Endless Ordeal Shows How the Watchlisting System Harms Innocent PeopleZainab Merchant has a long and growing list of achievements. She is the Orlando-based founder and CEO of ZR Studios, a multimedia site about current affairs, politics, and culture. She is also a graduate student at Harvard University and mother to three young children.But for the last two years, Zainab, who is a U.S. citizen, has been subjected to excessive and humiliating searches, questioning, and detention by federal officers every time she has traveled by air or reentered the United States from a trip abroad. This abusive treatment — most likely because she has been placed on a government watchlist — has affected her in profoundly negative ways, both psychologically and professionally. Yet the government refuses to tell her why it keeps happening or give her a meaningful chance to correct whatever error is causing it.That’s why we’re filing a formal complaint on Zainab’s behalf with the Department of Homeland Security. You can read more about Zainab’s ordeal and the steps we’re taking to defend her rights here.Zainab’s travel experiences follow a clear pattern. She is unable to obtain or print out her boarding passes before arriving at the airport, so she has to wait an hour or more at the ticket counter while airline employees call a number in Washington to see if they can clear her to fly. Transportation Security Administration screeners then run her through a gauntlet at security checkpoints — a process that can take another hour.Instead of a quick turn in a scanning machine, she must undergo thorough pat-down searches, during which TSA screeners place their hands all over her body, including private or sensitive areas. They remove and inspect all of the contents of her bags, in full view of other travelers passing through the checkpoint. When she finally arrives at the gate, TSA officers are waiting for her there and require her to undergo additional pat-down searches — even though she cleared security only minutes earlier — in front of the passengers who will travel with her on the flight.A TSA officer searches Zainab at the airport in Orlando. | Credit: Nadia Hallgren/ACLUReentering the country from abroad can be even worse. Zainab has had to wait six hours in the middle of the night in a cold customs inspection area with crying children and no access to food or phones. Despite First Amendment protections, she has been questioned about her religion or why she wrote a blog post criticizing U.S. Customs and Border Protection for racial and religious profiling — border officers even blatantly suggested that she refrain from criticizing CBP in the future. She has been subjected to unconstitutional searches of her laptop and smartphone, which included personal pictures of her without the headscarf she wears in public in accordance with her religious beliefs.The toll this has taken on Zainab has been severe. She avoids flying if possible because of the anxiety and humiliation she experiences when she does fly. She and her husband also avoid flying with their children, in order to spare them the awful experience of watching their parents demeaned and stigmatized by government agents. Faced with the prospect of undergoing the same invasive, duplicative screening protocol every time she flies, Zainab decided not to enroll in courses at Harvard during the fall of 2017. Compounding all of this is the knowledge that she has done nothing wrong and doesn’t know why the government is treating her this way — but she can’t get anyone inside the government to put an end to it.This pattern of harassment, intrusive searches, and detention during travel is likely the result of unfair blacklisting: being placed on a government terrorism watchlist. We have long criticized the federal government’s watchlisting system as a due process nightmare. The government uses vague criteria and a very low standard to place people on its master watchlist, which as of June 2016 had ballooned to about 1 million people. According to the government’s own watchlisting rules, “concrete facts are not necessary” to meet the standard for blacklisting, and uncorroborated information of doubtful reliability can suffice. That leaves the door wide open to relying on rumor, bias, or false statements.The consequences of blacklisting can be harsh and wide-ranging. Blacklisted individuals and their families have been subjected to harrowing displays of force and lengthy seizure at the border, surveillance and unjustified stops by domestic law enforcement, and detention and interrogation by authorities abroad. That’s to say nothing of the psychological and emotional damage that comes with constantly being stigmatized and demeaned as a suspected terrorist — an important but often ignored consequence of blacklisting.As with other national security-related policies in the post-9/11 era, available information indicates that these consequences are borne overwhelmingly by members of American Muslim, Arab, and South Asian communities.To top it all off, the government’s system of “redress” for people who are or may be blacklisted is completely inadequate. Under it, the government won’t even tell people if they’ve been blacklisted, let alone give the reasons why or a meaningful opportunity to clear their names and get off the list.After Zainab submitted a redress petition last year, DHS sent her a form letter stating that it “can neither confirm nor deny any information about you which may be within federal watchlists.” Since then, nothing has changed, and she continues to experience harassing searches and detention whenever she travels. Zainab’s terrible experience is yet another indication of the unfairness of the watchlisting system and the harms it inflicts on individual lives. We’re calling on DHS to stop singling Zainab out for this treatment, investigate the conduct of TSA and CBP officers, and turn over any relevant records. It’s the least that justice demands.
