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Apr 9th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Julia Harumi Mass, ACLU of Northern California at 4:54pm

Civil Liberties and Muslims in America

San Francisco's Police Chief George Gascón roundly offended many Muslim-Americans last month when he suggested that retrofitting San Francisco's Hall of Justice had made the structure safe from both earthquakes and Yemeni or Afghan San Franciscans who might want to park a van in front of the building and blow it up.

Gascón's subsequent apology to the city's Middle Eastern communities provided some closure for a city government that likes to see itself above racial profiling. But though the memory of Gascón's gaffe may soon fade for the general public, it underlines the extent to which racial profiling — in this case, assumed terrorist tendencies of Muslim-Americans and Americans from predominantly Muslim countries — is pervasive throughout American law enforcement.

When there are repeated and widespread reports of misguided intelligence sweeps that affect the lives of innocent Americans, the ACLU and other civil rights organizations must step in. The ACLU of Northern California — like many of our sister ACLU affiliates and allied civil rights organizations — is carefully monitoring racial profiling of Muslim communities. We recently joined with the Asian Law Caucus and San Francisco Bay Guardian in filing a Freedom of Information Act request to the FBI for records related to the surveillance of Muslim communities in Northern California.

The FBI, acknowledging the widespread media interest and public concern about relationships between these communities and American law enforcement, granted our request for expedited processing, and we are looking forward to receiving documentation on surveillance methods that may show whether and how race and religion are used to determine targets of investigations. We also hope to review aggregate data about criminal prosecutions and immigration proceedings that begin with terrorism investigations, with and without the use of undercover informants.

Muslim-Americans, like all citizens, play an important role in domestic intelligence investigations. Policies and investigative practices that focus on race or religion only are ineffective and ultimately could be dangerous for our country as a whole.

For this reason, the ACLU of Northern California is working with the Center on American-Islamic Relations and the Asian Law Caucus to present "Know Your Rights" information at mosques and community centers to help people understand their rights during 'voluntary' interviews with FBI agents.

Having represented several people who were contacted by the FBI for such interviews, it is clear to me that for many Muslim-Americans, interactions with law enforcement can seem both involuntary and deeply troubling. In order for our government to collect useful information that benefits us all, it is crucial for all people to have knowledge of their rights, and a representative or buffer with the government so that they can cooperate fully without fearing unjust prosecution. Stories of FBI infiltrators in mosques and Islamic centers who deliberately create divisions and act as agent provocateurs, as well as the FBI's overt courting in local communities, justly fuel these fears.

Gascón is new to San Francisco, with a reputation for fairness and for rejecting biased policing against Latinos and blacks. His unwitting betrayal of bias can deepen the crisis in Muslim and Arab communities and increase the fear of law enforcement, or it can be used to ramp up effective and smart intelligence practices that truly promote public safety. The ACLU will continue to hold law enforcement agencies to the latter, higher, goal.

Apr 9th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Christopher Calabrese, Washington Legislative Office at 4:06pm

The NYT Demands DotRights. You Should Too.

The ACLU has recently been making a lot of noise about modernizing the laws that protect our online privacy. We believe that law enforcement should have to go to a judge and get a warrant that says it has probable cause to believe you've committed a crime before it can read your email, browse through your social networking account, or track your location. Right now, that's not the case. Digital information simply isn't getting the protection it deserves and that the framers would have wanted (if they knew what digital information was). That's why we're working so hard to raise visibility of this issue.

But we knew that ACLU noise, by itself, wasn't enough to get the law changed. We needed powerful allies in order to build momentum behind the issue and see that something got done. That's why we joined with companies like Google, AT&T and Microsoft to urge modernization of our online privacy laws. Now we're pleased to have another voice join the fray.

In its lead editorial today, The New York Times states:

Privacy is central to American law. And in 1986, Congress applied that principle to electronic communications by setting limits on law enforcement access to Internet and wireless technologies. It was a laudable law at the time, but cellphones were still oddities, the Internet was mostly a way for academics and researchers to exchange data and the World Wide Web that is an everyday part of most Americans' lives did not exist.

