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June 30, 2014

Will Supremes Apply Cell Phone Privacy to Metadata Collection?

In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee. This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.

Warrants Needed to Search Cell Phone Data

There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest. The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence. Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.

In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestee’s cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects – protecting officers and preventing destruction of evidence – do not apply to the digital content on cell phones: “There are no comparable risks when the search is of digital data.”

Moreover, “[m]odern cell phones, as a category,” Roberts noted, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Responding to the government’s assertion that a search of cell phone data is “materially indistinguishable” from searches of physical items, Roberts quipped, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Indeed, Roberts observed, the search of a cell phone would typically provide the government with even more personal information than the search of a home, an area that has traditionally been given the strongest privacy protection. Modern cell phones, Roberts wrote, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Roberts was referring to the ubiquitous presence of cell phones appended to our ears as we walk down the street.

But the Court held that while a warrant is usually required to search data on an arrestee’s cell phone, officers could rely on the exigent circumstances exception in appropriate cases. For example, when a suspect is texting an accomplice who is preparing to detonate a bomb, or a child abductor may have information about the child’s location on his cell phone, or circumstances suggest the phone will be the target of an imminent attempt to erase the data on it, police may dispense with a search warrant.

Metadata Collection Implicates Similar Privacy Concerns

The Riley/Wurie opinion provides insights into how the Court will decide other digital-era privacy issues. Roberts was concerned that “[a]n Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns – perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” The Chief Justice could have been describing the NSA metadata collection program, which requires telecommunications companies to produce all of our telephone communications every day. Although the government claims it does not read the content of those communications, it does monitor the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. As Roberts pointed out in the cell phone case, much can be learned from this data. Calls to a clinic that performs abortions or visits to a gay website can reveal intimate details about a person’s private life. A URL, such as www.webMD.com/depression, can contain significant information, even without examining the content. Whether we access the Internet with our cell phones, or with our computers, the same privacy considerations are implicated.

Roberts quoted Justice Sonia Sotomayor’s concurrence in United States v. Jones, the case in which the Court held that a warrant is generally required before police install and monitor a GPS tracking device on a car. Sotomayor wrote, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” U.S. District Court Judge Richard J. Leon also cited that concurrence by Sotomayor in his 2013 decision that the metadata collection probably violates the Fourth Amendment (Klayman v. Obama).

And both Roberts and Leon distinguished the cell phone search and metadata collection, respectively, from the 1979 case of Smith v. Maryland, in which the Court held that no warrant is required for a telephone company to use a pen register to identify numbers dialed by a particular caller. The Smith Court concluded that a pen register was not a Fourth Amendment “search,” and therefore the police did not need to use a warrant or an exception to the warrant requirement. In order to constitute a “search,” a person must have a reasonable expectation of privacy that is violated. The Court said in Smith that a person does not have a reasonable expectation of privacy in numbers dialed from a phone since he voluntarily transmits them to a third party – the phone company.

Roberts stated in the Riley/Wurie decision: “There is no dispute here that the officers engaged in a search of Wurie’s cell phone.” Likewise, Leon wrote that the issue of “whether a pen register constitutes a ‘search’ is a far cry from the issue in the [metadata collection] case.” Leon added, “When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and the telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

If the Court is consistent in its analysis, it will determine that the collection by the government of all of our electronic records implicates the same privacy concerns as the inspection of the data on our cell phones. It remains to be seen if and when the metadata collection issue comes before the Court. But the fact that the cell phone decision was 9-0 is a strong indication that all of the justices, regardless of ideology, are deeply concerned about protecting the privacy of our electronic communications.

This piece first appeared on Jurist.

June 19, 2014

Obama on the Brink: War or Peace?

Once again, we are poised on the brink of a war that could violate US and international law. President Barack Obama faces a critical decision: will he meaningfully pursue a peaceful solution – even collaborating with Israel’s archenemy Iran – or will he succumb to pressure from the hawks responsible for destabilizing Iraq during the misnamed “Operation Iraqi Freedom?”

The Crisis in Iraq and “Operation Iraqi Freedom”

After two horrific wars that killed millions of people, the countries of the world adopted the United Nations Charter “to save succeeding generations from the scourge of war.” Although the Charter is part of US law, President Obama is poised to violate it if he mounts a military attack on Iraq.

All hell has broken loose in Iraq. The Islamic State of Iraq and Syria (ISIS) and its Sunni allies have taken control of Mosul, Iraq’s second largest city; they control most of the western and northern sections of Iraq, and they’re headed for Baghdad. Nearly 500 civilians have been killed and more than 1,600 have been wounded. Close to 53,000 people have been displaced from Anbar Province. The bloodshed is directly attributable to the illegal and ill-advised 2003 US-led invasion of – and regime change in – Iraq.

ISIS, a Syrian group, is a successor to Al-Qaeda in Iraq, which did not even exist before “Operation Iraqi Freedom” destabilized Iraq and much of the Middle East, attracting extremist groups. The US-led war wreaked devastation on Iraq, killing tens of thousands of Iraqis and leaving untold numbers maimed. The war and punishing sanctions destroyed Iraq’s infrastructure, leaving the country in shambles.

Saddam Hussein, who was deposed and later executed by US-supported forces, was a secular Sunni Muslim. Although a tyrant (like many of the dictators the United States has supported), he held Iraq together, preventing it from devolving into sectarian chaos.

“Operation Iraqi Freedom” was based on the lie that Hussein had weapons of mass destruction (WMD) that he would share with al-Qaeda. The price of the US-led war there was astronomical. The Costs of War report, just issued by Brown University, found that the war in Iraq claimed 190,000 lives and will cost the United States at least $2.2 trillion. More than 70 percent, or about 134,000, of the dead were civilians. Of those killed, 4,488 were US troops, and at least 3,400 were US contractors (mercenaries). Moreover, the US government has spent $60 billion on reconstruction in Iraq, most of which has gone to the Iraqi military and police, not to rebuild the country’s infrastructure.

“Operation Iraqi Freedom” also violated the United Nations (UN) Charter, which forbids a country from using military force against another country unless carried out in self-defense or with the blessing of the UN Security Council. Iraq had not attacked any country since it went into Kuwait in 1990, and the Security Council did not sanction the 2003 US-led attack on Iraq. George W. Bush, Dick Cheney, Condoleezza Rice and Donald Rumsfeld mounted a war of aggression in Iraq, a crime the judges at Nuremberg called “the supreme international crime.”

Repression by al-Maliki

The US-led invasion of Iraq helped install Nuri Kamal al-Maliki, a Shiite Muslim, as prime minister. But instead of uniting the different religious groups after the US troops left two and a half years ago, the al-Maliki government viciously cracked down on its opponents. Torture, rape and arbitrary, mass arrests of Sunnis were common. Protestors were murdered, their leaders assassinated. What began as a peaceful opposition movement during the “Iraqi Spring” turned violent in response to al-Maliki’s repression. Many of those nonviolent protestors have joined ISIS.

Some Republicans argue that Obama should have kept our troops in Iraq instead of withdrawing them two years ago in accordance with the Status of Forces Agreement (SOFA) the Bush administration negotiated. In fact, Obama, who later took credit for pulling US troops out of Iraq, tried to negotiate a new SOFA with the Iraqi government to postpone our departure. However, al-Maliki refused to continue to grant US soldiers immunity for any criminal or civil wrongs they might commit. This followed Chelsea Manning’s publication of the “Collateral Murder Video,” which depicted the commission of war crimes by US forces in Iraq.

More US intervention in Iraq?

Meanwhile, “the US government – the prime cause of these problems to begin with – prepares to intervene however it chooses,” according to Falah Alwan, of the Federation of Workers’ Councils and Unions in Iraq.

