1. News & Issues
Tom Head

Tom's Civil Liberties Blog


Follow me on:

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.

But What If the Klansman Objects?

Thursday March 27, 2014

The trouble with religious exemptions to nondiscrimination statutes is that virtually any behavior, no matter how repulsive it is, can be effectively branded as religious.

No organization in American history has illustrated this more clearly than the Ku Klux Klan. Under its original Organization and Principles (1868), the Klan wasn't a religious group--outside of a passing reference to the Klan "reverentially acknowledg[ing] the majesty and supremacy of the Divine Being and recogniz[ing] the goodness and providence of the same," there's no reference to God at all, and much less to Jesus, in the original platform. New Klan members had to agree to a ten-question catechism, but none of the questions asked had anything to do with religion.

But in the early 20th century, as desegregation became a very real threat to some elements of the white supremacist power structure, the Klan began to adopt the rhetoric of Christianity and the symbol of the burning cross ("extinguished by sacrificial blood") as a retroactive explanation for the organization's violent behavior. Meanwhile, pastors in the Southern Baptist Convention--which was, at the time, an openly segregationist organization--began to more vocally preach the doctrine that racial integration was an abomination against God. White Southerners increasingly began to couch their segregationist beliefs in religious terms, with the full blessing of white politicians and religious leaders.

The Supreme Court has historically been unsympathetic towards the argument that racist religious beliefs invalidate nondiscrimination laws, but this may change. The Manhattan Declaration, which condemns "the use of anti-discrimination statutes to force religious institutions, businesses, and service providers of various sorts to comply with activities they judge to be deeply immoral," seems to focus more on protecting sexist and homophobic religious beliefs than racist religious beliefs--but it would have been read as a direct reference to the Civil Rights Act thirty years ago, and may soon be read as one again.

If this seems far-fetched to you, it clearly doesn't to South Dakota state senator Robert Jensen (R-Rapid City). Sen. Jensen, who sponsored a proposed right-to-discriminate bill in South Dakota, defended his bill by arguing that nondiscrimination laws aren't necessary--the free market, he told a radio host, is enough to eliminate racial discrimination. Both Ron and Rand Paul also endorse this view, which isn't kooky by Republican Party standards: in a 1980 speech announcing his presidential candidacy at the Neshoba County fair in rural Mississippi, Ronald Reagan, too, spoke out against the Civil Rights Act and promised to "restore to states and local governments" the policy options that it eliminated. And whether this opposition to discrimination laws is characterized as a state's rights issue or a freedom-of-conscience issue, it is clear that the movement to weaken nondiscrimination laws is still very powerful--and still may succeed.

What Body Cameras Won't Do

Sunday March 16, 2014

There's a movement afoot to equip police officers with body-mounted videocameras. It's not an altogether bad idea; it'll discourage some forms of police misconduct, it'll protect officers from false charges, and it'll make police accounts of suspect behavior less subjective. And as cameras become cheaper and more durable, the practical case against using them becomes harder and harder to make.

But I see three potential issues we'll need to watch out for:

  1. Because these devices will effectively turn every police officer into a walking CCTV camera, they have significant Fourth Amendment implications. It's a good idea to regulate the circumstances under which footage collected by these cameras can be used.
  2. We also need to regulate the circumstances under which these cameras can be turned off. No officer should be forced to record documentary footage of their trips to the restroom or off-the-record conversations with witnesses and informants, and no officer should be permitted to record footage of strip searches, reviews of confidential data, and so forth--but if officers are allowed to turn the cameras off at will, they won't actually prevent police misconduct.
  3. We need to be careful not to rely on these cameras as an alternative to a more robust accountability structure. Remember that the shooting of Oscar Grant was captured on video from multiple angles, and the officer who killed him still walked free less than a year after his conviction (possibly due to jury bias).

Officer-cams, like most new law enforcement technologies, present both opportunities and complications. As more local police departments begin to adopt these technologies, we need to develop boilerplate standards to go along with them.


Related: A History of Government Surveillance Programs


Michele Bachmann and the RICO Act

Saturday March 15, 2014

Last week on right-wing talk radio, Rep. Michele Bachmann (R-MN) suggested that the RICO Act could be used to prosecute liberal commentators who criticize the Koch brothers. It can't, and she probably knows it can't, but her reference to the RICO Act didn't come out of thin air. It was a nod and a wink to anti-abortion protestors who may remember a series of Supreme Court cases, ultimately decided in their favor, that weighed the possibility of using the RICO Act to restrict their efforts to intimidate employees and patients at abortion clinics.

