Showing posts with label ACLU. Show all posts

Tuesday, November 21, 2023

The Ongoing White Supremacist Political, Ideological, Economic, and Cultural War on the Human, Constitutional, and Civil Rights Of African American Citizens in the United States --PART 2

News

Politics & Elections

Federal Court Guts Enforcement of Voting Rights Act in “Catastrophic” Ruling

“This ruling is a travesty for democracy,” said ACLU lawyer Sophia Lin Lakin.

by Sharon Zhang
November 20, 2023
Truthout

**Voters fill out their ballots at a polling station on November 7, 2023.** **Julia Nikhinson / For The Washington Post via Getty Images**

On Monday, a conservative three-judge panel on the United State’s most right-wing federal court struck down the primary enforcement mechanism of the Voting Rights Act in a ruling that experts are saying would be “catastrophic” for voting rights across the country if upheld.

In a 2-1 ruling, the 8th Circuit Court of Appeals ruled that private litigants, like voting and civil rights groups, are not allowed to bring lawsuits challenging discriminatory practices in redistricting and election administration under Section 2 of the law. “Private right of action,” as it’s known, is the main way that the Voting Rights Act is enforced; for decades, civil rights groups have filed lawsuits under the Voting Rights Act to challenge gerrymandering and racist voter suppression efforts, particularly in the South. The ruling, then, would leave only the Justice Department to bring lawsuits when electoral maps or changes to election administration rules have discriminatory effects on voters.

Experts say the ruling will gut the Voting Rights Act, the landmark 1965 law aimed at preventing racial discrimination in elections that Congress passed in a response to the civil rights movement’s widespread protests. As voting rights group Democracy Docket pointed out on Monday, only 15 of the 182 successful Section 2 lawsuits of the last 40 years were brought solely by the Department of Justice.

“It’s hard to overstate how important and detrimental this decision would be if allowed to stand: the vast majority of claims to enforce section 2 of the Voting Rights Act are brought by private plaintiffs, not the Department of Justice with limited resources,” wrote University of California, Los Angeles law professor and director of the Safeguarding Democracy Project Rick Hasen in Election Law Blog. “If minority voters are going to continue to elect representatives of their choice, they are going to need private attorneys to bring those suits.”

The ruling was written by David Stras, a nominee of former President Donald Trump who argues based on text of the law that only the U.S. attorney general has the authority to enforce the Voting Rights Act, despite decades of precedents set by lower courts and the Supreme Court finding that Congress intended for private citizens to have the ability to sue under the law, experts say. The case, Arkansas State Conference NAACP v. Arkansas Board of Apportionment, is likely to be heard by the full 8th Circuit Court of Appeals and eventually reach the Supreme Court.

October 4, 2023

It’s unclear how the Supreme Court would rule; the Voting Rights Act, now a particular target of conservatives as Republicans continue their quest to erode voting rights across the country, very narrowly dodged being weakened in a 5-4 ruling by the Supreme Court earlier this year in a case over Alabama’s unconstitutional and racist voting maps.

Voting rights advocates have condemned the decision, saying that it puts the voting rights of millions at risk, especially those of Black Americans who have long struggled for equal access to the ballot.

Sophia Lin Lakin, who argued the case as director of the American Civil Liberties Union’s Voting Rights Project, said the ruling is a “travesty for democracy.”

“For generations, private individuals have brought cases under Section 2 of the Voting Rights Act to protect their right to vote,” Lakin said in a statement on Monday. “No court had denied them the ability to bring their claims in federal court — with the sole exception of the district court, and now the Eighth Circuit. By failing to reverse the district court’s radical decision, the Eighth Circuit has put the Voting Rights Act in jeopardy, tossing aside critical protections that voters fought and died for.”

ABOUT THE AUTHOR:

Sharon Zhang is a news writer at Truthout covering politics, climate and labor. Before coming to Truthout, Sharon had written stories for Pacific Standard, The New Republic, and more. She has a master’s degree in environmental studies. She can be found on Twitter: @zhang_sharon.