The law is no longer comprehensive enough to cover the many kinds of intrusions made possible by the advances of the past 24 years. In the absence of strong federal law, the courts have been adrift on many important Internet privacy issues. The law is not clear on when search warrants are required for the government to read stored e-mail, what legal standards apply to GPS technology that tracks people's whereabouts in real time and other critical questions.

We're proud that the editorial prominently mentioned the ACLU and the Digital Due Process campaign. We hope it will help spur Congressional action. But we also know that the most important voice Congress hears is yours.

We hope you'll take a minute to click here and send an email to your senators and your representative asking for an upgrade to your digital rights.

Apr 9th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Suzanne Ito, ACLU at 2:45pm

Tariq Ramadan Panel — What'd You Think?

From left to right: George Packer, Dalia Mogahed, Tariq Ramadan, Joan Wallach Scott, and Jacob Weisberg

Last night's panel discussion at Cooper Union was a sold-out success! Thanks to everyone who joined us last night. We thought it was a riveting discussion, and many thanks to panelists Dalia Mogahed, George Packer, Joan Wallach Scott, and Jacob Weisberg.

If you were able to join us (either in-person or watched it stream from the PEN website), please let us know what you thought of the event in comments. If you weren't able to join us, we'll have video of the event early next week.

We think last night's discussion proved that when people gather and engage in thoughtful discussion and even respectful disagreement, it can only benefit us all. That's why "global debate" rather than "ideological exclusion" of scholars like Professor Ramadan is so important. (If you agree, send a letter to the Secretary of State Clinton asking her to retire the practice of ideological exclusion for good).

Professor Ramadan heads to Washington, D.C., Monday to meet with members of Congress and speak at Georgetown.

Apr 9th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Suzanne Ito, ACLU at 2:09pm

Obama to Appoint Privacy Board Members

A few weeks ago, Jay wrote about the Obama administration's failure to appoint members to the Privacy and Civil Liberties Oversight Board (PCLOB). It looks like all those letters from members of Congress (PDF) and a civil liberties coalition (PDF) Jay mentioned might've been the nudge the president needed, because in today's Washington Post, Ellen Nakashima reported some good news: "The White House is vetting someone for one of the three Democratic seats on the board."

The article, which also quotes Jay, also reports that Republicans will be supplying names of people to fill the two remaining seats in the next two weeks.

We're encouraged by this news. As we hear more and more news about out-of-control watchlists and dubious airport security measures, we hope a fully-staffed PCLOB will bring some much-needed oversight to our national security establishment.

Apr 8th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Jay Stanley, Technology & Liberty Program at 3:44pm

Is the U.S. Encouraging the Use of Radiation on Africans?

In all the controversy over the deployment of full-body scanners in U.S. airports, the health effects of the millimeter wave and backscatter machines has been a muted part of the debate. The backscatter X-ray machines deliver a very small amount of radiation. The millimeter wave machines use radio waves that (as in the case of cell phones) are not believed to pose any risk. Even so, concerns have been raised about the health effects, and at the ACLU we have often been asked questions about those effects by people who regard government claims with a lot of skepticism or who just worry that, as so often in the past, there are risks scientists don't yet understand.

What about real X-ray machines? The current body scanners cannot see below the skin, and we have previously pointed out the possibility of explosives being hidden in body cavities, in the context of asking just how far the United States is prepared to go in pursuing privacy-violating security measures. Of course, regular X-rays, like those used when you break your arm, can see below the skin — but because the radiation doses they deliver are significant, those would be a nonstarter in the airline security context.

Or would they? We were surprised to learn that some agency of the U.S. government is purchasing genuine, "through-body X-Ray" machines for African countries for the purposes of airport security — the kind that can see through flesh, and which deliver real doses of radiation.

The U.S.-supplied scanners have apparently been deployed at one airport in Ghana and four in Nigeria. According to the X-ray machine supplier OD Security, the machines will be used to "scan selected passengers who have been identified as posing a possible security risk."

