My Birthday Wish for the USA PATRIOT Act

The USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act and I have a special bond – not only did I grow up with it over the past decade, but we also share the same birthday.

When the USA PATRIOT Act was first passed ten years ago today, I was a teenager in high school with no concept of what it was and what it would do. My days remained the same. It wasn’t even discussed in school, at my friends’ houses, or at home. Elsewhere, I’m sure people were having conversations about the implications of the USA PATRIOT Act, but in my little world, it felt as if nothing had changed.

In reality, things dramatically changed.

Section 215 of the USA PATRIOT Act allows the FBI to obtain "any tangible thing (including books, records, papers, documents and other items), for an investigation to protect against international terrorism or clandestine intelligence activities." This section is also known as the “library provision” because it can be used to demand anything from your library records to your internet browsing history. This is greatly unsettling to me, especially as technology advanced quickly and internet became an essential part of everyday life. The thought of the government going through my electronic communications, browsing history, and download records disturbed me. I thought that peeking into my private life was the act of hackers, not my own government.

The USA PATRIOT Act also restricts other areas of American liberties. Under Section 213, the government is allowed to obtain information using “sneak and peek” searches without any evidence of a crime or notifying the subjects. Notice of search is a crucial check on the government’s power by forcing the investigators to operate in the open. Section 206, “roving John Doe wiretap,” permits the government to obtain surveillance orders that do not identify the person or location to be tapped. This provision is in direct contradiction of traditional search and seizure notions as stated in the Fourth Amendment – requiring the government to state what specifically it seeks to search or seize. Because of provisions like these, over the past decade, Americans became less free without feeling any more secure.

One response often heard when discussing the USA PATRIOT Act is “if you have nothing to hide, you have nothing to fear.” However, privacy allows us to maintain our individuality. Our choices define us; if we are constantly asked to justify our preference, we become restricted in our decision making and may feel pressured to conform to the majority mindset. Unfortunately, the USA PATRIOT Act violates our constitutional right to privacy. The commitment to national security should not justify nor equate to reduction of American liberties. As Benjamin Franklin once said, “they who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

And still, Americans still do not feel safe and still live in fear of another terrorist act on our country. Fear prompted the hasty passage of the USA PATRIOT Act in 2001 and opened the door for our government to broaden surveillance on Americans without suspicion. It blinded us to the lack of boundaries to limit the government’s collection and use of data. It fueled the reauthorization of the USA PATRIOT Act earlier this year.

Now, because of the USA PATRIOT Act we also fear what the government might do with our private information. We fear that we may appear to be unpatriotic should we speak up about our concerns.

My birthday wish, and my hope for the next four years, is for you to help the ACLU fight against that irrational fear, speak up about the unwarranted government surveillance, and seek to restore our civil liberties. We are always looking for more civil libertarians to join us!

Presumption of Guilt

Two recent polls indicate that Americans’ support for the death penalty is on the decline. In fact, support is the lowest it’s been since 1972 when the U.S. Supreme Court struck down death penalty laws across the country in Furman v. Georgia. Now 61 percent support the death penalty (a drop of almost 20 percent from the mid-nineties) but when given an alternative of life without parole, only 48 percent stick with death.

I can’t help but wonder if Troy Davis changed some people’s minds. Davis’s case – the fact that the State of Georgia executed Davis despite serious questions about his innocence – highlights why I changed my mind about the death penalty.

When a person is accused of a crime, they are innocent until they are proven guilty, and to be convicted 12 jurors must believe in their guilt beyond any reasonable doubt. Once convicted, though, that presumption of innocence gets turned on its head: a convicted person is essentially guilty until proven innocent. Proving innocence is difficult in most cases, but it’s an understandable requirement. Without that finality, courts would be bogged down with requests to overturn or revisit or retry every decision.

But what happens when someone has pretty good proof that they could be innocent? Say witnesses change or contradict their story or insist their original testimony was coerced. Or new evidence is uncovered that suggests a different person committed the crime. Unless that evidence meets the high standard of proof, unless like District Court Judge William Moore said in Davis’s case, it can be shown “by clear and convincing evidence that no reasonable juror would have convicted him in the light of the new evidence,” the conviction stands.

This means that only some of the people convicted of crimes they didn’t commit will be released from prison, while many others will complete the entirety of their sentence. And although this is a really uncomfortable fact, it’s one that we all agree to, at least implicitly, to keep our justice system running.

But the thing I find unacceptably uncomfortable, and maybe a growing number of Americans do as well, is that the same standard is applied to death sentences. Cases, like Troy Davis’s, can develop rather large holes, but those holes aren’t quite enough to meet that high standard. And unless clemency is granted by a Governor who might have to face reelection, that sentence of death is going to stand.

What originally got me thinking about the death penalty wasn’t the morality or the cost or the racial and economic bias or even the growing worldwide disfavor of it, although the more I learned the more troubling it became. What got me thinking was the system that supposedly works to protect life doesn’t revisit those serious questions of innocence before it okays an execution. When life – not just liberty – is on the line, you’d hope those questions would be answered.