Tuesday, June 30, 2015

Veteren Activist and Author Kevin Alexander Gray in a Video Interview on the venal history of White supremacy and the Confederacy in his home state of South Carolina Plus Further Coverage of Bree Newsome Taking Down the SC Confederate Flag

All,

Check out the video interview here with Kevin Alexander Gray about the venal history of white supremacy and the confederacy in his home state of South Carolina. Gray is a veteran black activist and author who is the former chairman of the state ACLU in South Carolina...

Kofi

P.S.--Speaking of South Carolina: REMEMBER THE ORANGEBURG MASSACRE in 1968!

Kevin Alexander Gray

(photo by Patrick Bastien)

http://www.truth-out.org/…/31634-bree-newsome-scales-flagpo…

Bree Newsome Scales Flagpole, Removes South Carolina Capitol Confederate Flag

Monday, 29 June 2015
by Amy Goodman, Democracy Now! | Video Interview

UPDATE: Democracy Now! has confirmed Bree Newsome and James Tyson have been released.

http://www.democracynow.org/2015/6/22/that_flag_represents_white_supremacy_confederate

Cornell William Brooks, NAACP President and CEO released this statement:

For 15 years, the NAACP has called for the removal of the Confederate battle flag and has maintained economic sanctions against the state of South Carolina. The NAACP, Governor Nikki Haley, a bipartisan coalition of policymakers, an expanding number of American businesses, and a courageous young woman named Bree Newsome are all united in opposition to the Confederate flag. Ms. Newsome temporarily removed the flag flying in front of South Carolina's state house. As well as supporting the permanent removal of the flag legislatively, we commend the courage and moral impulse of Ms. Newsome as she stands for justice like many NAACP activists including Henry David Thoreau, Dr. Martin Luther King Jr. and numerous Americans who have engaged in civil disobedience. The NAACP calls on state prosecutors to consider the moral inspiration behind the civil disobedience of this young practitioner of democracy. Prosecutors should treat Ms. Newsome with the same large-hearted measure of justice that inspired her actions. The NAACP stands with our youth and behind the multigenerational band of activists fighting the substance and symbols of bigotry, hatred and intolerance."

—
Around 5:30am this morning Bree Newsome climbed to the top of the flagpole flying the Confederate battle flag on the grounds of the South Carolina state capitol, unhooked the flag, and brought it down as police waited to arrest her.

Calls to remove the flag intensified after last week's mass shooting of nine African-American worshipers at the historic Emanuel AME Church. The flag has been the source of controversy for decades in South Carolina, but a growing number of politicians, including South Carolina Governor Nikki Haley, are calling for its removal after photos were published online showing the accused gunman, Dylann Roof, posing with the flag.

Newsome and others calling themselves "concerned citizens" released a statement explaining, "Deciding to do what the SC Legislature has thus far neglected to do, the group took down the symbol of white supremacy that inspired the massacre, continued to fly at full mast in defiance of South Carolina's grief, and flew in defiance of everyone working to actualize a more equitable Carolinian future."

The state Bureau of Protective Services confirmed Newsome and one other person were arrested. They are charged with defacing a monument, which is a violation of state law 10-11-315. The law has not been used since it was passed in 2000 during another push to remove the flag from the capitol. They face three years in jail and a $5,000 fine.
Local newspaper, The State reports:

"At about 7:45 a.m., a maintenance worker and a state security officer, neither of whom would give their names or comment, raised a new banner after removing it from a plastic sheet. The two state employees who arrived on the State House grounds to put the flag back up were African-Americans."

Watch all of Democracy Now!'s coverage of the Charleston church shooting and push to remove the confederate flag.

In the interview below, Kevin Alexander Gray, a South Carolina civil rights activist and community organizer says, "People's tax dollars ought not go into supporting the idea of the Confederate States of America." As former president of the state ACLU, he argued, "the flag flying on the statehouse dome was compelled speech. You were compelling people to support an ideology of white supremacy."

Contact me @ kevinagray57@gmail.com

KEVIN ALEXANDER GRAY:

Gray & his younger sister Valerie were among the first blacks to attend the local all-white elementary school in 1968. Since then he has been involved in community organizing working on a variety of issues ranging from racial politics, police violence, third-world politics & relations, union organizing & workers’ rights, grassroots political campaigns, marches, actions & political events.

