August 2009 Archives
In 2002, while federal law enforcement agents at the SEC were busy ignoring warnings about Bernie Madoff's massive Ponzi scheme, federal agents at the Justice Department were launching an aggressive investigation into steroid use by major league baseball players. With Barry Bonds identified as a public enemy and Madoff as an honest businessman, the government conducted a wholesale seizure of major league drug testing records, with unsurprising disregard for the 4th Amendment. ("The Fourth Amendment has been virtually repealed by court decisions, most of which involve drug searches," Yale law Professor Steven Duke told Wired Magazine back in 2000.) This time, however, the courts struck back. Last week in United States v Comprehensive Drug Testing Inc., the case spawned by the BALCO (Bay Area Lab Cooperative) investigation, the 9th Circuit Court of Appeals upheld lower court rulings that federal agents acted illegally when they seized test results for hundreds of athletes, in violation of a warrant authorizing the seizure of test results for only ten named baseball players. The court ordered the records returned and barred prosecutors from using them (noting that some players, had "already suffered harm" when their names were leaked from the illegally seized lists.) "This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause," Judge Alex Kozinski observed, in a relatively mild rebuke of federal agents in this case. "All three judges below expressed grave dissatisfaction with the government's handling of the investigation," Kozinski noted, "some going so far as to accuse the government of manipulation and misrepresentation."
Federal judges do not issue accusations like this casually, or often, although they may be merited as often as not. Prosecutorial misconduct is a familiar source of injustice and one that's been exacerbated in recent decades by dramatic expansions of federal criminal jurisdiction, increases in prosecutorial discretion under mandatory minimum sentencing laws (at both the state and federal level), and by the war on drugs, which eviscerated fundamental civil liberties and skewed law enforcement priorities. Combine these policies with unprecedented opportunities for surveillance available to unscrupulous prosecutors in the digital age, and the urgent need for judicial oversight is impossible to overstate.
The 9th circuit tries to provide it in the BALCO case. Its procedural history is complicated (the majority opinion offers a summary of it;) but the case turned on important, general questions involving the practical and legal challenges of segregating data that the government is expressly authorized to seize from data that it has no right even to see.
The Court explained: "the government here did seek advance authorization for sorting and segregating the seized materials off-site. But, as Judge Cooper found, '[o]nce the items were seized, the requirement of the Warrant that any seized items not covered by the warrant be first screened and segregated by computer personnel was completely ignored.' Brushing aside an offer by on-site CDT personnel to provide all information pertaining to the ten identified baseball players, the government copied from CDT's computer what the parties have called the "Tracey Directory" which contained, in Judge Cooper's words, "'information and test results involving hundreds of other baseball players and athletes engaged in other professional sports.' "
Having refused to allow the segregation of data not covered by the warrant, the prosecution then claimed the power to seize all the data under the "plain view" doctrine (which allows agents to seize evidence of a crime that they stumble upon in good faith, in plain view.) You might call the plain view claim chutzpah, given the government's apparent, bad faith effort to "stumble" upon the test records. The Court called the claim "too clever by half," adding that in the future, the government should "agree to forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn't consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether."
In other words, as their conduct in this case made clear, law enforcement agents cannot be trusted to respect constitutional limits on their power. They must be supervised closely and held accountable by the judiciary. This, of course, is not a new concept; it's a foundational one, which, if decreasingly invoked by courts is increasingly essential to liberty, as government agents persist in trying to turn technological opportunities for surveillance into the legal authority to engage in it.
(Photo: Flickr User billaday)
Who cares if American intelligence agents or private contractors tortured terrorism suspects? That is not a rhetorical question. A widely discussed, 2009 Pew Forum poll suggests that the public is evenly divided over the use of torture, with 49% agreeing that it is "often or sometimes justified" and 47% objecting that it is "rarely or never justified." These results may have been skewed by assumptions about torture's effectiveness in extracting information implicit in Pew's multiple choice question: "Torture to gain important information from suspected terrorists is justified... often, sometimes, rarely, never." What if Pew has posed some variation of this question: "Torture is likely to produce important information from suspected terrorists that might not be produced by other means (often, sometimes, rarely, never)?" What if Pew had asked "Is torture more or less likely to gain important information than other means?"
