Friday, February 20, 2015
This paper examines the National Security Agency, its compliance with legal constraints and its respect for civil liberties. But even if perfect compliance could be achieved, it is too paltry a goal. A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules. Yet as will become evident, the offices that make up the NSA’s compliance system are nearly entirely compliance offices, not policy offices; they work to improve compliance with existing rules, but not to consider the pros and cons of more individually-protective rules and try to increase privacy or civil liberties where the cost of doing so is acceptable. The NSA and the administration in which it sits have thought of civil liberties and privacy only in compliance terms. That is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for the can question over the should question is part and parcel, I argue, of a phenomenon I label “intelligence legalism,” whose three crucial and simultaneous features are imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers. Intelligence legalism has been a useful corrective to the lawlessness that characterized surveillance prior to intelligence reform, in the late 1970s. But I argue that it gives systematically insufficient weight to individual liberty, and that its relentless focus on rights, and compliance, and law has obscured the absence of what should be an additional focus on interests, or balancing, or policy. More is needed; additional attention should be directed both within the NSA and by its overseers to surveillance policy, weighing the security gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates.
Part I first traces the roots of intelligence legalism to the last generation of intelligence disclosures and resulting reform, in the late 1970s. Part I then goes on to detail the ways in which intelligence legalism is embedded in both the Foreign Intelligence Surveillance Act of 1978 (FISA) and Executive Order 12,333, which governs American intelligence practices, and why the result is a civil liberties gap. Part II discusses the ways in which NSA’s compliance and oversight institutions likewise embody intelligence legalism. I then move in Part III to some shortcomings of this system, and in particular the ways in which the law and NSA’s compliance regulations and infrastructure fall short of full civil liberties policy evaluation. In Part IV, I examine some of the many reforms that have recently been proposed, analyzing in particular those that might fill that gap. In light of the existing institutional arrangements, I sketch some thoughts on how they could do so most effectively.
Thursday, February 19, 2015
How about $25 million? Well that's precisely what a Brooklyn man claims he's due for the 25 years he spent locked up for a murder he didn't commit. The NYPost reports:
A Brooklyn man who spent 25 years behind bars for a 1989 murder he didn’t commit is suing the city and a slew of cops for egregious civil rights violations, according to a federal lawsuit.
Derrick Deacon, 58, has already filed a $25 million lawsuit against the state in a pending case.
There was no dollar amount in the new suit against the city.
Deacon was convicted of killing 16-year-old Anthony Wynn in a Prospect Lefferts Garden building and sentenced to 25 years to life in prison before he was acquitted at a 2013 retrial.
Deacon had been granted a new trial in June 2012 after a Jamaican gang member told authorities that another man had actually committed the slaying.
In addition, another key witness who had originally placed him at the murder scene recanted her testimony at his retrial and testified that conviction-hungry cops and district attorney investigators coerced her bogus tale.
For whatever reason I couldn't embed the must-see video that accompanies the article, so make sure to check that out. Here's how the article begins:
A civil rights lawsuit claims an inmate at the Logan County Detention Center was given a pair of pliers to remove a bad, painful tooth after being repeatedly denied dental care.
In the lawsuit, inmate Mark Traxler, 47, claims a jail employee and a nurse "approached him with a pair of dirty, rusty pliers and a roll of gauze and told him to go back to his unit and have some of the 'fellas' help him with a tooth extraction."
The suit goes on to say Traxler was held down by several inmates, including one known as "Big Jake," but that the extraction caused more pain and more damage to Traxler's teeth.
After the shooting of Michael Brown, DOJ commenced to investigate the Ferguson PD's dealings with racial minorities. That investigation has found "a pattern of racially discriminatory tactics used by officers," according to this CNN report, which explains:
Attorney General Eric Holder said this week he expects to announce the results of the department's investigation of the shooting death of Michael Brown and a broader probe of the Ferguson Police Department before he leaves office in the coming weeks.
Brown's shooting death at the hands of Officer Darren Wilson has thrust Ferguson into the center of a nationwide debate over police tactics and race relations. The Justice Department is expected to announce it won't charge Wilson for the shooting, but it's also expected to outline findings that allege a pattern of discriminatory tactics used by the Ferguson police.