The scanners, the company says, offer

a much more effective, cheaper and less disruptive security procedure than mass screening and relying on the inferior image quality of microwave and Backscatter scanners. The Soter will detect any metallic or non-metallic objects, such as narcotics, explosives, precious stones, plastic weapons or other contraband, hidden under clothes or in natural cavities within the human body. Other than the conventional intrusive strip searches there is no other way of detecting these items carried internally.
Well there's no doubt that a real X-ray machine can see things that won't be picked up by other scanning technologies. All kinds of things, in fact. But what about all that radiation? OD Security calls its devices "low dose" X-rays. But what do they mean by "low"? A fact sheet at the web site RadiologyInfo.org (PDF) at least, uses "low dose" to refer to any X-ray other than a super-high-dose procedure such as a CT scan. Low dose X-rays are "those that involve only films taken by a technologist" — in short, what everyone thinks of as a regular medical X-ray.

Throughout the 20th century, the experts' definition of a "safe" dose of radiation was constantly revised downward, until finally it was concluded that there is "no safe dose." RadiologyInfo.org also recommends "if you have had frequent X-ray exams," that it "is a good idea to keep a record of your X-ray history for yourself" so that the "potential risk from radiation" can be balanced against the "likelihood of benefit" from an X-ray. Perhaps travelers in these African countries will need to include their trips through security in those records. Pity the local traveler whose name is on a watch list and gets X-rayed every time. . .

This story, assuming it's accurate, leaves several questions begging to be answered:

  • Is Homeland Security considering the use of "through-body X-ray" machines domestically?
  • How much radiation do these human-targeted airport X-ray machines deliver?
  • Who are they being used on in Nigeria and Ghana? Everyone selected for secondary screening, or only those for whom a body cavity search is deemed justified? Is the United States monitoring their use or did it set any conditions on their use?
  • In the medical context, technicians are trained to use the minimal radiation dose required for a particular image. Are airport X-ray operators similarly trained, or are they just blasting passengers away with radiation to minimize the chances of missing contraband?
  • Are the X-rays, which can reveal an enormous amount of intimate information about passengers' bodies, being viewed in a separate room, or will passengers' every internal and external bodily quirk, condition, and deformity be exposed to agents standing right there?
  • Is the U.S. government encouraging the use of these machines in other countries? Any countries in other areas of the world, such as Europe, Asia, and Latin America?

Ultimately, the biggest question raised by this story is whether the U.S. security agencies behind this program have considered the health effects on African travelers of these machines. If true, this situation just might evoke inevitable comparisons to the fictional plot of the John LeCarré novel and movie The Constant Gardener, in which an evil pharmaceutical company conducts drug tests on African children, or to the real-life Pfizer Trovan case. When Westerners deploy devices with questionable health effects in Africa that they won't or don't deploy at home, it doesn't look good.

Apr 7th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Jay Stanley, Technology & Liberty Program at 5:33pm

Private Contractor at DHS Instructs Police to Arrest Mother of Four

(Originally posted on Daily Kos.)

The New York Times has a good overview of the situation with U.S. watchlists today. As the ACLU has been pointing out for years, it is a mess. The Times story, written by Mike McIntire, focuses on a Stanford University doctoral student and mother of four named Rahinah Ibrahim, whose name was found on the no-fly list when she tried to fly out of the United States. She was handcuffed, searched and jailed. And then released without explanation. And then had her U.S. visa revoked, blocking her from returning to the U.S., again without explanation. And of course, like everybody else whose name comes up on one of these watchlists, she could not learn why she is on the list or how to get off.

Capriciousness, arbitrariness, and lack of due process — yes, that pretty much sums up the U.S. watch list system. The word is Kafkaesque.

