Group Releases 18-Month Review Of President's National Security Policies And Civil Liberties

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NEW YORK – The Obama administration has repudiated some of the Bush administration's most egregious national security policies but is in danger of institutionalizing others permanently into law, thereby creating a troubling "new normal," according to a new report released today by the American Civil Liberties Union.

"Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration," an 18-month review of the Obama administration's record on national security issues affecting civil liberties, concludes that the current administration's record on issues of national security and civil liberties is decidedly mixed: President Obama has made great strides in some areas, such as his auspicious first steps to categorically prohibit torture, outlaw the CIA's use of secret overseas detention sites and release the Bush administration's torture memos, but he has failed to eliminate some of the worst policies put in place by President Bush, such as military commissions and indefinite detention. He has also expanded the Bush administration's "targeted killing" program.

The 22-page report, which was researched and written by staff in the ACLU's National Security Project and Washington Legislative Office, reviews the administration's record in the areas of transparency, torture and accountability, detention, targeted killing, military commissions, speech and surveillance and watchlists.

"President Obama began his presidency with a bang, signing executive orders that placed the power of the presidency behind the restoration of the rule of law and gave meaning to the president's stated view that America must lead with its values," said Anthony D. Romero, Executive Director of the ACLU. "Unfortunately, since that time, the administration has displayed a decidedly mixed record resulting, on a range of issues, in the very real danger that the Obama administration will institutionalize some of the most troublesome policies of the previous administration – in essence, creating a troubling 'new normal.' We strongly urge the president to shift course and renew his commitment to the fundamental values that are the very foundation of our nation's strength and security."

According to the ACLU's report, the first 18 months of Obama's presidency have been marked by a pattern wherein significant achievements for civil liberties have often been followed by setbacks. For instance, the positive step of releasing Justice Department memoranda that purported to authorize the Bush administration's torture regime was followed by the troubling decision to fight the release of photos depicting the abuse of prisoners in CIA custody. The administration's commitment to dismantle Guantánamo has been undermined by its assertion of the authority to detain people indefinitely without charge or trial. And prohibitions against torture have been weakened by the failure to hold top Bush administration officials accountable for their role in the torture program.

"The Obama administration should work with Congress to restore the rule of law, and discourage any legislation that would institutionalize policies that were widely regarded as unlawful under President Bush. Together, Congress and the White House should make sure that abuses of power like the Patriot Act are dismantled, not extended, and that policies like indefinite detention are never signed into law," said Laura W. Murphy, Director of the ACLU Washington Legislative Office. "It is not too late for President Obama to build a legacy of justice and fairness."

The report concludes that, in addition to the initial executive orders, the administration has taken other positive steps and made genuine progress in some areas such as improvements to the government's handling of Freedom of Information Act requests, the release of key documents related to the U.S. torture program and an executive order disavowing torture. It also addresses more troubling practices such as the use of the "state secrets" doctrine to block lawsuits brought by torture survivors, the revival of the discredited military commissions to prosecute some Guantánamo detainees, the assertion of broad surveillance powers and the authorization of a "targeted killing" program to kill terrorism suspects, including American citizens, wherever they are located, without due process.

"In its first days, the Obama administration took some important steps to restore civil liberties and the rule of law," said Jameel Jaffer, Deputy Legal Director of the ACLU. "It has not, however, abandoned the 'global war' framework that was the basis for many of the last administration's counterterrorism programs. Indeed, some of the Obama administration's policies – like the policies on indefinite detention, military commissions and targeted killings – are entrenching this framework, presenting a profound threat to human rights and the rule of law. We urge the Obama administration to recommit itself to the ideals it articulated in its very first days. President Obama should not make 'global war' the new normal."