Still No Plan After A Decade of Legal Medical Marijuana

More voices have recently joined the ACLU of Nevada over the paradoxical nature of Nevada’s medical marijuana laws. Judge Donald Mosley recently dismissed a medical marijuana indictment and recognized Nevada medical marijuana laws as "confusing and difficult to understand." Defense attorney Robert Draskovich suggested the state better allocate its limited resources and not focus on re-criminalizing something that the legislature long ago attempted to regulate and make non-criminal. Medical marijuana cardholder Robert Weidenfeld also noted that it is virtually impossible for a legitimately registered patient to obtain the medicinal herb in order to treat chronic pain. Most recently, Las Vegas Weekly writer J. Patrick Coolican expressed similar dissatisfaction with the ambiguity of the current laws governing medical marijuana.

These voices echo what the ACLU of Nevada consistently said during the 2011 legislative session - the lack of a comprehensive plan to manufacture, distribute, and allow for the use of medical marijuana is alarming, especially since Cannabis (marijuana) was legalized for medical purposes in Nevada via a constitutional amendment over a decade ago. The 2013 session of the Nevada Legislature has a clear duty to clarify a means for medical patients to obtain their medicine and review the criteria by which the system must be implemented. And although the ACLU would not take a position on its taxation or the regulation on the quality of the herb, these two considerations may also be prime for the Legislature’s consideration.

During this last legislative session, small steps were taken toward initiating medical marijuana reform. Three independent bills were proposed - two of the bills died without receiving a hearing and the third failed to meet the final deadline - indicating the issue is drawing more attention and the need to address it is becoming more apparent. Unfortunately, a giant step back was also taken when the legislature passed the Governor’s budget, which redirected funds away from the medical marijuana program to other portions of the health and human services budget, leaving the medical marijuana program in the lurch.

The ACLU of Nevada continues to call for a reform to the Nevada medical marijuana laws and will keep our ears open as more voices join in. If you are a patient or caregiver who has been negatively affected by our medical marijuana laws, please file a complaint with us at www.aclunv.org/complaint.

What’s Left Out of the Celebration of the End of “Don’t Ask, Don’t Tell”

During the much-awaited, though somewhat anti-climactic, celebrations over the end of “Don’t Ask, Don’t Tell,” much of the policy’s history and details were lost and generally thought not worth remembering—precisely because the policy was now history.

But history teaches valuable lessons, and while the overall policy was grotesque, the devil was really in the details.

What almost all Americans knew as the “Don’t Ask, Don’t Tell” policy was really a “Don’t Ask, Don’t Tell, Don’t Pursue” policy that later was officially enshrined with the additional “Don’t Harass.” The “Don’t Ask” was mostly directed at commanding officers, and the “Don’t Tell” was directed at the closeted gay, lesbian, and bisexual members of the armed forces. But the “Don’t Pursue” was aimed at both commanding officers and others who would and could instigate investigations into a service member’s sexual orientation.

And, as the public and media and politicians generally forgot about the “Don’t Pursue” aspect of the policy, a phenomenon made all the easier by the fact that it was rare for any American to make or hear reference to “Don’t Pursue” (let alone the “Don’t Harass” that was added later), so, too, does it seem like the U.S. military also forgot that it was no longer allowed to “pursue.”

One doesn’t need to sketch out a narrative about how “pursue” was or was not defined, and how it was or was not executed regardless of the definition. The numbers tell the story. The number of discharges, which started at 617 in 1994 (the first full year that the policy was in effect), rose each year to 1,163 in 1998, dipped a bit, and then hit an all-time high of 1,273 in 2001--ironically the year that it became apparent that the United States might need to be picking and choosing who to retain, not who to discharge--based on the possibility of military action in one or more countries.

I suppose one can give the U.S. military some sort of credit for discharges declining almost continuously from 2001 (again, 1,273 that year) to 2010 (261 that year), but one wonders what the discharge numbers would have been had there not been two wars going on--and the U.S. military during that period still managed to discharge valuable specialists such as gay linguists fluent in Arabic! We should not forget that the original policy did include the “out” that the military could retain an openly GLBT person when discharging him or her “would not be in the best interest of the armed forces”; in other words, under “Don’t Ask, Don’t Tell, Don’t Pursue,” the military was essentially not required to discharge anyone.

One cannot blame the general American public for calling it the “Don’t Ask, Don’t Tell” policy; after all, few Americans are policy wonks, a decreasing percentage of the U.S. public has active service members or veterans in their immediate families, and it was rare to hear the entire “Don’t Ask, Don’t Tell, Don’t Pursue” phrasing anytime, anywhere. (Granted, this is not the law’s official name--the phrase was coined by the late military sociologist Charles Moskos—but essentially no one called the law by its official, legal name, and the nickname was more-or-less accurate, easy to say, and easy to remember.)

Parties outside the military—politicians and the news media, in particular—bear a great deal of blame for the “Don’t Pursue” component being lost. Use of the full popular name would have rhetorically reminded everyone what kind of policy it was supposed to be and that it was not as successful or fair in practice as it could and should have been.