The Outgoing Congress Shouldn’t Reward Trump With More Homeland Security FundingBefore Dec. 7, Congress will have to make a decision: Will they reward the department responsible for separating families, jailing immigrants, raiding communities of color, and abusing its power at the border by increasing it budget? Or will they stand up and rein in Trump’s detention and deportation force? The Department of Homeland Security is currently funded by a continuing resolution, a short-term bill that extends its budget from last year. It was passed in late September so that Congress could avoid a messy budget fight before the midterm elections. On Dec. 7, it will expire at midnight.By that time, Congress has to decide how it will fund the government next year — a negotiation that really comes down to how it will fund DHS, as The Washington Post reported. Democratic leader Sen. Chuck Schumer (D-N.Y.) is treating funding for a border wall as a foregone conclusion, while Rep. Nancy Pelosi (D-Calif.), his counterpart on the House of Representatives side, said on Tuesday she isn't interested in negotiating. Republicans, therefore, are going to try to jam through their anti-immigrant agenda in the last gasp of their majority in the House of Representatives, including increased funding for Immigration and Customs Enforcement and Customs and Border Protection as well as billions of dollars for a border wall. This is reprehensible and irresponsible, which is why more than 200 organizations wrote to congressional leadership today asking them to pass another short-term continuing resolution for the department until the new Congress is in place. Agencies like ICE and CBP have long shown that their funding finances immoral and wasteful policies that harm immigrant and borderland communities as well as the American taxpayer. Year after year, these agencies are rewarded with increased funding. But in the wake of family separation — when DHS has yet to reunite all the families it separated — we must demand that members of Congress take a stand.ICE is functioning as a rogue agency, free from oversight, consistently overspending the budget Congress gave them. Last year, Congress gave them a budget large enough to detain just under 40,000 immigrants. Now, they’re detaining an average of 44,000 immigrants —10 percent more than the funding allows. Even more shocking, there have been no consequences for ICE’s deliberate disregard for Congress.But it’s not just how much money ICE, along with CBP, receives and overspends — it’s how that money is spent that is the problem. These agencies are the Trump administration’s key tool for terrorizing immigrants. They’re responsible for shamelessly separating families at the border and terrorizing immigrant communities throughout the country with warrantless searches. In the past year alone, they’ve harmed thousands of children who might never recover from the psychological torture of family separation. There are countless accounts of sexual abuse by ICE and Border Patrol agents as well as deaths in detention due to lack of medical or psychological care.The moral and fiscal disasters, however, extend beyond ICE’s immigration enforcement to CBP’s border-wall construction.This Congress has already spent more than $2 billion funding Trump's wall. Families and communities directly affected by the wall are barely consulted before their ways of life are devastated. Border walls divide communities and tribal nations, cut through sensitive ecosystems, devastate the environment through flooding and species destruction, eviscerate the rights of private property owners, and contribute to thousands of migrant deaths. Nevertheless, the Senate has allocated an additional $1.6 billion and the House an even more ridiculous $5 billion for border wall construction this fiscal year.Trump’s pre-election attempts to inflame divisions by creating an immigration crisis underscore how wrong it would be to reward his policies and behavior by further feeding his wall obsession. Even in the minority, Senate Democrats have the power to block more wall funding, and we ask them to fight against sacrificing border residents' futures. Members of Congress have a responsibility to listen to their constituents, who rejected Trump’s anti-immigrant agenda at the ballot box.Congress should pass a “clean” continuing resolution that would extend current spending levels and not add any additional funding to the more than $2 billion this Congress already allocated for border-wall construction as well as the billions more allocated for detention and enforcement. This would push the final decision of a long-term budget deal for DHS into the next Congress, where it belongs. In the end, the choice is theirs: Will they be complicit in the facilitation of policies that abuse immigrants and harm border communities, or will they exercise their constitutional power to speak for the people?Ask your members of Congress to oppose wall funding and immigration enforcement increases in the 2019 DHS budget.