"Establishing a New Normal" is available online at: www.aclu.org/national-security/establishing-new-normal

UPDATED

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PHOENIX – Ensuring that Arizona law enforcement will not be required to demand "papers" from people they stop who they suspect are "unlawfully present" in the U.S., a federal court in Phoenix today blocked key provisions of Arizona's racial profiling law, scheduled to go into effect on July 29, pending a final court ruling on its constitutionality. The ruling came in a lawsuit filed by the Department of Justice challenging the Arizona law. The ruling vindicates similar claims made by the American Civil Liberties Union and a coalition of civil rights groups in a separate lawsuit challenging the discriminatory measure.

The blocked sections under the law include the following provisions:

•    The requirement that police officers investigate the immigration status of all individuals they stop if the officers suspect that they are in the country unlawfully;
•    The mandatory detention of individuals who are arrested, even for minor offenses that would normally result in a ticket, if they cannot verify that they are authorized to be in the U.S.;
•    The new statute imposing state criminal penalties for non-citizens failing to register with the Department of Homeland Security or failing to carry registration documents;
•    The provision for warrantless arrest of individuals who are deemed by state or local police officers to be "removable" from the U.S.; and
•    The new state statute making it a crime for alleged undocumented immigrants to work.

The court blocked the provision that would create an Arizona ban on undocumented persons applying for, soliciting or performing work. However, the court did not block the provisions that prohibit day laborers from being hired if the party hiring them impedes traffic. The civil rights coalition maintains these sections violate free speech protections and are confident that they too will ultimately be barred as unconstitutional under the First Amendment.*
 
The civil rights coalition that also challenged the law includes the ACLU, MALDEF, National Immigration Law Center (NILC), Asian Pacific American Legal Center (APALC) – a member of the Asian American Center for Advancing Justice, ACLU of Arizona, National Day Laborer Organizing Network (NDLON) and the National Association for the Advancement of Colored People (NAACP). The law firm of Munger, Tolles & Olson LLP is acting as co-counsel in the case.

The coalition's lawsuit, filed on May 17 and argued the same day as the Justice Department's case, challenges SB 1070 on legal grounds raised in the Justice Department's lawsuit as well as others including that the law invites the racial profiling of people of color, violates the First Amendment and interferes with federal law. According to the coalition, the law would subject massive numbers of people – both citizens and non-citizens – to racial profiling, improper investigations and detention.

The following quotes can be attributed to members of the coalition, as listed below.

Anthony D. Romero, Executive Director of the ACLU:

"This is a major step that will help protect the residents of Arizona against racial profiling and discrimination, and the Obama administration deserves praise for its principled decision to challenge this law despite pressure to stay silent. A single state's frustration with federal policy cannot be allowed to hijack federal authority or dictate federal priorities in ways that impede effective law enforcement, threaten the rights of citizens and non-citizens alike and violate core American values."

Nina Perales, Regional Counsel Southwest Region for MALDEF:

"Today's ruling guts the unconstitutional immigration scheme that Arizona wanted to establish. The judge's decision further shows that SB 1070 is an unconstitutional attempt by the state to take over the federal immigration system within Arizona's borders. States around the nation should take heed that any similar efforts will not succeed."

Linton Joaquin, General Counsel of NILC:

"With today's ruling, Judge Bolton enjoined the most egregious provisions of SB 1070, a dangerous enactment that threatens the fundamental rights of countless Arizonans and visitors. Other states following in Arizona's misguided footsteps should consider themselves forewarned: attempts to trample on the constitutional rights of communities of color in this country must not be permitted. We look forward to showing, through our lawsuit, that this pernicious law should be taken off Arizona's books permanently."

Alessandra Soler Meetze, Executive Director of the ACLU of Arizona:

"This is a first step toward a victory for civil liberties in Arizona. We eagerly anticipate proving to the court that this reactionary racial profiling law violates the Constitution so we can begin the real work of crafting practical solutions that address our nation's immigration concerns rather than violate fundamental American values."