Still, public support for torture seems likely to reflect partisan allegiances, however questions about it are posed. As Pew noted, "party and ideology are much better predictors of views on torture than are religion and most other demographic factors," sensibly adding that, naturally, religion plays a role in shaping political ideology. (Some atheists reveled in the finding of disproportionate, white evangelical support for torture, regarding it as evidence of religion's tolerance for cruelty; but I imagine that one religious response to the atheists might be -"You simply don't understand the nature of evil and are unwilling to combat it.")
In any case, I suspect that the public view of torture is essentially pragmatic, turning on whether it is regarded as a necessary or reliable means of obtaining information to save American lives. But, I'd also be willing to bet that people will evaluate competing claims about torture's effectiveness through partisan colored glasses, which means that, in the end, public opinion will be determined mainly by partisan loyalties (and maybe indirectly by religious ideologies). Relatively few people will take (or have) the time to examine objectively available evidence of torture's effectiveness; instead, they'll assume the truth of claims asserted by their political heroes or opinion leaders, right and left. Surely the success of demonstrably false claims about "death panels" allegedly embedded in health care reform proposals demonstrated the irrelevance of facts when confronted with lies (or emotional "truths") circulated by influential political partisans.
The battle lines over torture, and torture investigations, are obvious: Ari Fleischer tells the Huffington Post that Attorney General Holder's decision to investigate interrogation abuses is "disgusting ... It's amazing to me that the people who kept us safe may now become the people our government prosecutes." Fleischer smoothly assumes an affirmative answer to the essential question, "did people who engage in torture 'keep us safe?' " Cheney repeats that torture saved lives.
Meanwhile, at salon.com, the admirably indefatigable Glenn Greenwald urges all Americans to read the Inspector General's report describing torture in horrific detail (despite significant redactions). Greenwald, (like other civil libertarians) persuasively objects to Holdler's focus on low level interrogators who engaged in torture, not the lawyers and policy makers who authorized it; but while I share his desire to hold "high-level officials" accountable, I'm skeptical that many people will be moved to oppose torture by reading about it in detail (which relatively few people seem likely to do anyway). The torture debate will probably not be won by moral arguments and disgust over torture's methods (which some may find titillating) or even empirical truths, but by what a majority of people are led to believe is the answer to the question "did torture keep us safe?" Torture opponents had better start declaring that the answer is "No."
(Photo: Flickr User Gribiche)
Just in time for Banned Books Week, the American Library Association's annual celebration of intellectual freedom, the Brooklyn Public Library has removed a 79 year old children's book from its shelves after a patron complained about its racial offensiveness. As the New York Times reported last week, "Tintin au Congo," has been locked up in a "vault-like room" of the library, where it is "available for viewing by appointment only." How does this infringe on the right to read and learn? Library users won't discover this book browsing the library shelves, they won't have an opportunity to read it anonymously, and unless they're aware of the book's existence and highly desirous of reading it, they won't learn what it might teach them about the history of racism and racist literature.
The good news is that most efforts to remove books from library shelves and school curricula are unsuccessful, according to the American Library Association. The bad news is that such efforts are common, nationwide. Censorship is distressingly banal. The ALA counts 520 reported challenges in 2008; (an estimated 70 - 80% of challenges are unreported.) "Parents challenge materials more often than any other group, the ALA reports. "Sex, profanity, and racism remain the primary categories of objections, and most occur in schools and school libraries. Frequently, challenges are motivated by the desire to protect children," the Illinois Library Association confirms: Books challenged in 2008 -2009 range arbitrarily from the instructional -- The Joy of Sex -- to the beloved -- To Kill a Mockingbird.