There are several other elements of the system that the New York Times story does a good job at surfacing:

  • The role of the private sector. The Times reports a very interesting new piece of information about the operation of the watchlists. When Ibrahim triggered the no-fly list at the airport, according to the report, the San Francisco police contacted Washington, where an employee of U.S. Investigations Services, a private company contracting for DHS, told the San Francisco police to arrest her. In the United States, nobody is supposed to be arrested without probable cause that they have committed a crime. Evidence. Individualized evidence. The idea that someone can be arrested based on the fact that their name is knocking around somewhere within the none-too-competent security bureaucracy, at the direction of a corporate contractor 2,500 miles away, just sums up what's wrong with the watch list system.
  • The role of "suspicious activity reporting." As the ACLU has reported on (for example, here and here) and the Times notes, there is a new enthusiasm for suspicious activity reporting within the security establishment. What it translates into is the logging and reporting of a broad range of innocent, everyday behavior, and innocent people harassed for no reason, especially when they look like Arabs or Muslims. The Times describes how a pilot (and converted Muslim) named Eric Scherfen found himself being detained at airports — endangering his job — after a coworker reported suspicions about him to the authorities. Shades of nightmarish totalitarian societies, where an enemy could get you in hot water by reporting you to the secret police.
  • The role of secrecy. In her lawsuit over her arrest, Ibrahim has had to battle against a government which has used secrecy at every turn to try to defend its actions. Ultimately, as the Times reports, "a federal judge scoffed at the government's claim for secrecy" and accused the government of "abusing" the secrecy privilege.

The United States can't simply throw together new infrastructures like the watch lists without including rigorous due process procedures. But that's what the Bush administration did, and the Obama administration is moving full steam ahead. Fairness and due process need to be baked into this system at the deepest level (at the end of this piece we suggest the main elements of what that should be), not an afterthought patched on later.

Apr 7th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Ateqah Khaki, ACLU at 5:05pm

Irish Rendition Activist to Attend Accountability Conference in North Carolina

This week, as the ACLU welcomes our clients Professors Adam Habib and Tariq Ramadan to the United States — scholars who, until recently, were barred from entering the country because of their criticism of U.S. policy and who will be speaking to audiences in New York today and tomorrow — we also celebrating the news of another almost-excluded scholar being granted permission to enter the country.

Dr. Edward Horgan is a well-known Irish activist who served as an Irish Defense Force officer for 22 years. He has also worked as the International Secretary of the Irish Peace and Neutrality Alliance, was a United Nations peacekeeper and an international election monitor in countries like Ghana, Armenia, Zimbabwe, East Timor and Ukraine. Dr. Horgan also happens to be an outspoken critic of the U.S. practice of extraordinary rendition, and cofounded an organization called Shannon Watch, which has documented the use of Shannon Airport in western Ireland as a stopover for U.S. rendition flights.

Dr. Horgan was set to speak at an important conference taking place this week at Duke University called "Weaving a Net of Accountability: Taking on extraordinary rendition at the state and regional level." Organized by a coalition of human rights groups, including North Carolina Stop Torture Now, the conference will convene legal experts (including the ACLU's very own Steven Watt), human rights activists, journalists, religious leaders, academics and health care professionals to explore how to push for accountability for extraordinary rendition in North Carolina locally and regionally in an effort to push for accountability on the federal level.

On March 15, a North Carolina News & Observer op-ed reported that the U.S. government revoked Dr. Horgan's 10-year, multiple-entry visa without explanation, even though he had visited the United States just last year to see family and to attend the presidential inauguration. Like Professors Habib and Ramadan, it seemed that Dr. Horgan was being targeted because of his ideas; specifically, his strong criticism of torture, rendition, and arbitrary detention.

Several congressional offices in North Carolina and Massachusetts joined private groups and citizens across the country in protesting Dr. Horgan's exclusion. In North Carolina, Reps. David Price and Mel Watt and Sen. Kay Hagan were helpful in making inquiries with the State Department and the U.S. Embassy in Dublin. The balance appeared to tip, though, only when the Irish media began covering the story and when letters to the editor from Irish citizens started pouring in. In short, Dr. Horgan's exclusion, like the ideological exclusion of Professors Habib and Ramadan, started to look like a potential PR disaster for the United States:

Today, just one day before his scheduled departure for the United States, Dr. Horgan finally learned that he would be granted a new U.S. visa after all. He's packing his bags and heading for Shannon Airport — not to protest this time, but to board a plane bound for the U.S.