Gray is currently organizing the Harriet Tubman Freedom House Project which focuses on community based political and cultural education. Organizer — National Mobilization Committee Against the Drug War. Former managing & contributing editor of Black News in Columbia. Now serves as contributing writer to other minority newspapers in South Carolina. He served as a national board member of the American Civil Liberties Union for 4 years & is a past eight-term president of the South Carolina affiliate of the ACLU. Advisory board member of DRC Net (Drug Policy Reform Coalition).

In 1997, Gray was an organizer for the Rainbow/PUSH Coalition’s anti-Proposition 209 marches in San Francisco & Sacramento, California.

South Carolina coordinator for the 1988 presidential campaign of Jesse Jackson & 1992 southern political director for the presidential campaign of Iowa Senator Tom Harkin. 2002 SC United Citizens’ Party & Green Party Gubernatorial candidate.

Founding member of the National Rainbow Coalition in 1986. Former co-chair of the Southern Rainbow Education Project — a coalition of southern activists. Former contributing editor – Independent Political Action Bulletin.

Gray’s critique “A Call for a New Anti-War Movement” appears in How to Legalize Drugs: Public Health, Social Science and Civil Liberties Perspective edited by Dr. Jefferson Fish of St. John’s University. The book is a collection of works by drug policy reformers across the country. The essay takes a cultural & ideological look at the impact of the “war on drugs” on African Americans. Gray’s “The Legacy of Strom Thurmond” appears in Jack Newfield’s American Monsters, “Soul Brother? Bill Clinton and Black America” appears in Alexander Cockburn and Jeffrey St. Clair’s Dimes Worth of Difference and “What Would Malcolm Say” appears in Peace Not Terror edited by Mary Susannah Robbins.

Gray’s essay on race & politics have appeared in The Harvard Journal of African American Public Policy – “The Intensification of Racial Solidarity in the 1990s under the guise of Black Nationalism” (1996); The Progressive Magazine, Counterpunch, The Washington Post Outlook Section, Emerge, One Magazine, The American University Graduate Review & numerous other national, regional & local publications. His current essays on race, politics, cultural and world affairs can be found online at The Progressive, Counterpunch.com, The Black Agenda Report and “Holla If You Hear Me” blog.

https://thenewliberator.wordpress.com/

Now Available! ~ Killing Trayvons: An Anthology of American Violence

Killing Trayvons: An Anthology of American Violence was published in early Summer 2014.

Skin privilege. When you’re black it seems the hardest thing to explain to whites. Even the most conscious or liberal whites sometimes don’t quite get it. Or as Langston Hughes once said, “A liberal is one who complains about segregated railroad cars but rides in the all white section.”

The killing of Trayvon Martin in February 2012 rang yet another alarm about the costs of that privilege. Killing Trayvons: An Anthology of American Violence tracks the case and explores why Trayvon’s name and George Zimmerman’s not guilty verdict symbolized all the grieving, the injustice, the profiling and free passes based on white privilege and police power: the long list of Trayvons known and unknown.

With contributions from Robin D.G. Kelley, Rita Dove, Cornel West and Amy Goodman, Thandisizwe Chimurenga, Alexander Cockburn, Etan Thomas, Tara Skurtu, bell hooks and Quassan Castro, June Jordan, Jesse Jackson, Tim Wise, Patricia Williams, Alexis Pauline Gumbs, Vijay Prashad, Rodolfo Acuna, Jesmyn Ward and more, Killing Trayvons is an essential addition to the literature on race, violence and resistance.

Killing Trayvons: An Anthology of American Violence is set to be released early Summer 2014.

###

Editors:

Kevin Alexander Gray is a civil rights organizer in South Carolina and author of Waiting for Lightning to Strike!: The Fundamentals of Black Politics.

Jeffrey St. Clair is the editor of CounterPunch. His books include Whiteout (with Alexander Cockburn), Grand Theft Pentagon, and Born Under a Bad Sky.