As the list of challenged books shows, contemporary censorship campaigns are not a response to new media, the proliferation of pornography, or heightened concern about pedophilia. Prevailing notions of what's harmful to children are relative. In the late 19th century, advocates for women, like Frances Willard of the Women's Christian Temperance Union, condemned "impure" and "vicious literature" with the intensity directed at Internet porn today. "Books are feeders for brothels," anti-vice crusader Anthony Comstock famously proclaimed. In the mid 20th century, Congressional hearings investigated television's alleged connection to juvenile delinquency, citing the violence in shows like Hopalong Cassidy. So, while the content and media at issue in our censorship battles are sometimes new, underlying hysteria about harm to children and censorship campaigns aimed at protecting them are hardy perennials.
In part, they're a tribute to a socially conservative love affair with big government - a government that dictates through public schools and libraries, obscenity and indecency laws what we may or may not read and view. Are you offended by ads for erectile dysfunction? Virginia Democrat Jim Moran has introduced H.R. 2175 -- Families for ED Advertising Decency Act: "To prohibit as indecent the broadcasting of any advertisement for a medication for the treatment of erectile dysfunction, and for other purposes." (Other purposes include the euphemistically referenced "male enhancement.") Labeling these ads "indecent" would bar them from radio or tv broadcasts between 6AM and 10PM, when they might pollute the eyes or ears of children. That a product famously endorsed by a former Republican Senate majority leader and presidential candidate is now the subject of a federal indecency bill is just one measure of our cultural confusion.
Another is the resolution introduced by Georgia Republican Paul Broun encouraging the President to designate 2010 the Year of the Bible -- a book replete with sex and violence. Maybe Congress can redact Lot's offer to pimp out his daughters. Or maybe people who hold the Bible sacred can come to understand that deeply offensive literature can also be deeply redemptive.
UPDATE (or pre-date:) Another historical note -- Chris Finan, President of the American Booksellers Foundation for Free Expression, recalls that the Brooklyn Public Library "banned Huck Finn in 1885 because 'Huck not only itched but scratched, and that he said sweat when he should have said perspiration.' ") Naturally, people find different reasons to protest Huck Finn today, (different times, different lists of forbidden words,) but the impulse to censor remains the same.
The good news is that most efforts to remove books from library shelves and school curricula are unsuccessful, according to the American Library Association. The bad news is that such efforts are common, nationwide. Censorship is distressingly banal. The ALA counts 520 reported challenges in 2008; (an estimated 70 - 80% of challenges are unreported.) "Parents challenge materials more often than any other group, the ALA reports. "Sex, profanity, and racism remain the primary categories of objections, and most occur in schools and school libraries. Frequently, challenges are motivated by the desire to protect children," the Illinois Library Association confirms: Books challenged in 2008 -2009 range arbitrarily from the instructional -- The Joy of Sex -- to the beloved -- To Kill a Mockingbird.
As the list of challenged books shows, contemporary censorship campaigns are not a response to new media, the proliferation of pornography, or heightened concern about pedophilia. Prevailing notions of what's harmful to children are relative. In the late 19th century, advocates for women, like Frances Willard of the Women's Christian Temperance Union, condemned "impure" and "vicious literature" with the intensity directed at Internet porn today. "Books are feeders for brothels," anti-vice crusader Anthony Comstock famously proclaimed. In the mid 20th century, Congressional hearings investigated television's alleged connection to juvenile delinquency, citing the violence in shows like Hopalong Cassidy. So, while the content and media at issue in our censorship battles are sometimes new, underlying hysteria about harm to children and censorship campaigns aimed at protecting them are hardy perennials.
In part, they're a tribute to a socially conservative love affair with big government - a government that dictates through public schools and libraries, obscenity and indecency laws what we may or may not read and view. Are you offended by ads for erectile dysfunction? Virginia Democrat Jim Moran has introduced H.R. 2175 -- Families for ED Advertising Decency Act: "To prohibit as indecent the broadcasting of any advertisement for a medication for the treatment of erectile dysfunction, and for other purposes." (Other purposes include the euphemistically referenced "male enhancement.") Labeling these ads "indecent" would bar them from radio or tv broadcasts between 6AM and 10PM, when they might pollute the eyes or ears of children. That a product famously endorsed by a former Republican Senate majority leader and presidential candidate is now the subject of a federal indecency bill is just one measure of our cultural confusion.
Another is the resolution introduced by Georgia Republican Paul Broun encouraging the President to designate 2010 the Year of the Bible -- a book replete with sex and violence. Maybe Congress can redact Lot's offer to pimp out his daughters. Or maybe people who hold the Bible sacred can come to understand that deeply offensive literature can also be deeply redemptive.
UPDATE (or pre-date:) Another historical note -- Chris Finan, President of the American Booksellers Foundation for Free Expression, recalls that the Brooklyn Public Library "banned Huck Finn in 1885 because 'Huck not only itched but scratched, and that he said sweat when he should have said perspiration.' ") Naturally, people find different reasons to protest Huck Finn today, (different times, different lists of forbidden words,) but the impulse to censor remains the same.
Driving civil libertarians crazy is probably not a goal of this month's town hall protesters, but it may be one of their signal achievements. Having openly applauded, tacitly supported, or simply ignored the Bush/Cheney national security state and the unprecedented expansion of unaccountable executive power, the right wing now defends freedom against the spectre (and it is only a spectre) of universal health care?
If the fury directed at "Obamacare" is partly fueled by angst about cultural and demographic changes (from gay marriage to the emergence of a non-white majority,) it also reflects a very limited understanding of repression and the role of government in everyone's life. According to an indeterminate number of unhinged protesters enjoying inordinate amounts of airtime this month, the hallmarks of a police state include prohibitions on carrying assault weapons to public meetings and the provision of publicly supported health care -- with the exception of medicare. Conservative Republican support for medicare spending indicates that it is not a form of left-wing repression, probably because so many voters rely on it: "Deep Medicare cuts are just one of the mounting reasons why Americans are losing faith in the Democrats' government takeover of health care," John Boehner's web page declares. (Or, as one confused protester famously demanded, "keep your government hands off my Medicare.").
How do the town hall protests define repression? Apparently it comprises any government regulation perceived as a threat to any constitutional right or federally mandated benefit that the protesters enjoy. Naturally this solipsistic approach to rights and liberties is deeply incoherent: effectively equating the right to bear arms with a social security check or medicare coverage, it combines a little libertarianism with a lot of socialism.
But the town hall protests do help explain why a conservative movement that has practically copyrighted the word "freedom" acquiesced in the establishment of the Bush/Cheney imperial presidency. Its effects on ordinary Americans were covert, sporadic, and unpredictable; you might never know that you were victimized by it -- if your emails were being intercepted by government agents or if you were denied a job or a mortgage because your name mistakenly appeared on a terrorist watch list. You might easily imagine that torture and detention without due process were calamities that only befell the terrorists who deserved them; in one popular view every terrorist suspect is an actual terrorist and there are no innocent or wrongly tortured and imprisoned Guantanamo detainees. (Nearly two-thirds -- 62% -- of evangelical Protestants and nearly half of all respondents to a 2009 Pew Forum survey opined that torture was sometimes or often justified.)
Of course, trust that the Bush Administration was using its virtually unlimited power to protect America and the fear that Obama is intent on destroying it is, in no small part, a function of partisanship. But conservative Republicans are not protesting Obama's continuation of Bush's national security policies (like his embrace of the state secrets doctrine or resistance to releasing torture photos.) Protests of the national security police state still emanate mainly from the left (as well as from free market libertarians.) "The Makings of a Police State: Aren't We There?" FBI whistleblower Sibel Edmonds asks, citing the creation of a perpetual state of war, ubiquitous surveillance, government secrecy, and summary search and seizures among other lamentable developments, like an executive branch contemptuous of the rule of law. Somehow, health care reform doesn't seem so scary after all.
