The FBI had the Orlando gunman under watch — twice — and, after much consideration, decided to stop following him. Was this a mistake? Obviously, tragically so.
But in this massive lost opportunity to prevent a slaughter dwells a positive sign for our ability to stop future attacks. Law enforcement at least had its eye on him. Scarier would have been that it had never heard of Omar Mateen.
Protests against government surveillance programs tend to grow in the quiet stretches between terrorist outrages. Absence of immediate fear is when the critics can best downplay the stakes — that even one miscreant can kill large numbers, and with weapons far deadlier than assault rifles.
It’s when privacy advocates have the most success portraying surveillance programs as highly personal invasions of ordinary folks’ privacy. Actually, there’s nothing very personal in the National Security Agency’s collection of our communications metadata. Basically, computers rummage through zillions of emails and such in search of patterns to flag. The humans following leads have zero interest in your complaints about Obamacare, as some foes of the surveillance programs have ludicrously claimed.
In the Orlando case, co-workers had alerted the authorities to Mateen’s radical rantings. The FBI put him on a terrorist watchlist, monitoring him for months. He was taken off when investigators concluded he was just mouthing off. The FBI had reason to probe him again, but again he was turned loose.
That was a failure, but a failure highlighting a weakness in the surveillance laws. The FBI dropped the case because the standard for showing probable cause — evidence of a crime or intent to commit one — is too high for needle-in-haystack terrorism investigations.
(Note that a local sheriff was able to use Mateen’s ravings as reason to have him removed from security guard duty at the St. Lucie County Courthouse in Fort Pierce, Florida.)
The bureau clearly erred in expecting a real terrorist to be informed. That Mateen had expressed sympathy for both al-Qaida and the Islamic State — groups in conflict with each other — was apparently seen as a sign that the man wasn’t seriously engaged in their politics.
Perhaps not, but he seriously approved of their bloody activities. That should have spelled danger, especially when added to his history of mental instability and spousal abuse and possible sexual confusion (an apparently new consideration).
But the FBI has been dealing with thousands of cases of potential homegrown terrorists not unlike Mateen. It must also consider that expressing support for a terrorist organization is protected by the First Amendment right to free speech.
We need a new standard for potential terrorists inspired by online jihadist propaganda. Meanwhile, the public should back law enforcement’s stance on encryption. Recall the FBI’s battle to force Apple to unlock the iPhone of Syed Rizwan Farook, the San Bernardino gunman.
Privacy advocates have harshly rapped President Obama for defending the government surveillance programs he himself once criticized. There’s a simple difference between them and him (and then and now): Obama receives the daily threat reports, and they don’t.
Government surveillance programs do need rules. Court review is important. But it simply isn’t true that public safety can be maintained in the age of lone-wolf terrorism without considerable surveillance. And the risks advocates ask us to take on in the name of privacy should be addressed honestly.
The parade of major terrorist attacks — Paris, San Bernardino, Brussels and now Orlando — has sped up. The more horror the less the public cares about reining in surveillance activities. Defenders of privacy should recognize this reality and more carefully choose their battles. The quiet times seem no more.
By: Froma Harrop, The National Memo, June 16, 2016
“The Only Officers Who Would Have A Problem Are Bad Officers”: Do Police Have A Right To Withhold Video When They Kill Someone?
In Gardena, California, south of Los Angeles, three police officers killed an unarmed man, shooting him eight times, and shooting a second, seriously wounding him. They said the men were suspected of stealing a bicycle, but in fact they were friends of the man whose bike had been stolen, the Los Angeles Times reported, and “were searching for the missing bicycle.” The City agreed to pay a $4.7 million settlement to the survivor. The whole incident was recorded on a video camera mounted inside a police car. The officers involved were allowed to view the video, but the Gardena police refused to release it to the public, claiming that making the video public would violate the privacy rights of the officers involved.
Do the police have a privacy right to withhold video shot by in-car cameras or body cams? Do public officials, acting in their public capacity, have a right to prevent the public from reviewing video evidence of their conduct? You’d think the answer was obviously “no.” When the police kill somebody, it’s not “private.”
