Reflecting on 9/11 and Reclaiming Our Liberties

There are certain events throughout our lives that change us forever. The birth of a child, the death of a loved one or falling in love can all shape who we are. There are also events in history that change who we are as human beings and as Americans. On September 11, 2001, the American psyche, as well as my own, was changed forever. I was a junior in high school and I remember being told that planes had struck the World Trade Center. I did not believe it. I thought that some type of small single engine plane had collided with the building. When my Chemistry teacher turned on the television, I realized that the world had just changed forever.

Our great beacon of democracy would be tested and the democratic systems that make our nation so great would be diminished as Americans traded freedom for security in an effort to prevent further attacks. My mother had educated me about politics and democracy from a young age, so on September 11, 2001 as I watched the footage of the planes hitting the towers over and over, I knew in my heart that these attacks would be used for years to come as a means to reduce freedom in the name of safety.

The Bush Administration used the legitimate fear people had to push through a massive new state security apparatus that gathered intelligence on thousands of Americans guilty of no crime, usually because of political affiliation or other constitutionally protected activities. Following 9/11, our government made a conscious choice to declare a sort of existential war on terror rather than a war on a physical group such as Al-Qaeda or a person such as Osama Bin Laden. When can we win a war on terror? Now we are kept in a constant state of emergency in which we are told that the terrorists can strike at any time and any place. We are now in a perpetual state of war that will carry on long after the last American soldiers leave Afghanistan and Iraq.

Indefinite military detention has become a permanent fixture in the war on terror. Since 9/11, the government has labeled people as terrorists and held them indefinitely. Only after years of challenges from groups like the ACLU and review in the courts was it found that the government’s evidence was exaggerated, wrong, or non-existent. Much of the way in which people were detained overseas was in and of itself dubious. Accusations made by a former aide to Colin Powell reveal that many detainees captured in Afghanistan were picked up by Afghani and Pakistani warlords for bounties of $5,000 with no evidence of what part, if any, these detainees played in the insurgency and terrorist groups. The United States is one of the greatest democracies in human history, yet we are now left with the dubious distinction of being a democratic nation that maintains a military detention center in Guantanamo Bay that continues to hold people without trial, without charges, and without reason. This has tarnished our image at home and abroad.

When America went to war with Iraq in 2003, I joined millions of people around the world in protesting an action that turned out to be based on misinformation. The post-9/11 security apparatus that was promised to be used only against terrorists was also used against my fellow war protestors across the country as a means to quell political dissent protected in the Constitution of the United States. In a report released by the ACLU in 2010 called, “Policing Free Speech,” there are numerous instances in which Military Intelligence and agencies like the FBI spied on anti-war protestors and activists involved in other causes such as animal and environmental groups.

The most horrific post-9/11 practice employed by our government was and is, without a doubt, torture. Hundreds of detainees in Guantanamo Bay and abroad were subjected to torturous methods such as water-boarding, isolation, stress positions and sexual humiliation. Our government refuses to prosecute many terrorism suspects in civilian courts because torture was used to extract information. This has severely damaged our legal system for the foreseeable future. Even before the United States had captured any terrorism suspects, a conspiracy to undermine our longstanding ban against torture was being fostered at the highest levels of our government. The torture advocates from the Bush Administration still contend that “enhanced interrogation techniques,” are humane and gave us immense amounts of intelligence but fail to acknowledge the fact that these inhumane practices have undermined everything America stands for.

It has been ten years since that fateful day that changed America forever. In those ten years, some of the cornerstones of American democracy have been chipped away and replaced by a massive permanent security apparatus that has eroded elements of American democracy that make us so unique. The rule of law, freedom of speech, freedom of the press and the right against illegal search and seizure, cruel and unusual punishment and the right to a jury trial have all been weakened by the fear of another terrorist attack. Unfortunately, the Obama Administration has stated that it will not prosecute high ranking Bush Administration officials who blatantly violated the constitution and circumvented the rule of law. President Obama insists on “looking forward,” but there can be no closure without justice. The Obama Administration continues to use drone warfare to target suspected terrorists and American citizens accused of terrorism. For all of those people who lost their lives on 9/11, it is our duty to keep America safe and free.

An "Infamous" Hurdle to Equality

Written by L. Nehme

In the past few decades, the LGBT community has made great strides in its attempts to achieve equality. The military’s “Don’t Ask, Don’t Tell” policy has been repealed, gay marriage has been legalized in several states, and more and more people are rallying against discrimination against LGBT individuals. One area, however, has been ignored during all of these changes, and that area is the statutory rape and seduction laws that are still on the books in several states.

One of these states is Nevada. One of these states is Nevada. A homosexual person can be charged with statutory seduction for having sex with someone who is under the age of 18, while a heterosexual person can only be charged for having sex with someone under the age of 16. In the Nevada Revised Statutes, same-sex statutory seduction is horrendously called the “infamous crime against nature” and is defined as "anal intercourse, cunnilingus, or fellatio between natural persons of the same sex." It goes on to say that “[a]ny sexual penetration, however slight, is sufficient to complete the infamous crime against nature.”