JoAnn Wypijewski regularly writes for The Nation and CounterPunch. Her books include Painting by Numbers.

http://www.democracynow.org/2015/6/22/that_flag_represents_white_supremacy_confederate

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

Amy Goodman

Amy Goodman is the host and executive producer of Democracy Now!, a national, daily, independent, award-winning news program airing on over 1,100 public television and radio stations worldwide. Time Magazine named Democracy Now! its "Pick of the Podcasts," along with NBC's Meet the Press.

The Orangeburg Massacre refers to the shooting of protesters by South Carolina Highway Patrol Officers in Orangeburg, South Carolina near South Carolina State University on the evening of February 8, 1968.[1] The approximately 150 protestors were demonstrating against racial segregation at a local bowling alley. Three of the protestors, African American males, were killed and twenty-eight other protestors were injured.[2]

The event pre-dated the 1970 Kent State shootings and Jackson State killings, in which the National Guard at Kent State, and police and state highway patrol at Jackson State killed student protesters demonstrating against the United States invasion of Cambodia during the Vietnam War.

Contents

1 Background

2 Conflict

3 Aftermath

4 List of those involved

4.1 Highway Patrol personnel involved in the shooting

4.2 Deaths

4.3 Injuries

5 Media coverage

6 Legacy

7 See also

8 References

9 Further reading

10 External links

Background

There were several incidents centering on the segregation of the local bowling alley, All Star Bowling Lane, that led up to the Orangeburg Massacre on February 8, 1968. In the fall of 1968, some of the black leaders within the community tried to convince Harry K. Floyd, the owner of the bowling alley, to allow African Americans. Floyd was unwilling to desegregate; as a result protests began in early February 1968.

On February 5, 1968 a group of students from South Carolina State University entered the bowling alley and left peacefully after they were asked to leave by Floyd. The next night more students led by John Stroman returned and entered the bowling alley. This time there were police waiting for them and several students were arrested including Stroman. After the arrests, more students began showing up, angry that protestors were being arrested. Next the crowd broke a window of the bowling alley and chaos ensued. Police began beating student protesters with billy clubs, including both men and women. That night eight students were sent to the hospital.[3]

Over the next couple of days the tension in Orangeburg escalated. Student protesters submitted a list of demands that consisted of integration and the elimination of discrimination within the community. Governor McNair, the Governor of South Carolina at the time, responded by calling in the National Guard after commenting that black power advocates were running amok in the community.[4] Over the next two days, about 200 mostly student protesters gathered on the campus of South Carolina State University, a historically black college in Orangeburg, to demonstrate against the continued segregation at the bowling alley.

Conflict

On the night of February 8, 1968, students started a bonfire on the front of SC State's campus. As police and firefighters attempted to put out the fire, officer David Shealy was injured by a thrown object.[5] Shortly thereafter (around 10:30 p.m.) South Carolina Highway Patrol Officers began firing into the crowd of around 150 protesters. Eight Patrol Officers fired carbines, shotguns, and revolvers at the protesters, which lasted around 10 to 15 seconds. Twenty-eight people were injured in the shooting; most of which were shot in the back as they were running away, and three African American men were killed.[6] The three men killed were Samuel Hammond, Henry Smith (both SCSU students), and Delano Middleton, a student at the local Wilkinson High School.

The police later said that they believed they were under attack by small arms fire. A newspaper reported, "About 200 Negros [sic] gathered and began sniping with what sounded like 'at least one automatic, a shotgun and other small caliber weapons'’ and throwing bricks and bottles at the patrolmen."[7] Similarly, a North Carolina newspaper reported that week that students threw firebombs at buildings and that the sound of apparent sniper fire was heard.[8]

Protesters insisted that they did not fire at police officers, but threw objects and insulted the men. Evidence that police were being fired upon at the time of the incident was inconclusive, and no evidence was presented in court, as a result of investigations, that protesters were armed or had fired on officers.

Aftermath

At a press conference the following day, Governor Robert E. McNair said the event was "...one of the saddest days in the history of South Carolina".[9] McNair blamed the deaths on outside Black Power agitators and said the incident took place off campus, contrary to the evidence.

