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Federal and state agencies have protected our delicate eyes and ears from offensive material for centuries—so much so that, if we didn't have a First Amendment expressly prohibiting that sort of thing, we might describe it as the American way.

Civil Liberties Spotlight10

The U.N. Human Rights Committee: Summary of Findings

Monday March 31, 2014

The U.N. Human Rights Committee has released its 2014 periodic report on our compliance with the International Covenant on Civil and Political Rights (ICCPR). Some of you will be interested in this international perspective on human rights in the United States, and some of you decidedly will not, but it's worth summarizing in any case. You can find a link to the full report in Word format here.

The gist:

Death Penalty -- They like the fact that we've stopped executing minors, but they hate the fact that the system is still racially discriminatory, generates false convictions, and may be administered using inhumane lethal injection drugs.

Drones -- They don't like the fact that there are no clear standards regulating the use of drones, and they have noted--and disapprove of--the high number of innocent civilian casualties who have fallen victim to drone strikes.

Gun Violence -- They don't like racial disparities in the application of Stand Your Ground laws, they have concerns about Stand Your Ground laws in general, and they don't like the fact that gun purchases occur with no background checks.

Police Use of Deadly Force -- They don't like the fact that U.S. police forces use tasers so casually, and they disapprove of the high number of legal extrajudicial shootings committed by police officers, especially in major cities.

Torture -- They don't like the fact that mental torture is still legal and, by all accounts, still put to use.

Extraordinary Rendition ("Refoulment") -- They don't like the fact that the United States exports prisoners to torture-friendly countries for interrogation or detention.

Trafficking and Forced Labor -- They don't like the fact that undocumented immigrants are often trapped into forced-labor "contracts."

Immigrants -- They don't like the fact that immigrants do not receive adequate counsel, they don't like policies permitting the indefinite detention of immigrants, and they don't like the fact that undocumented immigrants often do not receive access to health care.

Domestic Violence -- They don't like the fact that law enforcement agencies aren't required to protect survivors of domestic violence from their abusers, and they're concerned that domestic violence cases are not adequately prosecuted on American Indian reservations.

Corporal Punishment -- They don't like the fact that American schools still sanction paddling, and that it is put to use in prisons as well.

Psychiatric Treatment -- They don't like the fact that patients are often drugged unnecessarily and against their will.

Homelessness -- They don't like municipal and state codes that criminalize the homeless as a class.

Detention -- They don't like the frequent and casual use of solitary confinement.

Guantanamo Bay -- They don't like the fact that we still haven't shut down Camp X-Ray and transferred the detainees into appropriate courts for processing.

NSA Surveillance -- They don't like the surveillance program as a whole, though it's worth noting that most of their recommendations line up with the Obama administration's proposed NSA policy reforms.

Juvenile Courts -- They like the fact that we've stopped sentencing minors to life without parole for nonviolent offenses, but they still have grave concerns about the criminalization of minors as a group and our criminal justice system's practice of trying minors as adults.

Voting Rights -- They're concerned that voter ID statutes may suppress votes, they believe the felon voter restoration process needs to be more accessible and transparent, and they believe the District of Columbia should have full voting representation.

Rights of Indigenous People -- They don't like the fact that American Indian tribal authorities are not always party to discussions regarding sacred ground that is not located on reservations, or the environmental effects of industries located near reservations.

None of these requests are entirely unreasonable, and they're in general alignment with what the U.S. civil liberties community has been asking for, too. Incorporating the U.N. Human Rights Committee's report into our activism on these topics couldn't hurt--and might help, as it indicates how many of our domestic policies are received internationally.

Saving the World Isn't Enough

Monday March 31, 2014

I'm grateful to President Barack Obama for proposing NSA policy reforms that will protect us from a nightmarish Orwellian panopticon of universal, undocumented surveillance. But is it too much to ask that he propose NSA policy reforms that actually affect something the agency might want to do?

It's not that I want to agree with Michael Brenner's take on the president's suggested surveillance law reforms, but he's right when he says this:

"Data storage by companies rather than the NSA is inconsequential since the NSA requests to the FISA courts for a warrant to access the information are granted automatically. Over the past eight years, only 11 of 33,900 requests have been refused."

President Obama's position seems to be that as long as the NSA isn't providing the server space for data storage, we're in the clear. And he's right that this does protect us from some things--there's something to be said for spreading out the data among a variety of private companies rather than putting it all under the umbrella of a federal agency. But when we're talking about where the data is stored, and not how it's gathered or used, we're really talking about limiting the way federal agencies can mine the data, automate surveillance associated with same, and so on. We're talking about the world of Nineteen Eighty-Four instead of the world we're actually living in, and as a result of this the practical consequences of the president's NSA reforms are likely to be negligible.

We encountered a similar situation in 2012 and 2013 when Sen. Rand Paul (R-KY) filibustered a bill based on his alleged concerns about the potential use of drones on U.S. soil, then later endorsed the use of drones by law enforcement--with this chilling quote, no less:

"I've never argued against any technology being used when you have an imminent threat, an active crime going on. If someone comes out of a liquor store with a weapon and fifty dollars in cash, I don't care if a drone kills him or a policeman kills him."