Julie Su, Litigation Director of APALC:

"We applaud the judge for seeing the imminent danger of having this law enacted. SB 1070 presents a distinct and separate immigration scheme that conflicts with federal law and policy, and would have a devastating impact on Asian Americans, Pacific Islanders, Latinos and other people of color in Arizona. Indeed, some of those negative effects have already been felt. This ruling makes clear that intimidation of immigrant communities, pretextual stops to ask for 'papers,' and rhetoric about who belongs in Arizona and who doesn't under the guise of enforcing SB 1070 should cease immediately."

Pablo Alvarado, Director of NDLON: 

"If history is any guide, the road ahead in Arizona will be a long one. Today was one stop along the way, and we while we have complete faith in the legal process to ultimately defend the United States Constitution, we will not declare victory until SB 1070 is stopped in its entirety and until civil rights of all people in Arizona are fully protected."

Organizations and attorneys on the case, Friendly House et al. v. Whiting et al., include:

•    ACLU Immigrants' Rights Project: Lucas Guttentag, Omar Jadwat, Cecillia Wang, Tanaz Moghadam and Harini P. Raghupathi;
•    MALDEF: Perales, Thomas A. Saenz, Cynthia Valenzuela Dixon, Victor Viramontes, Gladys Limón, Nicholás Espiritu and Ivan Espinoza-Madrigal;
•    NILC: Joaquin, Karen Tumlin, Nora A. Preciado, Melissa S. Keaney, Vivek Mittal and Ghazal Tajmiri;
•    ACLU Foundation of Arizona: Dan Pochoda and Annie Lai;
•    APALC: Su, Ronald Lee, Yungsuhn Park, Connie Choi and Carmina Ocampo;
•    NDLON: Chris Newman;
•    NAACP: Laura Blackburne;
•    Munger Tolles & Olson LLP: Bradley S. Phillips, Paul J. Watford, Joseph J. Ybarra, Susan T. Boyd, Yuval Miller, Elisabeth J. Neubauer and Benjamin Maro;
•    Roush, McCracken, Guerrero, Miller & Ortega: Daniel R. Ortega, Jr.

The motion for a preliminary injunction can be found at: www.aclu.org/immigrants-rights-racial-justice/friendly-house-et-al-v-whiting-et-al-plaintiffs-motion-preliminary-

A new ACLU video about how the SB 1070 invites racial profiling can be found at: www.aclu.org/immigrants-rights-racial-justice/would-you-ask-man-his-papers
 
More information about the Arizona law can be found at: www.aclu.org/what-happens-arizona-stops-arizona

* This paragraph was rewritten to better explain the decision.

Companion Bill Awaits Vote In The Senate

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WASHINGTON – A bill creating a bipartisan commission tasked with examining the nation's criminal justice system was passed today in the House. The bill, the National Criminal Justice Commission Act, would task the commission it creates with devising reform recommendations in a number of important areas designed to prevent, deter and reduce crime and violence.

Identical legislation was introduced in the Senate last year and passed the Senate Judiciary Committee in this January.

America’s current criminal justice system continues to include pervasive racial and socioeconomic disparities and an over-reliance on incarceration to address nonviolent offenses. According to a 2008 report by the nonpartisan Pew Center on the States, for the first time in U.S. history, more than one in every 100 adults in America is either in prison or jail.

The following can be attributed to Laura W. Murphy, Director of the ACLU Washington Legislative Office:

“The National Criminal Justice Commission Act will be a solid first step toward overhauling our badly broken justice system and its unacceptable inequality issues. Over time, our lawmakers have created a severely unbalanced system that is disproportionately affecting our nation’s minorities with misguided policies including the many harsh, one-size-fits-all mandatory minimum sentences. Too many of our citizens are behind bars needlessly and too often their rights are ignored. The National Criminal Justice Commission Act may be the first step in correcting these problems, and we urge the Senate to swiftly pass its companion bill.”