The federal government brought charges against the state patrolmen in the first federal trial of police officers for using excessive force at a campus protest. The state patrol officers' defense was that they felt they were in danger and protesters had shot at the officers first. All nine defendants were acquitted although thirty-six witnesses stated that they did not hear gunfire coming from the protesters on the campus before the shooting and no students were found to be carrying guns.[10]

In a state trial in 1970, the activist Cleveland Sellers was convicted of a charge of riot related to the events, for events on Tuesday at the bowling alley (the protest was on Thursday night). He served seven months in state prison, getting time off for good behavior. He was the national program director of the Student Nonviolent Coordinating Committee (SNCC). In 1973 he wrote The River of No Return: The Autobiography of a Black Militant and the Life and Death of SNCC. Twenty-five years later, Sellers was officially pardoned by the governor of South Carolina.

List of those involved

Highway Patrol personnel involved in the shooting

Patrol Lieutenant Jesse Alfred Spell, 45

Sgt. Henry Morrell Addy, 37

Sgt. Sidney C. Taylor, 43

Corporal Joseph Howard Lanier, 32

Corporal Norwood F. Bellamy, 50

Patrolman First Class John William Brown, 31

Patrolman First Class Colie Merle Metts, 36

Patrolman Allen Jerome Russell, 24

Patrolman Edward H. Moore, 30

Patrolman Robert Sanders, 44 - was not charged in the massacre, but reportedly later made self-incriminating statements about having shot at some of the rioters.

Deaths

Samuel Ephesians Hammond Jr., 18

Delano Herman Middleton, 17

Henry Ezekial Smith, 18

Injuries

Herman Boller Jr., 19

Johnny Bookhart, 19

Thompson Braddy, 20

Bobby K. Burton, 22

Ernest Raymond Carson, 17

John Carson

Louise Kelly Cawley, 25

Robert Lee Davis Jr., 19

Albert Dawson, 18

Bobby Eaddy, 17

John H. Elliot

Herbert Gadson, 19

Samuel Grant, 19

Samuel Grate, 19

Joseph Hampton, 21

Charles W. Hildebrand, 19

Nathaniel Jenkins, 21

Thomas Kennerly, 21

Joe Lambright, 21

Emma McCain, 19

Richard McPherson, 19

Harvey Lee Miller, 15

Harold Riley, 20

Cleveland Sellers, 23

Patrolman David Shealy

Ernest Shuler, 16

Jordan Simmons III, 21

Ronald Smith, 19

Frankie Thomas, 18

Robert Watson, 19

Robert Lee Williams, 19

Savannah Williams, 19

Footnotes

The injuries received by patrolman David Shealy preceded police opening fire on the crowd by five minutes

Cleveland Sellers was later arrested and convicted of starting the riot. Received a full pardon in 1993

John Carson was beaten by highway patrol after he started questioning their involvement

Louise Kelly Cawley was pregnant at the time of her being beaten and sprayed with a chemical. One week after the incident, she suffered a miscarriage

John H. Elliot was later added to the list of those injured. He was shot in the stomach but did not go to the hospital for treatment.

Media coverage

This was the first incident of its kind on a United States university campus. The Orangeburg killings received relatively little media coverage. The events predated the 1970 Kent State shootings and Jackson State killings, in which protesters against the Vietnam War were killed by the National Guard, and by the local and state highway patrol, respectively. The perceived overreaction by law enforcement helped galvanize public opinion against the war as well.

The historian Jack Bass attributed the discrepancy in media coverage in part due to the Orangeburg incident occurring after large-scale urban riots, which made it seem small by comparison. It may not have been considered as newsworthy, especially since the shootings occurred at night, when media coverage, especially any television news, was less.[5] In addition, the victims at Orangeburg were mostly young black men protesting against local segregation.[5] Linda Meggett Brown wrote that subsequent events in the spring of 1968: the assassinations of Dr. Martin Luther King, Jr. and Robert Kennedy, the Democratic presidential candidate; and the Tet Offensive in Vietnam, overshadowed the events at Orangeburg.[11]

At Kent State, by contrast, Bass noted that the victims were young white students protesting against the U.S. war in Vietnam, which had become increasingly unpopular and a highly politicized, national issue. They were attacked by members of the National Guard, which the media may have judged was a more inflammatory aspect of the shootings. The black students at Jackson State were also protesting against the war, and the killings there took place shortly after those at Kent State. It appeared that law enforcement and university administrations had no idea about how to handle campus unrest. There was widespread public outrage over the events.