Not only does Paul support drones, but he also apparently supports summary execution as a punishment for a $50 robbery--but let's focus on the first point, because it bears more resemblance to what Obama is doing with respect to the NSA. Why does Sen. Paul filibuster the hypothetical use of drones on U.S. soil in one context, then endorse them in another? Because the first example is Terminator and the second is Short Circuit meets Dirty Harry. And while nobody wants to live in the world of the Terminator series, Short Circuit and Dirty Harry are a little closer to what we're comfortable with.

It's the stuff that we're comfortable with that should bother us most of all. Dystopias are great at showing the natural conclusions of bad policy decisions, but that doesn't mean you can write policy to prevent specific dystopias and call it a day. What we most need to do is look at current policy consequences and likely near-future policy consequences--prioritizing the stuff that's happening to real people in the real world (or can be reasonably projected to happen to real people in the real world), not the stuff of our darkest nightmares.

Tea Speech

Monday March 31, 2014

Louisiana lieutenant governor Jay Dardenne doesn't handle criticism well. His bizarre lawsuit against MoveOn.org over their billboard encouraging Medicaid expansion--ostensibly provoked by MoveOn's satirical use of the Louisiana tourism slogan, but functionally more of an attempt to resurrect the colonial tort of seditious libel--is doomed to fail in the courts, as Eugene Volokh explains:

"[T]he First Amendment protects speech -- especially outside the context of commercial advertising -- even when it quotes or refers to others' trademarks, so long as it's not likely to be confusing. This case itself illustrates this will: MoveOn is using the mark to criticize the Louisiana government, and suggesting that the government's actions are at odds with the welcoming message the same government is conveying using the mark."

But Dardenne isn't concerned about the courts. He's concerned about next year's Republican gubernatorial primary against Senator David Vitter, where he's polling behind and badly needs a gimmick. "The guy who filed a lawsuit against MoveOn.org" may very well be a winning gimmick in the Tea Party movement, especially if he can lose the case and then complain about liberal judges with a Hollywood idea of free speech, or whatever.

But don't shed any tears for MoveOn.org. The lawsuit is the best publicity they've gotten in years, and they'll raise more than enough money to make up for their legal fees. (You can sign their petition here, by the way.) The only real losers in this case are the ordinary Louisiana residents whose tax dollars are being used to fund this nuisance suit, and let's be honest: if Jay Dardenne cared a lick about them, he wouldn't have supported blocking their access to Medicaid expansion in the first place.

The Fragile Religion of Masculinity

Monday March 31, 2014

To me, the most interesting thing about the Hobby Lobby case and the right-to-discriminate controversy is that both are framed as religious liberty issues when neither have very much to do with religion as we have traditionally understood it. Neither deal with God or even with issues of personal morality; they reflect only a lurid obsession with controlling the sex lives of female employees and excluding same-sex couples from making ordinary business transactions.

"But Tom," you might say, "isn't the Hobby Lobby case really about when life begins?" Not really; they're targeting hormonal birth control, which is often taken for nonsexual reasons. And where a traditionally religious response would be to allow that the medication be used but preach to employees about what they should and shouldn't do off the clock, Hobby Lobby's position is that, because hormonal birth control gives women the option of having sex without getting pregnant, it is intrinsically sinful to pay for it--regardless of whether or not female employees actually take advantage of that option. They claim their religion prohibits them from letting female employees pharmaceutically control their reproductive systems--period, full stop--regardless of how they exercise that control. This is not what most people would have historically considered a religious approach. Religion as it has generally been understood focuses on how you use your autonomy, not on whether or not you should have it.

The argument in favor of turning away lesbian and gay customers is equally novel, from the perspective of moral theology. From a Christian position, one might assume that all customers and employees are sinners--even oneself. But the position implicit in right-to-discriminate bills is that gay sex, in addition to being a sin, is the only definitive sin. No other sin stains an individual to the point where you can't sell them a hamburger.

Nor can any of these issues be productively described as representative of sexual morality in general. When Louisiana senator David Vitter condemned same-sex marriage as an "outrage" while cheating on his wife with prostitutes, he received no serious criticism from the Religious Right--because this tension reflects what has come to be understood, in Religious Right circles, as a standard Christian life. Sexual transgression warrants a public policy response when, and only when, it is committed by a woman or a gay man. Heterosexual men who live outside of traditional conservative sexual morality will be expected to apologize (and their spouses will be required to forgive them or face eternal damnation), but will not have their bodily autonomy restricted by their employers, nor will they be turned away by businesses. There is literally nothing that a heterosexual man can do to run afoul of either of these policies.

In a more rational political environment, we might look at these theological innovations and ask ourselves whether they actually do represent religious concerns. But if we assume that they do (and American etiquette demands that of us), then we need to ask ourselves why misogyny and homophobia define religion rather than being defined by it--and what effect this may have on how we define religion in coming decades. If the Supreme Court gives special exemptions to Hobby Lobby for the owners' lurid obsession with female employees' menstrual cycles, if states give special exemptions to businesses that want to turn lesbian and gay customers away, then we will begin to set the precedent that a concern is sincerely religious when it is motivated by misogyny or homophobia, and secular when it is not. The effect of this redefinition of religion--not only on American civil liberties policy, but on religious observance itself--may be dramatic.

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