Group Following Justice Breyer’s Playbook to Abolish Death Penalty

breyerginsburgThe death penalty abolition movement is finally coming out into the open according to Buzzfeed News, which interviewed Henderson Hill and Rob Smith, of The 8th Amendment Project. The author writes:

“When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.”

The primary focus of Hill and Smith’s organization is “the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.”

The article highlights the moment when the Supreme Court announced in January that they would hear the Glossip v. Gross case as pivotal for The 8th Amendment Project and one that would eventually bring the organization center-stage. (more…)

Court Finds N.S.A. Phone Data Gathering Program Illegal

A three-judge panel of the Second U.S. Circuit Court of Appeals ruled on Thursday that the National Security Agency’s once-secret, bulk gathering of phone records of millions of Americans is illegal under the USA Patriot Act, the nation’s main counterterrorism law.

“The government takes the position that the metadata collected — a vast amount of which does not contain directly ‘relevant’ information, as the government concedes — are nevertheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant,” the court said, according to The Washington Post. 

“We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted.” Plaintiffs included the American Civil Liberties Union. (more…)

Questions About Municipal Court Systems Not Confined to Ferguson

enhanced-18974-1425512361-3The grave problems that a U.S. Justice Department report spotlighted as plaguing police and court systems in Ferguson, Mo. (see Gavel Grab) are more pervasive issues, the New York Times  reported:

“Ferguson, a city of 21,000, is unusual in some respects — it has issued the most warrants of any city in the state relative to its size, for example — but the unfairness in its court system that the Justice Department highlighted is not limited to it, to St. Louis County or even to Missouri.”


DOJ: Racism, Extortion, Lawlessness Pervasive in Ferguson

The U.S. Justice Department issued a devastating report this week, calling for officials in Ferguson, Missouri to “overhaul” the criminal justice system or face a federal lawsuit.

Offenses include using “police and courts as money making ventures,” racial bias in policing, and exchanges of racist emails, according to the New York Times. The report found that 85 percent of traffic stops and 93 percent of arrests over a two year period targeted the city’s black population. “A black motorist in Ferguson was twice as likely to be searched.. even though searches of whites turned up drugs and other contraband more often,” the article explains.


Obama Proposes Outside Panel for Advocacy at Surveillance Court

When President Obama announced on Friday a series of reforms to the National Security Agency’s phone record surveillance program, he also proposed a way for a public advocate to represent privacy and consumer interests in certain cases before the secretive Foreign Intelligence Surveillance Court.

Obama proposed creating a panel comprised of advocates for civil liberty, technology and privacy interests, according to the Washington Post. The newspaper went on to summarize his proposal this way:

“Their job will be to represent Americans, but only when the FISA court faces ‘novel issues of law,’ according to a senior administration official. In other words, those advocates will become involved when the [Foreign Intelligence Surveillance Act] court encounters a question or type of data it hasn’t dealt with before. But officials Friday weren’t clear about whether they would be called in by the court or if they could weigh in of their own volition.” (more…)

Will Secretive Surveillance Court get a 'Public Advocate'?

President Obama is expected to call on Friday, in unveiling a package of proposed surveillance reforms, for establishing a public advocate to argue before the secretive Foreign Intelligence Surveillance Court on behalf of privacy and civil liberty concerns.

However, in a letter this week, former FISC Chief Judge John Bates (photo) urged against creating such a public advocate, according to the New York Times, saying the advocate should rather be appointed when the court found it necessary.

“Given the nature of [Foreign Intelligence Surveillance Act] proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation,” Judge Bates said, according to Reuters. If there were broad participation in the court by a public advocate it could, he warned,  “actually undermine the Courts’ ability to receive complete and accurate information on the matters before them.” (more…)

Reforms Recommended for Secretive Surveillance Court

In order to better guard privacy and civil liberties, an Obama administration review group has recommended reforms involving the Foreign Intelligence Surveillance Court, which has been in the media spotlight this year.

 A Blog of Legal Times article said the group recommended in its 303-page report the following changes:

  • SELECTION: No longer would the United States Chief Justice have sole authority to appoint jurists to the secretive court. That authority would be divided up among all justices, who would be able to name one or two FISC judges from within the circuits each justice oversees.
  • PUBLIC ADVOCATE: The reviewers recommended that FISC hear arguments not only from the Justice Department but also from a to-be created Public Advocate, whose job “would be to represent the interests of those whose rights of privacy or civil liberties might be at stake.” (more…)

Once-Secret Court Order by Surveillance Court Released to Public

As the Senate Judiciary Committee convened a hearing on government surveillance programs, the American public got its first glance at a once-secret court order that approved massive government collection of telephone call data.

The order by the Foreign Intelligence Surveillance Court “stipulates that a small number of analysts and supervisors are authorized to access the records for the limited purpose of matching them against phone numbers linked to terrorism,” according to a Los Angeles Times article.

The newly declassified document was among several released by the Office of the Director of National Intelligence. The order allowed government access to telephone logs if an official from the executive branch deems there are “facts giving rise to a reasonable, articulable suspicion” that a targeted number is linked with terrorism, the New York Times reported(more…)

Judges of Secretive Court Attract Heightened Scrutiny

There’s no resolution in sight of the controversy over recent disclosures of sweeping government surveillance of Internet and phone data. But one certainty is this: the secretive federal court that is asked to approve extensive data-gathering is itself getting unusual, heightened scrutiny.

This weekend, the Washington Post weighed in with a front-page article entitled, “For secretive surveillance court, rare scrutiny in wake of [National Security Agency] leaks.” It reported that U.S. District Judge John Bates, a member of the Foreign Intelligence Surveillance Court, met with numerous senators earlier this month in a secure Washington meeting room at the Capitol, and was asked to discuss the court’s work.

The two-hour session with Judge Bates and two spy agency officials, the Post reported, “reflects a new and uncomfortable reality for the Foreign Intelligence Surveillance Court and its previously obscure members. Within the past month, lawmakers have begun to ask who the court’s judges are, what they do, why they have almost never declined a government surveillance request and why their work is so secretive.”

As part of the scrutiny, there is legislation seeking to shed sunlight on secret orders of the court, and there are requests for the Obama administration to make public summaries of the court’s opinions, at the least. (more…)

Secretive Surveillance Court Questioned on Independence, Diversity

The secretive court getting new scrutiny in the wake of disclosures about government Internet and telephone data-gathering has counted 12 Republicans among its 14 judges this year, Reuters reports.

Yet judges of the Foreign Intelligence Surveillance Court “also have issued orders in public cases that belie their conservative, law-enforcement roots, sometimes ruling against the government in terrorism-related cases,” Reuters says in its intriguing portrait of the members of the Washington, D.C.-based court.

The article includes comments by experts who question the bench’s diversity and the direction of its evolution over 35 years. The judges are chosen from trial courts around the country by the chief justice of the United States.

“Since [the Foreign Intelligence Surveillance Act] was enacted in 1978, we’ve had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity,” Stephen Vladeck of American University’s Washington College of Law told Reuters. (more…)