The other major point, besides “Don’t Pursue,” that got lost over the years and hasn’t been much recalled this year, is that the entire “Don’t Ask, Don’t Tell, Don’t Pursue” policy was a grand, though not great, compromise. Poor President Bill Clinton thought it would be easier to have openly GLB service members in the U.S. military in 1993 than it had been for President Harry Truman to racially desegregate the U.S. military after World War II. Clinton dramatically underestimated the opposition that such a change would engender, and spent a great deal of political capital early in his presidency on this issue; soon enough, he just wanted the entire topic to just go away, and sheepishly signed on to “Don’t Ask, Don’t Tell, Don’t Pursue”—which he called an “honorable compromise.”

Though disappointed, some liberals and libertarians and moderate conservatives consoled themselves that “Don’t Ask, Don’t Tell, Don’t Pursue” was at least incrementally better than the previous policy, which was essentially no tolerance for any GLB service members except, maybe and temporarily during wartime. The truth was that the policy was no improvement, but merely a new perpetuation of the closet.

Thus, more clearly in hindsight (and to many of us obvious from the beginning), the “honorable compromise” was a mistake. There was no real improvement for the GLB community, because “Don’t Ask, Don’t Tell, Don’t Pursue” gave cover to anyone--whether liberal, centrist, conservative, or libertarian--who in 1993 and/or since didn’t want to revisit the issue of “gays in the military” any time soon, if at all. And like classrooms in double-wide trailers at public schools, and the federal telephone excise tax in place most of the time since 1898, what was supposedly a temporary measure started looking like it was going to be permanent. In the last few days, weeks, and months, observers have made comments such as, “Who would have guessed this would have stayed in effect for 18 years?” But any student of the history of government--particularly when a government must deal with a controversial social or cultural issue--could tell you that temporary measures (compromise or not, but especially compromises) can end up being in place a long, long time. (See, for example, Plessy v. Ferguson, a compromise of sorts that lasted 58 years.)

The American Civil Liberties Union (both nationally and its state affiliates, such as Nevada) sometimes is criticized for taking positions on issues that some others refer to as “absolute” or “extreme,” but that is because all of Americans’ constitutional rights should be maximized, and compromises should be allowed or made by courts only when necessary. (Nationally, the ACLU opposed “Don’t Ask, Don’t Tell, Don’t Pursue” from the beginning.) Asking GLB military personnel to lie about their sexual orientation arguably was never militarily necessary—a fact made increasingly clear by at least 42 other countries whose militaries allowed openly GLB service members before the United States got around to it. And not having passed the dishonorable compromise known as “Don’t Ask, Don’t Tell, Don’t Pursue” probably would have gotten us to today sooner, not later.

Happy Birthday, U.S. Constitution!

224 years ago, on September 17th, 1787, the U.S. Constitution was signed in Philadelphia. Ratification by the states came later, but this date marks the birth of a document that was, and continues to be, the bedrock of our legal and political society. And a birthday it truly is, for the Constitution has continued to grow and evolve through amendments and court interpretations over the years—a living document that is as strong and relevant in 2011 as it was in the 18th century.

Nonetheless, there is frequent discussion about the Founding Fathers and what they intended when they put their signatures on that piece of paper so long ago. Would they have supported the Equal Rights Amendment? What about a Federal Marriage Amendment? Did they envision the United States as a Christian nation or a secular system? Would they agree that the Electoral College doesn’t work anymore? People will vary in their views on these topics, and the ACLU has strong positions on constitutional interpretation—positions for which we have been successful advocates for nearly a century. The debates continue, though, as they must in a society that values the free exchange of ideas.

I have to wonder what the original signatories of the Constitution would think about the system that they created, 224 years after the fact. We have made strides that were likely inconceivable in 1787—minority groups continue their march toward greater participation in the American experience, and we became the world’s strongest and most successful democratic society. At the same time, our rights and liberties continue to be threatened, sometimes from within our own system. Fear, paranoia, and apathy have bred laws and policies that are blatantly opposed to the principles of personal freedom, due process, and equal protection. So, on the whole, would those founders cheer or weep for our country and its ongoing, laborious evolution? Perhaps they would do a bit of both.

In the end, though, we cannot spend our time chasing ghosts. The Constitution does not belong to those who wrote it. It is our inheritance as a nation, to be guarded and passed down to future generations. The only thing we can do as temporary custodians of this remarkable treasure is look for the underlying principles of fairness and equality in the Constitution’s words and align those values with our contemporary reality. That task is our mission—and our honor—at the ACLU.

And so, each year at this time we observe Constitution Day—not with a day off from work, but with educational programs in public schools and universities, and perhaps a bit of reflection by those who cherish the ideas written down that autumn two centuries ago. If nothing else, take a moment to read the passage below, understanding that these words belong to you. Remember them, and, more importantly, live them.

We the People of the United States of America, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Preamble to the United States Constitution

Pages

Subscribe to The Torch: ACLU of Nevada's Blog