Blog
By Molly Alarcon – 02/09/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
A US House subcommittee report on released detainees from Guantanamo criticizes the Bush and Obama administrations for releasing some prisoners who went on to become involved in terrorist activities (AP, Reuters, The New York Times).
A legal loophole in Illinois is causing some to be put in debtor’s prison, the State Journal Register reports.
Similarly, Rhode Island lawmakers want to lower the threshold that would put individuals owing child support in jail (AP).
Senator Tester (D-MT) follows the lead of Senator Scott Brown and his opponent Elizabeth Warren in calling for a Super PAC pact in his re-election campaign (Politico).
The Huffington Post’s Dan Collins says New York needs Lady Gaga to stop the state’s redistricting disaster.
Tags: What We're Reading Today
By Lianna Reagan – 02/09/12
This week, Chile’s President Sebastián Piñera signed a bill into law that automatically registers its citizens to vote, which is expected to add 4.5 million people to Chile’s registration rolls. In doing so, the country joins many other democratic nations, including Australia, Canada, and France, that already have some form of automatic registration in place.
Unfortunately, the United States, where 35 percent of citizens — about 73.5 million — who are eligible to vote are not registered, does not have this policy in place. With such low registration rates, it is hard to imagine that in the last few years multiple laws have been approved across the country to restrict the ability of people to vote. In many states, there are even new burdens being placed specifically on the ability of community groups to register voters. One of the most onerous laws that passed was in Florida, and those restrictions are so severe that the League of Women Voters and Rock the Vote had to suspend their voter registration drives.
Voting is not only a right, but a fundamental part of building an engaged citizenry and the foundation for civic participation. The Brennan Center advocates for a number of ways to modernize our country’s voter registration process that would be helpful to states to facilitate widespread registration. These provisions of voter registration modernization include automated registration (or automatically registering eligible citizens based on lists from other governmental agencies), online registration and access (being able to register to vote; or check, and edit one’s registration online), and permanent state registration (a voter’s registration record is moved as needed among jurisdictions within the state, but the voter is kept on the voter rolls as long as she resides in the state). All of these measures would effectively and efficiently improve voter registration, and enable more Americans to vote.
In addition to making our democracy more inclusive, voter registration modernization could make voting rolls more clean and accurate. The key is in sharing and comparing information between government agencies while moving away from the antiquated paper-based system on which most states rely. In too many states, a form has to get mailed to the county election office where it is hard-entered into the state voter registration database. This paper based systems is not only labor intensive, but also error prone, and can lead to numerous problems in the electoral process. These systems are also incredibly costly at a time when money is particularly tight in the states. Moving to a paperless system can save hundreds of thousands of dollars a year. In Maricopa County, Arizona, they saved $450,000 by switching to online registration and partial automation, and in Delaware, they saved $200,000 just on personnel costs. Voter registration modernization has also gained bipartisan support around the country, as it is an area in which both parties can come together in the common goal of efficiency and cost reduction.
By following in the footsteps of many of the world’s developed democracies, Chile took an essential step toward modernizing its voter registration system. As a first-rate democracy the United States should do no less.
Tags: Democracy, Voting Rights & Elections, Voter Registration Drives, Voter Registration Modernization
By Molly Alarcon – 02/08/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
The Director of the Brennan Center’s DC office, Nicole Austin-Hillery, writes in today’s Roll Call about Congressional partisanship and inaction, saying lawmakers should heed the President’s State of the Union plea to “get each others’ backs.”
The Democracy Program’s Jonathan Brater articulates why the US still needs Section 5 of the Voting Rights Act in The Boston Review.
“We must not lose sight of the homeowners and communities who suffer the collateral damages of foreclosure,” as we await economic recovery and justice for victims of banking abuses, the Justice Program’s Neeta Pal writes at The Huffington Post.
USA Today: “The FBI has begun cutting back GPS surveillance in an array of criminal and intelligence investigations following a Supreme Court ruling last month restricting its use.”
California lawmakers are pushing for reform of the state’s harsh 3-strikes law (KQED).
The New York Times editorial board lambastes President Obama’s decision to begin fundraising for a major Super PAC that supports his re-election. Think Progress says the move is the best way to fight Citizens United in the long run.
Tags: What We're Reading Today
By Adam Skaggs – 02/07/12
The mock outrage at President Obama’s campaign for blessing contributions to the Super PAC supporting him, Priorities USA, is a distraction from the real questions about today’s campaign finance environment — how to stop the abuses, and who will provide the leadership needed to achieve meaningful change.
The president’s apparent about-face — from condemning “the corrosive influence of money in politics” in the State of the Union to his campaign’s announcement that it will “do what [it] can, consistent with the law, to support Priorities USA” — provided plenty of fodder for critics. But it’s not surprising. In 2008, Obama reversed course, too — he first planned to participate in the presidential public financing program, but later eschewed it when it became clear he could raise more money outside the system.
The reality in 2012 is that no candidate with a serious chance of winning can afford, in the words of Obama for America campaign manager Jim Messina, to “unilaterally disarm.” The campaign fundraising arms race this election cycle, like it or not, involves Super PACs. They’ve already dumped $40 million of slash-and-burn attack ads into the Republican presidential primaries. Karl Rove’s Super PAC alone, working with a related non-profit group, raised $51 million last year.
However disappointing it was to campaign reform advocates, the only surprise about the Obama campaign’s decision to play by the same rules is that it waited this long to make the announcement. Any campaign that doesn’t take advantage of the rules that permit super spending by Super PACs doesn’t stand a chance.
The Supreme Court’s disastrous decision in Citizens United v. FEC helped enable the Super PAC takeover of elections (as did other court decisions), but the Supreme Court isn’t entirely to blame. Under the Court’s decisions, the only groups that can raise and spend unlimited sums are groups that are completely independent of the campaigns. The candidate-specific Super PACs are anything but.
Why do these groups, which look like shadow arms of the campaigns to any common-sense viewer, operate under rules designed for groups that are wholly independent of campaigns? In large part, the answer has to do with the Federal Election Commission.
In 2010, the FEC issued an advisory opinion that green-lighted Super PACs: as long as a group tells the FEC it’s not affiliated with any campaign and won’t make direct contributions to candidates, it can raise and spend without limit. Later, in spite of laws providing that groups like Super PACs can’t coordinate with candidates and still claim to be independent, the FEC said that Super PACs could legally do a whole lot that looks like coordination. Only at the FEC can a group run ads that are “fully coordinated” with a candidate and still say it is “wholly independent” of his campaign.
The FEC was created under the Federal Election Campaign Act, enacted 40 years ago today, and the last four decades have shown that the agency isn’t up to the task of enforcing the nation’s campaign finance laws. The Alice-in-Wonderland approach it has taken to the Super PACs dominating this year’s election is just its latest failure.
Congress should replace the FEC with an agency that will actually carry out its mission. (While it’s at it, Congress could fix the Super PAC problem by passing laws that give real meaning to words like “independence” and “coordination.”) The abuses that will inevitably emerge from this year’s orgy of Super PAC spending should be sufficient to galvanize support from both sides of the aisle to pass meaningful campaign reform.
But even if partisan gridlock in Congress continues to stymie legislative reform, the president can take a significant step toward addressing the current state of dysfunction at the FEC. Five of the six commissioners who “lead” the agency are serving with expired terms, and the president has the power to appoint competent replacements committed to enforcing the nation’s campaign laws.
A coalition of reform groups under the leadership of Citizens for Responsibility and Ethics in Washington (CREW) has been calling on President Obama to do just that — since 2009. So far, the president has ignored the calls to appoint new leaders to the FEC.
There is no excuse for further delay. If President Obama is genuinely concerned about the “corrosive” impact of big money in our elections, he should demonstrate it with action, not rhetoric.
Tags: Democracy, Campaign Finance Reform, Other Reforms
By Molly Alarcon – 02/07/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
Andrew Cohen looks back on the torture memos, 10 years later, at The Atlantic.
Both chambers of the Virginia legislature have now passed voter ID bills. A Virginian-Pilot opinion article on why the proposed laws are a bad idea quotes the Brennan Center’s Keesha Gaskins.
The Philadelphia Inquirer has a story on how mandatory minimum sentences for federal gun crimes cause disparities and unduly long sentences.
Under the Radar: South Carolina Rushes Through Yet another Voter Suppression Bill (ACLU).
U.S. Representative Keith Ellison of Minnesota is leading the charge in Congress and his home state to fight suppressive voting laws, the Minneapolis Star-Tribune reports.
Tags: What We're Reading Today
By Molly Alarcon – 02/06/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
CNN: “While the nation marks the 40th anniversary of the Watergate break-in later this year, some observers say our political leaders have already forgotten a key lesson of Watergate: that anonymous money corrupts political campaigns.”
At the American Bar Association’s Midyear Meeting this weekend, Attorney General Eric Holder announced $2.4 million in grant money for indigent defense services and research.
“Thirty-three civil rights groups from around the country complained to the New York attorney general Friday about police documents that showed the New York Police Department recommending increased surveillance of Shiite mosques based on their religion.” - AP
The Washington Post editorial board bemoans the Virginia legislature’s efforts to enact a voter ID law, citing Brennan Center research on how many people lack proper ID.
Actual confirmed voter fraud: the Indiana Secretary of State, the state’s chief elections official, was found guilty of multiple voter fraud-related charges, including lying about his address on voter registration forms (AP).
Tags: What We're Reading Today
By Liza Goitein – 02/03/12
Crossposted at Balkinization.
Two weeks ago, I made my first trip to Guantanamo Bay, Cuba. I went as a representative of one of several non-governmental organizations invited to observe the military commissions that the government has established to try terrorist suspects it does not wish to try in federal court.
A few days before the trip, the Office of Military Commissions e-mailed me a twelve-page Power Point presentation of information for travelers. It appeared to have been written primarily for military personnel and was sprinkled with indecipherable jargon and acronyms, but as I anxiously skimmed the bullet points for my marching orders, my eyes fell upon this clear directive:
“It is illegal to harm, kill or eat an iguana.”
At last! The rule of law has come to Guantanamo!
There were no caveats, no exemptions, no loopholes, no equivocations. To my knowledge, the Office of Legal Counsel has issued no opinion concluding that the statute prohibiting the harming of iguanas does not constrain the President when acting as Commander-in-Chief — as it did when construing the equally clear language of the statute prohibiting torture. Nor has that office, to my knowledge, shown the same creativity in defining “harm” that it showed in defining “torture,” when it opined that a person hasn’t been tortured unless he experiences the kind of pain associated with “organ failure or death.” The government has not argued that Congress surely did not intend the law to extend to Guantanamo Bay — as it did when detainees sought to avail themselves of the statutory right to habeas corpus.
As others have observed, the impressive 20-pound lizards who roam the island are experiencing a very different Guantanamo than the nearly 800 detainees who have been imprisoned there since 9/11. For those detainees, the story of Guantanamo can be boiled down to a series of efforts on the part of the government to avoid the clear application of the law. As the Supreme Court has repeatedly rejected these efforts — holding that the President cannot create ad hoc military commissions without congressional authorization, that due process requires giving U.S. citizens a meaningful opportunity to contest their status as “enemy combatants,” that detainees have a constitutional right to challenge the basis for their detention — the government’s efforts to avoid the law have become more limited, less brazen. But they have not stopped.
The government’s propensity to get creative with the law was on full display in the pre-trial hearing in the case of Abd al-Rahim al-Nashiri. Al-Nashiri, a Saudi citizen, is charged with planning the 2000 bombing of the U.S.S. Cole, which killed 17 sailors. Arrested in 2002, al-Nashiri spent the next four years in secret CIA prisons, where (according to a CIA Inspector General report) he was waterboarded, threatened with a loaded gun, and interrogated with a revving power drill next to his head. Al-Nashiri, who faces the death penalty, will likely be the first “high-value detainee” to go to trial — although that may not be until 2015.
The main issue before the Commission at the hearing was attorney-client privilege. A defendant in regular criminal proceedings has a constitutional right to confidentiality in his communications with his attorney. The rights to effective assistance of counsel and due process, as well as the right not to incriminate oneself, would be meaningless if the government could eavesdrop on these attorney-client exchanges.
The government says that the Constitution ends at the tip of Florida; it relies instead on the Military Commission Rules of Evidence. But even those rules recognize attorney-client privilege. “[A] client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client . . . between the client or the client’s representative and the lawyer or the lawyer’s representative.” Clear enough. Communications between the detainees and their attorneys are like iguanas: protected.
Except when the government says they’re not. In December, Rear Admiral David Woods, the commander in charge of the detention facilities at Guantanamo, issued a policy allowing a team of contractors hired by the Defense Department — a so-called “privilege team,” consisting of intelligence professionals and translators — to inspect the incoming legal mail of detainees involved in military commissions proceedings. At the hearing, al-Nashiri’s lawyers asked the judge to bar implementation of the policy in his case.
The government’s attorneys assured the military judge that there was nothing to worry about, because the contractors were not actually “reading” the mail; they were just looking to see whether any “informational contraband” — defined as anything that the GTMO commander deemed “impermissible or inappropriate” — was in “plain view.” In two days of argument, however, they were able to cite only two types of information that that privilege team might uncover without actually reading a document: classified markings (which are not necessarily “contraband,” as al-Nashiri is entitled to receive some classified information about his case) and diagrams of the detention facilities (an example that prompted visible skepticism on the part of the judge, presumably because of the implausible implication that defense counsel might be conspiring with al-Nashiri to stage a jailbreak). The other examples of “informational contraband” listed in the policy — things like “current political or military events in any country” — could never be detected without the act of reading because they would be embedded in the text of the document. (If you’re asking yourself why al-Nashiri — who has been in captivity for a decade — can’t receive political news about “any country,” you’re not alone.)
Rather than speculate about whether the privilege team might be reading the mail, one of al-Nashiri’s lawyers, Lieutenant Commander Stephen Reyes, asked to have a member of the privilege team testify about what the team actually was doing. Commander Andrea Lockhart, one of the prosecutors, countered that the current practice of the privilege team was irrelevant: the judge in al-Nashiri’s case could place any restrictions on the team that he wished and would have complete control over its actions.
The next day, Lockhart confessed error. She admitted that the team was bound only by the terms of its contract, and neither the prosecutors nor Admiral Woods — who issued the privilege team policy in the first place — knew what that contract said. But Lockhart nonetheless assured the judge that he could enter an order specifying what he would like the contractors to do, and if they didn’t do it, surely whoever was supervising their contract would take some sort of employment action. Perhaps not surprisingly, the notion of an optional judicial order did not give her pause.
The government also repeatedly claimed that Admiral Woods’ policy, which applies to detainees in military commissions proceedings, is no different than the procedure that has been in place for years for another group of detainees — those who have filed habeas petitions in federal court. But when the judge requested a copy of the court order governing the privilege team in habeas cases, he discovered that the order permits the team to inspect incoming legal mail only for physical contraband: weapons, files, or the like. Instead of apologizing profusely for having misled the judge, Commander Lockhart maintained that, in fact, the order permitting inspection only for physical contraband had the exact same meaning as Woods’ policy, which permits inspection for both physical and informational contraband. There was no sign of cognitive dissonance in her presentation. This rule, like so many others, simply didn’t mean what it said.
Judge Pohl was no pushover. When Admiral Woods was late to give his testimony, Pohl scolded the prosecutors and admonished them to have their witnesses ready on time: “I really don’t care what their rank is.” He clearly will not entertain any suggestion that the officers who run the prison also run his courtroom. But by the same token, he appeared reluctant to insert himself in matters relating to the security of the detention facility — the purported reason for the privilege team review. Although he reserved judgment, he signaled that he is at least considering allowing some kind of “plain view” review. Which would simply confirm once again that at Guantanamo, no matter how clearly a rule may be stated, you can never be truly sure what it means or whether it will be followed.
Unless, of course, you’re an iguana.
Tags: Liberty & National Security, Detainee Policy
By Molly Alarcon – 02/03/12
What We're Reading: a daily round-up of quick hits, clips, and opinion pieces touching on key issues of democracy, justice, liberty and national security.
“There’s really no way for shareholders to have any say in how money is being spent, even though it’s their money,” the Brennan Center’s Mark Ladov told Washington Post reporter T.W. Farnam for a piece on corporations contributing to Super PACs.
The Raw Story covers efforts by the ACLU and other advocacy groups, including the Brennan Center, to pass the End Racial Profiling Act.
Think Progress: “The biggest critic of a massive prison privatization scheme in Florida was stripped of his chairmanship of the Budget Subcommittee on Criminal and Civil Justice Appropriation for opposing Gov. Rick Scott’s (R) plan to outsource prison oversight to the lowest bidder.” The privatization of prisons creates perverse incentives for increasing the inmate population while spending as little as possible on their care.
A group of Michigan lawmakers introduced a package of ethics and campaign finance reforms to require greater disclosure by corporations, The Detroit News reports.
Ari Berman writes in The Nation: How the GOP Is Resegregating the South.
Tags: What We're Reading Today
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