If you're in Durham, North Carolina, this week, the "Weaving a Net of Accountability" conference — with the participation of Dr. Horgan and ACLU attorney Steven Watt — is taking place on Thursday, April 8, through Saturday, April 10, on the campus of Duke University.

Apr 7th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Alexa Kolbi-Molinas, Reproductive Freedom Project at 2:28pm

Incarcerating Pregnant Women Who Are Struggling With Addiction Makes for Bad Law and Even Worse Public Policy

(A version of this blog post was originally posted on Huffington Post.)

For Ina Cochran, it all began more than four years ago, when she gave birth to a baby girl at Kentucky's Ephraim McDowell Regional Medical Center. The next day, the hospital tested Ms. Cochran and her baby for illicit drugs. As a result of these tests, Kentucky charged Ms. Cochran with felony child abuse. Essentially, the state decided Ms. Cochran was a criminal because she became and decided to remain pregnant despite struggling with a substance abuse problem.

Four years later, Ms. Cochran is still waiting for the Kentucky courts to decide, once and for all, whether the state wrongfully charged her as a matter of law. As a public health matter, the record is clear: turning pregnant women who suffer from drug addiction into criminals isn't good for women or babies. The Kentucky Supreme Court heard oral argument in the case, Cochran v. Commonwealth, in December; we expect a decision in the coming months. Let's hope the court does the right thing not only for Ms. Cochran and her daughter, but for women throughout the state.

Ms. Cochran never should have been charged in the first place. In 1993, in a similar case, Commonwealth v. Welch (the ACLU represented Ms. Welch in that case), the Kentucky Supreme Court ruled that Kentucky's criminal laws could not be used to punish women who become and choose to remain pregnant despite a substance abuse problem.

Welch is still good law, and as we argue in our friend-of-the-court brief filed last year in support of Ms. Cochran, not only does Welch still hold, but, more fundamentally, using criminal laws to punish pregnant women who are struggling with addiction makes for bad law and even worse public policy.

If a pregnant woman can be charged with a crime for potentially harming her fetus, then literally everything she does or does not do — including choosing to continue her pregnancy to term despite an underlying health condition — could land her in jail. What if a pregnant woman has a glass of wine with dinner now and then, or lives with a smoker; what if she drives over the speed limit, fails to get regular pre-natal care, or works in a coal mine, as many women in Kentucky do? Allowing the government to exercise such unlimited control over women's bodies, and every aspect of their lives, would essentially reduce pregnant women to second-class citizens, denying them the basic constitutional rights enjoyed by the rest of us.

Moreover, from a public health perspective, these prosecutions are simply counterproductive. Fifty-nine organizations and experts, including the American College of Obstetricians and Gynecologists and the Kentucky Psychiatric Medical Association, joined friend-of-the-court briefs in this case, explaining that punitive approaches to improving fetal health just don't work. Seems obvious, right? By forcing doctors to turn in their own patients, these prosecutions only drive women away from the health care and treatment they need.

Unfortunately, Ms. Cochran's story is not an unusual one. The ACLU has been involved in similar cases across the country for decades. Indeed, for the past three years the ACLU has been following a growing problem in Alabama where more than 20 women have been charged for continuing their pregnancies despite a substance abuse problem. Fortunately, however, most state supreme courts that have looked into this issue have held that no legislature ever wrote the criminal laws with the intention to reach the relationship between a pregnant woman and her fetus, and that if they did it would in all likelihood be unconstitutional.

If, as a society, we are truly interested in supporting healthy moms and babies, we would not be undermining basic constitutional principles in order to throw the pregnant women and mothers who need health care most into jail. Our efforts should be focused on ensuring that pregnant women with underlying health conditions can get the care they need. Hopefully, the Kentucky Supreme Court — as well as prosecutors across the country — will finally agree.