Legacy

South Carolina State University's gymnasium is named in memory of the three men who were killed. A monument was erected on campus in their honor and the site has been marked. All-Star Triangle Bowl became integrated.

On August 9 of 2013 a work crew fixed a spelling error on the Orangeburg Massacre Monument. Delano H. Middleton's name was mistakenly listed as Delano B. Middleton. One theory for the incorrect initial is that it was pulled from Middleton's nickname "Bump." The error went unnoticed for over 40 years.[12]

In 2001 Governor Jim Hodges attended the university's annual memorial of the event, the first governor to do so. That same year, on the 33rd anniversary of the killings, an oral history project featured eight survivors telling their stories at a memorial service. It was the first time that survivors had been recognized at the memorial event. Robert Lee Davis told an interviewer,

"One thing I can say is that I'm glad you all are letting us do the talking, the ones that were actually involved, instead of outsiders that weren't there, to tell you exactly what happened."[5]

A joint resolution was introduced in the South Carolina state general assembly in 2003, and re-introduced in each of the next three sessions of the legislature, to establish an official investigation of the events of February 8, 1968, and to establish February 8 as a day of remembrance for the students killed and wounded in the protest; but the resolution was never voted on by the legislature.[13] [14] [15] [16]

The Orangeburg Massacre was the subject of two films released on the 40th anniversary of the massacre, in April, 2008:[17] Scarred Justice: The Orangeburg Massacre, 1968 by documentary filmmakers Bestor Cram and Judy Richardson[18], and Black Magic by Dan Klores.[19]

Wednesday, December 18, 2013

On NSA Spying, Civil Liberties, and Our Constitutional Rights

http://www.thenation.com/blog/177608/judge-rules-against-nsa-spying-congress-should-do-same?

Judge Rules Against NSA Spying; Congress Should Do the Same
by John Nichols
December 16, 2013
The Nation

(Reuters/Jonathan Ernst)

Civil liberties advocates on the left and the right have argued for many years—but especially in the aftermath of revelations this year by former NSA contractor Edward Snowden—that spying by the National Security Agency disregards privacy protections outlined in the Fourth Amendment and is surely unconstitutional. Indeed, as the American Civil Liberties Union has argued, the NSA’s “unconstitutional surveillance” represents “a grave danger to American democracy.”

Now, a federal judge has recognized the constitutional concerns.

“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 it and analyzing it without judicial approval,” wrote US District Judge Richard Leon.

Judge Leon’s decision, which will surely be appealed, focuses attention on legal challenges to the spying program. But it also serves as a reminder that Congress can and should act to defend privacy rights.

“The ruling underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer,” says Senator Mark Udall, D-Colorado, a supporter of legislation to end the bulk collection program. “We can protect our national security without trampling our constitutional liberties.”

Senator Ron Wyden, D-Oregon, said: “Judge Leon’s ruling hits the nail on the head. It makes clear that bulk phone records collection is intrusive digital surveillance and not simply inoffensive data collection as some have said. The court noted that this metadata can be used for ‘repetitive, surreptitious surveillance of a citizen’s private goings on,’ that creates a mosaic of personal information and is likely unconstitutional. This ruling dismisses the use of an outdated Supreme Court decision affecting rotary phones as a defense for the technologically advanced collection of millions of Americans’ records. It clearly underscores the need to adopt meaningful surveillance reforms that prohibit the bulk collection of Americans’ records.”

The senators had reason to be enthusiastic about Judge Leon determination that legal challenges to the massive surveillance program are valid. So valid, in fact, that he issued a preliminary injunction against the program. The judge suspended the order, however, in order to allow a Justice Department appeal.

But Judge Leon was blunt regarding the strength of the challenge that was brought after Snowden revealed details of the agency’s spying in The Guardian.

"I have little doubt that the author of our Constitution, James Madison... would be aghast," the judge wrote with regard to the NSA program for surveillance of cell phone records,

“The court concludes that plaintiffs have standing to challenge the constitutionality of the government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim and that they will suffer irreparable harm absent…relief,” Judge Leon wrote in response to a lawsuit brought by Larry Klayman, a former Reagan administration lawyer who now leads the conservative Freedom Watch group.

The case is one of several that have been working their way through the federal courts since Snowden disclosed details of the NSA program.

Legal challenges to NSA spying are not new, and they have failed in the past.

Challenging the FISA Amendments Act (FAA)—the law that permits the government to wiretap US citizens communicating with people overseas—Amnesty International and other human rights advocates, lawyers and journalists fought a case all the way to the US Supreme Court in 2012. In February 2013, however, the Justices ruled 5-4 that the challengers lacked standing because they could not prove they had been the victims of wiretapping and other privacy violations.

The Justice Department has continued to argue that plaintiffs in lawsuits against the spying program lack standing because they cannot prove their records were examined. But Judge Leon suggested that the old calculus that afforded police agencies great leeway when it came to monitoring communications has clearly changed.

Suggesting that the NSA has relied on “almost-Orwellian technology,” wrote Judge Leon, who was appointed by former President George W. Bush to the United States District Court for the District of Columbia bench. “The relationship between the police and the phone company (as imagined by the courts decades ago)…is nothing compared to the relationship that has apparently evolved over the last seven years between the government and telecom companies.”

The judge concluded, “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government.”

This case will continue in the courts, as will others.

But it is also in Congress. A left-right coalition that extends from Congressmen Justin Amash, a libertarian-leaning Republican, to Congressman John Conyers, a progressive Democrat, has raised repeated challenges to the NSA spying regimen.

Now, Congress needs to step up to what Congressman Alan Grayson, D-Florida, refers to as “the spying-industrial complex.”

A number of members are ready. Vermont Senator Bernie Sanders responded to Judge Leon's ruling by saying: “In my view, the NSA is out of control and operating in an unconstitutional manner. Today’s ruling is an important first step toward reining in this agency but we must go further. I will be working as hard as I can to pass the strongest legislation possible to end the abuses by the NSA and other intelligence agencies.”

The outlines for legislative action have already been presented by the American Civil Liberties Union and other groups that work on privacy issues.

“Congress should not be indifferent to the government’s accumulation of vast quantities of sensitive information about American’s lives,” Jameel Jaffer, the ACLU’s deputy legal counsel told the House Judiciary Committee in July. “This Committee in particular has a crucial role to play in ensuring that the government’s efforts to protect the country do not compromise the freedoms that make the country worth protecting.”

Jaffer told the committee,

Because the problem Congress confronts today has many roots, there is no single solution to it. But there are a number of things that Congress should do right away:

• It should amend Sections 215 and 702 to expressly prohibit suspicionless or “dragnet” monitoring or tracking of Americans’ communications.

• It should require the executive to release basic information about the government’s use of foreign-intelligence-surveillance authorities, including those relating to pen registers and national security letters. The executive should be required to disclose, for each year: how many times each of these provisions was used, how many individuals’ privacy was implicated by the government’s use of each provision, and, with respect to any dragnet, generalized, or bulk surveillance program, the types of information that were collected.

• Congress should also require the publication of FISA court opinions that evaluate the meaning, scope, or constitutionality of the foreign-intelligence laws. The ACLU recently filed a motion before the FISA court arguing that the publication of these opinions is required by the First Amendment, but Congress need not wait for the FISA court to act. Congress has the authority and the obligation to ensure that Americans are not governed by a system of secret law.

• Finally, Congress—and this Committee in particular—should hold additional hearings to consider further amendments to FISA, including amendments to make FISC proceedings more transparent.

Members of Congress, conservatives and liberals, Republicans and Democrats, have moved on a number of these fronts. Now it is time for concerted action.

The Congress does not have to wait for the legal wrangling to be resolved. It can, and should, act in defense of civil liberties.

http://www.thenation.com/article/177649/spying-lying?utm_source=Sailthru&utm_medium=email&utm_term=email_nation&utm_campaign=Email+Nation+-+20131219#

How the Government Misled the Supreme Court on Warrantless Wiretapping

The Snowden revelations have vindicated The Nation and the ACLU. When will the government correct the record and stop the abuses?

by Jameel Jaffer and Patrick C. Toomey
December 18, 2013

This article appears in the January 6-13, 2014 edition of The Nation.

