Sunday, January 25, 2015

Fair Housing Law at Risk at High Court

       The Supreme Court took its first limited steps against residential segregation long before it moved to desegregate public schools. But the court’s rulings did not prevent federal, state, and local governments from establishing policies in the mid-20th century that redlined African Americans into racial ghettos while helping to subsidize white neighborhoods in cities and suburbs.
       The court struck down local ordinances aimed at enforcing residential segregation in separate cases in 1917 and 1927 and followed in 1948 with a ruling that barred courts from enforcing racial covenants in housing. The court in 1968 went so far as to rule that racial discrimination in housing had been illegal for more than a century under the Civil Rights Act of 1866, which guaranteed blacks the same property rights as enjoyed by whites.
       Months before that ruling, however, Congress had passed and President Lyndon B. Johnson had signed a comprehensive law, the Fair Housing Act, to bar discrimination in housing on the basis of race or other categories. As Justice Ruth Bader Ginsburg aptly remarked last week [Jan. 22], the law was intended to undo “generations of rank discrimination.” A half-century later, the Roberts Court could be on the verge of unsettling well established precedents to limit the use of the law to prevent housing policies that have discriminatory even if unintentional effects on African Americans and other minorities.
       Ginsburg’s comment came during an hour of legalistic arguments in a closely watched case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. The case tests whether the Fair Housing Act applies not only to intentional discrimination but also to so-called “disparate impact” cases. (Think: “discriminatory effects.”)
       The Roberts Court has been eager to decide this issue, even though 11 federal courts of appeals have been unanimous in recognizing disparate impact liability under the law. Twice in the last three years, the court agreed to hear cases on the issue, but the Obama administration and civil rights groups helped to get the cases settled in order to remove them from the court’s docket.
      In the current case, the Dallas-based Inclusive Communities Project, which seeks to promote housing opportunities for minorities, has sued the state’s housing agency for allegedly concentrating federal subsidies for low-income housing in minority neighborhoods. The state says the statistical disparity results from applying a laundry-list of racially neutral factors. With a trial still pending, Texas’s Republican state government asked the Supreme Court in effect to knock out the legal theory of the project’s suit.
      Chief Justice John G. Roberts Jr. left no doubt about his inclinations in the case in the few questions that he put to lawyers representing the Obama administration and Dallas group. Roberts suggested that the state agency faced an insoluble dilemma: it could be sued for fortifying segregation by subsidizing developments in minority neighborhoods or for denying housing opportunities for minorities if it backed development in white neighborhoods.
      As Roberts posed the issue, the state could not cure any problem except by taking race into account, and the chief justice is on record as opposing any race-conscious remedies in civil rights cases. “The way to stop discrimination on the basis of race,” Roberts famously wrote in a school desegregation case in 2007, “is to stop discriminating on the basis of race.”
       Surprisingly, Roberts’s ability to hold the usual conservative majority appears to turn on Justice Antonin Scalia, who posed tough questions to Texas’s solicitor general Scott Keller during his time at the lectern. Keller’s argument turned in part on differences between the Civil Rights Act’s job discrimination provisions, which have been interpreted to cover disparate impact cases, and the language in the housing law.
       Scalia, co-author of a book on statutory interpretation, said Keller was ignoring 1988 amendments to the law that appeared to assume it covers disparate-impact cases. “Why doesn’t that kill your case?” Scalia asked. “When we look at a provision of law, we look at the entire provision of law, including later amendments.”
       Later, however, Scalia seemed to be his normal self when he questioned Michael Daniel, the lawyer representing the project. “Let’s not equate racial disparity with discrimination,” Scalia said.
       Other justices appeared to be playing their usual roles in the arguments. The liberal bloc — Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan — all seemed certain to uphold the broader interpretation of the housing law. Conservative Samuel A. Alito Jr. left no doubt that he believes in the narrower interpretation, while the moderate-conservative Anthony M. Kennedy followed Roberts’s questions with one to the same effect. Clarence Thomas, as usual, asked no questions, but he has voted consistently to limit civil rights laws to intentional discrimination.
        Along with the purely legal arguments pressed by the liberal justices, the pragmatist Breyer challenged the state’s lawyers on practical grounds. “Why," he asked, "should this court suddenly come in and reverse an important law which seems to have worked out in a way that is helpful to many people [and] has not produced disaster?”
       Twice already, the Roberts-led majority has turned Breyer’s concerns aside in civil rights cases — first in the 2007 ruling that limited racial-balance policies by public schools and then with the 2013 decision gutting the Voting Rights Act. Roberts warned against unsettling precedents in his confirmation hearing, but he appears to be only half a vote away from fundamentally changing federal civil rights law for the third time in less than a decade.