In Major Threat to Due Process, Marsy’s Law Gains Ground NationwideAlongside the major criminal justice reform headlines that came out of the midterm elections, a quieter trend also gained momentum through the ballot box: a budding, national threat to due process and the Fifth Amendment of the U.S. Constitution.On Nov. 6, six states adopted, through ballot initiatives, what is known as “Marsy’s Law,” which enshrines a specific set of legal rights for victims of any crime — violent and non-violent — in state constitutions. Broadly speaking, providing rights to crime victims, such as notification if a defendant escapes custody, is a positive concept that we strongly support. But what the $71.8 million worth of ads and publicity for the six ballot measures didn’t mention is that Marsy’s Law directly targets defendants’ rights, including a bedrock of our criminal justice system – the presumption of innocence.The Marsy’s Law campaign is the work of entrepreneur and philanthropist Henry Nicholas, whose sister, Marsalee Nicholas, was murdered in 1983 and whose family was confronted by the person accused of the crime while he was out on bail. Nicholas sought to prevent victims’ families from having to endure similar experiences.Marsy’s Law, however, goes far beyond increasing notification to crime victims. The campaign claims it is striving to make victims’ rights “equal” to defendants’ rights under as many state constitutions as possible and eventually the U.S. Constitution. But comparing victims’ rights to defendants’ rights is a dangerous false equivalency.Defendants’ rights, most notably the presumption of innocence, ensure due process, thereby limiting the government’s power of arresting and incarcerating anyone for any reason. The principle of innocent until proven guilty, for example, prevents the government from simply declaring the defendant guilty and forces it instead to present evidence and defer to a judge or jury to make any declaration of guilt before depriving someone of their liberty. On the contrary, victims’ rights, as articulated by the Marsy’s Law campaign, are not rights against the state, and they are certainly not restrictions on state power. Instead, they are primarily rights against the defendant, which presuppose the guilt of the accused before a verdict has ever been rendered.For example, Marsy’s Law grants victims the right to reasonable protection against the accused. Not only is “reasonable protection” not defined, but this right puts the cart before the horse because a right of protection that applies prior to a conviction effectively presumes that the defendant is guilty. Furthermore, it’s also unnecessary. The judicial system already provides for pretrial protections, like restraining orders, that can be sought outside of a criminal trial and without directly impacting the presumption of innocence.Additionally, in many states, Marsy’s Law provides victims the right to deny evidence to defendants and their lawyers. At present, a defendant has a constitutional right to all evidence that could prove their innocence. With Marsy’s Law, a defendant’s fundamental right to all exculpatory evidence is pitted against a victim’s right to refuse access to that evidence.Under traditional criminal procedure, a judge decides whether information sought by a defendant from a victim is relevant to the defendant’s case. Marsy’s Law, however, restricts the judge’s authority because of a victim’s new constitutional right to deny evidence. Moreover, because a victim would be able to refuse to provide information to the court and the defendant, a jury would be denied exculpatory evidence that is otherwise admissible under the rules of evidence.Such fundamental due process denials strengthen the hand of government against the accused, eroding at least two foundational legal principles: the presumption of innocence and the right to defend oneself. The risk of mistakes, abuse, and even unjust convictions of defendants for crimes they did not commit would only increase.And finally in some states, including Florida, a version of Marsy’s Law strives to limit the amount of time during which a defendant can appeal a conviction, including by allowing only five years to appeal a capital conviction. Yet more than 165 people have been exonerated from death row in the United States, with many of those exonerations coming only after years and years of appeals. In Florida alone, 28 people have been exonerated from death row. Limiting time for appeal could very well result in innocent people being left in prison — and even executed.Before the midterm elections, 30 states already provided some type of legal rights to victims in their state constitutions without undermining due process. Nevertheless, Nicholas’s campaign continues to push his problematic version of victims’ rights legislation with success. In total, 11 states could soon have Marsy’s Law enshrined in their state constitutions, with the hurdle being ongoing legal challenges against the ballot process in a couple of states.This is only emboldening Nicholas and his backers to keep pursuing what they’re really after — amending the U.S. Constitution with Marsy’s Law and further undermining the due process protections guaranteed by the Fifth Amendment.If we are to have any faith in the criminal justice system, a defendant’s rights must be diligently and fully enforced. Nearly every day, we are confronted with headlines about the fallibility of our judicial system. The least that we can and must demand is that individuals confronted with the full force of the government have their rights against that state fully enforced. Otherwise, the integrity of our criminal justice system will only be furthered called into question — and rightfully so.