Surveillance cameras are visible near the U.S.Capitol in Washington Saturday, Oct. 26, 2013. (AP Photo)

Early in 2013, before Edward Snowden’s revelations, the Supreme Court turned aside a challenge by this magazine and other organizations to a 2008 law that permitted the National Security Agency to conduct dragnet surveillance of Americans’ international communications. The plaintiffs claimed that the law was unconstitutional, but the government argued that the plaintiffs lacked standing to pursue their challenge because they had failed to show that the law would be used to intercept their communications. In a 5-4 vote, the Court agreed with the government.

Over the past six months, we’ve learned a great deal about the way the NSA has been using and abusing its surveillance powers, including the powers that were at issue in the Supreme Court case, Clapper v. Amnesty. And we’ve learned something else as well: that the government’s representations to the Court were incomplete in some respects and altogether false in others.

The law that the plaintiffs challenged in Clapper, the FISA Amendments Act (FAA), authorizes mass acquisition of Americans’ international communications for foreign-intelligence purposes. It is the same law, we now know, the government relies on when it compels Google, Facebook and other companies to turn over customer e-mails, text and video chats, and photographs as part of the NSA’s PRISM program.

But long before PRISM came to light, the plaintiffs in Clapper argued that the FAA permitted the NSA to read Americans’ e-mails and listen in on their phone calls without a warrant, violating the Constitution. Rather than seriously engage this argument, the government contended that the plaintiffs had no business being in court at all. The dragnet surveillance described by the plaintiffs, it said, was mere “speculation” and “conjecture.”

The government also assured the courts that dismissing the plaintiffs’ challenge would not forever insulate the law from court review. The solicitor general told the Supreme Court that while the plaintiffs could not show that their communications had been intercepted, another group could: criminal defendants who were prosecuted based on evidence acquired under the surveillance law. These defendants, the government said, would be notified that they had been monitored by the NSA—and they would be able to challenge the law’s constitutionality. When the Supreme Court ruled against the plaintiffs in Clapper, Justice Samuel Alito repeated almost verbatim the government’s assurance that such defendants would receive notice.

Thanks to Snowden, we now know that the government’s arguments were misleading or worse. First, we know that the NSA is engaged in dragnet surveillance under the very law the plaintiffs challenged. The agency uses that law to monitor Americans’ communications with foreign-intelligence targets abroad—targets who may be journalists, academics or lawyers. A leaked copy of NSA procedures shows that the agency also conducts keyword searches of virtually all Americans’ international communications. As The New York Times reported in August, the NSA examines the contents of almost all text-based communications entering or leaving the country.

While the government’s claims about dragnet surveillance were misleading, its claims about the “notice” provided to criminal defendants were simply false. Since the Supreme Court’s decision in Clapper, the government has conceded that at the time the case was argued, in October—and for the five years preceding—it did not provide notice to criminal defendants who had been monitored under the surveillance law.

The ACLU, as well as three members of the Senate Intelligence Committee, has called on the solicitor general to correct the record in the Supreme Court, but thus far the government has failed to do so.

The government will not be able to insulate the law from constitutional review forever. Recent disclosures have finally forced the government to provide criminal defendants with notice of surveillance under the 2008 law—the notice that the government should have been providing all along. Those defendants will now have a chance to challenge the law in court.

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Their cases will raise issues of significance for all Americans, and it’s crucial that judges scrutinize the government’s claims in them more searchingly than they have in the past. The Snowden revelations have been a watershed, exposing practices that the public—and the courts—should have known about long ago. The outcome in Clapper, which hinged on a single vote, might have been different had the Supreme Court known then what we all know now.

In December, Federal District Court Judge Richard Leon invalidated the NSA’s call-tracking program in a careful ruling that treated the government’s arguments respectfully but skeptically. Other judges should follow Leon’s lead. For too long, the extraordinary deference accorded to national security officials has allowed misleading claims to stand uncorrected, and abusive and unconstitutional practices to flourish.

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