Sunday, January 18, 2015

Law, Politics Combined on Path to Marriage Equality

      The gay rights advocates who met in a Jersey City hotel in 2005 drafted a strategy document that envisioned winning marriage equality for gay and lesbian couples in 10 states by the year 2020. Fresh from the political backlash to Massachusetts' legalization of same-sex marriage the year before, the plan seemed to be the height of realistic ambition.
      Today, the year 2020 seems more likely to mark the fifth anniversary of marriage equality for gays and lesbians nationwide. The Supreme Court set the stage last week [Jan. 16] for an historic ruling by the end of June recognizing a constitutional right for gays and lesbians to marry anywhere in the United States.
      The path to this point has been long and rocky, dating from 1972 when the Supreme Court curtly turned aside a gay Minnesota couple’s effort to get married “for want of a substantial federal question.” The advances have come through a combination of aggressive law and defensive politics, exercised in the face of doubts and divisions within the gay community and stout public resistance from the straight majority.
      The need to combine law and politics was the insight that Evan Wolfson brought to that meeting of marriage equality pioneers in 2005. Wolfson wrote the seminal thesis arguing for a constitutional right for gays and lesbians to marry while a student at Harvard Law School in the early 1980s.
      By the 1990s, Wolfson, then with the Lambda Legal Defense and Education Fund, helped engineer the first trial-level victory for marriage equality in Hawaii only to see it nullified by a political backlash that spread like wildfire nationwide. The court-ordered legalization of same-sex marriage in Massachusetts in May 2004 prompted a raft of anti-marriage amendments in other states later that year.
      As Wolfson's later political director Marc Solomon recounts in his book Winning Marriage, Wolfson countered the gloom among marriage advocates by arguing that success was still achievable but only by changing the political climate as legal challenges continued. As evidence, he cited the Supreme Court’s patient decade-long delay from the 1950s to 1967 before its decision recognizing a right to interracial marriage.
      The strategy document, actually written by Matt Coles of the American Civil Liberties Union, said that both Congress and the Supreme Court would be more willing to insist that “hold out” states bow to widely accepted social norms than to set those standards themselves. Marriage advocates were mostly on the defensive for the next several years. Indeed, Solomon devotes more than one-third of his book to the intensely political fight to keep the Massachusetts legislature from allowing a popular vote to overturn the state high court’s ruling.
      Politics remained a daunting challenge even after legal victories. The California Supreme Court issued a pro-marriage ruling in May 2008 only for voters to overturn it by adopting the anti-gay Proposition 8 in November. The Iowa Supreme Court issued a landmark pro-marriage ruling in 2009 only for three of the justices in the majority to be rejected by voters the year after.
      Wolfson enlisted Solomon, a non-lawyer political operative, to join his New York City-based Freedom to Marry in 2010 to build a national operation to support pro-marriage groups in individual states with money and expertise. The strategy bore fruit in November 2012 when voters in three states — Maine, Maryland, and Washington —  approved gay marriage laws and Minnesota voters beat back an anti-marriage constitutional amendment.
      The marriage movement’s political successes could be seen as vindicating the views of those political conservatives, including leading Republicans such as Florida’s U.S. senator Marco Rubio, who contend that gay rights advocates should have been concentrating all along on politics, not law. But the history shows that political systems would never have taken the gay marriage issue seriously without first being forced by the courts to deal with it.
      The wrapping-up of the movement now depends on the Supreme Court. Marriage advocates scored legislative successes in 2013 in several blue states: Delaware, Rhode Island, Minnesota, Hawaii, and Illinois. But red states continued to hold out. The rapid advances in 2014 came only after federal courts — along with state courts in New Mexico and New Jersey — read the Supreme Court’s decision in 2013’s Defense of Marriage Act (DOMA) case as implicitly requiring recognition of same-sex marriage.
      The Supreme Court in October allowed federal appeals courts to impose marriage equality in five states by refusing to hear the states’ appeals to reinstate gay marriage bans that the appeals courts had struck down. The court’s hands-off approach toward other pro-marriage rulings since then has allowed same-sex marriage to become law in 36 states.
      The court had no choice last week but to accept the gay couples’ appeals from the ruling by the Sixth U.S. Circuit Court of Appeals to uphold same-sex marriage bans in four states: Kentucky, Michigan, Ohio, and Tennessee. The court seemingly has no choice either but to reverse the Sixth Circuit’s decision. Upholding the laws would create, as Chris Geidner writes in BuzzFeed, “an unprecedented mess.” And public opinion polls now show majority support for same-sex marriage. As Wolfson likes to put it, “Americans are ready for freedom to marry.”