But 15 states are considering legislation to exempt video recordings of police encounters from release under state public records laws, according to the Associated Press, or to limit what can be made public. In Kansas the state Senate voted 40-0 in April to exempt police body-cam videos from the state’s open-records act. Police would have to release them only to people who are the subject of the recordings. Kansas police, on the other hand, would be able to release videos “at their own discretion.” In Minnesota, a state Senate committee has approved a bill making most police body-cam videos off-limits to the general public, “except when an officer uses a dangerous weapon or causes bodily harm.”
The ACLU recently estimated that a thousand people a year may have been killed by the police in the United States. The whole idea of videotaping the police is to deter excessive force and other forms of misconduct, and to provide a way of resolving disputes between victims of police violence and officers claiming they had just cause. “People behave better on film, whether it’s the police or the suspect,” said Michelle Richardson, public policy director of the American Civil Liberties Union of Florida, “because they realize others are going to see them.” That’s the main reason President Obama has proposed spending $75 million to help police departments buy body cams.
There’s good evidence body-cams can stop bad cops. In Rialto, California, east of LA, police officers wore cameras for a year in 2012, and as The Guardian reported, “public complaints against officers plunged 88 per cent compared with the previous 12 months. Officers’ use of force fell by 60 per cent.”
But if the police get to decide what the public will see, the entire rationale for the cameras is undermined. The police will release videos when they support the police version of violent encounters, and withhold the videos documenting misconduct.
The case for a police right to privacy is weak. Advocates say releasing videos could lead to retaliation against the officers involved and endanger their families. It’s the same rationale for refusing to release the names of police officers who injure or kill innocent people. But in those cases, the video (and the names) should be released, and protection provided if necessary for the officers and their families.
Of course most video from police body cams should not be made public. The ACLU has proposed guidelines that protect the privacy rights of the people encountering the police. For example, body-cam video shot inside people’s homes, when police respond to a domestic violence call, needs special restrictions on release, the ACLU argues. The ACLU also notes the need for restrictions on the release and posting on the internet of dash cam video of embarrassing incidents such as DUI stops of celebrities or “ordinary individuals whose troubled and/or intoxicated behavior has been widely circulated and now immortalized online.”
Police officers could withhold body cam video under the proposed ACLU guidelines if it does not document encounters with the public—for example conversations between officers in squad cars or the locker room. One other key issue in the proposed ACLU guidelines: police officers should not be allowed to turn off their body cams and should be disciplined if they do.
Progressive police officials know the body cams will help them get rid of bad cops. Denver police chief Robert White is one of those officials. Good cops should welcome body cams, he said recently, because they will “protect police from false allegations of excessive force.” And “citizens should know officers are being held accountable. The only officers who would have a problem with body cameras are bad officers.” The same goes for releasing police video.
By: Joe Wiener, The Nation, May 21, 2015
Is there a constitutional right to privacy underpinning the right to contraception? Suddenly, in this political climate, you can’t be sure, no matter what the U.S. Supreme Court said in 1965.
The high court ruled 7-2 in Griswold vs. Connecticut the state law forbidding the use of contraceptives was unconstitutional, in part because of due process, but mainly because it violated “the right of marital privacy.”
But the court of nearly 40 years ago that produced Griswold, the Warren Court, was one of the country’s most liberal, far more liberal than the current court and its consistent 5-4 conservative majority.
And Griswold’s finding of a right of privacy hiding in the “penumbra” of the Bill of Rights has been mocked over the years by conservatives. There is no absolute certainty that if the issue were brought before the Supreme Court today that Griswold would survive — though there is no certainty that it wouldn’t.
As recently as 2010, Justice Antonin Scalia, a conservative paladin speaking to an audience at UC Hastings College of the Law, dismissed the Griswold ruling as a “total absurdity.”
What exactly did the Griswold ruling say?
The late Justice William O. Douglas wrote the prevailing opinion. Three other justices joined him, and three more joined the judgment for different reasons.
“The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights,” Douglas wrote.
“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs or social conditions,” he said. “This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.