If the fury directed at "Obamacare" is partly fueled by angst about cultural and demographic changes (from gay marriage to the emergence of a non-white majority,) it also reflects a very limited understanding of repression and the role of government in everyone's life. According to an indeterminate number of unhinged protesters enjoying inordinate amounts of airtime this month, the hallmarks of a police state include prohibitions on carrying assault weapons to public meetings and the provision of publicly supported health care -- with the exception of medicare. Conservative Republican support for medicare spending indicates that it is not a form of left-wing repression, probably because so many voters rely on it: "Deep Medicare cuts are just one of the mounting reasons why Americans are losing faith in the Democrats' government takeover of health care," John Boehner's web page declares. (Or, as one confused protester famously demanded, "keep your government hands off my Medicare."). How do the town hall protests define repression? Apparently it comprises any government regulation perceived as a threat to any constitutional right or federally mandated benefit that the protesters enjoy. Naturally this solipsistic approach to rights and liberties is deeply incoherent: effectively equating the right to bear arms with a social security check or medicare coverage, it combines a little libertarianism with a lot of socialism.
But the town hall protests do help explain why a conservative movement that has practically copyrighted the word "freedom" acquiesced in the establishment of the Bush/Cheney imperial presidency. Its effects on ordinary Americans were covert, sporadic, and unpredictable; you might never know that you were victimized by it -- if your emails were being intercepted by government agents or if you were denied a job or a mortgage because your name mistakenly appeared on a terrorist watch list. You might easily imagine that torture and detention without due process were calamities that only befell the terrorists who deserved them; in one popular view every terrorist suspect is an actual terrorist and there are no innocent or wrongly tortured and imprisoned Guantanamo detainees. (Nearly two-thirds -- 62% -- of evangelical Protestants and nearly half of all respondents to a 2009 Pew Forum survey opined that torture was sometimes or often justified.)
Of course, trust that the Bush Administration was using its virtually unlimited power to protect America and the fear that Obama is intent on destroying it is, in no small part, a function of partisanship. But conservative Republicans are not protesting Obama's continuation of Bush's national security policies (like his embrace of the state secrets doctrine or resistance to releasing torture photos.) Protests of the national security police state still emanate mainly from the left (as well as from free market libertarians.) "The Makings of a Police State: Aren't We There?" FBI whistleblower Sibel Edmonds asks, citing the creation of a perpetual state of war, ubiquitous surveillance, government secrecy, and summary search and seizures among other lamentable developments, like an executive branch contemptuous of the rule of law. Somehow, health care reform doesn't seem so scary after all.
Repudiating its professed commitment to "the discovery and dissemination of light and truth," Yale University Press will publish Jytte Klausen's forthcoming account of the Muhammed cartoon controversy, The Cartoons That Shook the World, only after excising the cartoons and other images of Muhammed. ("Yale Press Bans Images of Muhammad in New Book," the New York Times reports.) A justifiably outraged statement from the American Association of University Professors notes that Yale Press is not even responding to threats of violence but merely "anticipating them and making or recommending concessions beforehand."
Giving in to a fear of violence (the advice of unnamed consultants and, I suspect, some risk averse lawyers), Yale has effectively condoned the heckler's veto. This policy of appeasement may serve to encourage threats of violence against other authors or publishers of allegedly blasphemous or presumptively hateful books. Its chilling effect seems obvious. As the AAUP statement asks, "What is to stop publishers from suppressing an author's words if it appears they may offend religious fundamentalists or groups threatening violence?"
(Photo Credit: Creative Commons)
Giving in to a fear of violence (the advice of unnamed consultants and, I suspect, some risk averse lawyers), Yale has effectively condoned the heckler's veto. This policy of appeasement may serve to encourage threats of violence against other authors or publishers of allegedly blasphemous or presumptively hateful books. Its chilling effect seems obvious. As the AAUP statement asks, "What is to stop publishers from suppressing an author's words if it appears they may offend religious fundamentalists or groups threatening violence?" (Photo Credit: Creative Commons)
Add the "r-word" to the lexicon of words that may only be referenced by their initials. As Bob Johnson, President and CEO of the Massachusetts Special Olympics, explained today in an NPR tribute to Eunice Shriver, "the r-word, as we put it, has really become a bit of a pejorative ... our athletes are offended by the term that begins with "r," which I'm not going to repeat. And suggested to us that a better term, a more acceptable term, would be that of intellectual disability." The desire of people once labeled retarded to be described as intellectually disabled instead ought to be respected, of course. It's true that the "r-word" is, as Johnson says, "a bit of a pejorative." In the schoolyards of my childhood, "retard" was a common insult. My elementary school served one small, segregated group of special ed students (which included the only black child in the school), who were at best objects of curiousity and, at worst, targets of mockery. If the special ed students were intellectually disabled, many of the presumptively non-disabled were ignorant and emotionally stupefied.
Nomenclature can be a form of education or of raising consciousness, (which my elementary school classmates and I sorely needed), but must it become an obsession? When Bob Johnson references the "r-word," stressing his unwillingness to utter it, does he believe that people aren't saying the word "retarded" silently, to themselves? His squeamishness doesn't erase the word from our data banks, much less defang it. Instead, like other words we dare not say, the r-word is invested with brutal omnipotence. No longer a lowly word, it becomes an incantation.
My post last week on the battle over releasing the names and addresses of people who signed a petition placing Washington state's domestic partnership law on the ballot generated some confusing responses that seem to me worth addressing.
First, it's important to distinguish between the privacy interests of people who merely sign a petition to place a referendum on the ballot and people who financially support a referendum campaign. While there are sound arguments for allowing anonymous political donations (especially small individual donations below a set minimum), the public interest in revealing financial backers of a political campaign (especially organizational or institutional backers) is much stronger than the interest in revealing the names of individual citizens who sign a petition.
Why shouldn't the privacy of the ballot box extend to referendum petitions? We protect the individual right to vote for or against a ballot question in secret in order to prevent voter intimidation and encourage participation; why shouldn't we protect an individual right to cast a secret vote (by signing a petition) to place a question on the ballot? Of course petition signatures ought to be verified to prevent fraud (and the process of obtaining signatures requires oversight), but verification is the job of the secretary of state (or some other official.) Somehow I don't think we would be well served by vigilante verification of referendum petitions anymore than by vigilante verification of voter ID's on election day.
It is also a mistake to assume that everyone who signs a referendum petition is expressing an opinion on its merits. I can imagine signing a petition putting a candidate or a question on the ballot that I opposed, or regarded indifferently, if I believed that either the candidate or the question should be the subject of a popular vote. In any case, I don't agree that we have a legal right to know where our families, friends, employers, or local businesses stand on controversial questions of rights, as one comment suggests. If you want to know where they stand, you should ask them. It's not the state's job to tell you what other people think.
(Photo Credit: http://www.flickr.com/photos/frankieroberto/3065244369)
First, it's important to distinguish between the privacy interests of people who merely sign a petition to place a referendum on the ballot and people who financially support a referendum campaign. While there are sound arguments for allowing anonymous political donations (especially small individual donations below a set minimum), the public interest in revealing financial backers of a political campaign (especially organizational or institutional backers) is much stronger than the interest in revealing the names of individual citizens who sign a petition.
Why shouldn't the privacy of the ballot box extend to referendum petitions? We protect the individual right to vote for or against a ballot question in secret in order to prevent voter intimidation and encourage participation; why shouldn't we protect an individual right to cast a secret vote (by signing a petition) to place a question on the ballot? Of course petition signatures ought to be verified to prevent fraud (and the process of obtaining signatures requires oversight), but verification is the job of the secretary of state (or some other official.) Somehow I don't think we would be well served by vigilante verification of referendum petitions anymore than by vigilante verification of voter ID's on election day.
It is also a mistake to assume that everyone who signs a referendum petition is expressing an opinion on its merits. I can imagine signing a petition putting a candidate or a question on the ballot that I opposed, or regarded indifferently, if I believed that either the candidate or the question should be the subject of a popular vote. In any case, I don't agree that we have a legal right to know where our families, friends, employers, or local businesses stand on controversial questions of rights, as one comment suggests. If you want to know where they stand, you should ask them. It's not the state's job to tell you what other people think.
(Photo Credit: http://www.flickr.com/photos/frankieroberto/3065244369)
Wendy Kaminer