Sunday, January 11, 2015

Islam Defamed by Terrorists, Muslim Regimes

      The Bible prescribes death for anyone who “blasphemes the name of the Lord” (Leviticus 24:16), but Jews and Christians have long since discarded this law along with most (though not all) of the Old Testament’s anachronistic prohibitions. In citing the Biblical rule, foreign affairs commentator Fareed Zakaria joined the many other experts who have stressed during the past week that the Koran contains no analogous prohibition against blasphemy.
      To the contrary, the many experts say that Mohammed preached tolerance for persons of other faiths during his life. Yet despite the lack of any scriptural basis, too many present-day Muslims — not only jihadists, but also Islamic governments — believe that they are entitled or even commanded to punish those who take Mohammed’s name or image in vain.
      The Kouachi brothers in France acted most dramatically on this misguided belief last week [Jan. 7] in their terroristic assault on the staff of the satirical newspaper Charlie Hebdo. The native born Chérif and Saïd Kouachi killed 12 people in all in the noontime assault on the newspaper’s Paris offices, including the editor and four of the cartoonists responsible for the mocking images of Mohammed.
      The cartoonists were not actually mocking Mohammed, but those present-day Muslims who invoke his name to justify jihadist attacks on the United States and the West and the universal principles of freedom of speech and religion. In one, a weeping Mohammed is shown saying, “C’est dur d’être aimé par les cons” (“It is hard to be loved by idiots”).
      The killings sparked indignant rage in France and around the world along with defiant solidarity with the victims: “Je suis Charlie.” Encouragingly, many Muslim leaders in France and the United States unambiguously denounced the attack. Two days later, the Kouachis died in a gunfight with French police; an apparent accomplice was killed in a separate gunfight after having first murdered four innocents in a kosher butcher shop.
      The dramatic events overshadowed two other disturbing instances of Islamist excess later in the week carried out not by individual terrorists but by established governments in Muslim countries. In Pakistan, an accused blasphemer, Abib Mahmood, was killed by gunmen [Jan. 8] after authorities released him on grounds of mental illness.
      Mahmood’s release belies Pakistan’s harsh policies toward blasphemy. The U.S. Commission on International Religious Freedom reported in March that 33 people were imprisoned in Pakistan for blasphemy: 14 under sentence of death and 19 others serving life terms. The Associated Press story on Mahmood’s death noted that in Pakistan “people often take the law into their own hands.”