ACLU Seeks Secret Ruling That Stopped Feds From Hacking Facebook MessengerA core tenet of our democratic system is that the people must have a say in the laws that bind them. As a result, secret judicial proceedings and opinions are particularly troubling. But this past summer, a critical legal dispute potentially affecting the private communications of millions of Americans was litigated entirely in secret.According to Reuters and The Washington Post, the Justice Department sought an order from a federal court to force Facebook to wiretap encrypted voice conversations on Facebook Messenger as part of an investigation into the MS-13 gang.Facebook reportedly refused, saying that in order to comply, it would need to rewrite the Messenger app’s code and undermine its security infrastructure for all users. In response, the Justice Department reportedly tried to have Facebook held in contempt of court — and lost. But all of these proceedings remain under seal.That’s why on Wednesday, we filed a motion in federal court in California to unseal any secret judicial rulings associated with the government’s failed attempt to make Facebook decrypt Messenger calls. What we’re interested in here is the government and the court’s legal arguments and analysis, so we emphasized to the court that we would not object to appropriate redactions made to protect any details that would hamper legitimate law enforcement investigations.What is clear is that the public has a right to know the legal reasoning that decided this case — namely, what authority the Justice Department thought it had to force Facebook to undermine its security infrastructure and why the court determined that the government was wrong. This need for transparency is especially true when it comes to surveillance, where the government has a track record of hiding from public oversight.Some 1.3 billion people around the world use Facebook Messenger, but even more use other communication services such as WhatsApp, Skype, and Microsoft Outlook. Facebook may have won this time, but if the government tries to force another service to undermine its security features and that service wants to fight back, it won’t be able to rely on the court’s reasoning so long as the opinion remains under wraps.At issue in this sealed ruling is a security method used to protect the privacy of communications called end-to-end encryption, which makes communications inaccessible to anyone but the individuals who participated in the conversation. End-to-end encryption differs from other kinds of encryption in that the communications service provider does not have access to the keys necessary to decrypt the conversations, making it impossible to access the contents of the conversation without dismantling the encryption system itself. That’s what the Justice Department reportedly asked Facebook to do: dismantle the privacy measures that protect user communications on Messenger.This story is similar to a dispute that took place a few years ago between Apple and the FBI. In that case, the FBI tried to force Apple to create a new version of its operating system that would allow law enforcement to bypass the security features on the iPhone belonging to the accused San Bernardino shooter. At the time, the ACLU supported Apple in court because we believed that the “government’s legal theory would undermine this system and the security of the Internet across the board.” The FBI eventually gave up the legal battle when it found another way to break into the phone.One critical difference between that case and this one, though, was that the Apple-FBI legal dispute played out in public. Recognizing the importance of the issue, the federal magistrate judge presiding over the matter invited public participation from “friends of the court,” seeking a wide variety of viewpoints and arguments in order to ensure a sound result. Public interest groups like the ACLU filed legal briefs. The director of the FBI wrote an op-ed defending the litigation. The CEO of Apple wrote an open letter to customers defending Apple’s resistance. Congress held hearings. President Obama gave a speech.The case became a flashpoint in an ongoing national debate about the role of encryption in the modern world and whether the privacy and security interests of individuals should give way to the demands of law enforcement for assured access to people’s communications. By contrast, we haven’t been able to have the same informed debate about the Justice Department’s latest attempt to defeat Facebook Messenger security.Ultimately, people have a right to oversee the kind of surveillance used in their communities. That’s why the ACLU is also spearheading an effort called Community Control Over Police Surveillance (CCOPS) to pass local ordinances requiring cities to hold public hearings every time police departments want to acquire new surveillance technology. This is especially true as technological advances accelerate, with every level of government using new surveillance methods, such as cell phone location trackers, malware, and facial recognition.Similarly, as Facebook users, internet users, and citizens in the 21st century, we have a right to know when government officials are trying to undermine our cybersecurity to expedite surveillance, as well as the legal reasoning that limits or permits their actions.In a world constantly changing due to rapid advances in technology, the American legal system must keep pace. That can’t happen if we don’t even know what the law says about our right to privacy and security.
Fact-Checking Family SeparationUPDATE (6/21/2018): On June 20, President Trump issued an Executive Order, purporting to end the family separation policy. But that doesn’t end the humanitarian crisis, which he created. The executive order offers no plan to reunite the thousands of children who remain separated from their parents. The administration has signaled that it will now detain all families with children, regardless of whether they are asylum seekers, or pose a flight risk or a danger to the community. These children don’t belong in jail at all, under any set of circumstances.With nearly 2,000 immigrant children separated from their parents in just six weeks alone, there is an unprecedented human rights disaster unfolding at our border. As public outrage mounts, members of Congress demand access to government-run facilities, and the United Nations condemns us, the Trump administration is attempting to shift the blame — fast. In the past week, the administration has made several misleading statements, trying to justify the systematic separation of children from their parents. On Monday, DHS Secretary Kirstjen Nielsen held a press briefing where she doubled down on family separation, denying that the separation of children from their parents amounts to child abuse because, “We give them medical care. There’s videos; There’s TVs.”All the while, horror stories are emerging: among them, Marco Antonio Muñoz, a Honduran father, who killed himself after being separated from his wife and child; three siblings taken from their parents who were told that they couldn’t hug each other in the shelter they were placed in; and parents who were deported four months ago and are still waiting for the U.S. to return their baby.The level of cruelty is difficult to comprehend, and that’s how the administration wants it. Here’s what you need to know to understand family separation.Is there a law that requires family separation?Donald Trump has repeatedly blamed family separation on a law enacted by Democrats. On June 15, he told reporters, “I hate the children being taken away,” and added, “The Democrats have to change their law — that’s their law.” Secretary Nielsen repeated this falsehood at a briefing on Monday saying, “Surely it is the beginning of the unraveling of democracy when the body who makes the laws, instead of changing them, tells the enforcement body not to enforce the law.”There is no law that requires the Trump administration to separate families.This crisis stems from a series of policy choices the Trump administration made. In fact, reports arose as early as December 2017 that the administration was considering a plan to separate border-crossing parents from their children. In March, then-DHS Secretary John Kelly confirmed this, saying it would help deter Central Americans from coming to the United States.Do the courts require family separation? Absolutely not — despite the claims of GOP leadership to the contrary. Both House Speaker Paul Ryan and Senator Chuck Grassley have blamed family separation on the courts, specifically a decades-old court agreement (known as the Flores settlement) which established protections for children to prevent their indefinite detention in unlicensed facilities.Getting rid of the protections in the Flores settlement would only further the administration’s goal of being able to indefinitely imprison families. But ending family separation doesn’t require family prisons. The Trump administration knows full well that alternatives exist — because it went out of its way to sabotage them.In June 2017, the administration ended the Family Case Management Program, which allowed families to be placed into a program, together, that connected them with a case manager and legal orientation that ensured they understood how to apply for asylum and attend immigration court proceedings.The program had a 99.6 percent appearance rate at immigration court hearings for those enrolled in the program. It’s not only a more humane alternative to family prisons; it’s far less costly for taxpayers.Despite that success, the administration chose to end this program only a few months after it was first reported that Kelly — then-Secretary of Homeland Security — was considering family separation as a deterrent strategy.Does Paul Ryan’s bill end family separation?This week House Republicans will vote on a bill that purports to protect Dreamers and end family separation but does neither. Known as the Border Security and Immigration Reform Act of 2018, the bill would put DACA-eligible individuals on a long and convoluted path to citizenship — which is all subject to whether Trump gets his border wall. The changes in the bill would make it harder to apply for asylum and includes dangerous provisions making it easier to jail children and families.The bill would not do anything to stop Sessions’ zero-tolerance prosecutions — which is the main driver of family separation.Is the administration separating asylum-seeking families who enter at ports of entry?Yes, despite claims to the contrary. On June 17, DHS Secretary Kirstjen Nielsen took to Twitter to defend family separation, saying, “For those seeking asylum at ports of entry, we have continued the policy from previous administrations and will only separate if the child is in danger, there is no custodial relationship between 'family' members, or if the adult has broken a law.”In case Secretary Nielsen forgot, she’s currently a defendant in our class action lawsuit, where we represent families who entered at ports of entry to seek asylum and had their children taken away.Ms. L, a Congolese mother who sought asylum at a port of entry, had her seven-year-old daughter taken away from her for four months. Immigration authorities made no meaningful attempt to verify their relationship during that time, only doing so after we filed our lawsuit.Mirian G, a mother from Honduras, came to the U.S. with her young son on Feb. 20, 2018. She presented herself to immigration authorities and sought asylum, committing no crime. During her interview, Mirian provided immigration officers with several identification documents for her child which listed her as his mother. The next morning, Border Patrol agents took away her 18-month-old son with no explanation. She did not see him again for two months.What is happening to people who cross the border between ports of entry?On April 6, Attorney General Jeff Sessions instructed all U.S. Attorney’s Offices along the southwest border to adopt a new policy of “zero-tolerance” for illegal entry into the United States. On May 7, Sessions announced that the Departments of Justice and Homeland Security would partner together to prosecute anyone who crosses the border between U.S. ports of entry.As Sessions put it, “If you don’t want your child to be separated, then don’t bring them across the border illegally.” Crossing the border without proper documentation is a misdemeanor that typically carries the penalty of a few days in jail if you’re prosecuted.Here’s what the attorney general failed to mention: The government is not giving the kids back. Our client, Ms. C, experienced this firsthand. Ms. C, an asylum seeker, was separated from her 14-year-old son after the government chose to prosecute for entering the country illegally. She served her time, but then had to wait eight months before her son was given back to her.In addition, both Sessions and Nielsen are avoiding another crucial point — in several cities along the border, Customs and Border Protection officers have been turning asylum seekers away, telling them that the port of entry is at capacity. Members of Congress who traveled to the border met asylum seekers who experienced just that. Secretary Nielsen spun this as well, saying that asylum seekers are not being turned away per se, they are being told come back later.Who can end family separation?The Trump administration is choosing to separate families. It’s a policy decision that could be stopped at any time by the president without legislation.The president’s own party has been vocal about his authority to stop this — from former First Lady Laura Bush to senior Republican Senators McCain, Murkowski, Collins, and Corker. In the words of Republican Senator Lindsay Graham, Trump can end this “with a phone call.”Mr. President, make the call. Trump's Family Separation Crisis: How to Help
Jeff Sessions’ Legacy Is Full of Dangerous SuccessesIn his 636 days in office, former Attorney General Jeff Sessions secured a legacy that has been described as “unprecedented” and “dark.” But Sessions’ unwavering actions against criminal justice reform may also earn another descriptor for his time in office: successful. Whether it’s civil asset forfeiture, sentencing, or police accountability, Jeff Sessions has reversed or hamstrung Obama-era policies at the Justice Department that sought to reform the nation’s criminal justice system. In July of 2017, Sessions restored the federal government’s full use of civil asset forfeiture, which allows state agents to seize property even if someone hasn’t been accused, much less convicted of a crime. Sessions revived the "federal adoption" loophole, reformed by former Attorney General Eric Holder, which allows local law enforcement agencies to circumvent more restrictive state forfeiture laws by partnering with the federal government.In doing so, Sessions ignored the ways in which asset forfeiture has created a policing-for-profit paradox for police departments, which are always seeking more funding. In one of his speeches on the matter, Sessions insisted, “We need to send [a] clear message that crime does not pay.” But, as has been documented, poorly regulated asset forfeiture policies ensure that crime does pay — it pays law enforcement — which, as civil liberties organizations have proved, can be unconstitutional.Sessions will also be remembered for instructing federal prosecutors to charge “the most serious readily provable offense.” By doing so, he rejected one of his predecessor’s major accomplishments, Holder’s advancement of sentencing reform that sought to focus on “individualized assessments” and shift “away from seeking mandatory minimums at record rates, while reserving stricter sentences for more serious offenders.”In the context of the drug war, this meant restoring harsh Justice Department charging guidance for federal prosecutors that promote the use of mandatory minimums based on the quantity of drugs in the conspiracy, not the culpability of the individual defendant. Instead of winding down the “war on drugs,” these policies have only escalated it, with the damage disproportionately falling on communities of color in this country. Finally, Sessions’ will be remembered for expanding the impunity of local law enforcement. Not only did Sessions strip the Department of the tools that enable them to hold police accountable for unconstitutional practices, but he also trafficked in cynical demagoguery when he repeatedly blamed Chicago’s crime rate on the ACLU’s success in ending stop and frisk practices by the Chicago Police Department. And he even ended collaborative reform as it once existed, a voluntary program that allowed local police departments to get Justice Department assistance on a range of policing failures, including racial profiling and excessive use of force.But there are examples of reform bubbling up from states and localities that demonstrate the disconnect between Sessions’ vision of justice and the growing consensus on criminal justice issues. First, Sessions was a mobilizing target, like in cities such as Los Angeles and Memphis. His explicit bigotry and unabashedly “traditional” understanding of the role of the Justice Department galvanized communities to fight against our nation’s top prosecutor and regressive criminal law policies more generally. In doing so, he provided a useful catalyst for movements seeking positive change, and after the recent midterm elections, politicians are apt to learn that their career may hinge on whether they can address the need for reform.Second, Sessions’ tough-on-crime hysteria added to the impetus of local movements who are fighting to protect their communities from the policies coming down from the federal government by electing progressive reformers at the local level.Third, while the swiftness with which Sessions expanded policies that fuel mass incarceration is daunting, it’s also a reminder that his policies can be undone. This may provide little comfort in light of the gravity of Sessions’ policy revisions, but we should remember that an attorney general’s memoranda and policy edicts could be far more tenuous than other reforms, such as ballot initiatives, legislation, and court decisions brought about through community organizing, public education, voter mobilization, and civil rights litigation.To be clear, history won’t be kind to Jeff Sessions. Rather than provide leadership in making our criminal punishment system less bloated, less racist, less unaccountable, and more humane, Sessions seized an opportunity to sow fears across communities who have endured years of unconstitutional policing by increasing sentencing severity and government impunity. In reaction to Sessions, and in the long run, federal advocates and local activists must work to undo his policies by enacting and safeguarding long-lasting and broadly supported criminal justice reform.
Secret CIA Document Shows Plan to Test Drugs on PrisonersThanks to an ACLU victory in federal court, we know much more about how CIA doctors violated the medical oath to “do no harm.”One of the most important lessons of the CIA’s torture program is the way it corrupted virtually every individual and institution associated with it. Over the years, we have learned how lawyers twisted the law and psychologists betrayed their ethical obligations in order to enable the brutal and unlawful torture of prisoners.Now we’ve won the release of a 90-page account of the CIA’s Office of Medical Services role in the CIA torture program — a secret history written by the top CIA medical official, whose identity remains classified.The history reveals that CIA doctors were hunting for a “truth serum” to use on prisoners as part of a previously secret effort called Project Medication. The CIA studied records of old Soviet drug experiments as well as the CIA’s notorious and discredited MK-Ultra program, which involved human experimentation with LSD and other drugs on unwitting subjects. The CIA doctors involved in Project Medication wanted to use Versed, a psychoactive drug similar to some of those used in MK-Ultra, on prisoners.The CIA ignored lessons from its own history. After MK-Ultra was shut down, the CIA director testified in 1977, “It is totally abhorrent to me to think of using humans as guinea pigs.” But decades later, the agency decided to experiment on humans again, testing pseudoscientific theories of “learned helplessness” on its prisoners.While Project Medication never got off the ground, CIA medical professionals remained critical participants in experimenting with torture. Just like the government lawyers who tried to give unlawful torture a veneer of legality, the secret history reveals that CIA doctors were “indispensable” to the effort of “legitimizing the program.”Perhaps the most striking element of the document is the CIA doctors’ willful blindness to the truth of what they were doing. CIA doctors decided that waterboarding actually “provided periodic relief” to a prisoner because it was a break from days of standing sleep deprivation. Similarly, CIA doctors decided that when a different prisoner was stuffed into a coffin-sized box, this provided a “relatively benign sanctuary” from other torture methods. CIA doctors described yet another prisoner — who cried, begged, pleaded, vomited, and required medical resuscitation after being waterboarded — as “amazingly resistant to the waterboard.” Incredibly, CIA doctors concluded that the torture program was “reassuringly free of enduring physical or psychological effects.”The truth is that CIA torture left a legacy of broken bodies and traumatized minds. Today, with a president who has vocally supported torture and a new CIA director who was deeply complicit in torturing prisoners, it’s more important than ever to expose the crimes of the past. Recognizing the roles played by the lawyers, doctors, and psychologists who enabled torture is critical to making sure it never happens again.
TSA Tests See-Through Scanners on Public in New York’s Penn StationThe TSA and Amtrak Police are trying out new see-through body scanners in New York City’s Penn Station that raise serious constitutional questions. And as is so often the case, the government is not being sufficiently transparent about the devices, how they will be used, on whom, and where they will eventually be deployed. We also don’t know who will have access to the information they collect or for how long.There is also reason to believe the technology may not work as well as the TSA says it does.This “passive millimeter wave” technology works by detecting the heat radiating from the human body and analyzing ways in which those emanations may be being blocked by objects hidden on a person’s body. The machines do not emit x-rays or other radiation. The theory is that the operator of the technology will be able to tell if large object such as a suicide vest device is present underneath a person’s clothing. The technology uses an algorithm to determine whether there is an anomaly. The two devices in use are the Stand Off Explosive Detection Technology created by QinetiQ, and Digital Barriers from Thruvis.There are several concerns associated with this technology. First, it is not clear whether the anticipated uses of the technology are constitutional. Under the Fourth Amendment, the government is generally not permitted to search individuals without a warrant. Body scanners may be used in airports because of an “administrative exception” to the Fourth Amendment that the courts have found is reasonable because of the unique security vulnerabilities of aircraft. But it is far from clear that the courts will permit this exception to expand to cover every crowded public place in America.Other factors that may affect its constitutionality include whether people are able to opt out of being searched (it appears they are not), the technology’s resolution and precision, and the extent to which it detects not only true threats but other personal belongings as well, such as back braces, money belts, personal medical devices such as colostomy bags, and anything else someone might have on their person. Will an alert from this machine be sufficient to constitute justification for detaining someone, or probable cause to search them?We don’t know enough about the capabilities of this technology to know for sure — and we don’t know how its capabilities are likely to grow in the future. If it is as coarse a detector as television images suggest, it is likely to have a very high rate of false positives — and that’s likely to make the government want to make it ever more detailed and high-resolution. If it becomes higher resolution, that means it will see all kinds of other personal effects as well. Either way, there are serious privacy problems with this technology.In addition, until the device can be scaled up so it scans everyone who goes through a certain area, the technology can be aimed at certain people. It’s up to the operator to determine which people get scanned and which don’t. This means people are subject to a virtual stop-and-frisk, a policing tactic historically known for its extremely discriminatory impact on Black and Latino people.Will officials perform this digital stop-and-frisk on a white man in a suit, or a brown man with a beard or a black teen in a hoodie? If history is any guide, we know the answer.Once an anomaly is detected, a computer algorithm determines whether the abnormality presents a “green,” “yellow” or “red” risk level. We don’t know what happens if someone provokes a “yellow” or a “red” alert or if even some “green” alerts will still cause further scrutiny. Does a security official make a judgment call on whether to interrogate or otherwise hassle that person? If so, will they decide to scrutinize our old friends white man in a suit or brown man with a beard? And will the NYPD have access to the technology or the scans?We also don’t know how the algorithm is determining the threat level that gets spit out. We don’t know what factors it is considering, the weight of those factors, what tradeoffs occurred when the systems was developed, or the data it was trained on to determine if the system is accurate. When algorithms are not tested for potential errors or bias, they are often found to have discriminatory impacts on certain groups, particularly people of color.However the technology is deployed, there are very good reasons to doubt that it would be effective in spotting threats. Even in the most controlled conditions, such as airport scanners, millimeter wave technology can produce a lot of false-positives. In a crowded, bustling location full of fast-moving people, the error rate would probably be even higher. And if there is any location where people are likely to have all kinds of things on and about their bodies, it’s a busy travel hub like Penn Station. If this device is generating alarms every minute it will quickly become useless — and it could mean that many innocent people will be needlessly subject to invasive searches or lengthy interrogations.The technology may also miss true threats. Ben Wallace, a British politician who used to work for QinetiQ, told the Christian Science Monitor that the scanners would likely not pick up “the current explosive devices being used by Al Qaeda,” because of their low amounts of radiation.The Government Accountability Office and even Homeland Security itself have found in the past that body scanners have a high failure rate and are easily subverted.From media reports on the new scanners, it’s unclear how long this pilot program will last or where else these devices could eventually end up across the country. But their sudden rollout is another example of potentially invasive and discriminatory technologies being deployed with little or no public input or accountability.
Boston Police Has a Secret Point System That Turns Normal Teenage Behavior Into Gang MembershipIn the face of the Trump administration’s stepped-up deportation efforts, officials in Boston and other progressive cities have declared their communities safe spaces for immigrants. But behind the scenes, progressive havens like Boston are facilitating the deportations of some of our most vulnerable young people.As the federal government’s rhetoric and action around immigration have sharpened and hardened, young immigrants are being systematically slandered and deprived of their rights here in Massachusetts. Too many are inaccurately and unfairly alleged to be involved in gangs, according to a Boston Police Department database, and as a result, find themselves on the fast track to deportation.There’s a lot we don’t know about Boston Police Department’s “gang database” — which is why this week, the ACLU of Massachusetts, the Children’s Law Center of Massachusetts, and other groups filed a public records lawsuit to bring some transparency to the system. Here’s what we do know: Being included in it can have dire consequences for a young person’s life.We know the tragic impact gang violence has on communities where it occurs. In fact, many of our clients are youth who fled Central America to escape such horrific violence. But ironically, they are now being detained or deported back to that violence merely because of who they are, who they know, and even what they wear.What is particularly troubling is that these Central American youth are being accused of gang membership using evidence no stronger than a house of cards. Without their knowledge, young people of color in Boston go about their lives, earning “points.” Police officials decide what “points” apply to whom. You might be thinking: If the police say my client is a gang member, he must be. But the way police assign “points” enables law enforcement to label people as gang members even if they’ve never been suspected of any wrongdoing.One of our clients caught by the database’s arbitrary point system is a Salvadoran teenager who fled gang violence in his home country. In Massachusetts, law enforcement officials labeled him a gang member not because he was arrested for gang violence or suspected of engaging in it. Rather they labeled him that way because he was the victim of an assault at school. The crime committed against him cost him eight points. He was “verified” when he was seen leaving school with other supposedly "verified" gang members. If a youth is seen with a “verified” gang member — who could very well be another innocent kid arbitrarily labeled — that’s two points. If he’s seen again with the same person — even if they’re engaging in innocuous conduct like standing at a bus stop or crossing a park — that’s another two points. If he’s seen at school with a “verified” gang member, that’s five points — even if they are sitting at a lunch table because they’ve been assigned to work on a group project together. Wearing a Chicago Bull’s hat, a black rosary, or even a blue shirt — no matter that it’s his school uniform — could earn him four points. Once he reaches 10 points, he’s a “verified” gang member. The police enter his name into the Boston Regional Intelligence Center’s Gang Assessment Database, which is shared with other law enforcement agencies. Despite the fact that Boston has proclaimed itself a safe city for immigrants, the Boston Police Department is collaborating with Immigration and Customs Enforcement by making information in its “gang database” available to federal immigration authorities. That’s when we encounter the allegations: In immigration court, where a Department of Homeland Security prosecutor uses them as “evidence” that a client should be detained or deported. This system leads to false identifications. And in the immigration context, that has disastrous, life-altering consequences for some of the most vulnerable young people in Massachusetts.Recently, a young client showed up to a meeting at our office wearing a Chicago Bulls hat, a four-point offense. Although the Bulls are one of the most popular basketball teams in the world, we had to advise him to stop wearing the hat. The client said he understood, paused, and then asked if his other hats were still okay to wear.A sad thought crosses our minds when we have conversations like this with our clients: One way to protect them from being profiled, mislabeled by school police as gang members, and deported would be to advise them to stop attending school. Peer interactions can become the evidence against them in immigration court. In fact, it is hard to imagine how teenagers in neighborhoods that have a large population of Central American youth avoid being seen with “verified” gang members when there may be so many at their school, whose “verification” is unknown to them.Boston aims to protect its immigrants. Every day in immigration court, we see how the gang database system undermines that promise for teenagers across the city.