News & Commentary

This piece originally appeared in The Hill. Important issues sometimes divide our nation, but one area where most of us share common ground surrounds is the belief that warrantless secret spying on Americans is unjust.  Soon, the Senate is scheduled to vote on the USA FREEDOM Reauthorization Act of 2020, a bill that would extend provisions of the Patriot Act that expired in March. These provisions are currently not consistent with Americans’ fundamental rights. However, if Congress chooses to reauthorize them, at a minimum, they should be accompanied by meaningful reforms to address the torrent of surveillance abuses that have come to light over the past year. The legislation in its current form fails to accomplish this basic task, and must be amended. In 2015, Congress passed the USA Freedom Act in a bipartisan effort to address revelations that the National Security Agency had abused provisions of the Patriot Act to obtain the personal information of virtually every American. The stated goal of the bill was to end bulk and large-scale, indiscriminate collection under the Patriot Act, require transparency to prevent future surveillance abuses, and reform the Foreign Intelligence Surveillance Court, which authorizes surveillance of agents of a foreign power in the United States. Critical protections that were in the original version of the USA Freedom Act – sponsored by over 150 members of Congress – were omitted in the final version of the bill and it has become clear since the bill’s enactment that the USA Freedom Act did not succeed in limiting unwarranted surveillance under the Patriot Act and other intelligence laws.  For example, Section 215 of the Patriot Act continues to be used to collect vast amounts of Americans’ sensitive information under a standard far more permissive than a warrant – with the government refusing to disclose the types of records it believes it can collect under the authority. In addition, last year, a report from the Justice Department’s Inspector General revealed unlawful surveillance of Trump campaign adviser, Carter Page.   Subsequent reports by the Inspector General have shown that the errors in the Page case were not simply one-offs, but rather indicative of systemic deficiencies. For example, a recent audit by the Inspector General of 25 intelligence surveillance applications found “apparent errors or inadequately supported facts” in every single one. It is now abundantly clear that we must dramatically reform both the Foreign Intelligence Surveillance Court and our intelligence laws to safeguard Americans’ rights.  Fortunately, it’s not too late for Congress to right the ship.  Anticipated proposed amendments proposed to the legislation currently under consideration offer a common-sense, privacy-protecting solution.  Adversarial process is a cornerstone of our legal system. Americans expect that when the government makes a claim in a court of law that they aren’t the only voice heard in the courtroom. Unfortunately, that is precisely what happens in our intelligence courts. An amendment anticipated by Senators Leahy and Lee would help to tackle this problem head-on by encouraging the Foreign Intelligence Surveillance Court to appoint a “friend-of-the-court” to provide privacy and civil liberties expertise in cases raising pronounced constitutional concerns.  In addition to this, an amendment anticipated by Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.) would take steps to prevent the Patriot Act from being used to further trample Fourth Amendment rights by limiting collection of internet and search history. Section 215 of the Patriot Act was never intended to give the government carte blanche to engage in the type of collection that typically requires a probable cause warrant under the Fourth Amendment. Under the proposed amendment, the FBI would still be able to get internet search and browsing information in foreign intelligence cases – they would just need to show probable cause like they do in the criminal context.   Finally, Sen. Rand Paul’s (R-Ky.) has said that he also intends to introduce an amendment that will provide further protections for individuals in the US who are ensnared in the FISA process – something that is sorely needed.  There’s much more that needs to be done to fix our nation’s broken surveillance system beyond what’s accomplished in these amendments. Among other things, protections are needed to ensure that First Amendment activity is not a basis for surveillance, that the government purges data that is not foreign intelligence, and that intelligence agencies comply with their constitutional obligation to fully notify individuals when information obtained as a result of intelligence surveillance is used against them.  We all want to keep Americans safe. And we can ensure that safety while also making our government accountable to its citizens’ representatives. Undertaking these reforms will help give the American people the transparency and due process protections they are guaranteed under the Constitution. 

In his third book of poetry, “Felon,” Reginald Dwayne Betts contemplates life after prison: “The rooms in my head keep secrets that indict / Me still; my chorus of unspoken larcenies. / You carry that knowledge into your twilight, / & live without regret for your guilty pleas.” The sense that prison sticks with you, haunts you even after you are released — as he was in 2005 — permeates the book. Betts joined us for a second conversation on At Liberty this week. We discussed his life as an artist — the poems of “Felon,” along with a recent exhibit at MoMA PS1 he collaborated on with painter Titus Kaphar — as well as how the current moment changes the artist’s role and work. As a legal scholar who “lost a third of his life to maximum security [prison],” incarceration and its lingering after-effects are woven throughout Betts’ art and scholarship. He speaks candidly with our host, Emerson Sykes, about the challenges of reentering society after being behind bars, and how those challenges are amplified for people who are released during a pandemic. In spite of the adversity those who are released in the coming months will inevitably face, Betts doesn’t waver on what must be done to protect vulnerable people from COVID-19: “Most everybody should be released … Now you have people being released who just wouldn’t have been released three, four months ago. But I’m saying that we need to push it even harder. And I think people inside recognize that even more.” Listen to the episode here.