      The next day, a dissident Saudi blogger, Raif Bawadi, was flogged publicly 50 times in Jeddah as the start of a 1,000-lash sentence for supposedly insulting Islam. Badawi was arrested in 2012 for criticizing Saudi Arabia’s clerics on his now banned website Liberal Saudi Network. He was spared a possible death sentence after he was cleared of apostasy, but his criticism of the religious establishment still drew a 10-year prison sentence and $266,000 fine along with the flogging to be carried out over 20 weeks.
      The U.S. State Department sharply criticized the punishment being carried out against Bawadi and has long urged Pakistan to revise its anti-blasphemy laws. But the supposed U.S. allies have taken little if any heed. The religious freedom commission noted that another U.S. ally, Egypt, has four people in prison for blasphemy convictions.
      What can the United States and its European allies do to counter the separate issues of terrorism and freedom-suppressing Islamic governments? Some things, but only so much. Along with human rights groups, the United States and its allies can continue to argue bilaterally and in international forums against anti-blasphemy laws and prosecutions, in individual cases and more generally. To make the case, they can stress, as the religious freedom commission notes, that the laws in operation actually promote religious discord instead of harmony.
      In the aftermath of the Charlie Hebdo massacre, most of the officials and experts appeared to concentrate on the law enforcement aspects of counterterrorism policies. It was noted that the Kouachis had long been on the radar of intelligence and law enforcement agencies in France and the United States, but surveillance lapsed as the brothers lay low for a period of years.
      Along with law enforcement, however, European governments in particular must counter the Islamists’ anti-West narrative by providing a more welcoming environment for Muslims, according to the U.S. State Department’s former special representative to Muslim communities. In a conference call arranged by the Council on Foreign Relations, Farah Pandith explained that many Muslim millennials, like the Kouachi brothers, have come of age since 9/11 and have been “saturated with narratives saying that they don’t belong.” Unsurprisingly, Pandith says, a radical Islamic narrative finds fertile ground among some.
      Pandith, who served at the State Department from the Danish cartoon crisis of 2003 through 2013, says the government’s programs for countering the Islamist terrorist narrative are underfunded. European governments, she says, need to dismantle policies that limit religious expression for Muslims and to be more receptive to claims of anti-Muslim discrimination. Unfortunately, many European politicians exploit instead of seeking to redirect the anti-Islamic sentiments among the public.
      Muslim organizations and individuals have a responsibility as well. The world’s 1.5 billion Muslims have no collective responsibility for the Kouachis, of course, but silence = death. Islam’s faithful believers must do all they can to speak out and act against the jihadists and authoritarian Muslim governments who are the true blasphemers of Islam of present times.