US Secretary of State John Kerry announced that Obama was considering all available options, including drone strikes, in Iraq. Manned US warplanes based in the Gulf might also be used to mount air strikes. This course of action promises to exacerbate the violence and could prove disastrous, inviting terrorist attacks against US interests in the Gulf. US defense and intelligence officials told The Daily Beast that the Pentagon and CIA are not sure exactly who US forces should target. Bombing would inevitably kill many civilians in urban areas. Moreover, the United States would once again be violating the UN Charter. The United States would not be acting in self-defense because Iraq has not attacked us or any other UN member country. And the Security Council has not given its approval for a US attack on Iraq; the United States would have to secure agreement from all five permanent Council members: the Russian Federation, China, France, United Kingdom and United States. Under the War Powers Resolution, the President can introduce US troops into hostilities, or into situations “where imminent involvement in hostilities is clearly indicated by the circumstances,” only after (1) a Congressional declaration of war, (2) “specific statutory authorization,” or (3) in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” This is the current situation: First, Congress has not declared war. Second, neither the 2002 Authorization for the Use of Military Force (AUMF) (which Bush used to invade Iraq), nor the 2001 AUMF (which Bush used to invade Afghanistan), would provide a legal basis for an attack on Iraq at the present time. Third, there has been no attack on the United States or US armed forces. Moreover, the UN Charter only allows a military attack on another country in the case of self-defense or when the Security Council authorizes it; neither is the case at the present time.

Obama has ordered 275 US troops to Iraq to protect the US embassy there. He has reserved the option of sending 100 “security forces” who would coordinate US airstrikes, share intelligence with Iraqi security forces, and provide the Iraqi army with tactical advice. If Obama attacks Iraq, “Bush’s war” will become “Obama’s war.”

But Obama is poised on the horns of a dilemma. On June 13, he said, “We’re also going to pursue intensive diplomacy throughout this period both inside of Iraq and across the region.” Obama has expressed a willingness to collaborate with Iran, a Shiite-led country with close ties to the al-Maliki government, about ending the bloodshed in Iraq. This is a positive development, which hopefully will encompass broader issues, including the conflict in Syria, where Iran supports President Bashar al-Assad.

Kerry called ISIS an “existential” danger to Iraq. Ironically, Israel considers Iran an “existential” threat to its security. Thus far, Obama has proceeded cautiously with Iran during negotiations over Iran’s alleged nuclear weapons program, but, siding with Israel, maintains that “all options are on the table,” including US military force against Iran.

Obama has an unprecedented opportunity to be a real peacemaker in Iraq. The wisest course of action is a diplomatic solution that embraces the entire region. The United States should propose a resolution in the Security Council that would require an immediate ceasefire in Iraq and peacekeepers under UN auspices be sent to Iraq. Obama should also return to the Geneva process in collaboration with Iran, and seek a political solution to the Syrian crisis. The Security Council should pass a resolution mandating an immediate ceasefire in Syria and a peaceful resolution of that dispute. Iran, which supports the al-Maliki government in Iraq and the Assad regime in Syria, is key to any regional peace agreement in the Middle East. Peace is within reach if Obama has the fortitude to stand up to the “experts” who are invariably advising him to pursue military options in Iraq. What course will he choose?

June 11, 2014

U.S. Nearly Used Nukes During Viet Nam War

We came dangerously close to nuclear war when the United States was fighting in Viet Nam, Pentagon Papers whistleblower Daniel Ellsberg told a reunion of the Stanford Anti-Viet Nam War Movement in May 2014. He said that in 1965, the Joint Chiefs assured President Lyndon B. Johnson that the war could be won, but it would take at least 500,000 to one million troops. The Joint Chiefs recommended hitting targets up to the Chinese border. Ellsberg suspects their real aim was to provoke China into responding. If the Chinese came in, the Joint Chiefs took for granted we would cross into China and use nuclear weapons to demolish the communists. Former President Dwight D. Eisenhower also recommended to Johnson that we use nuclear weapons in both North and South Viet Nam. Indeed, during the 1964 presidential campaign, Republican nominee Barry Goldwater argued for nuclear attacks as well. Johnson feared that the Joint Chiefs would resign and go public if Johnson didn’t follow at least some of their recommendation and he needed some Republican support for the “Great Society” and the “War on Poverty.” Fortunately, Johnson resisted their most extreme proposals, even though the Joint Chiefs regarded them as essential to success. Ellsberg cannot conclude that the antiwar movement shortened the war, but he says the movement put a lid on the war. If the president had done what the Joint Chiefs recommended, the movement would have grown even larger, but so would the war, much larger than it ever became.

“The Most Dangerous Man in America”

Ellsberg, a former U.S. military analyst and Marine in Viet Nam, worked at the RAND Corporation and the Pentagon. He risked decades in prison to release 7,000 top-secret documents to the New York Times and other newspapers in 1971. The Pentagon Papers showed how five Presidents consistently lied to the American people about the Viet Nam War that was killing thousands of Americans and millions of Indochinese. Ellsberg’s courageous act lead directly to the Watergate scandal, Nixon’s resignation, and helped to end the Viet Nam War. Henry Kissinger, Nixon’s National Security Advisor, called Ellsberg “the most dangerous man in America,” who “had to be stopped at all costs.” But Ellsberg wasn’t stopped. Facing 115 years in prison on espionage and conspiracy charges, he fought back. The case against him was dismissed due to egregious misconduct by the Nixon administration. Ellsberg’s story was portrayed in the Oscar-nominated film, “The Most Dangerous Man in America.” Edward Snowden told Ellsberg that film strengthened his intention to release the NSA documents.

The April Third Movement

On April 3, 1969, 700 Stanford students voted to occupy the Applied Electronics Laboratory (AEL), where classified (secret) research on electronic warfare (radar-jamming) was being conducted at Stanford. That spawned the April Third Movement (A3M), which holds reunions every five to ten years. The sit-in at AEL, supported by a majority of Stanford students, lasted nine days, replete with a printing press in the basement to produce materials linking Stanford trustees to defense contractors. Stanford moved the objectionable research off campus, but the A3M continued with sit-ins, teach-ins, and confrontations with police in the Stanford Industrial Park. Many activists from that era continue to do progressive work, drawing on their experiences during the A3M. This year, we discussed the political economy of climate change, and the relationship between the counterculture of the 1960’s and the development of Silicon Valley. Highlights of the weekend included three keynote addresses – Ellsberg’s; one delivered by Stanford political science Professor Terry Karl; and a talk by Rutgers Professor of English and American Studies, H. Bruce Franklin.

“Accountability for war crimes: from Viet Nam to Latin America”

Terry Karl is a Stanford professor who has published widely on political economy of development, oil politics, Latin America and Africa, and human rights. She also testifies as an expert witness in trials against Latin American dictators and military officers who tortured, disappeared and killed civilians in the 1970’s and 1980’s, when their governments were supported by the United States. Karl’s testimonies have helped to establish guilt and accountability for the murders of El Salvador’s Archbishop Romero, the rape and murders of four American churchwomen, and other prominent cases.

Karl quoted President George H. W. Bush, who announced proudly after the first Gulf War in 1991, “The specter of Viet Nam has been buried forever in the desert sands of the Arabian peninsula.” Nevertheless, Karl observed, we have been involved in “permanent war” since Vietnam, in part because there had been no accountability, abroad or at home, for each of our past wars. The U.S. global military presence around the world, according to Karl, is not there for defense, but rather to maintain the United States “at the top.” No defense can be based on having soldiers in 150 countries.

Beginning with Vietnam, we stopped paying taxes for the wars we fight, Karl said. The Korean War was financed with taxes, but the Viet Nam War was paid for through inflation. This helped to produce the recession that was the basis for the election of Ronald Reagan in 1980. Wars in Central America, Iraq and Afghanistan have been “paid for” through debt. In this respect, permanent war not only threatens our democracy, Karl pointed out, but also our economic future. In one example, Karl noted that the United States fights wars to secure oil and gas; yet the largest consumer of oil in the world is the Department of Defense because of those very wars.