“The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice — whether public or private or parochial — is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.”
The Connecticut case “concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this [Supreme] Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.’ … Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The … very idea is repulsive to the notions of privacy surrounding the marriage relationship.
“We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system,” Douglas said. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”
The late Justice Potter Stewart, joined by Justice Hugo Black, dissented. Stewart said the Connecticut law might be “asinine,” but he could not find anything in the Constitution to forbid it.
“Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone,” Stewart wrote. “I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.”
Griswold applied to married couples, but has since been expanded by the courts to all adults.
Nearly four decades later, contraception is once again under fire. Essentially, the Obama administration ignored the old adage, “Never poke a bear with a stick.” For bear read the U.S. Catholic bishops, who don’t think contraception is proper practice for the 21st century.
In February, U.S. Secretary of Health and Human Services Kathleen Sebelius issued an interim rule, mandating health insurance plans for all employers, including religiously affiliated institutions, include coverage for birth control, sterilization and other preventive services. The rule caused outrage among Catholic leaders and top officials of the Republican Party.
Feeling the heat, Obama then announced a rule modification: Women may have access to free preventive care, including contraceptive services. But if a woman’s employer objects to birth control on religious grounds, then the insurance company will be required to offer the woman contraceptive care directly, without a co-pay.
The policy was slammed repeatedly on the campaign trail by Republican presidential contender Rick Santorum, a conservative Catholic who said even the amended rule was an attack on religious freedom.
The issue ensnared Santorum’s purportedly more sophisticated rival Mitt Romney.
When Republican senators unsuccessfully tried to enact a measure that would allow employers to opt out of any healthcare coverage to which they objected on religious or moral grounds, Romney at first told an interviewer he was “not for the bill.” When the reaction set in from conservatives, Romney said what he meant was that he “strongly supported” the Senate measure, but misunderstood the original question.
Conservative radio hammer Rush Limbaugh turned up the heat under the dispute after a young law school student testified before a congressional panel that contraception was a necessary part of women’s preventive healthcare, Limbaugh said she wanted taxpayers to pay for her having sex. He also called her a “slut” and a “prostitute.”
Last month, a group of U.S. states went further. Seven filed suit in Lincoln, Neb., contending the amended administration rule violates the First Amendment’s freedom of religion guarantee. The suit was joined by several Catholic organizations.
John Witte, Jonas Robitscher professor of law, Alonzo L. McDonald distinguished professor and director of the Center for the Study of Law and Religion Center at Emory University in Atlanta, told The Christian Post the courts probably will rule against the administration.
The Religious Freedom Restoration Act was enacted by Congress, and signed by President Bill Clinton, in 1993. The act prohibited government from putting a substantial burden on individual or group freedom of religion unless there is a compelling government interest. If there is such a compelling interest, the act said, government must show it is acting in the least restrictive way.
The U.S. Supreme Court, in a 6-3 decision in 1997, struck down most of the law. But the majority, led by Justice Anthony Kennedy, left in place the restriction on the federal government even though it excluded state actions.
That interpretation was confirmed in a unanimous 2006 Supreme Court decision involving the importation of natural drugs from South America for religious purposes. Though the natural substance was banned by federal law, Chief Justice John Roberts said in the opinion the Supreme Court agreed with the lower courts — the federal government had failed to demonstrate a compelling interest in banning the sacramental use of the drug.
That violated RFRA, Roberts said.
One bright spot for contraception defenders: Kennedy wrote the 6-3 majority opinion that struck down the Texas sodomy law in 2003, and told the government to get out of the bedroom. He often completes the 5-4 conservative majority now holding sway at the high court, but in 2003 he joined and led the court’s liberals, saying, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the state is not omnipresent in the home.”
By: Michael Kirkland, UPI, March 11, 2012
Last year, Republican presidential candidate Ron Paul introduced a bill in Congress that would allow states to ban contraception if they choose.
Paul’s “We the People Act,” which he introduced in 2004, 2005, 2009, and 2011, explicitly forbids federal courts and the Supreme Court of the United States from ruling on the constitutionality of a variety of state and local laws. That includes, among other things, “any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction.” The bill would let states write laws forbidding abortion, the use of contraceptives, or consensual gay sex, for example.
If passed, Paul’s bill could undermine the most important Supreme Court case dealing with contraception—1965’s Griswold v. Connecticut. In that case, the high court found that a Connecticut law prohibiting the use of contraception was unconstitutional based on a “right to marital privacy” afforded by the Bill of Rights. In other words, the court declared that states cannot interfere with what happens between the sheets when it comes to reproduction.
Paul’s bill would also keep the federal courts out of cases like Roe v. Wade and 2003’s Lawrence v. Texas, in which the justices found that privacy is a guaranteed right concerning sexual practices and struck down Texas’ anti-sodomy law as unconstitutional.
It’s well known that Paul, like the other remaining GOP presidential contenders, is no fan of abortion or gay people. But the issue of contraception access is one that has not received nearly as much attention.
Paul’s bill hasn’t received much support in the House. It has no cosponsors and has never made it to a vote on the House floor. But that’s not its biggest potential problem: “I don’t think it would be constitutional to strip the court of that power,” said Bebe Anderson, director of the US legal program as the Center for Reproductive Rights. “You certainly couldn’t do it by law—you’d have to amend the constitution to do that.”
Paul’s campaign did not respond to a request for a clarification on the intent of the his proposed law with regard to contraception. But as Addie Stan notes over at Alternet, Paul’s response to a question about the Griswold ruling during a January presidential debate provides hints about what he might say. “As far as selling contraceptives, the Interstate Commerce Clause protects this because the Interstate Commerce Clause was originally written not to impede trade between the states, but it was written to facilitate trade between the states,” Paul said. “So if it’s not illegal to import birth control pills from one state to the next, it would be legal to sell birth control pills in that state.”
Paul is saying, in short, that his bill wouldn’t actually ban the sale of contraceptives, which would be protected under the Commerce Clause of the Constitution. But that’s an extremely unorthodox interpretation of the Commerce Clause, according to several lawyers Mother Jones contacted. The clause typically only deals with whether or not Congress has the ability to regulate interstate business. Paul is correct that the Commerce Clause would prevent a state from banning the importation of birth control pills from another state. But absent a constitutional right to privacy, states could still bar their citizens from buying or selling birth control within the state. “The right to access contraception has not been based on the Commerce Clause in my understanding,” explains the Center for Reproductive Rights’ Anderson.
The U.S. Supreme Court ruled unanimously Tuesday that corporations do not have the same privacy rights as individuals when it comes to blocking requests for records under the Freedom of Information Act, the federal statute that requires the government to make available certain documents and records.
Writing for the court, Chief Justice John Roberts said that the language of the transparency law clearly precluded corporations like AT&T, the plaintiff in the case, from claiming it had “personal privacy” rights that could prevent the public release of certain requested information on file with government agencies. The case arose when a trade association representing some of AT&T’s competitors sought access to information the company had submitted to the Federal Communications Commission as part of an investigation into whether it had overcharged the government for services provided to schools and libraries. AT&T sued to block release of the information.
Roberts wrote: “AT&T’s argument treats the term ‘personal privacy’ as simply the sum of its two words: the privacy of a person. Under that view, the defined meaning of the noun ‘person,’ or the asserted specialized legal meaning, takes on greater significance. But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. ‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person.’ It suggests a type of privacy evocative of human concerns — not the sort usually associated with an entity like, say, AT&T.”
The ruling will not necessarily result in the release of all (or even most) corporate records submitted to regulators or investigators. The Information Act contains a number of other “exceptions” upon which corporations like AT&T may rely in seeking to block information from being made public through FOIA requests.
The decision came just six weeks after the justices heard oral argument in the case, a quick turnaround that suggested, along with the unanimous decision and Roberts’ relatively short 15-page ruling, that the court did not view the matter as a particular close call. Justice Elena Kagan recused herself from consideration or deliberation in the case because of her work on it as solicitor general.
By: Andrew Cohen, Legal Analyst-Politics Daily, March1, 2011