Wednesday, December 24, 2014

On Marriage, "Simple Justice" Only a Matter of Time?

      The Supreme Court was no idle bystander in 1952 as school desegregation cases from five separate jurisdictions worked their way toward the nation’s highest tribunal. As Richard Kluger relates in his history Simple Justice, Chief Justice Fred M. Vinson personally called lawyers in cases from Delaware and the District of Columbia in the summer and early fall to suggest they file appeals with the court so that the cases could be consolidated with others already set for argument.
      The landmark decision in Brown v. Board of Education came nearly two years after those maneuverings following Vinson’s death and the masterly work by his successor, Chief Justice Earl Warren, to produce a unanimous ruling against legally enforced racial segregation. Sixty years later, the Supreme Court now seems on the verge of a similar landmark decision, also after deft maneuvering and legal delay, to recognize a constitutional right to marriage for same-sex couples.
      The Vinson Court was divided after oral arguments in the five cases in December 1952, but Kluger shows that a majority of the justices were ready immediately afterward to outlaw racial segregation and overrule the precedent that had sanctioned the practice, Plessy v. Ferguson (1896). One of the justices, Kentucky’s Stanley F. Reed, however, wanted to reaffirm Plessy; and three others — Vinson, Robert H. Jackson, and Tom C. Clark — preferred some kind of “wait-and-see approach.”
      The current justices were likewise divided during and after arguments in a pair of same-sex marriage cases in March 2013. The 5-4 majority in  United States v. Windsor (2013) favored same-sex couples by striking down the anti-gay Defense of Marriage Act (DOMA), but stopped short of recognizing a constitutional right to marriage for gay and lesbian couples. In the other case, Hollingsworth v. Perry (2013), a cross-ideological majority used a legal flaw to put off a direct ruling in the challenge to California’s Proposition 8.
      Three of the conservative justices, however, used their dissents in Windsor to make their views on the ultimate issue plain. Antonin Scalia, in an opinion joined by Clarence Thomas, said that limiting marriage to opposite-sex couples was justified by “moral disapproval” of same-sex relationships and by other “valid” rationales that he deemed so “boring” that he did not even list them. Separately, Samuel A. Alito Jr. said that the “heated debate” about same-sex marriage should be decided not in the courts but by “the people, acting through their elected representatives at both the federal and state levels.”
      Significantly, Chief Justice John G. Roberts Jr. kept his counsel on the issue. He dissented from the decision to strike down DOMA on both technical and substantive grounds, but he declined to join the sections in Scalia’s opinion defending same-sex marriage bans on their supposed merits.
      The Vinson Court put off the day of reckoning on racial segregation by asking for new arguments on the history of the Fourteenth Amendment, a ploy suggested by Justice Felix Frankfurter. Vinson’s death in October 1953 paved the way for Warren to preside over the rearguments in December and to guide the court into the unanimous decision handed down on May 17, 1954.
      A year-and-a-half of federal and state court decisions interpreting Windsor have provided the Roberts Court with more breathing space on the question of marriage equality. With near unanimity, lower courts have interpreted Justice Anthony M. Kennedy’s majority opinion in Windsor as fatally undermining the states’ arguments for limiting marriage to opposite-sex couples.
      Perversely, the gay rights victories put off a final resolution of the issue by a couple of months. When the justices gathered at the end of September, they decided not to hear appeals by states seeking to reinstate same-sex marriage bans that had been struck down in three federal circuits. In the three months since, the court has similarly allowed lower federal courts to bring same-sex marriage rights to other states, most recently in Florida. When the Florida ruling takes effect on Jan. 6, same-sex couples will be able to marry in a total of 36 states plus the District of Columbia.
      In November, however, the Sixth U.S. Circuit Court of Appeals upheld same-sex marriage bans enacted in four states: Kentucky, Michigan, Ohio, and Tennessee. Plaintiffs filed petitions for certiorari barely a week after, and three of the four states joined in urging the Supreme Court to issue a definitive ruling. The papers on the cases were distributed to the justices on Tuesday [Dec. 23] for them to consider at their Jan. 9 conference.
      In the normal course of events, the justices could agree that day or later in January to hear some or all of the cases, in time for arguments in April and a decision by the end of June. Conceivably, the justices could find some basis to push the issue to the next term, but any delay now would seem political rather than legal.
      Sixty years later, it seems inconceivable that the Supreme Court could have done anything in Brown other than outlaw racial segregation. The Roberts Court is unlikely to be unanimous on marriage rights: Scalia and Thomas have voted against allowing marriage rights to take effect on an interim basis. But the gay rights ruling that now seems only a matter of time may well strike future generations just as Brown does now as nothing more than “simple justice.”

Sunday, December 21, 2014

Justices ' Blind Eyes to Police Mistakes

      The brake light case brought out a bit of whimsy from Chief Justice John G. Roberts Jr. as he summarized the Supreme Court’s decision from the bench last week [Dec. 15]. Most people, Roberts surmised, would be surprised to learn that you only need one brake light in North Carolina — “even if you are from North Carolina.”
      The real issue in Heien v. North Carolina, however, was not brake lights, but the power that police are to be given under the law. And in a year when police conduct in the killing of civilians was a major national issue, the Supreme Court chose to give police more room for mistakes instead of stronger incentives to strictly follow the law.
      By an 8-1 vote, the court held that a police officer can stop someone for violating a non-law — and use any evidence found in a subsequent search for a later prosecution — as long as the officer’s mistake about the law was a reasonable one. In a sharp dissent, Justice Sonia Sotomayor argued that a police officer’s actions in such an instance should be judged based on “the actual state of the law,” not the officer’s mistaken understanding.
      The case began as a mundane traffic stop on Interstate 77 in Surry County, N.C., on the morning of April 29, 2009. Nicholas Heien was lying in the back seat of his car with friend, Maynor Javier Vasquez, driving. Patrolling the highway, Sgt. Matt Darisse, a Surry County sheriff’s deputy, thought Vasquez appeared stiff and nervous, decided to follow the car, and eventually pulled the car over after noticing one of the brake lights not working.
      After checking the registration, Darisse was about to let the men off with a warning, but he became suspicious when the two men gave inconsistent answers about their destination. Darisse asked to search the vehicle; the two men agreed; and Darisse found a baggie of cocaine in the side compartment of a duffle bag. Heien eventually pleaded guilty to attempted trafficking, but reserved the right to appeal on Fourth Amendment grounds.
      The Fourth Amendment prohibits not only an unreasonable search but also an unreasonable seizure. Despite the depictions on cop shows, police generally have no power to stop you on the street, or on the highway, unless they have reason to believe you are violating a law. Heien argued that Darisse had no authority for the traffic stop because North Carolina law requires only one working brake light, not two.
      This gap in the law might seem counterintuitive, but the “plain text” of the applicable statute requires only that a car be “equipped with a stop lamp on the rear of the vehicle” (emphasis added). The North Carolina Court of Appeals agreed with Heien’s interpretation, ruled Darisse’s stop of the vehicle “objectively unreasonable,” and ruled the drugs found in the subsequent search inadmissible.
      The North Carolina Supreme Court reinstated the conviction. Darisse had made a reasonable mistake, the state high court ruled. “An officer may make a mistake, including a mistake of law,” the court said, without violating the Fourth Amendment.
      The U.S. Supreme Court had long held that police can make reasonable mistakes of fact without violating the Fourth Amendment, but had never explicitly allowed that same discretion for mistakes of law. To Roberts, the answer was obvious. The Fourth Amendment prohibits only unreasonable police conduct, Roberts stressed, and reasonable police can make reasonable mistakes not only as to the facts but also as to the law.
      Roberts sought to qualify the holding. “The Fourth Amendment tolerates only reasonable mistakes,” he wrote, “and those mistakes — whether or fact or of law — must be objectively reasonable.” In a concurring opinion, liberal justices Elena Kagan and Ruth Bader Ginsburg emphasized the limitation. “[T]he government cannot defend an officer’s mistaken legal interpretation,” Kagan wrote, “on the ground that the officer was unaware of or untrained in the law.”
      Among the justices, only Sotomayor, a former assistant district attorney in New York City, has actual experience in criminal justice at the local level. In that world, police often make mistakes, sometimes deadly ones. And police already have a lot of leeway not only for reasonable mistakes of fact but also for pretextual stops. In Whren v. United States (1996) the court ruled, unanimously, that the Fourth Amendment allows police to stop a car for a routine traffic violation even if the stop was a pretext for a different purpose — in that case, drug enforcement.
      Sotomayor, attuned to the real-world consequences, said the court’s new decision would have the effect of “further eroding the Fourth Amendment’s protections of civil liberties in a context where that protection has already been worn down.” Giving police the power to stop a vehicle on the basis of a nonexistent law, she said, “significantly expands” their authority. The result, she said, is "bad for citizens” and “bad for police.”
      The police who have been in the news in recent days — in Ferguson, Mo.; New York City; and Cleveland, for example — give no confidence that this added discretion will be applied with care — or evenhandedly as between white and black civilians. Think as well about Maricopa County’s blustery anti-immigrant sheriff Joe Arpaio or anti-gay officers in un-gay friendly jurisdictions around the country. The courts stand between them and law-abiding citizens, but the Supreme Court forgot that role in its decision last week.

Thursday, December 11, 2014

Torture Report: Worse Than We Realized

      With Americans reeling from the shock of the September 11 terrorist attacks, President George W. Bush directed the Central Intelligence Agency (CIA) less than a week later to capture, detain, and interrogate those responsible for the attacks or possibly planning new ones. Two months later, CIA lawyers identified what they evidently regarded as a central issue.
      “A policy decision must be made with regard to U.S. use of torture,” the lawyers wrote in a Nov. 26 memo entitled, “Hostile Interrogations: Legal Considerations for C.I.A. officers.” The lawyers noted that “a novel application” of the recognized legal defense of necessity “could be used to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives.”
      The memo came to light only this week [Dec. 9] as part of the 700-plus page report from the Senate Intelligence Committee issued after the committee’s six-year investigation of the CIA’s detention and interrogation policies. The committee’s majority Democrats disagreed with the Republican minority over the document’s import. Six of the panel’s GOP members noted in their minority views that the CIA lawyers went on to reject the hypothetical use of a necessity defense.
      Still, the memo shows that “torture” was on the table even before the CIA had fashioned or started to use the tactics that the committee majority says were even more brutal than already reported. Throughout the Bush administration’s remaining seven years in office, the “T” word was banished from public statements. Instead, administration officials crafted the Orwellian phrase “enhanced interrogation tactics” for practices such as waterboarding recognized as torture when used by other countries but apparently not by the United States.
      More than a decade later, CIA apologists still demur. On the PBS NewsHour [Dec. 10], former agency spokesman Bill Harlow rejected the T word in favor of the bureaucratic acronym “EITs.” But Intelligence Committee chair Dianne Feinstein, the California Democrat who has been if anything less critical of the CIA than warranted, finds no basis for ambiguity. “It is my personal conclusion,” Feinstein writes in the opening of the 526-page majority report, “that, under any common meaning of the term, CIA detainees were tortured.”
      The issue is more than semantics. Torture is prohibited by domestic and international law, without exception. The Justice Department’s Office of Legal Counsel’s infamous memo written by John Yoo contended that the president had powers as commander in chief to authorize the use of torture despite the law, but the memo was repudiated by the OLC’s later director, Jack Goldsmith. And apart from legal considerations, “torture” is harder to sell to the public than “enhanced interrogation tactics,” even if polls indicate public support for torture if needed to save lives.
      On that point, the Intelligence Committee majority is emphatic. The CIA’s interrogation tactics, the report concludes, did not save lives, thwart attacks, help capture high-value terrorists, or produce significant “actionable intelligence.” Feinstein, seven Democrats and Maine’s Democrat-caucusing-independent Angus King all subscribe to that proposition.
      Maine’s somewhat independent Republican Susan Collins joined in the majority report, but wrote in separate views that she finds it unknowable whether the interrogation tactics were or were not effective. The committee’s Republican vice chairman, Georgia Saxby Chambliss, and five other Republicans insist the evidence shows the “enhanced” interrogations did produce information essential in, among other things, capturing 9/11 mastermind Khalid Sheikh Mohammad and thwarting several plotted attacks.
      That debate, detailed in a New York Times graphic, will continue. Seemingly beyond dispute, however, is the Intelligence Committee’s finding that more detainees were tortured than previously reported — 39 in all — and that the tactics were more brutal than previously known. Readers with weak stomachs will want to skip the passages about the five detainees subjected to “rectal rehydration.” Bush himself was said to have flinched when told about a detainee who was chained to the ceiling of his cell and forced to urinate and defecate upon himself.
      Bush was never fully briefed on the program, however, according to the report. Nor were the House and Senate intelligence committees, which supposedly oversee the CIA. The agency kept the very existence of the interrogation tactics secret from Secretary of State Colin Powell and Defense Secretary Donald Rumsfeld, fearful of opposition, especially from Powell. Once the cover was blown by the Washington Post in late 2005, however, the agency worked with compliant media contacts to selectively leak information and misinformation to depict the program as a success.
      To top it all, the CIA managed the program with bureaucratic ineptitude. The military psychologists who designed the program — and received $81 million in fees for their company — knew nothing about al Qaeda or terrorism in general. Untrained interrogators were used, few records were kept, and some of those tortured were marginal figures at most. At the McLean headquarters, officials were often fuzzy on the details.
      As for accountability, that is not going to happen. The most damning evidence — the videotapes – were destroyed on orders from spymaster Jose Rodriguez, with no one prosecuted. The Justice Department reiterated this week that there is no basis for criminal prosecutions. The president who might have been subject to impeachment is out of office; the major architects of the program are out of government, comfortable in the private sector or academia. But the committee at the least has put down one marker. “This and future Administrations,” Feinstein writes, must “ensure that coercive interrogations practices are not used by our government again.”

Sunday, December 7, 2014

When Is a Facebook Rant a “True Threat?”

      With the Vietnam War escalating, teenager Robert Watts signaled his opposition to President Lyndon B. Johnson’s policies by telling a political rally that if drafted and forced to carry a rifle, “the first man I want to get in my sights is L.B.J.” The government took Watts’ jibe seriously enough to prosecute him under a broadly written federal law that makes it a crime to “knowingly and willfully” threaten the president.
      At the Supreme Court, however, the justices ruled, 6-3, that Watts was guilty only of “political hyperbole,” not a “true threat.” Watts’ statement, “taken in context,” had to be interpreted as constitutionally protected speech, the Court wrote in an unsigned opinion in Watts v. United States (1969).
      Fast forward more than 40 years to a bitter divorce in 2010 marked by seemingly violent Facebook rants by Anthony Elonis against, among others, his wife Tara and an FBI agent who had been monitoring Elonis’s Internet posts. Elonis was prosecuted under the general federal law against threats, convicted, and sentenced to 44 months in prison.
      On appeal to the Supreme Court, however, Elonis argued that his pseudonymous Facebook posts were “therapeutic” and not “true threats” at all. And his appeal in Elonis v. United States gained attention as a first-ever, high-level airing of how to apply free-speech rules to the new world of social media.
      Free-speech groups, including the American Civil Liberties Union and leading media organizations, filed briefs supporting Elonis’s appeal even while dissociating themselves from what the ACLU called Elonis’s “crude and offensive” postings. They warned that, in upholding Elonis’s conviction, the Third U.S. Circuit Court of Appeals had found no need for prosecutors to prove that he actually intended to threaten physical harm to his wife or the FBI agent.
      The free-speech concerns about the appeals court ruling may be well placed, but the Supreme Court ought not be misled into making Facebook a wild, wild West for violent postings. Social media need First Amendment breathing room, of course, but a smiley face or “LOL” is not enough to immunize what would be seen as a “true threat” if delivered in a face-to-face conversation, a telephone call, or an old-fashioned, written letter.
      Representing the government, deputy U.S. solicitor general Michael Dreeben rightly noted in the arguments last week [Dec. 1] that threats “cause harm and disruption to society and to the individuals who are targeted” even if they seem unlikely, or even impossible, to be carried out. Speakers should be presumed to understand the meaning of words they speak, Dreeben contended, and should be held “accountable for the consequences of those words.”
      Elonis’s postings clearly caused the kind of harm and disruption that Dreeben had in mind. After his wife obtained a “protection from abuse” order, Elonis asked on Facebook, “Is it thick enough to stop a bullet?” On the same day, he posted that he had “enough explosives to take care of the state police and the sheriff’s department.”
      The next day, Elonis appeared to threaten a mass shooting at the kindergarten class at a local school. The school reported the post to the FBI, which sent agent Denise Stevens to Elonis’s home the next day. Elonis refused to be interviewed and, later that day, suggested in a Facebook post that he would be strapped with a suicide bomb if she returned.
      Representing Elonis, Washington, D.C., appellate expert John Elwood argued that subjective intent was, and always has been, a necessary element of proof in a threat prosecution. But justices across the ideological spectrum questioned how, as a practical matter, the government could meet that burden. “How does one prove what’s in somebody else’s mind?” Justice Ruth Bader Ginsburg asked.
      Elwood answered that in the digital world there would be abundant evidence on a cell phone or computer of a speaker’s state of mind. But Chief Justice John G. Roberts Jr. was unconvinced. He noted Elonis’s contention that the posts were either therapy or rap-style artistry. “Based on your submission,” Roberts told Elonis’s lawyer, “all he has to say is either . . . it’s therapeutic, it’s a good thing I could do this, or it’s art.”
      Later, Justice Samuel A. Alito Jr. said Elwood’s argument amounted to “a roadmap for threatening a spouse and getting away with it.” “You put it in rhyme and put some stuff about the Internet on it,” Alito continued, “and you say, ‘I’m an aspiring rap artist.””
      Less pointedly, some justices voiced concerns about overregulating. Roberts, for example, acknowledged Elwood’s point that social media are a distinct “subculture” and teenagers in particular could be sent to jail for what Elwood called “ill-timed, sarcastic comments.” Justice Sonia Sotomayor noted to Dreeben that the court has been reluctant to create new “exceptions” to the First Amendment. But Dreeben countered that the existing rules are “not an exception” to the First Amendment but “part of the implementation.”
      Elonis has already served three years in prison, so the case is important mostly for the rule the justices will lay down. Social media already have more boorish language and conduct than needed. The Supreme Court needs to articulate a careful standard that can protect “true” political speech and satire on social media without giving free rein to those who would use the First Amendment as a license for threats of violence, laughing out loud through their posts.