Karl also observed that we have not “won” all of these unpaid wars – if measured against their original objectives. The United States fought in Viet Nam to prevent communist reunification of the country; yet that is exactly what happened. The Reagan administration decided to “draw the line” in El Salvador to prevent FLMN rebels from coming to power; yet the FMLN is the government today. And the Reagan administration supported the contras in Nicaragua to prevent the Sandinistas from governing that country; the Sandinistas are now in control. She predicted we would see similar “victories” in Iraq and Afghanistan.

“The cultural memory of the Viet Nam War in the epoch of Forever War”

H. Bruce Franklin was the first tenured professor to be fired by Stanford University, and the first to be fired by a major university since the 1950’s. Franklin, who was a Marxist and an active member of A3M, was terminated because of things he said at an anti-war rally, statements that, according to the ACLU, amounted to protected First Amendment speech. Franklin, a renowned expert on Herman Melville, history and culture, has taught at Rutgers University since 1975. He has written or edited 19 books and hundreds of articles, including books about the Viet Nam War. Before becoming an activist, Franklin spent three years in the U.S. Air Force, “flying,” he said, “in operations of espionage and provocation against the Soviet Union and participating in launches for full-scale thermonuclear war.” Franklin told the reunion about myths the U.S. government has promulgated since the Viet Nam War. “One widespread cultural fantasy about the Viet Nam War blames the antiwar movement for losing the war, forcing the military to ‘fight with one arm tied behind its back’,” Franklin said. “But this stands reality on its head,” he maintains. Franklin cited the American people’s considerable opposition to the war. “Like the rest of the movement at home,” he noted, “the A3M was inspired and empowered by our outrage against both the war and all those necessary lies about the war coming from our government and the media, as well as the deceitful participation of institutions that were part of our daily life, such as Stanford University.” The war finally ended, Franklin thought, because of the antiwar movement, particularly opposition to the war within the military.

The other two myths Franklin debunked are first, that the real heroes are the American prisoners of war (POW’s) still imprisoned in Viet Nam; and second, that many veterans of the Viet Nam War were spat upon by antiwar protestors when they returned home. The black and white POW/MIA (missing in action) flag has flown over the White House, U.S. post offices and government buildings, the New York Stock Exchange, and appears on the right sleeve of the official robe of the Ku Klux Klan, according to Franklin. “The flag now came to symbolize our culture’s dominant view of America as the heroic warrior victimized by ‘Viet Nam’ but then reemerging as Rambo unbound,” he said. After talking to several Japanese scholars he met on a trip to Japan, Franklin realized he had missed the “most essential and revealing aspect” of the POW/MIA myth. The scholars told him, “When militarism was dominant in Japan, the last person who would have been used as an icon of militarism was the POW. What did he do that was heroic? He didn’t fight to the death. He surrendered.” Franklin told the reunion: “Both the POW and the spat-upon vet become incarnations of America, especially American manhood, as victim of ‘Vietnam,’ which is not a people or a nation but something terrible that happened to us.” He also said that there is absolutely no evidence that any Viet Nam vet was spat upon by an antiwar protestor. “These two myths turned ‘Vietnam’ into the cultural basis of the forever war,” Franklin said. He quoted George H. W. Bush who proclaimed in 1991, “By God, we’ve kicked the Viet Nam Syndrome once and for all.”

The legacy of the Viet Nam War

But, as Karl and Franklin observed, we are now engaged in a “permanent war” or “forever war.” Indeed, the U.S. government has waged two major wars and several other military interventions in the years since Viet Nam. And in his recent statement on U.S. foreign policy, President Barack Obama said: “The United States will use military force, unilaterally if necessary, when our core interests demand it – when our people are threatened; when our livelihoods are at stake; when the security of our allies is in danger.” Obama never mentioned the United Nations Charter, which forbids “unilateral” intervention – the use or threat of military force unless carried out in self-defense or with the consent of the Security Council.

The U.S. military, Karl noted, teaches that the Viet Nam war was a success. And, indeed, during the next eleven years, leading up to the 50th anniversary of that war, the U.S. government will continue to mount a false narrative of that war. [See http://www.vietnamwar50th.com/]. Fortunately, Veterans for Peace has launched a counter-commemoration movement, to explain the true legacy of Viet Nam. [See http://www.vietnamfulldisclosure.org/]. It is only through an accurate understanding of our history that we can struggle against our government’s use of military force as the first, instead of the last, line of defense.

May 15, 2014

Death to the Death Penalty

The recent torturous execution of Clayton Lockett in Oklahoma has propelled the death penalty into the national discourse. The secret three-drug cocktail prison authorities administered to Lockett – the first to render him unconscious, the second to paralyze him, and the third to stop his heart and kill him – didn’t work as planned. After writhing in pain for 43 minutes, he finally died of a heart attack. Madeline Cohen, a lawyer who witnessed the botched execution, said Lockett had been “tortured to death.” Seasoned reporters, also witnesses, called it “horrific.” President Obama found it “deeply disturbing” and promised a review of how the death penalty is administered.

But the issue is not simply the most “painless,” fair, and efficient method the 32 death penalty states should use to put someone to death. It is not just a problem of executing innocent people, or the dubious constitutionality of the death penalty, or racism in its application and imposition, or that the death penalty does not deter homicide, or the higher cost of keeping someone on Death Row, or that nearly all industrialized countries have abolished capital punishment. The premeditated killing of a human being by the state is just plain wrong and the United States should abolish it.

A week after Lockett’s execution, the Constitution Project released its report after one of the most comprehensive examinations of capital punishment in the United States. Calling the administration of the death penalty “deeply flawed,” the report focused on procedural deficiencies. It recommended that death penalty states should use one drug instead of three to kill their citizens. It called for fewer constraints on post-conviction review of exonerating evidence, and videotaping of interrogations to identify false confessions, concluding that over 80 percent of 125 documented false confessions occurred in homicide cases; 20 percent of the defendants in those cases were sentenced to death. It recommended the abolition of the death penalty for “felony murder,” in which a person participates in, but does not commit, the homicidal act. It expressed concern about inconsistent application of the ultimate penalty since the Supreme Court ruled in 2002 that intellectually disabled individuals should not be executed. It criticized states such as Texas, Alabama and Pennsylvania for compensating capital defense lawyers so poorly that it is “nearly impossible” to receive a proper defense. And it urged death penalty states to determine whether there are racial disparities in the application of the death penalty. The bipartisan panel did not, however, recommend abolition of capital punishment.

Innocents on Death Row

A new study just released by the Proceedings of the National Academy of Sciences determined that 1 in every 25, or 4.1 percent, of people on death row, are innocent. But the innocence rate is 4.1 percent, more than twice the rate of exoneration. That means an unknown number of innocent people have been put to death. “Every time we have an execution, there is a risk of executing an innocent. The risk may be small, but it’s unacceptable,” said Richard Dieter, executive director of the Death Penalty Information Center.

Cruel and Unusual Punishment

The Eighth Amendment to the Constitution outlaws “cruel and unusual punishments.” Although the Supreme Court has upheld the death penalty, some justices have concluded it violates the Eighth Amendment. In 1972, in Furman v. Georgia, the high court imposed a moratorium on the death penalty because it was arbitrarily imposed. Justice Potter Stewart wrote for the majority that executions were “so wantonly and so freakishly imposed” that they are “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” But Stewart was only opposed to capital punishment as a matter of policy. States revised their death penalty statutes to eliminate arbitrariness, and four years later, the Court upheld Georgia’s new and improved death penalty law in Gregg v. Georgia. Unlike Justices William Brennan and Thurgood Marshall, Stewart did not believe the death penalty was unconstitutional.

Marshall noted in his concurrence in Furman, “Perhaps the most important principle in analyzing ‘cruel and unusual’ punishment questions is [that] . . . the cruel and unusual language ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’ . . . Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand.”