The ACLU’s letter of support for the National Criminal Justice Commission Act can be found here: www.aclu.org/drug-law-reform/aclu-letter-support-h-r-5143-national-criminal-justice-commission-act-2010

Like Arizona Law, Ordinance Invites Racial Profiling

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FREMONT, NE – The Fremont, Nebraska City Council voted late this evening to suspend a city law that seeks to banish persons alleged to be undocumented immigrants from rental homes in the 25,000-person town while the ordinance is being litigated. The ordinance, scheduled to go into effect on July 29, also mandates that businesses performing work in Fremont enroll in an error-ridden federal program for verifying work status. The American Civil Liberties Union and ACLU Nebraska filed a federal lawsuit on behalf of landlords, tenants and employers in Fremont, Nebraska challenging the law.

Like the recently passed law in Arizona, the Fremont law invites racial profiling against Latinos and others who appear "foreign."

"We're relieved that the Fremont City Council will suspend this discriminatory ordinance while it's being litigated," said Amy Miller, Legal Director of ACLU Nebraska. "It was a responsible decision that will spare residents of Fremont from worrying about losing housing and jobs because of their appearance and accent pending a final resolution by the court."

The ACLU's lawsuit, filed on July 21 in the U.S. District Court for the District of Nebraska, charges that Fremont's law is at odds with the clear constitutional mandate imposing a uniform federal immigration enforcement system and has a discriminatory effect on those who look or sound "foreign."

The Fremont ordinance, which passed on June 21, requires prospective renters to provide the Fremont Police Department with information about their citizenship or immigration status prior to renting any home. Employers are required to check the status of would-be hires using E-Verify, a flawed federal electronic verification program that Congress has repeatedly declined to make mandatory.

U.S. citizens who have family members who cannot prove their immigration status are worried about the impact the law will have on their ability to live together as a family, and employers are concerned that the error-ridden employment verification program will force them to turn away lawfully authorized workers. Residents of the town have already felt the discriminatory impact of the law.

"The city of Fremont did the right thing by stopping this unconstitutional ordinance from going into effect right now," said Jennifer Chang Newell, staff attorney with the ACLU Immigrants' Rights Project. "Allowing the law to go into effect before the court rules on whether it's constitutional would needlessly create even more divisiveness in the town and increased hostility toward Latinos and other people perceived as being foreign. In the meantime, we will continue to fight to stop this ordinance from ever going into effect."

The controversy over the Fremont law has been closely watched across the country, and the ACLU's challenge is the latest in a national fight against discriminatory laws like the one recently passed in Arizona requiring police to demand "papers" from people they stop who they suspect are not authorized to be in the U.S.

The ACLU has successfully challenged local anti-immigrant laws across the country, including in Escondido, California, Hazleton, Pennsylvania and Farmers Branch, Texas.

Attorneys on the case, Martinez v. Fremont, include Newell, Tanaz Moghadam and Lucas Guttentag of the ACLU Immigrants' Rights Project, Miller of ACLU Nebraska, and Nebraska trial counsel Alan Peterson of Lincoln and Michael Nelsen of Omaha.

Legal documents in the case can be found at: www.aclu.org/immigrants-rights/martinez-v-fremont

More information about the Arizona law can be found at: www.aclu.org/what-happens-arizona-stops-arizona

U.S. Should End Practice Of Banning People On Ideological Grounds, Says ACLU

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NEW YORK – A prominent Colombian journalist who was once barred from the United States today received a visa to come to this country to study. The American Civil Liberties Union, American Association of University Professors (AAUP) and PEN American Center sent a letter to Secretary of State Hillary Clinton earlier this month expressing alarm over reports that Hollman Morris had been denied a visa to travel to the U.S. Morris was one of 12 international journalists selected to participate in the Nieman fellowship at Harvard University during the 2010-11 academic year. However, when he applied for a visa in order to attend the program, he was told by the U.S. embassy in Bogota that he had been found permanently ineligible for a visa under the Immigration and Nationality Act. The reversal of that decision means Morris will likely be able to come to the U.S. to participate in the program.

The following can be attributed to Jameel Jaffer, Deputy Legal Director of the ACLU:

"We welcome the State Department's decision to end the exclusion of Hollman Morris from the United States. With the ban lifted, leading human rights groups and journalists will be able to engage with Mr. Morris on important human rights issues facing the world. We hope the decision to lift the ban on Mr. Morris is a signal that the Obama administration is committed to facilitating, rather than obstructing, the exchange of ideas across international borders. The administration should now make clear that it will end the practice of ideological exclusion once and for all."

The ACLU/AAUP/PEN letter to Secretary Clinton is available online at: www.aclu.org/national-security/letter-secretary-state-clinton-regarding-ideological-exclusion-colombian-journalis

FBI's Claimed Authority To Track And Map "Behaviors" And "Lifestyle Characteristics" Of American Communities Invites Racial Profiling

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NEW YORK – The American Civil Liberties Union today is asking the FBI field offices in 29 states and Washington, D.C. to turn over records related to the agency's collection and use of race and ethnicity data in local communities. According to an FBI operations guide, FBI agents have the authority to collect information about and create maps of so-called "ethnic-oriented" businesses, behaviors, lifestyle characteristics and cultural traditions in communities with concentrated ethnic populations. While some racial and ethnic data collection by some agencies might be helpful in lessening discrimination, the FBI's attempt to collect and map demographic data using race-based criteria for targeting purposes invites unconstitutional racial profiling by law enforcement, says the ACLU.

"The FBI's mapping of local communities and businesses based on race and ethnicity, as well as its ability to target communities for investigation based on supposed racial and ethnic behaviors, raises serious civil liberties concerns," said Michael German, ACLU policy counsel and former FBI agent. "Creating a profile of a neighborhood for criminal law enforcement or domestic intelligence purposes based on the ethnic makeup of the people who live there or the types of businesses they run is unfair, un-American and will certainly not help stop crime."

The FBI's power to collect, use and map racial and ethnic data in order to assist the FBI's "domain awareness" and "intelligence analysis" activities is described in the 2008 FBI Domestic Intelligence and Operations Guide (DIOG). The FBI released the DIOG in heavily redacted form in September 2009, but a less-censored version was not made public until January of this year, in response to a lawsuit filed by the group Muslim Advocates. Although the DIOG has been in effect for more than a year and a half, very little information is available to the public about how the FBI has implemented this authority.

ACLU affiliate offices across the nation today are filing coordinated Freedom of Information Act requests to uncover records about the FBI's collection and use of racial and ethnicity data from their local FBI field offices. The requests were filed by the ACLU affiliates in Alabama, Arkansas, California (Northern, Southern and San Diego), Colorado, Connecticut, Washington, D.C., Delaware, Florida, Georgia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont and Virginia.
 
"The public deserves to know about a race-based domestic intelligence program with such troubling implications for civil rights and civil liberties," said Melissa Goodman, staff attorney with the ACLU National Security Project. "We hope that the coordinated efforts of ACLU affiliates across the nation will finally bring this important information to light so that the American people can know the extent of the FBI's racial data gathering and mapping practices and whether the agency is abusing its authority."

The DIOG provisions in question are available online at: www.muslimadvocates.org/DIOGs_Chapter4.pdf

The entire DIOG is at: www.muslimadvocates.org/latest/profiling_update/community_alert_seek_legal_adv.html

People With Disabilities Face Greater Risk Of Unlawful Detention And Deportation, Says Report

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NEW YORK – People with mental disabilities, including U.S. citizens, face a greater risk of erroneous deportation by United States Immigration and Customs Enforcement (ICE) because courts do not ensure fair hearings for those not able to represent themselves, Human Rights Watch (HRW) and the American Civil Liberties Union (ACLU) said in a joint report released today. The groups urged Congress to pass legislation requiring the appointment of lawyers for all people with mental disabilities in immigration courts.