The punishment for statutory seduction between two people of the same sex is harsher and thus disproportionate to the punishment for the same crime between members of the opposite sex. The statute discussing opposite-sex statutory sexual seduction makes it clear that the perpetrator must be over 18 years old and the victim must be under 16. Punishments vary depending on the age of the perpetrator, but the maximum sentence is years in prison and a $10,000 fine. Unlike opposite-sex statutory seduction, the “infamous crime against nature” has is no minimum age requirement for the perpetrator. It merely states that “a person” who “incites, entices, or solicits a minor to engage in the acts” will be guilty. A minor is anyone under the age of 18. Regardless of their age, individuals convicted of the “infamous crime against nature,” can be sentenced to a maximum punishment of life in prison.

All of this means that two gay 17 year-olds can be convicted for having sex with each other, and they could both serve life terms in prison. This is not the case among straight teenagers. There is no reason for this discrepancy - sex is sex, regardless of whether it is between a man and a woman or between two people of the same sex.

This statute is blatantly unfair. It is also unconstitutional, as it discriminates among different citizens, violating the Equal Protection Clause.

The differing ages for statutory seduction go to show that society is still uncomfortable with gay sex, and therefore, want to make sure their children don’t “experiment” while they are teenagers. This homophobic law is hindering the fight for equality.

Furthermore, the anachronistic language of the statute needs to change. Sex between two persons of the same sex is not a “crime against nature.” The Supreme Court ruled in Lawrence v. Texas that “crimes against nature” are not crimes, and that a state cannot outlaw sodomy. Nevada removed its “crimes against nature” statutes that outlawed sodomy in 1993, and the state should have removed this additional statute as well.

Continuing to define homosexual sex as a “crime against nature” aids in the oppression of the LGBT community and must stop. It is especially bizarre in a state that has legalized same-sex domestic partnerships, and has numerous laws protecting the LGBT community.

Whoops! DNA "Switch" Puts Innocent Man Behind Bars

The Nevada ACLU was shocked to hear that the Las Vegas Metro Police Department (LVMPD) has released a video in which they admit to a DNA sample error which led to the wrongful conviction and 4 year incarceration of a Las Vegas man.

The video, which includes interviews with LVMPD Sheriff Doug Gillespie and the Executive Director of Metro’s forensics lab, Linda Krueger, explains how a “sample switch” led to the wrongful conviction of Dwayne Jackson of robbery in 2001. In short, two DNA samples were collected from two suspects, and these two samples were switched, sending the innocent man to prison and allowing the guilty man to remain free.

This case is a perfect example of why post-conviction DNA analysis is so important. The state of Nevada made a good step in this direction with Assembly Bill 179 during the 2009 legislative session, but Nevada has a long way to go to ensure that timely relief is made reasonably available to any individual convicted based on DNA evidence.

This very serious misstep by LVMPD is also indicative of why the ACLU of Nevada worked so hard during the 2011 session against Assembly Bill 552, a bill which would have mandated DNA collection from felony arrestees before they were even charged with a crime. In addition to its violation of Fourth Amendment standards of privacy, one of our primary practical arguments against AB552 was that the increased amount of DNA collection would come with the increased possibility of human error. Through its own admission, LVMPD has shown that our concerns were founded.

Although AB552 was not passed by the 2011 Nevada legislature, this wrongful conviction case is the type of distorted "exoneration" story that proponent's of DNA collection use to argue the "worthiness" of DNA collection and of the CODIS system as a whole. In fact, proponents of AB552 gave the example of a man who was being held and being prosecuted for a crime until someone else’s DNA was linked to the evidence. But this is fuzzy logic.

"The notion that you need an arrestee database to exonerate someone is complete bunk,” Michael Risher, our colleague from the ACLU of Northern California (and the lead attorney on the ACLU’s case against a similar law in California) recently told the Nevada News Channel. “Exoneration should occur when the crime scene sample is compared to a sample taken from someone claiming he’s innocent, and they don’t match,” Risher said.

We couldn’t have said it better. ACLU members in all states should remain vigilant and actively engaged against these types of DNA collection bills, especially in the wake of a wrongful conviction story such as this.

Why We Need to End America's Longest Failing War

June 17th marked the anniversary of America’s longest running war. Not the war in Afghanistan or even Vietnam, but a war that has cost us more money than Afghanistan and Vietnam combined.

Forty years ago, President Richard Nixon declared a War on Drugs, making drug abuse “public enemy number one.” Yet $1 trillion later we have absolutely no victories to proclaim, no one to congratulate and more problems than we ever could have imagined as a result of our all-out War on Drugs.

The forty-year blanket prohibition on drugs has given the United States the dubious distinction of being the world’s largest incarcerator. We have only five percent of the world’s population but twenty five percent of the world’s prison population. Over the course of the Drug War we have incarcerated tens of millions of people, ruining lives and families, for offenses that were not even crimes for much of American history.

Across the border in Mexico, drug cartels fight to control the flow of drugs to their number one customer, the United States. Here at home, local and federal law enforcement agencies spend billions of dollars of taxpayer money each year trying to stop the flow of drugs from Latin America, yet drugs are cheaper and easier to access than they have ever been. In these difficult economic times, we must change course not only to save money but to save lives through treatment and rehabilitation rather than incarceration.

In 2006, I worked for the Committee to Regulate and Control Marijuana (CRCM) which backed Ballot Question 7. If passed, the measure would have taxed and regulated the possession and sale of an ounce or less of Marijuana to individuals over 21 years old using a similar structure to the distribution of alcohol. While I worked for the campaign, I spoke about legalization with hundreds of Nevadans all over the state. A majority of voters had a complete misunderstanding of the facts and science behind drug prohibition, believing that marijuana is a “gateway drug,” a theory that has long been proven false. This is the result of nearly a century of government misinformation to convince Americans that our nation’s addiction to drugs is a criminal matter instead of a public health problem.

Texas has a reputation as being one of the toughest states on crime in the country. But in 2007 the Texas legislature allocated $241 million to expand drug treatment programs instead of spending $2 billion to build more prisons. The Texas Department of Criminal Justice recently released an evaluation of released offenders who took part in rehabilitation programs after being released and found that recidivism rates among those who participated was significantly lower than those who did not. Programs like these need to be implemented across the country to save money and produce real results instead of relying on policies that have been abject failures.

Legalization of marijuana is gaining traction nationwide. In 2005, a Gallup poll found that 36% of Americans favored legalizing marijuana use, while 60% were opposed. Today, support for legalization is up to 46% while opposition had dropped to 50%. A majority of citizens in a growing number of states now say that legally regulating marijuana makes far more sense than prohibition and incarceration. Additionally, there is support for legalization across the political spectrum. Recently, unlikely congressional allies, Ron Paul (R-TX) and Barney Frank (D-MA), introduced legislation that would let states to decide whether or not they want to legalize marijuana. This is the first time such a bill has been introduced and has sparked a great deal of debate about the benefits of ending prohibition on the federal level.

Those who scoff at the idea of ending the Drug War need to take a serious look at both the major policy failures associated with our attempts at social control and the immense amount of time and money we have thrown at a problem that has only grown worse. We can no longer incarcerate our way to a victory in the War on Drugs.

Nixon economist Milton Friedman said it best, “So long as large sums of money are involved – and they are bound to be if drugs are illegal – it is literally hopeless to expect to end the traffic or even to reduce seriously its scope. In drugs, as in other areas, persuasion and example are likely to be far more effective than the use of force to shape others in our image.”

Honoring Courage Seven Years After Abu Ghraib

To mark the seventh anniversary of the publication of photographs that exposed torture and abuse at Abu Ghraib prison, the New York Times published an ACLU/PEN American Center op-ed today honoring those who stood up against the torture policies of the Bush administration. In the introduction, Jameel Jaffer and Larry Siems write about Sergeant Joe Darby, as well as the many other Americans, known and unknown, who stood up against the Bush administration’s torture policies:

In January 2004, Spec. Joseph M. Darby, a 24-year-old Army reservist in Iraq, discovered a set of photographs showing other members of his company torturing prisoners at the Abu Ghraib prison. The discovery anguished him, and he struggled over how to respond. “I had the choice between what I knew was morally right, and my loyalty to other soldiers,” he recalled later. “I couldn’t have it both ways.” So he copied the photographs onto a CD, sealed it in an envelope, and delivered the envelope and an anonymous letter to the Army’s Criminal Investigation Command. Three months later — seven years ago today — the photographs were published. Specialist Darby soon found himself the target of death threats, but he had no regrets. Testifying at a pretrial hearing for a fellow soldier, he said that the abuse “violated everything I personally believed in and all I’d been taught about the rules of war.” He was not alone. Throughout the military, and throughout the government, brave men and women reported abuse, challenged interrogation directives that permitted abuse, and refused to participate in an interrogation and detention program that they believed to be unwise, unlawful and immoral. The Bush administration’s most senior officials expressly approved the torture of prisoners, but there was dissent in every agency, and at every level. There are many things the Obama administration could do to repair some of the damage done by the last administration, but among the simplest and most urgent is this: It could recognize and honor the public servants who rejected torture.

The Bush administration repeatedly honored those who approved torture, but the Obama administration should honor those — like Joe Darby — who rejected it. You can send your own personal message of thanks to the American heroes who stood up against torture, and have copies of those messages sent to President Obama. Send your message of thanks >>

For every Joe Darby, we know that there are countless other American heroes who opposed policies of torture and abuse whose names we do not know. To honor the best of America, we are asking you to share your stories of how you or someone you know stood up to oppose torture or abuse. Complete our form to let us know how you or someone you know said no to torture >>

(Originally posted on the Blog of Rights.)

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