Brennan also concurred in Furman. He wrote, “When examined by the principles applicable under the Cruel and Unusual Punishment Clause, death stands condemned as fatally offensive to human dignity. The punishment of death is therefore ‘cruel and unusual,’ and the States may no longer inflict it as a punishment for crimes. Rather than kill an arbitrary handful of criminals each year, the States will confine them in prison.”

Eighteen years after Furman, Justice Harry Blackmun came to the conclusion that the death penalty was unconstitutional. In 1994, his last year on the Court, Blackmun famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.”

Most recently, in 2008, Justice John Paul Stevens decided the death penalty amounts to cruel and unusual punishment. Stevens concluded, “[T]he imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’” [quoting Justice Byron White’s Furman concurrence]. In his new book, Six Amendments, Stevens proposes the Eighth Amendment be changed to read, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Racism in Imposition

According to Death Penalty Focus, the race of the victim and the race of the defendant in capital cases are major determinants in who is sentenced to death in the United States. A 1990 report by the General Accounting Office found “in 82 percent of the studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e. those who murdered whites were more likely to be sentenced to death than those who murdered blacks.” The Innocence Project reports that of the 316 post-conviction DNA exonerations, 198 involved African Americans.

Think Progress reports that African American defendants convicted of killing whites are much more likely to receive a sentence of death than white defendants convicted of killing African Americans. Since 1976, only 20 white people have been have been executed in the United States for killing a black person. But 269 black defendants were executed for killing a white person. Death sentences in Louisiana are 97 percent more likely in murder cases when the victim is white. Florida has never executed a white person for killing a black person.

Not a Deterrent Capital punishment does not deter people from committing homicide. Dartmouth University statistician John Lamperti notes “an overwhelming majority among America’s leading criminologists [have concluded that] capital punishment does not contribute to lower rates of homicide.” In fact, murder rates in non-death penalty states are lower than murder rates in states with the death penalty, according to the Death Penalty Information Center.

Life Without Parole Saves Money

The alternative to the death penalty is life in prison without the possibility of parole. Judge Arthur Alarcon and Prof. Paula Mitchell concluded that the cost of the death penalty in California has totaled over $4 billion since 1978. They calculated that a gubernatorial commutation of those sentences would result in an immediate savings of $170 million per year, a savings of $5 billion over the next 20 years. The California Commission on the Fair Administration of Justice found in 2008: “The additional cost of confining an inmate to death row, as compared to the maximum security prisons where those sentenced to life without possibility of parole ordinarily serve their sentences, is $90,000 per year per inmate.”

International Consensus

International treaties and customary norms forbid capital punishment. They include the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol, and Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty. Last year, only 22 countries not involved in military conflict carried out executions. The United Nations Human Rights Committee found the United States to be in noncompliance with its obligations under the ICCPR due to the excessive number of offenses subject to the death penalty and the number of death sentences imposed. The Death Penalty Information Center reports that the countries that carried out the most executions in 2013 were China, Iran, Iraq, Saudi Arabia, Somalia and the United States. Does the United States really want this to be its peer group?

End Institutionalized Murder

Five U.S. states have abolished capital punishment in the last seven years. Support for the death penalty in the United States is waning. In October 2013, 60 percent of Americans favored capital punishment, down 20 percent from 1994.

The American Medical Association, the American Public Health Association, the American Board of Anesthesiology, and the American Nurses Association prohibit members from assisting in executions; they consider it a violation of their medical code of ethics.

Years after witnessing the excesses of the French Revolution, the Marquis de Lafayette told the French Chamber of Deputies in 1830, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.” Indeed, as Eugene Robinson wrote in the Washington Post, “We fool ourselves if we think there is a ‘humane’ way to kill someone . . . The death penalty has no place in a civilized society . . . [T]here is no way to impose capital punishment without betraying the moral standards that our justice system is theoretically designed to uphold. Put simply, when we murder we become murderers.” Supreme Court Justice Arthur J. Goldberg wrote in 1976, “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”

It is high time for all of the states in this country and the federal government itself to outlaw capital punishment. There is no good reason to retain it, and compelling reasons to abolish it.

March 24, 2014

BDS: Non-Violent Resistance to Israeli Occupation

Thanks to Scarlett Johansson, the American Studies Association (ASA), and Israeli Prime Minister Benjamin Netanyahu, the Boycott, Divestment and Sanctions (BDS) movement has entered our national discourse. Representatives of Palestinian civil society launched BDS in 2005, calling upon “international civil society organizations and people of conscience all over the world to impose broad boycotts and implement divestment initiatives against Israel similar to those applied to South African in the apartheid era . . . [including] embargoes and sanctions against Israel.” The call for BDS specified that “these non-violent punitive measures” should last until Israel fully complies with international law by (1) ending its occupation and colonization of all Arab lands and dismantling the barrier Wall; (2) recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and (3) respecting, protecting and promoting the rights of Palestinian refugees to return to their land as stipulated in UN resolution 194.

Johansson is a spokesperson for SodaStream, a seltzer-making company whose major factory is located in an Israeli settlement in the occupied West Bank. SodaStream generates the highest volume of settlement exports to Europe. Until recently, Johansson was also an ambassador for Oxfam, which, like many other international organizations, opposes all trade from the Israeli settlements in the West Bank because companies are operating there illegally. Shortly before Johansson’s commercial for SodaStream aired during the Super Bowl last month, Oxfam forced Johansson to choose between SodaStreama and Oxfam. She chose SodaStream, stepping down from her post with Oxfam.

Additionally, the ASA recently endorsed a boycott of Israeli academic institutions, which emerged “from the context of U.S. military and other support for Israel; Israel’s violation of international law and UN resolutions; the documented impact of the Israeli occupation on Palestinian scholars and students; the extent to which Israeli institutions of higher education are a party to state policies that violate human rights; and finally, the support of such a resolution by a majority of ASA members.” In its statement of support for the ASA boycott, faculty members at the American University in Cairo cited Israeli policies that “have rendered the Gaza Strip the world’s largest open-air penitentiary.” The ASA is the third major U.S. academic organization – together with the Asian American and Native American and Indigenous Studies Association – to endorse the academic boycott of Israel during the past year.

And, earlier this month, when he delivered the keynote address to the annual meeting of the powerful Israel lobby in the United States, American Israel Public Affairs Committee (AIPAC), Netanyahu spent almost as much time attacking BDS as he did explaining why he thinks Iran is a strategic threat to Israel. Clearly disturbed by the proliferation of BDS worldwide, Netanyahu claimed, “Those who wear the BDS label should be treated exactly as we treat any anti-Semite or bigot.”

Is BDS anti-Semitic?

But, in the words of Rafeef Ziadah, a spokesperson for the Palestinian Boycott, Divestment and Sanctions National Committee, “The BDS movement is opposed, as a matter of principle, to all forms of discrimination, including anti-Semitism and Islamophobia.” In January, Palestinian human rights activist Omar Barghouti wrote in the New York Times, “Arguing that boycotting Israel is intrinsically anti-Semitic is not only false, but it also presumes that Israel and ‘the Jews’ are one and the same. This is as absurd and bigoted as claiming that a boycott of a self-defined Islamic state like Saudi Arabia, say, because of its horrific human rights record, would of necessity be Islamophobic.” Barghouti also noted, “BDS doesn’t pose an existential threat to Israel; it poses a serious challenge to Israel’s system of oppression of the Palestinian people, which is the root cause of its growing worldwide isolation.”

Nobel Peace Prize winner South African Archbishop Desmond Tutu concurs. “My voice will always be raised in support of Christian-Jewish ties and against the anti-Semitism that all sensible people fear and detest,” Tutu wrote in the Tampa Bay Times. “But this cannot be an excuse for doing nothing and for standing aside as successive Israeli governments colonize the West Bank and advance racist laws,” he added, noting “Israel’s theft of Palestinian land” and “Jewish-only colonies built on Palestinian land in violation of international law.”

Tutu cited the 2010 Human Rights Watch report, which “describes the two-tier system of laws, rules, and services that Israel operates for the two populations in areas in the West Bank under its exclusive control, which provide preferential services, development, and benefits for Jewish settlers while imposing harsh conditions on Palestinians.” Tutu writes, “This, in my book, is apartheid. It is untenable.” He called on “people and organizations of conscience to divest from . . . Caterpillar, Motorola Solutions and Hewlett Packard,” which profit “from the occupation and subjugation of Palestinians.”

Moreover, if BDS is anti-Semitic, why do so many Jews support it? In her recent piece in Tikkun Daily, Jewish Voice for Peace board member Donna Nevel mentioned that “respected members of the liberal Jewish community” and “a few liberal Zionist groups,” formerly opposed to BDS, are now calling for boycotts of products made in the settlements. She points out that groups like Jews Say No and Jewish Voice for Peace – “a diverse and democratic community of activists inspired by Jewish tradition to work together for peace, social justice, and human rights” – are “resonating with increasing numbers of Jews who support BDS as a natural outgrowth of their commitments.”

Some Jews in Israel have also engaged in non-violent resistance to Israeli government policies. Sixty youth recently signed an open letter to Netanyahu announcing their refusal to serve in the Israeli military due to the dehumanization of Palestinians living under occupation. In the occupied Palestinian territories, they wrote, “human rights are violated, and acts defined under international law as war-crimes are perpetuated on a daily basis.” The signatories cite “assassinations (extrajudicial killings), the construction of settlements on occupied lands, administrative detentions, torture, collective punishment and the unequal allocation of resources such as electricity and water.”

How extensive is the BDS movement?

The BDS movement is spreading throughout the world. European pension funds are divesting from banks and companies that operate in settlements, and European markets are labeling Israeli goods made in the West Bank. In January, PGGM, the Netherlands’ second largest pension fund, decided to divest from five of Israel’s largest banks because they financed companies involved in the construction of settlements. PGGM is the second Dutch company to recently break ties with Israeli companies. Also in January, two of Europe’s largest financial institutions, Nordea and Danske Bank, agreed to boycott Israeli banks with branches in the West Bank. Norway’s Government Pension Fund Global, a multibillion operation, has blacklisted Africa Israel Investments and Danya Cebus due to their ties to settlements in the West Bank. Argentine authorities have suspended a proposed $170 million water treatment plant’s deal with Israel’s state water company Mekorot, in response to local trade unions and human rights organizations that connected Mekorot’s role in Israel’s illegal theft of Palestinian water resources. Many Western artists and bands refuse to perform in Israel.

In his final report to the United Nations, Richard Falk, Special UN Rapporteur on the Occupied Palestinian Territories, called on the international community to comprehensively investigate the business activities of companies and financial institutions registered in their own respective countries, which profit from the settlements in Israel and other unlawful Israeli activities. He advocated that they “take appropriate action to end such practices and ensure appropriate reparation for affected Palestinians.” Significantly, Falk wrote, “Member States should consider imposing a ban on imports of settlement produce.”

Israel’s Maariv newspaper reported that the international boycott of Israeli settlement products has already led to financial losses of $30 million. Indeed, last August, Secretary of State John Kerry warned that Israel could face a boycott campaign “on steroids” if it continues to build settlements in the occupied West Bank.

In a recent interview, President Barack Obama asked, “Do you resign yourself to what amounts to a permanent occupation of the West Bank? Is that the character of Israel as a state for a long period of time? Do you perpetuate, over the course of a decade or two decades, more and more restrictive policies in terms of Palestinian movement? Do you place restrictions on Arab-Israelis that run counter to Israel’s traditions?” These are bold words. But it is unlikely Obama will follow them with bold action.

Israel remains the largest recipient of U.S. foreign aid, over $3 billion a year. And Elbit Systems Ltd., Israel’s largest arms manufacturer, has just been awarded a $145 million contract by the U.S. Department of Homeland Security Customs and Border and Protection to deploy border surveillance technology in southern Arizona. Elbit is the Israeli military’s largest suppliers of drones, which were involved in the killing of 29 children during Israel’s attack on Gaza in 2008-2009, and the ongoing bombing of Gaza. In light of Israel’s documented human rights violations, U.S. assistance and the Elbit contract are unacceptable. “Those who turn a blind eye to injustice actually perpetuate injustice,” Tutu said. “It doesn’t matter where we worship or live.”

Anti-BDS legislation and blacklisting student groups

Nevertheless, there has been a vigorous campaign to pass anti-BDS legislation, both in Israel and in the United States. In 2011, the Israeli Knesset passed an anti-boycott law which would sanction anyone who declares a commercial embargo on Israel, and label any boycott a civil offense subjecting its initiators to litigation. Several Israeli and U.S. human rights groups asked that the law be annulled and a special panel of the Israeli High Court of Law held a hearing on the bill in February. The New York Times opposed the bill, noting, “this is a fundamental issue of free speech.”

Anti-boycott legislation introduced earlier this year in both New York and Maryland which would punish institutions that endorse the boycott were withdrawn after several educators and legislators criticized the bills as an attack on academic freedom. But a revised version of the New York bill has been introduced that would punish colleges that use public funds for activities that support boycotts of Israel. In early March, the Protect Academic Freedom Act was introduced in the House of Representatives, which would deny government funding to any U.S institution that endorses the academic boycott of Israel.

And bills have been introduced in several state legislatures to penalize universities if their faculty members participate in professional organizations that express a political viewpoint by endorsing a boycott. More than 150 scholars and others signed a statement recognizing boycotts as “internationally affirmed and constitutionally protected forms of political expression.” Columbia Law School Professor Katherine Frank wrote, “A law targeting the boycott today cannot be differentiated from the laws that punished boycotts in the U.S. civil rights movement or those that compelled academics to sign loyalty oaths as a condition of employment.”

In another campaign against the BDS movement, some universities, including Northeastern, have banned Students for Justice in Palestine (SJP) from campuses and threatened disciplinary measures against some SJP members. This appears to be “part of a coordinated effort by the Israeli government and the Israel lobby to blacklist all student groups that challenge the official Israeli narrative,” according to Chris Hedges.

Resistance to the banning of student groups that criticize Israeli policies should cite the well-established Supreme Court precedents protecting academic freedom of speech, including Healy v. James (“[t]he college classroom with its surrounding environs is peculiarly the marketplace of ideas”), Keyishian v. Bd. of Regents of Univ. of N.Y. (“the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools [of higher learning]”), and Snyder v. Phelps (“speech on matters of public concern . . . is at the heart of the First Amendment’s protection”).

But unless and until Israel ends its brutal occupation of Palestinian lands, grants full equality to all its people – including Palestinians – and recognizes the right of Palestinian refugees to return to their land, the non-violent BDS movement will continue to grow and cripple the Israeli economy. A system based on inequality and oppression cannot survive.

January 31, 2014

Beyond Orwell’s Worst Nightmare

“Big Brother is Watching You,” George Orwell wrote in his disturbing book 1984. But, as Mikko Hypponen points out, Orwell “was an optimist.” Orwell never could have imagined that the National Security Agency (NSA) would amass metadata on billions of our phone calls and 200 million of our text messages every day. Orwell could not have foreseen that our government would read the content of our emails, file transfers, and live chats from the social media we use.

In his recent speech on NSA reforms, President Obama cited as precedent Paul Revere and the Sons of Liberty, who patrolled the streets at night, “reporting back any signs that the British were preparing raids against America’s early Patriots.” This was a weak effort to find historical support for the NSA spying program. After all, Paul Revere and his associates were patrolling the streets, not sorting through people’s private communications.

To get a more accurate historical perspective, Obama should have considered how our founding fathers reacted to searches conducted by the British before the revolution. The British used “general warrants,” which authorized blanket searches without any individualized suspicion or specificity of what the colonial authorities were seeking.

At the American Continental Congress in 1774, in a petition to King George III, Congress protested against the colonial officers’ unlimited power of search and seizure. The petition charged that power had been used “to break open and enter houses, without the authority of any civil magistrate founded on legal information.”

When the founders later put the Fourth Amendment’s prohibition on unreasonable searches and seizures into the Bill of Rights, they were attempting to ensure that our country would not become a police state.

Those who maintain that government surveillance is no threat to our liberty should consider the abuse that occurred nearly 200 years later, when FBI Director J. Edgar Hoover conducted the dreaded COINTELPRO (counter-intelligence program). It was designed to “disrupt, misdirect, discredit and otherwise neutralize” political and activist groups. During the McCarthy witch hunts of the 1950s, in an effort to eradicate the perceived threat of communism, our government engaged in widespread illegal surveillance to threaten and silence anyone with unorthodox political views. Thousands of people were jailed, blacklisted, and fired as the FBI engaged in “red-baiting.”

In the 1960’s, the FBI targeted Dr. Martin Luther King, Jr. in a program called “Racial Matters.” King’s campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed that King’s organization was being infiltrated by communists. But the FBI was really worried that King’s civil rights campaign “represented a clear threat to the established order of the U.S.” The FBI went after King with a vengeance, wiretapping his phones, and securing personal information which it used to try to discredit him, hoping to drive him to divorce and suicide.

Obama would likely argue that our modern day “war on terror” is unlike COINTELPRO because it targets real, rather than imagined, threats. But, as Hypponen says, “It’s not the war on terror.” Indeed, the Privacy and Civil Liberties Oversight Board, an independent federal privacy watchdog, found “no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

The NSA spying program captures all of us, including European leaders, people in Mexico, Brazil, the United Nations, and the European Union Parliament, not just the terrorists. Although Obama assured us that the government “does not collect intelligence to suppress criticism or dissent,” our history, particularly during COINTELPRO, tells us otherwise.

Obama proposed some reforms to the NSA program, but left in place the most egregious aspects. He said that the NSA must secure approval of a judge on the Foreign Intelligence Surveillance Court before it gets access to the phone records of an individual. But that is a secret court, whose judges are appointed by the conservative Chief Justice John Roberts, and it has almost never turned down an executive branch wiretapping request since it was created in 1978. Most significantly, Obama did not say that surveillance without judicial warrants or individual suspicion should be halted.

“One of [Obama’s] biggest lapses,” a New York Times editorial noted, “was his refusal to acknowledge that his entire speech, and all of the important changes he now advocates, would never have happened without the disclosures by [Edward] Snowden, who continues to live in exile and under the threat of decades in prison if he returns to this country.”

Snowden’s revelations will reportedly continue to emerge. And you can bet that Orwell will continue to turn in his grave for a long time to come.

This originally appeared on Huffington Post.

January 16, 2014

NSA Metadata Collection: Fourth Amendment Violation

Edward Snowden, who worked for the National Security Agency (NSA), revealed a secret order of the Foreign Intelligence Surveillance Court (FISC), that requires Verizon to produce on an “ongoing daily basis … all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

The government has admitted it collects metadata for all of our telephone communications, but says the data collected does not include the content of the calls.

In response to lawsuits challenging the constitutionality of the program, two federal judges issued dueling opinions about whether it violates the Fourth Amendment’s prohibition on unreasonable searches and seizures.

Judge Richard J. Leon, of the US District Court for the District of Columbia, held that the metadata program probably constitutes an unconstitutional search and seizure. Judge William H. Pauley III, of the US District Court for the Southern District of New York, determined that it does not violate the Fourth Amendment.

Leon’s opinion

Leon wrote, “Because the Government can use daily metadata collection to engage in ‘repetitive surreptitious surveillance of a citizen’s private goings on,’ the ‘program implicates the Fourth Amendment each time a government official monitors it.'” The issue is “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. If they do—and a Fourth Amendment search has thus occurred—then the next step of the analysis will be to determine whether such a search is ‘reasonable.'” The first determination is whether a Fourth Amendment “search” has occurred. If so, the second question is whether that search was “reasonable.”

The judicial analyses of both Leon and Pauley turn on their differing interpretations of the 1979 U.S. Supreme Court decision, Smith v. Maryland. In Smith, a robbery victim reported she had received threatening and obscene phone calls from someone who claimed to be the robber. Without obtaining a warrant, the police installed a pen register, which revealed a telephone in the defendant’s home had been used to call the victim. The Supreme Court held that a person has no reasonable expectation of privacy in the numbers dialed from his telephone because he voluntarily transmits them to his phone company.

Leon distinguished Smith from the NSA program, saying that whether a pen register constitutes a “search” is “a far cry from the issue in [the NSA] case.” Leon wrote, “When do present-day circumstances—the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

Then Leon cited the 2012 Supreme Court case of United States v. Jones, in which five justices found that law enforcement’s use of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy. “Significantly,” Leon wrote, “the justices did so without questioning the validity of the Court’s 1983 decision in United States v. Knotts, that the use of a tracking beeper does not constitute a search because ‘[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.'” Leon contrasted the short-range, short-term tracking device used in Knotts with the constant month-long surveillance achieved with the GPS device attached to Jones’s car.

Unlike the “highly-limited data collection” in Smith, Leon noted, “[t]he NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!” He called the NSA program “effectively a joint intelligence-gathering operation [between telecom companies and] the Government.”

“[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” Leon exclaimed, calling it “the stuff of science fiction.” He cited Justice Scalia’s opinion in Kyllo v. United States, which held the use of a thermal imaging device, that measures heat waste emanating from a house, constitutes a “search.” Justice Scalia was concerned about increasing invasions of privacy occasioned by developing technology.

Leon wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”

Quoting Justice Sotomayor’s concurrence in Jones, Leon noted the breadth of information our cell phone records reveal, including “familial, political, professional, religious, and sexual associations.”

Having determined that people have a subjective expectation of privacy in their historical record of telephony metadata, Leon turned to whether that subjective expectation is one that society considers “reasonable.” A “search” must ordinarily be based on individualized suspicion of wrongdoing in order to be “reasonable.” One exception is when there are “special needs,” beyond the need for ordinary law enforcement (such as the need to protect children from drugs).

“To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” Leon wrote. “In effect,” he continued, “the Government urges me to be the first non-FISC judge to sanction such a dragnet.”

Leon stated that fifteen different FISC judges have issued 35 orders authorizing the metadata collection program. But, Leon wrote, FISC Judge Reggie Walton determined the NSA has engaged in “systematic noncompliance” and repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges. And Presiding FISC Judge John Bates noted “a substantial misrepresentation [by the government] regarding the scope of a major collection program.”

Significantly, Leon noted that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Pauley’s opinion

Pauley’s analysis of the Fourth Amendment issue was brief. He explained that prior to the September 11th terrorist attacks, the NSA intercepted seven calls made by hijacker Khalid al-Mihdhar to an al-Qaeda safe house in Yemen. But the overseas signal intelligence capabilities the NSA used could not capture al-Mihdhar’s telephone number identifier; thus, the NSA mistakenly concluded that al-Mihdhar was not in the United States. Pauley wrote: “Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (FBI) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.”

“If plumbed,” Pauley noted, the telephony metadata program “can reveal a rich profile of every individual as well as a comprehensive record of people’s association with one another.” He noted, “the Government acknowledged that since May 2006, it has collected [telephony metadata] for substantially every telephone call in the United States, including calls between the United States and a foreign country and calls entirely within the United States.”

But, unlike Leon, Pauley found Smith v. Maryland controls the NSA case. He quoted Smith: “Telephone users … typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Thus, Pauley wrote, when a person voluntarily gives information to a third party, “he forfeits his right to privacy in the information.”

While Leon’s distinction between Smith and the NSA program turned on the breadth of information collected by the NSA, Pauley opined, “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” And whereas Leon’s detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones court did not overrule Smith.

Leon’s decision is the better-reasoned opinion.