The 98-page report, "Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System," says that immigrants with mental disabilities are often unjustifiably detained for years on end, sometimes with no legal limits. The report documents case after case in which people with mental disabilities were prevented from making claims against deportation – including claims of U.S. citizenship – because they were unable to represent themselves. Some of the people interviewed for the report did not know their own names, were delusional, could not tell time, or did not know that deportation meant removal from the United States.

"Few areas of US law are as complicated as deportation, and yet every day people with mental disabilities must go to court without lawyers or any safeguards that make the hearings fair," said Sarah Mehta, Aryeh Neier fellow at HRW and the ACLU. "Some have disabilities so severe that they don't know their own names or what a judge is."

At least 57,000 detained immigrants facing deportation in 2008 – 15 percent of the total – had mental disabilities. Under current immigration law and practice, immigration detainees have no right to court-appointed lawyers or to other safeguards, such as evaluations of their ability to receive a fair hearing, when they go through deportation hearings, HRW and the ACLU said. While some individuals receive pro bono representation from legal services organizations or are able to pay a lawyer with family assistance, the vast majority will never be able to afford or find a lawyer, thus risking prolonged and possibly indefinite detention.

For example, one legal permanent resident who has been in the U.S. for 40 years, and was not able to remember his date of birth or why he was on medication, is facing deportation to Mexico. Interviewed in detention in Texas, he told the author of the report that he wanted the help of a lawyer.

"The judge just gives me extensions to see if I can get a lawyer.… It's hard because I have something wrong with my head, and I have trouble deciding what to tell him," he said.

Asked about his mental disabilities, he referred to having been shot in the head multiple times and said the bullets were still there: "I think I must have died because I remember I saw children with wings."

The HRW/ACLU report documents the cases of 58 individuals with mental disabilities facing deportation and held in detention in Arizona, Texas, California, Florida, Illinois, Wisconsin, South Carolina, Pennsylvania and Virginia. Most are legal permanent residents in the U.S. facing deportation for nonviolent criminal offenses, such as trespassing or drug possession. Many were receiving mental health treatment in the community prior to their arrest by ICE. The report reveals how immigrants and even U.S. citizens with mental disabilities are particularly vulnerable to sweeping immigration arrests.

The report also shows that people with mental disabilities not only face arrest and deportation without safeguards, but are also routinely detained by ICE during the course of their hearings. Detention often becomes unduly prolonged when immigrants with mental disabilities are unable to speak on their own behalf, leading even court officials to recognize that the hearings cannot or should not proceed. In some cases, people have been detained for as long as 10 years without resolution of their cases.

"No one knows what to do with detainees with mental disabilities, so every part of the immigration system has abdicated responsibility," Mehta said. "The result is people languishing in detention for years while their legal files – and their lives – are transferred around or put on indefinite hold."

HRW and the ACLU noted that July 26, 2010, is the 20th anniversary of the Americans with Disabilities Act, and one year since President Barack Obama signed the Convention on the Rights of Persons with Disabilities. The U.S. Department of Justice and the Executive Office of Immigration Review should honor the spirit of those commitments to develop procedures to ensure that individuals with mental disabilities are identified and provided with assistance during their hearings, HRW and the ACLU said. ICE should also review existing policies so that the detention of immigrants with mental disabilities is not arbitrary or indefinite.

The HRW/ACLU report, "Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System," is available online at: www.aclu.org/human-rights/deportation-default-mental-disability-unfair-hearings-and-indefinite-detention-us-immig

To download a podcast on this issue, including an interview with a former
detainee, please visit: www.hrw.org/en/audio/2010/07/23/deportation-and-disability-us

To download a broadcast quality audio feature, please visit:
www.hrw.org/en/audio/2010/07/23/luiss-story