If they don't agree to review and revise those tactics, sources say, the Justice Department would sue to force changes in the department.
Thursday, February 12, 2015
Tuesday, February 10, 2015
An enormous effort has been dedicated to uncovering the original meaning of the First Amendment’s religion clauses, but, surprisingly, little research has been directed toward the Founding-era state constitutions on church and state. This article aims to open a field of inquiry by making the church-state provisions of the Founding-era state constitutions more accessible. It begins with a consideration of the distinction between the state declarations of rights and the state constitutions and the interpretive challenge this distinction poses. I then identify, categorize, and interpret the relevant church-state provisions of the Founding-era state declarations of rights and constitutions. The article concludes with a discussion of how a deeper knowledge of the Founding-era state church-state provisions might shed light on the original meaning of the First Amendment’s religion clauses, and it reveals the probable errors of particular originalist arguments made by leading scholars and Supreme Court justices.
Monday, February 9, 2015
The Atlantic's Matt Ford posted this compelling piece earlier today, which begins:
Joseph Sledge’s timing could not have been worse. While serving a four-year sentence for stealing t-shirts in 1976, the 36-year-old man from Georgia escaped from a prison work farm in eastern North Carolina. That same day, Josephine Davis and her daughter Ailene were brutally murdered in their farmhouse in nearby Bladen County. Sledge immediately became the prime suspect and was charged with their murders upon his re-capture.
The case against Sledge was weak. None of the fingerprints at the scene matched his own. The only physical evidence linking him to the crime was pubic hair “of Negroid origin” found on one victim’s body. An FBI microscopic analysis said they resembled Sledge’s hairs, but cautioned that this did not “constitute a basis for positive personal identification.” No eyewitnesses to the crime could be found, but two jailhouse informants testified that Sledge had confessed to killing two white “she-devils” to them. Sledge, who always maintained his innocence, received a life sentence in 1978.
His lawyers tried to fight the conviction, but hit a dead end in the appeals courts. In 2012, a county clerk discovered an envelope in the archives containing hairs from the crime scene, long presumed lost. A private lab tested mitochondrial DNA samples from the hairs and ruled out any connection to Sledge. Investigators with the North Carolina Innocence Inquiry Commission, a state agency devoted to investigating wrongful convictions, then interviewed the only surviving jailhouse informant. He recanted his testimony. The commission’s eight members voted unanimously last December to refer Sledge’s case to a special tribunal for exoneration. On January 23, the three judges unanimously ruled that Sledge had been wrongly convicted and ordered his release. He spent almost four decades behind bars for a crime he didn’t commit.
In 49 other states, Joseph Sledge would still be in prison.
In a recently filed complaint in federal court, a Georgia woman claims an officer with her local PD assaulted her while she waited for the release of her recently arrested son. She was pregnant at the time, and she alleges that the assault cause her to miscarry. This article highlights her basic allegations:
Kenya Harris sued the City of Albany, Ga., police chief John Proctor and officers Ryan Jenkins and Richard Brown, Jr. for excessive force, assault and battery and infliction of emotional distress.
Harris says she was called to the Albany Police Department in May 2011 after her minor son was arrested. After waiting five hours, she told Jenkins that she had other children at home and needed to leave but Jenkins responded with hostility, according to the complaint.
"Defendant Officer Jenkins stated that he did not appreciate the tone in which she was communicating with him, and further stated that if she continued he would take her head and 'put it to the floor,'" the complaint states.
Harris says when she again tried to explain that she needed to leave, Jenkins followed through on his threat.
"Defendant Officer Jenkins, without provocation, grabbed plaintiff, who weighs less than one hundred twenty (120) pounds, by her neck and slammed her to the ground. Plaintiff momentarily blacked out and came to with defendant Officer Jenkins sitting on her back, and with his knee on her arm. Plaintiff was pregnant at the time," the complaint states. "Defendant Officer Jenkins put handcuffs on plaintiff and slammed her against the wall. Plaintiff was placed into an interrogation room after she was beaten and handcuffed."
Harris' request for medical attention was denied and she was taken to Dougherty County Jail for the night on a charge of obstruction, according to the complaint. She says her subsequent miscarriage was a result of Jenkins' excessive force.