Looking ahead

This issue is headed to the Court of Appeals. From there, it will likely go the Supreme Court. The high court checked and balanced President George W. Bush when he overstepped his legal authority by establishing military commissions that violated due process, and attempted to deny constitutional habeas corpus to Guantanamo detainees. It remains to be seen whether the court will likewise refuse to cower before President Barack Obama’s claim of unfettered executive authority to conduct dragnet surveillance. If the court allows the NSA to continue its metadata collection, we will reside in what can only be characterized as a police state.

This piece first appeared on Jurist.

November 18, 2013

Voices From the Drone Summit

Last weekend, I participated in a panel on the illegality of drones and targeted killing off the battlefield at the conference, “Drones Around the Globe: Proliferation and Resistance,” in Washington DC. Nearly 400 people from many countries came together to gather information, protest, and develop strategies to end targeted killing by combat drones. I found the most compelling presentations to be first-hand accounts by those victimized by U.S. drone attacks, and a former military intelligence analyst who helped choose targets for drone strikes.

Members of a delegation from Yemen provided examples of the devastation drones have wrought in their communities. Faisal bin Ali Jaber is an engineer. For some time, one of his relatives had been giving public lectures criticizing drone attacks. In August 2012, family and friends were celebrating the marriage of Jaber’s son. After the wedding, a drone struck Jaber’s relative, killing him instantly. Jaber lost a brother-in-law who was a known opponent of Al Qaeda, and a 21-year-old nephew in the attack.

Baraa Shaiban, a human rights activist who works with REPRIEVE, revealed that 2012 was a year that saw “drones like never before” in Yemen. He described the death of a mother and daughter from a drone strike. “The daughter was holding the mother so tight, they could not be separated. They had to be buried together.”

Two members of Al Qaeda were in Entesar al Qadhi’s village, one of the most oil rich areas of Yemen. Villagers were negotiating with the two men. A drone killed the chief negotiator, scuttling the negotiations and leaving the village vulnerable to Al Qaeda. “The drones are for Al Qaeda, not against Al Qaeda,” al Qadhi said.

Air Force Col. Morris Davis (ret.) is a professor at Howard University Law School. He was chief prosecutor at the Guantanamo military commissions until he was reassigned due to his disagreement with the government’s policies. Davis had been assigned to a chain of command below Defense Department General Counsel William Haynes, who favored the use of evidence gained through waterboarding. “The guy who said waterboarding is A-okay I was not going to take orders from. I quit,” Davis said at the time. At the Drone Summit, Davis related the case of Nek Muhammad, who, Davis noted, “was not a threat to us. He was killed as a favor to the Pakistani government so they would look the other way when we wanted to kill our targets.”

Daniel Hale helped choose targets for drone attacks. The former intelligence analyst with the Joint Special Operations Command in Afghanistan delivered a riveting talk. Hale utilized surveillance data for drone attacks. He would tell the sensor operator – who sits next to the “pilot” of the unmanned drone thousands of miles from the target – where to point the camera. This information would guide the “pilot” in dropping the bomb.

Every day, a slideshow of the most dramatic images from 9/11 and George W. Bush “looking somber” would be projected in the room in which Hale worked. On the wall in the main facility, there were television screens, each showing “a different bird [drone] in a different part of the country.” Every branch of the U.S. military and foreign militaries monitored “all of Afghanistan.” Hale would be assigned a mission “to go after a specific individual for nefarious activities.” He fed his intelligence to a sensor operator “so they would know where to look before a kinetic strike or detention” of an individual.

On one occasion, Hale located an individual who had been involved with Improvised Explosive Devices (IEDs). The man was riding a motorcycle in the mountains early in the morning. He met up with four other people around a campfire drinking tea. Hale relayed the information that led to a drone strike, which killed all five men. Hale had no idea whether the other four men had done anything. Hale had thought he was part of an operation protecting Afghanistan. But when the other four men died – a result of “guilt by association” – Hale realized he “was no longer part of something moral or sane or rational.” He had heard someone say that “terrorists are cowards” because they used IEDs. “What was different,” Hale asked, “between that and the little red joy stick that pushes a button thousands of miles away”?

August 28, 2013

Killing Civilians to Protect Civilians in Syria

By Marjorie Cohn and Jeanne Mirer

The drums of war are beating again. The Obama administration will reportedly launch a military strike to punish Syria’s Assad government for its alleged use of chemical weapons. A military attack would invariably kill civilians for the ostensible purpose of showing the Syrian government that killing civilians is wrong. “What we are talking about here is a potential response . . . to this specific violation of international norms,” declared White House press secretary Jay Carney. But a military intervention by the United States in Syria to punish the government would violate international law.

For the United States to threaten to and/or launch a military strike as a reprisal is a blatant violation of the United Nations Charter. The Charter requires countries to settle their international disputes peacefully. Article 2(4) makes it illegal for any country to either use force or threaten to use force against another country. Article 2(7) prohibits intervention in an internal or domestic dispute in another country. The only time military force is lawful under the Charter is when the Security Council approves it, or under Article 51, which allows a country to defend itself if attacked. “The use of chemical weapons within Syria is not an armed attack on the United States,” according to Notre Dame law professor Mary Ellen O’Connell.

The United States and the international community have failed to take constructive steps to promote peace-making efforts, which could have brought the crisis in Syria to an end. The big powers instead have waged a proxy war to give their “side” a stronger hand in future negotiations, evaluating the situation only in terms of geopolitical concerns. The result has been to once again demonstrate that military solutions to political and economic problems are no solution at all. In the meantime, the fans of enmity between religious factions have been inflamed to such a degree that the demonization of each by the other has created fertile ground for slaughter and excuses for not negotiating with anyone with “blood on their hands.”

Despite U.S. claims of “little doubt that Assad used these weapons,” there is significant doubt among the international community about which side employed chemical weapons. Many view the so-called rebels as trying to create a situation to provoke U.S. intervention against Assad. Indeed, in May, Carla del Ponte, former international prosecutor and current UN commissioner on Syria, concluded that opposition forces used sarin gas against civilians.

The use of any type of chemical weapon by any party would constitute a war crime. Chemical weapons that kill and maim people are illegal and their use violates the laws of war. The illegality of chemical and poisoned weapons was first established by the Hague regulations of 1899 and Hague Convention of 1907. It was reiterated in the Geneva Convention of 1925 and the Chemical Weapons Convention. The Rome Statute for the International Criminal Court specifically states that employing “poison or poisoned weapons” and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” are war crimes, under Article 8. The prohibition on the use of these weapons is an international norm regardless of whether any convention has been ratified. As these weapons do not distinguish between military combatants and civilians, they violate the principle of distinction and the ban on weapons which cause unnecessary suffering and death contained in the Hague Convention. Under the Nuremberg Principles, violations of the laws of war are war crimes.

The self-righteousness of the United States about the alleged use of chemical weapons by Assad is hypocritical. The United States used napalm and employed massive amounts of chemical weapons in the form of Agent Orange in Vietnam, which continues to affect countless people over many generations. Recently declassified CIA documents reveal U.S. complicity in Saddam Hussein’s use of chemical weapons during the Iran-Iraq war, according to Foreign Policy: “In contrast to today’s wrenching debate over whether the United States should intervene to stop alleged chemical weapons attacks by the Syrian government, the United States applied a cold calculus three decades ago to Hussein’s widespread use of chemical weapons against his enemies and his own people. The Reagan administration decided that it was better to let the attacks continue if they might turn the tide of the war. And even if they were discovered, the CIA wagered that international outrage and condemnation would be muted.”

In Iraq and Afghanistan, the United States used cluster bombs, depleted uranium, and white phosphorous gas. Cluster bomb cannisters contain tiny bomblets, which can spread over a vast area. Unexploded cluster bombs are frequently picked up by children and explode, resulting in serious injury or death. Depleted uranium (DU) weapons spread high levels of radiation over vast areas of land. In Iraq, there has been a sharp increase in Leukemia and birth defects, probably due to DU. White phosphorous gas melts the skin and burns to the bone. The Geneva Convention Relative to the Protection of Civilian Persons in time of War (Geneva IV) classifies “willfully causing great suffering or serious injury to body or health” as a grave breach, which constitutes a war crime.

The use of chemical weapons, regardless of the purpose, is atrocious, no matter the feigned justification. A government’s use of such weapons against its own people is particularly reprehensible. Secretary of State John Kerry said that the purported attack by Assad’s forces “defies any code of morality” and should “shock the conscience of the world.” He went on to say that “there must be accountability for those who would use the world’s most heinous weapons against the world’s most vulnerable people.”

Yet the U.S. militarily occupied over 75% of the Puerto Rican island of Vieques for 60 years, during which time the Navy routinely practiced with, and used, Agent Orange, depleted uranium, napalm and other toxic chemicals and metals such as TNT and mercury. This occurred within a couple of miles of a civilian population that included thousands of U.S. citizens. The people of Vieques have lived under the colonial rule of the United States now for 115 years and suffer from terminal health conditions such as elevated rates of cancer, hypertension, respiratory and skin illnesses and kidney failure. While Secretary Kerry calls for accountability by the Assad government, the U.S. Navy has yet to admit, much less seek atonement, for decades of bombing and biochemical warfare on Vieques.

The U.S. government’s moral outrage at the use of these weapons falls flat as it refuses to take responsibility for its own violations.

President Barack Obama admitted, “If the U.S. goes in and attacks another country without a UN mandate and without clear evidence that can be presented, then there are questions in terms of whether international law supports it . . .” The Obama administration is studying the 1999 “NATO air war in Kosovo as a possible blueprint for acting without a mandate from the United Nations,” the New York Times reported. But NATO’s Kosovo bombing also violated the UN Charter as the Security Council never approved it, and it was not carried out in self-defense. The UN Charter does not permit the use of military force for “humanitarian interventions.” Humanitarian concerns do not constitute self-defense. In fact, humanitarian concerns should spur the international community to seek peace and end the suffering, not increase military attacks, which could endanger peace in the entire region.

Moreover, as Phyllis Bennis of the Institute for Policy Studies and David Wildman of Human Rights & Racial Justice for the Global Ministries of the United Methodist Church wrote, “Does anyone really believe that a military strike on an alleged chemical weapons factory would help the Syrian people, would save any lives, would help bring an end to this horrific civil war”?

Military strikes will likely result in the escalation of Syria’s civil war. “Let’s be clear,” Bennis and Wildman note. “Any U.S. military attack, cruise missiles or anything else, will not be to protect civilians – it will mean taking sides once again in a bloody, complicated civil war.” Anthony Cordesman, military analyst from the Center for Strategic and International Studies, asks, “Can you do damage with cruise missiles? Yes. Can you stop them from having chemical weapons capability? I would think the answer would be no.”

The United States and its allies must refrain from military intervention in Syria and take affirmative steps to promote a durable ceasefire and a political solution consistent with international law. If the U.S. government were truly interested in fomenting peace and promoting accountability, it should apologize to and compensate the victims of its own use of chemical weapons around the world.

Marjorie Cohn is a professor at Thomas Jefferson School of Law, former president of the National Lawyers Guild (NLG), and deputy secretary general of the International Association of Democratic Lawyers (IADL). New York attorney Jeanne Mirer is president of the IADL and co-chair of the NLG’s International Committee. Both Cohn and Mirer are on the board of the Vietnam Agent Orange Relief and Responsibility Campaign.

August 10, 2013

The Struggle Continues: Seeking Compensation for Vietnamese Agent Orange Victims, 52 Years On

By Marjorie Cohn and Jeanne Mirer

Today marks the 52nd anniversary of the start of the chemical warfare program in Vietnam, a long time with NO sufficient remedial action by the U.S. government. One of the most shameful legacies of the American War against Vietnam, Agent Orange continues to poison Vietnam and the people exposed to the chemicals, as well as their offspring.

For over 10 years, from 1961 to 1975, in order to deny food and protection to those deemed to be “the enemy,” the United States defoliated the land and forests of Vietnam with the chemicals known as Agent Orange. These chemicals contained the impurity of dioxin – the most toxic chemical known to science. Millions of people were exposed to Agent Orange and today it is estimated that three million Vietnamese still suffer the effects of these chemical defoliants.

In addition to the millions of Vietnamese who continue to be affected by this deadly poison, tens of thousands of U.S. soldiers are also affected. It has caused birth defects in hundreds of thousands of children in Vietnam and the United States – that is, the second and third generations of those who were exposed to Agent Orange decades ago. Medical evidence indicates that certain cancers (for example, soft tissue non-Hodgkin’s Lymphoma), diabetes (type II), and in children spina bifida and other serious birth defects, are attributable to the exposure.

The deadly mark left by Agent Orange on the natural environment of Vietnam includes the destruction of mangrove forests and the long-term poisoning of soil especially in the known “hot spots” near former U.S. military bases.

Surviving Vietnam veterans in the United States, after many years of organized action, have finally achieved limited compensation from our government for some illnesses they suffer due to Agent Orange poisoning. While this struggle continues, the three million surviving Vietnamese victims have received no such compensation or any humanitarian aid from the U.S. government. Nor have the children of the vast majority of U.S. veterans suffering from Agent Orange-related birth defects received any medical or other assistance.

The United States does not want to admit that its use of chemicals with poison as weapons of war on civilian populations violates the laws of war, which recognize the principle of distinction between military and civilian objects, requiring armies to avoid civilian targets. These laws of war are enshrined in the Hague Convention and the Nuremberg principles, and are codified in the Geneva Conventions of 1949 and the Optional Protocol of 1977, as well as the International Criminal Court statute.

The use of Agent Orange on civilian populations violates the laws of war; yet no one has been held to account. Taxpayers pick up the tab of the Agent Orange Compensation fund for U. S. Veterans at a cost of 1.52 billion dollars a year. The chemical companies, most specifically Dow and Monsanto, which profited from the manufacture of Agent Orange, paid a pittance to settle the veterans’ lawsuit to compensate them, as the unintended victims, for their Agent Orange-related illnesses. But the Vietnamese continue to suffer from these violations with almost no recognition, as do the offspring of Agent Orange-exposed U.S. veterans and Vietnamese-Americans.

Our government has a moral and legal obligation to compensate the people of Vietnam for the devastating impact of Agent Orange, and to assist in alleviating its effects. Indeed, the U.S. government recognized this responsibility in the Peace Accords signed in Paris in 1973, in which the Nixon administration promised to contribute $3 billion dollars toward healing the wounds of war, and to post-war reconstruction of Vietnam. But that promise remains unfulfilled.

For the past 52 years, the Vietnamese people have been attempting to address this legacy of war by trying to get the United States and the chemical companies to accept responsibility for this ongoing nightmare. An unsuccessful legal action by Vietnamese victims of Agent Orange against the chemical companies in U.S. federal court, begun in 2004, has nonetheless spawned a movement to hold the United States accountable for using such dangerous chemicals on civilian populations. The movement has resulted in pending legislation, H.R. 2519, The Victims of Agent Orange Relief Act of 2013, which provides medical, rehabilitative and social service compensation to the Vietnamese victims of Agent Orange, remediation of dioxin-contaminated “hot spots,” and medical services for the children of U. S. Vietnam veterans and Vietnamese-Americans who have been born with the same diseases and deformities.

Last year on the 51st anniversary of the beginning of the U.S. chemical war on Vietnam, we requested people around the world to observe 51 seconds of silence in memory of those who suffered and suffer from the effects of Agent Orange, and after the silence to take at least 51 seconds of action to support the struggle. This year again we urge you to reflect on the ongoing tragedy and take action by ensuring that your Congressional representative co-sponsors H.R. 2519, introduced by Rep. Barbara Lee.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Jeanne Mirer, a New York attorney, is president of the International Association of Democratic Lawyers. They are both on the board of the Vietnam Agent Orange Relief and Responsibility Campaign.

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