Find the house, approach the door, ring the doorbell and wait with bated breath to see who will show on the other side — this was my daily routine while in Iowa. During the winter of my senior year of college, I volunteered in Ankeny, Iowa with a presidential campaign. The new experiences brought me relationships and campaign knowledge, but also placed the inequity of the caucus process front and center. Each time a door opened, I was reminded that people who look like me, the Black population in Iowa, constitute only 4 percent of the state. Once the police were called on me for canvassing a neighborhood and a fellow team member of color was verbally harassed, the inequities were no longer solely related to the caucus process.  The social inequities that we already knew as Black and Brown women were reinforced as well. What we faced, however, was marginal in light of the millions of racial minorities living without access to voting rights in the United States. As we head into the general election, we must remember the states whose nominating contests and voters set the stage for this year’s primary, and the voters who weren’t allowed to cast their ballots in those contests. Additionally, the same groups that are underrepresented by population, in comparison to their white counterparts, are those that are overrepresented in the criminal justice system. We must not forget that the racial and social inequities that pervade our nation have a direct impact on the electoral process.   As the first state in the nation to hold a caucus or primary, this small, overwhelmingly white state with variable turnout still sets the precedent for the trajectory of the entire presidential primary. I could not understand how a state that is not representative of the racial, ethnic, and class diversity of the nation could still be first. Iowa is not the only state, however, that highlights inequities in the election process.  The historically positive impact that the Iowa caucuses, or even the New Hampshire primary, can have on a candidate’s campaign is irrefutable, but it is also inherently inequitable to systematically push the voices of people of color to the background for the sake of tradition and status quo.  This is not the only way that the election’s process indirectly favors white voters. Three states — Iowa, Virginia, and Kentucky — in their state constitutions, permanently disenfranchise all residents convicted of felonies unless the governor restores their right to vote. According to the 2010 census, each of these states has a disproportionately high number of Black and Brown people in prisons and jails, with Black, Native American, and Latinx incarceration rates continuing to rise. In Virginia, this disparity is most pronounced: In 2015, Black adults comprised 19 percent of the state’s population, but 57 percent of the state’s imprisoned population.  Black and Hispanic populations are disproportionately represented in the United States’ prison populations, comprising 56 percent of the country’s prison population but only 13 percent and 16 percent of the total nation’s population, respectively, according to the 2010 Census.  Black and Brown people in the U.S. are consequently more likely to be impacted by these undemocratic restrictions. The permanent erasure of voting rights for those convicted of a felony is also a reminder of the excessive voting restrictions that Black and Brown Americans have always faced and harkens back to Jim Crow.  States have begun to take steps to lessen disparities and their many impacts. In 2016, Former Virginia Gov. Terry McAuliffe attempted to permanently restore voting rights to 200,000 Virginians, and was ultimately able to restore voting rights to 156,221 people in the state.  Kentucky’s recently elected governor, Andy Beshear, restored the right to vote and run for office to over 140,000 residents who have completed sentences for nonviolent felony offenses.  There is a proposed constitutional amendment in Iowa, supported by Gov. Kim Reynolds and the ACLU of Iowa, that would amend the state constitution and end permanent disenfranchisement for any felony.  Even though there are still multiple steps before the constitutional amendment could come to fruition, the proposed amendment is a positive step in the direction towards restoring rights to all Iowans. We can never forget nor negate that our democracy works best when all voices are heard. We will continue to fight for the rights of all.