What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with what I term the “deference dichotomy.” When agency interpretations are in a legislative rule adopted through notice-and-comment procedures and have the “force of law,” the Court applies a heightened deference framework. But when agency interpretations are in interpretive or other non-legislative rules adopted through less formalized procedures, the Court gives minimal or no deference. Although scholars have advocated that approach for decades and the Court has now adopted it as formal doctrine, the Court’s actual choice of deference framework follows a less predictable pattern. Some scholars have suggested ideology as an alternative explanation, but empirical studies across administrative law domains have come to conflicting conclusions about its effect on deference choices. Other scholars have argued that the complexity of the statute and judicial views about the agency influence deference choices, but these studies have not been generalized across agencies and statutes.
In this Article, I employ a distinct approach, examining Supreme Court deference choices across multiple agencies administering multiple statutes in a single substantive field. I find that in the civil rights field, the Supreme Court’s deference choices appear to have been motivated by a factor that has gone unnoticed in the literature thus far — judicial resistance to “administrative constitutionalism.” To the extent that civil rights agencies resolve statutory questions central to ongoing constitutional controversies in the Supreme Court, such as the meaning of “discrimination,” they are practicing administrative constitutionalism — resolving interpretive questions that rest on constitutional values. When civil rights agencies have engaged with constitutional meaning in this way, the Court has refused to apply heightened deference to the agency’s interpretation of the statute even when precedent or the deference dichotomy suggests that it should.
I argue that this judicial resistance to administrative constitutionalism implicates important questions about authority over constitutional meaning. When the Court denies heightened deference to administrative constructions of statutes implicating ongoing constitutional controversies, it is preserving its exclusive power to determine constitutional meaning. Such resistance places the Court in the role of defining the substance of civil rights statutes insofar as they implicate the Constitution, and thus supplements the Court’s often-remarked practice of curbing legislative constitutionalism.
Thursday, February 5, 2015
This article is part of the University of Miami “Leading from Below” Symposium. It canvasses prisoners’ lawyers strategies prompted by the 1996 Prison Litigation Reform Act. The strategies not only comply with the statute’s limits but also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. Part I summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes in prison litigation, but demonstrates there are still many cases and situations in which courts continue to play a role. Part II looks at three methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases — by crafting stipulations that comply with the PLRA’s constraints, by structuring the relief as a conditional dismissal, or by setting up the possibility of state-court enforcement. Part III examines plaintiffs’ coping methods for the PLRA’s provisions easing the path to termination of decrees, whether litigated or consent. Two types of preparation for a termination motion have emerged. First, the parties sometimes agree to stretch out the remediation period more than the PLRA’s default two years. Second, plaintiffs have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination motion.
It is my hope that the examples presented can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents.
Wednesday, February 4, 2015
This essay argues that the efficiency assumption in election law coupled with a resurgent preference for state-focused election administration has come to dominate considerations of the right to vote. Analysis of right-to-vote questions tends to turn around a calculus that puts at its center the efficiency of a state-dominated election system is the core interest the Court seeks to protect. This stands in contrast to a focus on the rights and status of the individual voter, especially where an individual voter confronts a voting regulation that fails to expressly deny that person the right to vote. In this sense, as is the case in a substantial amount of modern jurisprudence, this efficiency approach has overtaken the modern debates over election regulation.
This essay explores this issue by tracing the development of voting rights jurisprudence from a laissez-faire position of virtually unfettered deference to state control of the vote to a voter-centric rights-based framework, to a balancing approach that champions the states’ interest in efficiency coupled with the reemergence of deference to state power in regulating voting rights. This essay will then turn to examine whether this doctrinal development is appropriate to the modern rights-related issues concerning voting rights. Ultimately, this essay concludes how this new focus on efficiency is ultimately damaging to the right to vote as it fails to fully encompass how voters are ultimately excluded from the process due to the indirect costs placed on voters as an added mechanism of dissuasion from casting one’s ballot.
Tuesday, February 3, 2015
The Civil Rights Act was remarkably successful in fighting overt bigotry and discrimination, but much less so in combating the subtler, institutionalized disadvantages that are now the main sources of social injustice. The heroic idea of rights as protections from an oppressive state or oppressive powerful private organizations is misleading and distracts attention from the institutional reforms necessary to achieve real social justice. In fact, the very concept of discrimination is vague and contested — the conflict in contemporary civil rights disputes is not simply over the factual question of whether or not discrimination has occurred, but also over the essentially normative question of what should count as discrimination. The concept of discrimination itself has become a placeholder for ideological struggles over how to balance individual entitlements to fair treatment on the one hand against employer decision- making prerogatives and individual liberties of expression on the other. We should abandon unresolvable conceptual disputes over “discrimination” in favor of a focus on the extent of the employer’s affirmative duty to avoid decisions and policies that needlessly injure members of underrepresented or stigmatized groups.
Monday, February 2, 2015
"Privacy and Security in the Cloud: Some Realism About Technical Solutions to Transnational Surveillance in the Post-Snowden Era"
This Article considers the organizational and technical responses of cloud computing companies in response to the Snowden leaks, which revealed the extent of NSA surveillance of foreign citizens whose data was held by U.S. based cloud services. The industry has sought to restore trust in their services by stepping up their efforts to protect the privacy and confidentiality interests of their customers against what we call “transnational surveillance.” While the legal debate about the proper legal standards for such surveillance is ongoing, the article focuses on two broad classes of technical and organizational responses and their interaction with the law. First, leading cloud firms like Google and Microsoft have implemented long-established cryptographic protocols that secure both communications with their customers and information flows among their own company data centers. In particular, these solutions help ensure that access takes place only through the “front door” of a valid legal process involving the service providers. Second, the article explores the availability of more far-reaching security innovations based on Privacy Enhancing Technologies (PETs). These increasingly popular solutions would limit the ability of service providers to comply with government orders, notwithstanding the technical assistance provisions in existing domestic and foreign surveillance laws.
The solutions discussed raise a number of legal issues. For example, do investigative agencies have sufficient legal authority to seek court orders compelling U.S. firms to modify their services in order to facilitate surveillance? More broadly, do U.S. firms (other than telephone carriers subject to a 1994 law requiring them to design wiretap-ready equipment) have a free hand in modifying existing services, or designing new services, to make them more resistant to transnational surveillance? Or may the U.S. government rely on existing surveillance laws to oversee the design of cloud services to ensure that court-ordered access remains achievable when duly authorized by judges or magistrates?
In analyzing these issues, the article draws upon an earlier debate about encryption export controls in the 1990s (the so-called “crypto wars”). It concludes that new laws may be necessary for the U.S. government to maintain its current levels of access and that Congress may be reluctant to enact such laws in the current climate. More generally, it concludes that many of the technical and organizational measures under discussion are likely to fall short of providing the kind of absolute protection sought by certain cloud customers, especially those located abroad. At the same time, under the right conditions, these measures can help to lower some of the risks of transnational surveillance and work to restore the balance in favor of privacy, information security, and confidentiality interests in the context of cloud data.
Sunday, February 1, 2015
In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, three marriage cases made their way to and beyond trial: Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State. This article offers a detailed account of that early trilogy. Drawing on extensive archival research and on interviews with key players in each case, it shows that, contrary to received wisdom, Stonewall-era marriage litigation was faithful to gay liberation’s radical aspirations. The Baker, Jones, and Singer lawsuits deployed marriage’s symbolic cachet to proclaim homosexuality’s equality, legal and moral, in a society that almost ubiquitously criminalized its practice. They protested the traditional gender roles that gay liberationists located at the heart of their oppression and that marriage, at the time, not only fostered but legally prescribed. They provided a platform from which to critique other aspects of marriage, such as the rule of monogamy and the state’s coercive, intrusive preference for a particular form of intimate association. Perhaps most importantly, these cases were sensational advertisements of gay people, gay relationships, and the nascent gay liberation movement. The first gay marriage plaintiffs were closely affiliated with that movement and, despite widespread antipathy toward marriage, fellow liberationists generally applauded the lawsuits as effective vehicles for declaring the movement’s existence and communicating several of its most important messages. This history, important in its own right, allows us to grasp some of the underlying stakes and radical possibilities of the signal gay rights issue of our time.