In this video, reporter Hunter Stewart of STV Productions interviewed Alexa about the Cochran case:

Please note that by playing this clip You Tube and Google will place a long-term cookie on your computer. Please see You Tube's privacy statement on their website and Google's privacy statement on theirs to learn more. To view the ACLU's privacy statement, click here.

You can also listen to a podcast interview of Alexa talking about Cochran v. Commonwealth in this Below the Waist podcast:

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Apr 6th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Diana Kasdan, Reproductive Freedom Project at 5:35pm

"Personhood Nevada" Reminds Us Why the Ballot Box is No Place for Guessing Games

Today the Nevada Supreme Court heard arguments in Personhood Nevada v. Bristol, a case reviewing the legality of a proposed ballot initiative aimed at interfering with private health care decisions. In January, a lower court judge declared the "Personhood Nevada" petition — an initiative that seeks to ban a range of reproductive health services in the state — invalid, vague and misleading. The lower court also prevented the initiative from being placed on the next election ballot. Proponents of the initiative appealed that ruling, bringing us to today's hearing before a full panel of the Nevada Supreme Court.

Not surprisingly, listening to proponents' arguments to the Court was like reading the initiative itself — confusing. In response to questions from the judges asking for a clear explanation of the single or primary "purpose" of the initiative, proponents' attorney kept referring to the "operative eight words" of the initiative: "the term 'person' applies to every 'human being,'" but never clearly explained how, under this initiative, incorporating the phrase "human being" would expand the meaning of "person," or how adding those eight words to the Nevada Constitution would actually change Nevada law. Arguing on behalf of the three plaintiffs who brought the challenge — an individual woman, a pharmacist and an obstetrician-gynecologist — Lee Rowland from the ACLU of Nevada asked the Nevada Supreme Court to affirm the lower court's ruling that the initiative is misleading and fails to give voters a clear explanation of its purpose, the changes it proposes, and its intended consequences.

We are hopeful that, like the lower court, the Nevada Supreme Court will issue a decision that protects voters from being left in the dark at the ballot box. This case has been moving at a quick pace and we expect a decision from the Court soon. We'll keep you posted.

Apr 6th, 2010 Google Bookmarks Technorati StumbleUpon Digg! Reddit Delicious Facebook
Posted by Suzanne Ito, ACLU at 4:37pm

Excluded Scholars Visit NYC

The ideological exclusion provision is a law enacted as part of the Patriot Act that allows the U.S. government to deny entry to noncitizens who have "endorsed or espoused terrorism."

Today, The New Yorker's George Packer wrote: "In the struggle for world opinion after September 11th, [ideological exclusion] made America look intolerant and narrow-minded and afraid." The ACLU challenged this law twice on behalf of American organizations that had invited two prominent Muslim scholars, professors Tariq Ramadan and Adam Habib, to speak in the U.S. Our lawsuits assert these groups' First Amendment right to hear constitutionally protected speech is violated by the ideological exclusion provision. Neither Ramadan nor Habib have been found to "endorse or espouse" terrorism.

Tomorrow afternoon, Habib, Deputy Vice Chancellor of Research, Innovation and Advancement at the University of Johannesburg, will give a public talk at the City University of New York Graduate Center. Last Wednesday, he spoke at Harvard Law School. Habib said: "When the United States as a superpower violates civil liberties, it has a ripple effect across the globe. This case was very important because it opens the space for us to talk and engage as human beings…This is a case about principles."

On Thursday, Ramadan will speak at a panel discussion at Cooper Union. Ramadan will join Packer, copanelists Joan Wallach Scott and Dahlia Mogahed, and moderator Jacob Weisberg in a discussion called "Secularism, Islam, & Democracy: Muslims in Europe and the West." (Event details are here; ACLU members get a discount on tickets! And if you can’t make it in person, check the ACLU’s website for a link to a live-stream of the panel.)

Packer wrote today of Ramadan: "[S]hutting out this serious and widely influential intellectual was a self-defeating mistake." We can only hope our government will learn from the past and retire ideological exclusion once and for all.

 

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