It all started in 1986, when the National Organization for Women (NOW) responded to a violent attack on clinic personnel by organizing a class action suit against extremist anti-abortion groups. The lawsuit, NOW v. Scheidler, incorporated a RICO complaint three years later and would ultimately be the subject of three different U.S. Supreme Court rulings (NOW v. Scheidler, 1993; Scheidler v. NOW, 2003; Scheidler v. NOW, 2006) on the degree to which RICO language could be used against activists and others who are peripherally involved in intimidating behavior that does not have an economic motive. As a result of these rulings, which were largely decided in favor of the anti-abortion movement, it is now extremely difficult to sue activist groups for RICO Act violations, even when they are obviously complicit in intimidating behavior.

Bachmann was an anti-abortion "sidewalk counselor" during the 1980s and early 1990s, so she would be well aware of this lawsuit. And while it was decided largely in her movement's favor, she clearly resents the fact that it was filed at all.


Related: Understanding the Religious Right

Personal Behavior and the Bill of Rights

Friday February 28, 2014

Contrary to what you may have heard, Phil Robertson's free speech rights were never in serious danger. Neither were Woody Allen's due process rights. And neither is the religious freedom of bigoted retail managers.

If we lived in a country where private media companies were legally forced to give space to unprofitably racist and homophobic blowhards in the spirit of "free speech," survivors of childhood sexual abuse were forced to stay silent in the spirit of "due process," and women who needed birth control were forced to do without it in the spirit of "religious liberty," the country we live in would be less free--not more.

The Bill of Rights begins with five powerful words: "Congress shall make no law..." Note the words "Congress" and "law." The Fourteenth Amendment expanded this policy to include the states, but there's no version of the incorporation doctrine that lets you get away with applying the Bill of Rights as if it were a criminal code regulating personal conduct.

Free speech doesn't guarantee you a job, due process doesn't guarantee you a good reputation, and religious liberty doesn't give you permission to illegally discriminate against others. These legal concepts are in place to restrict the actions of the government--not to protect you from the social consequences of your behavior.

Related: Don Imus and Free Speech

Louisiana Pushes Second-Trimester Abortions

Tuesday January 28, 2014

There was a time when the American anti-abortion movement saw a distinction between first- and second-trimester abortions--a distinction that dates back to Aristotle. But that time has clearly passed.

As Andrea Grimes writes:

New "emergency" abortion regulations in Louisiana require patients to wait 30 days between blood tests and their abortion procedures, according to the state's Department of Health and Hospitals (DHH) ...

[T]he new DHH regulations could decrease patient safety, putting patients at a higher risk of complications. As pregnancy advances, procedures become more involved and more costly, said Ellie Schilling.

According to a Guttmacher study, 88% of abortions are performed before week 12. If the new regulations are enforced, this will not be true of Louisiana; what would have been a week 9 abortion will be a week 13 abortion, what would have been a week 13 abortion will be a week 17 abortion, and so forth. Louisiana bans abortions past 20 weeks, but only 4% of abortions are performed from week 16 on. The most statistically significant effect of this legislation will be to turn first-trimester abortions into second-trimester abortions, at increased risk to the patient.

All of this reflects the shifting priorities of a national anti-abortion movement that has increasingly turned its attention to emergency contraception--a movement that sees no distinction between a fertilized egg and an embryo, no distinction between an embryo and a fetus, and no distinction between a fetus and a baby. When policies such as Louisiana's four-week booster are put into effect, this blurry and scientifically incomprehensible definition of human personhood comes with a very high human cost.

Related: 10 Anti-Abortion Myths Debunked

What Colorado Couldn't Do

Wednesday January 22, 2014

If you're a Cracked.com reader, you've probably already read their really solid article on four limitations to the Colorado marijuana legalization initiative. The biggest complication, as you might expect, is the fact that the federal government can still arrest you for marijuana possession. And while President Obama has called off the Department of Justice, this may be giving us a false sense of security:

...[I]t's not like the policies of the president ever suddenly shift every few years, right? Wait, no, they totally do. That means that the next leader of the country could, under federal law, make a pretty gigantic example of a certain red-eyed Rocky Mountain state.


As a temporary measure, voters can choose a candidate in 2016 who agrees to continue President Obama's policy--but as long as federal laws against marijuana exist, the federal government will always be one bad presidential election away from a relapse. What is really needed is congressional passage of a bill either legalizing marijuana on a federal level, or formalizing a Department of Justice policy prohibiting enforcement of marijuana laws in states that have legalized it. Between now and the November elections, voters can take a good first step in that direction by looking at what their U.S. House and Senate candidates think about marijuana laws.

Related: History of Marijuana Laws | Why Marijuana is Illegal

©2014 About.com. All rights reserved.