Next week, on May 12, the Supreme Court will hear arguments in three cases about whether President Trump can block subpoenas issued to his banks and accountant to hand over his personal financial documents in connection with investigations of potential crimes. We argue that Trump, no less than anyone else, has no right to block such subpoenas. No one, not even the president, is above the law.   Our amicus curiae briefs for the cases, Trump v. Mazars/Trump v. Deutsche Bank AG and Trump v.Vance, make the case that his office does not permit him to block his accountants or banks from complying with legal requests for these documents. Should Trump be permitted to block his accountant from complying with the law and congressional oversight, it would put the rule of law and the separation of powers at risk.   In a recent New York Book of Review essay, ACLU National Legal Director David Cole outlines the argument. An excerpt is below.   “During the 2016 presidential campaign, Donald Trump boasted, ‘I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.’ He now argues that as president he couldn’t even be investigated for doing so. In three cases that have reached the Supreme Court, Trump is seeking to block subpoenas issued in connection with investigations of his conduct as a private citizen. In Trump v. Vance, the district attorney of New York City, Cyrus Vance Jr., subpoenaed Trump’s personal financial records, including his tax returns, for a grand jury investigation into whether several people committed crimes by paying hush money to an adult film star, Stormy Daniels, to stop her from talking about her sexual relations with Trump in 2006, while his wife, Melania, was recovering from giving birth to their son, Barron. In two other cases, Trump v. Mazars and Trump v. Deutsche Bank, congressional committees have sought similar records in connection with oversight hearings on whether Trump has conflicts of interest with foreign institutions and officials, has misstated his assets to avoid tax liabilities, or has violated financial disclosure obligations.”   “Trump claims… that this authority ought not to extend to investigations of the president. He contends that he should be immune from all state criminal investigations as long as he remains in office. And he objects that the congressional committees are impermissibly pursuing law enforcement objectives, not legitimate inquiries to inform legislation.”   “There are good reasons to be vigilant about the rights of those called to testify or produce documents by grand juries and congressional committees. The McCarthy era demonstrated that both institutions can be abused to target dissidents and chill constitutional freedoms. But Trump makes no such claims. His objections to both the grand jury and congressional investigations ask the Supreme Court to exempt the president, even in his personal capacity, from the laws that apply to the rest of us. But the notion that neither a grand jury nor a congressional committee can even request records that may reveal private illegal conduct by the president, simply because he is the president, undermines two of the most fundamental principles of our constitutional system: that checks and balances are absolutely essential, and that no one is above the law.”   You can read the full essay, “Trump is Not Exempt” here.  

Marijuana arrests clog the criminal legal system with people who should not be there. This puts even more people in harm’s way as COVID-19 threatens to devastate jails and prisons, where the virus can spread rapidly. Officials must respond by reducing both arrests and the incarcerated population. 

As the spread of COVID-19 continues across Tennessee and the United States, it is more important than ever that government officials follow public health experts' recommendations to ensure a response plan that protects the health, safety and civil liberties of all people.The ACLU of Tennessee is monitoring the situation to ensure that the response is ​grounded in science and public health, not politics, and is no more intrusive upon civil liberties than is absolutely necessary.Along with our partners, we have been taking action during the pandemic to:

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Some states are officially loosening their stay at home restrictions, and more will join in the coming months as Americans attempt to inch their way back to pre-COVID-19 life. Some of us will return to work, gather in small groups, and maybe even dine at a neighborhood restaurant. As we proceed, what will it take to keep us safe and prevent new spikes in infections? Many experts say we won’t be out of the woods until there’s a vaccine, but how would a national vaccination plan even work? At the same time, technological solutions are being proposed, especially related to contact tracing, the process by which public health officials can map and anticipate the spread of a virus. Google and Apple, for example, have proposed harnessing our cell phones for contact tracing using Bluetooth proximity detection. Yet technological solutions raise a whole host of privacy and civil liberties concerns. Throughout history, examples can be found of using health and public safety as a proxy for discrimination, and a thinly-veiled excuse to carry out racist agendas that infringe on civil rights and liberties — especially during times of crisis. As technology continues to outpace the law, how can we ensure its use is unbiased, and truly in the interest of promoting public health? On the podcast this week, we explored these questions with professor Michele Goodwin, the founding director of the Center for Biotechnology and Global Health Policy at the University of California Irvine School of Law, and ACLU staff attorney Jennifer Granick, who leads our work on surveillance and cybersecurity. You can listen to the episode here.

For centuries, Americans have taken to the streets when they’ve had grievances to share. We’ve taken to the streets to make our voices heard, to effect change, and to feel and display the power and solidarity of mass gatherings. But with physical distancing and shelter in place orders prevalent throughout the U.S. and the world, how do we responsibly exercise our First Amendment right to protest, which remains as essential as ever? Undoubtedly, there is a medical imperative to keep ourselves and our neighbors safe, and our hospitals from becoming overwhelmed. At the same time, public debate about urgent political questions — from construction of the Keystone XL pipeline and southern border wall to when and how to reopen the country — remains more vital than ever. Current physical distancing measures have presented challenges, but people have found some creative ways to make sure their voices are heard. Here are just a few examples: