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Montgomery County Council Public Safety Committee
public hearing on loitering bill 35-11; my testimony part begins
at around 16:30, but everyone’s testimony is well worth
listening to.

On the evening of Tuesday, November 15, I joined seven other people testifying before the Montgomery County Public Safety Committee about the proposed loitering/”prowling” bill 35-11, introduced by Councilman Phil Andrews.  As I’ve explained in a post on the “Montgomery County Civil Rights Coalition” blog, I think this is no better than the youth curfew I wrote about in the prior post.

My testimony is below; I’ve added a few links where appropriate. I’ll describe the hearing and the testimony of others in a separate post.

I’d like to thank Professor Andrew Taslitz of Howard University for connecting me with Howard Law students Maryam Mujahid (editor of the Howard Law Journal), Marc Watkins, and Michelle Mills. I’m very grateful to each of them for their generous help on very short notice. Their research and review work was invaluable; any errors are mine alone. It was also great to meet Marc, Michelle, and fellow law student Darien Jones at the hearing.

= = =

Thanks for this chance to speak against the loitering/”prowling” bill 35-11. I question its constitutionality, necessity, and likely results.

The October 25 memo about this bill cites cases seeming to show laws based on the same Model Penal Code ordinance have withstood scrutiny around the country.

Read the rest of this entry »

Back to the future with the Montgomery County youth curfew
This summer, two bad events in Montgomery County came to dominate the attention of local politicians.  First, over the July 4th weekend, gang members from elsewhere gathered in downtown Silver Spring and then fought; one girl was stabbed but survived.  Then, in mid-August, a “flash mob” — an unannounced mass appearance, often pre-arranged by social media or text message — descended on a Germantown 7-11 and looted its shelves of chips and the like.  Concerns had already been on the rise about similar events around the country and around the world, so the 7-11 surveillance video quickly became notorious.

Reflecting the growing hysteria, County Executive Ike Leggett had already proposed a youth curfew in mid-July that was initially drafted as a quite draconian curfew.  An amended bill was submitted in late August that eliminated criminal penalties and provided a variety of “affirmative defenses” for daring to be OWY — outside while young — after 11pm on weekdays and after midnight on weekends.

A “witch hunt”?
Calling this “hysteria” and the curfew highly questionable policing and crime-fighting seems fair in light of a number of salient facts:

• As Councilmember Phil Andrews has repeatedly pointed out, gang-related crime is actually down by nearly 50% over the last two years.
• Less than seven percent of youth arrests under 22 in Montgomery County occur during the proposed curfew hours.
• Montgomery County police rank and file oppose the idea, warning “Enforcement of a curfew misdirects scarce police resources,” and noting “Banning lawful activities of residents of our County based upon their age is not a solution to problems of real crime.”
  
• Even current advocates of the measure like “Safe Silver Spring” — supposedly tasked with advising county leaders on crime prevention — didn’t so much as mention a curfew in an extensive list of recommendations at the beginning of the year.  And no wonder…
• …most curfew studies conclude they have no statistical effect on youth crime.

At a mid-October “Youth Town Hall” with county council members, high school student and leading curfew opponent Leah Muskin-Pierret aptly compared the curfew proposal to a “witch hunt” — based on paranoia, targeting a largely innocent, powerless group, and not really solving the alleged problem.

The “Sundown Town” comparison
But there’s another, perhaps equally apt parallel from more recent — even current — American history: “sundown towns.” In his classic 2005 book “Sundown Towns,” James Loewen defined them as “any organized jurisdiction that for decades kept African Americans or other groups from living in it and was thus ‘all white’ on purpose.”

These jurisdictions ranged from those where black people were intimidated into leaving at gunpoint or by a lynching, through ones that posted signs saying “N*****, don’t let the sun set on you in this town,“ to those that enacted and executed their exclusions via only slightly more genteel city ordinances or development practices.  Hollywood generalizations notwithstanding, sundown towns per se were (and too many still are) not so much a deep South phenomenon as one of the border South, North, and Midwest.*

In Maryland, concentrations of “sundown towns” appear to be in Western Maryland, but also in Prince George’s County near DC and also a couple in Montgomery County — most notably Chevy Chase, one of the more or less “white glove”, development-based variety of sundown town.**

Read the rest of this entry »

Until recently, Peter Benjamin was the chairman of the Washington, D.C. area Metro transit system’s Board of Directors. A former mayor of Garrett Park, he brought an avuncular personality and long experience with Metro affairs to the table. While in correspondence with us about the bag search issue I’ve written about before, he dismissed some of our assertions about the program’s drawbacks — for example, he didn’t believe it would cause much decline in ridership. But he seemed to take seriously the civil liberties issues involved.

Still, sometimes I think if I had a dollar for every time I’ve heard or read “I’m a supporter of the ACLU, but…” I could afford the richer, more refined lifestyle I truly deserve.

And sure enough, when push came to shove at a February 10 discussion of the bag search issue, Mr. Benjamin delivered what may be the new low standard in that genre. Beginning with the heart-sinking words “I am a long term member of the American Civil Liberties Union. Many of my friends consider me a civil liberties nut,” Benjamin was giving the lie to those words within roughly twenty seconds. Even though asserting that the rights we have as citizens are “why we are the great country that we are” and personally believing that “bag checks are a violation of those rights, and …the beginning of a process that moves towards us having fewer and fewer and fewer of those rights,” Mr. Benjamin continued:

And if this decision were only for me, and only about me, I would say I personally am willing to take the risk of potentially having somebody get into the system and blow something up and I would be one of the victims, and I would balance that against my rights and say my rights are much more important. [...]

However, I’m also a member of this board, and I was sworn to protect the safety and the security of the people who ride our system. And I don’t know how I as an individual with good conscience could allow somebody to get into our system and cause an explosion and know that somehow or another I contributed to that by overruling the best judgments of our chief executive officer and the professionals who understand this process. [...]

But I don’t know that I can be in a position of saying that I have got the ability, given the responsibility that is given to me as an individual and as a member of this board to protect our riders, to say that they should take the same risk that perhaps I would be willing to take. And as long as I have to carry out that responsibility, I think I need to defer to those who believe that they understand better this issue. It’s one that I do very reluctantly, but it’s one that I do after very, very careful thought. And I think that’s the balance that each of needs to make as we consider this issue.”

Read the rest of this entry »

Recently I was asked:

are metro bag searches really that bad? I am no fan of racial profiling, but this just doesn’t sound that bad. What’s to hide in a bag? If it’s not a bomb, it’s not a bomb. Just keep your embarrassing belongings at home if you don’t want Metro Police to see them.

The following is adapted from the answer I sent.

= = =

You are now less free to move about the country
The fundamental answer, of course, is that we have the Bill of Rights for a reason, that reason is to affirm individual rights, we concede them at our peril, even if the concession appears a small one.

Part of what’s at stake here is maybe captured in that Southwest Airlines ad line that says we should be “free to move about the country.” It’s important that we carry our our rights with us wherever we go, including the right to be free from unreasonable searches. This is the very definition of an unreasonable search — for no reason (at least for no disputable reason), you are pulled aside and subjected to a search.

Why is this particular right important? The government should have to have a very good reason, in advance, for searching you — whether in your home or at a subway stop — because otherwise the door is open to fishing expeditions where you get stopped and searched just to see if you can be charged with something or other. You’re focused on bombs — but the police are not; anything they turn up is generally fair game (thanks in part to poor Supreme Court decisions, but that’s the world we live in). The burden shifts to you to know what you ought not carry with you; as a result, you’ll generally carry less; you’ll be less free. We agree one ought not carry bombs around. But fewer agree we ought not carry certain drugs around. And many fewer still agree we ought not carry anti-slavery literature around. Yet all of those things have been sanctioned before. We can’t know what the future holds. Let’s not make searching us for anything any easier than it should be.

Where will these searches end? We’ve already all but conceded that this may happen in isolated occasions — for example, when entering certain buildings like the WMATA headquarters, or when getting on airplanes. (A point Metro Transit Police Chief Taborn made to me in person, and then considered his case closed.) We’re now about to concede it can happen as we move about a city on its subways. We’ll have no point left to make if we are soon asked to submit to random bag searches on the sidewalks and streets of our cities as well. Would you still urge people to simply not take embarrassing things with them, or might you then say enough is enough? We’re saying so now.

Not just unconstitutional, but stupid
Finally, these searches aren’t just unconstitutional — they’re stupid. And they’re not just stupid — they’re stupid by definition. What program of unreasonable, suspicionless (and unconstitutional) searches is going to be better than a program relying on reasonable (and constitutional) ones based on real suspicions? What bad guy is going to be foiled by a plan to occasionally set up bag searches at a few stations, in which a majority (likely a vast majority) of people with bags are left unexamined, and which he or his co-conspirators can simply turn around and walk away from? This is a plan all but guaranteed to never, ever catch a single bomber. Its proponents sometimes concede that — but argue it nevertheless deters bad people from planning attacks, by introducing an element of uncertainty. Yet it’s absurdly easy to plan for the contingency of encountering a bag search: walk away and try somewhere else, some other time. I’d venture to say a subway system advertising this as its best thinking on security invites attack more than it deters it.

Thus WMATA’s bag search program really encroaches on a fundamental civil liberty, yet only pretends to provide security. To me, opposing such a program is an easy choice to make . By contrast, I’m ruefully confident that if we don’t block this now, future Chief Taborns will see the new status quo as a justification for further intrusions on our freedom.

How bad is that really? In the scheme of things, it’s not as bad as an unjust war, or torture, or assassination policies. But it’s bad enough. We ought to fight for our freedoms whenever they’re encroached on — especially when the justification is as threadbare as it is in this case.

Thanks for writing, and thanks for asking an honest, challenging question. I hope this was a decent answer.

In mid-December, the Washington Metropolitan Area Transit Authority, or WMATA — better known as “Metro” — and its police force announced a new random bag search policy:

…police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.

As described, the policy allows people approaching a station to decide to refuse the screening, of course — they just can’t then bring their bags with them:

Anyone who is randomly selected and refuses to submit their carry-on items for inspection will be prohibited from bringing those items into the station. Customers who encounter a baggage checkpoint at a station entrance may choose not to enter the station if they would prefer not to submit their carry-ons for inspection.

Opponents of the policy (including myself) deemed the policy unconstitutional, ineffective, and misguided — security theater that demands public acceptance of routine, suspicionless, unaudited (and therefore possibly profiling-based) searches for almost precisely zero security in return.  Thanks in part to a good deal of mobilizing by opponents — including an online petition and an evening of nearly unanimous public opposition — WMATA’s “Riders Advisory Council” (RAC), the institutional voice of Metro users,  overwhelmingly passed a resolution calling on the Board to halt the program, and require their police department to consider alternatives in consultation with civil liberties advocates.

The RAC is — as its name implies — simply an advisory body, and it’s not clear how much weight the WMATA board of directors will give their recommendation. While the policy was apparently all but sprung on the board by Chief Taborn and WMATA General Manager manager Sarles, it’s not clear whether the board will even take it up at the next board meeting — scheduled for 1pm next Thursday – let alone come to a decision about it.

Be observed… be watched
As welcome as the 15-1-1 RAC vote was,  the real news of the January 5th RAC meeting may have happened earlier in the meeting.  During a brief question and answer session, Metro Transit Chief Taborn confirmed that bag search refusers would “be observed… be watched” for their decision by law enforcement:

Metro Transit PD Chief Taborn answers questions by Riders Advisory
Council members Diana Zinkl and David Alpert about the random bag
search policy begun in December. (Excerpt transcript)

DIANA ZINKL: And also, could you also clarify, one question that came up at our last meeting, where there was some confusion - the answer either from Deputy Chief Pavlik(?) or the other officer who was in attendance — is what happens if someone’s approaching a rail station, is stopped, does not consent to the search, turns around and leaves and goes to get on the bus.
CHIEF TABORN: What happens is that according to our policy, that person is free to go.  But with regards to law enforcement initiatives, there will be some actions, there will be some observations, because we need to establish why that particular person chose not to do it.  So there will be some activity that’s afoot.
DIANA ZINKL: Can you give us some specificity — given that I think everyone of us in this room has been in the situation that if there’s something that’s not working with the rail system you go and get on a bus — given that this is a very likely scenario, can you be a little bit more specific as to what’s actually going to happen to that person and what they will be… what their experience will be?  Because - I think - the reason I’m asking is that I think this is a very real scenario, and the answer that we received, that was received on Monday, indicated a fair amount of ambiguity and uncertainty from the officer…
CHIEF TABORN: Well I can tell you without any uncertainty that that person would be observed.  And what that means to you is different than what it means to me, but that person would be observed.
DIANA ZINKL: Well could you clarify what ‘be observed’ means?
CHIEF TABORN:Be observed. Be, be observed. Be watched.
DIANA ZINKL: And when they try to get on the bus, what would happen?
CHIEF TABORN:That will be activities that law enforcement will use just as any regular law enforcement has to establish probable cause, to find out who, what, where, why, and when.

As I wrote at the Montgomery County Civil Rights Coalition blog, it got worse.  When RAC chair David Alpert followed up, Chief Taborn elaborated that “[a]t some point in time, as we work with the FBI and as we work with the Department of Homeland Security, we establish why” the person refused the search. Read the rest of this entry »

September 17 was Constitution Day, always a good opportunity to reflect on that document and what it means to us.  Unfortunately, I missed that opportunity.  But of course every day is Constitution Day!  So I’ll go ahead and write down a few things I’ve been thinking and reading about lately on that subject and its intersection with another that has been occupying me lately: post Civil War American history.

In a note he published on Facebook, Patrick Bruckart wrote,

…the Bill of Rights was intended to restrain the federal government’s authority and provide citizens a means of redressing grievances against it. The BOR did not originally apply to the states. The Fourth Amendment, for example, was later applied to the states via the Fourteenth Amendment and subsequent court decisions. The next time we are inclined to complain about “judicial activism,” we should ask ourselves whether it would be acceptable for state or local law enforcement officials to search our homes (or property) without having first obtained a warrant based on probable cause. And that’s just one example.
(links added)

Even in colonial times, some states provided their own constitutional guarantees — that is, they acknowledged their own limitations — regulating searches and seizures.  But it was optional — especially with respect to the lower and disenfranchised members of society.

The Fourteenth Amendment
1. All persons born or naturalized
in the United States, and subject to
the jurisdiction thereof, are citizens
of the United States and of the State
wherein they reside. No State shall
make or enforce any law which shall
abridge the privileges or immunities
of citizens of the United States; nor
shall any State deprive any person
of life, liberty, or property, without
due process of law; nor deny to any
person within its jurisdiction the
equal protection of the laws. [...]
5. The Congress shall have power
to enforce, by appropriate
legislation, the provisions of this
article.

But the Fourteenth Amendment changed all that.  In particular, the Fourteenth Amendment — in both intent and language — clarified that rights guaranteed under the Constitution were a floor under state law, not merely interesting limitations on a far off federal government.  And both these rights and the promise of equal treatment under the law were guaranteed to everyone born in, naturalized to, or simply under the jurisdiction of the United States of America.

And Congress could see to it.  According to Akhil Reed Amar’s indispensable “America’s Constitution: A Biography,” the final enabling clause — “Congress shall have power to make all appropriate laws” furthering this aim — was selected to echo specific Supreme Court rulings deferring to “appropriate” Congressional legislation. Amar:

And — here is the key point –the American people ratified the Fourteenth Amendment, with evident understanding of its, and also the Thirteenth’s, language authorizing “appropriate” federal legislation.  Knowing full well that Congress believed that this language authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality — and having seen with their own eyes that Congress had already acted on a similar belief in connection with the Thirteenth Amendment — Americans said yes.  We do.

Or so they believed.

“A vain and idle enactment”
To return to Bruckart’s remarks, I think one point to remember about judicial activism is that sometimes it’s needed simply to undo prior such activism.

The main example, to me, is in how the Fourteenth Amendment was bled nearly dry shortly after its ratification by one regrettable Supreme Court ruling — In re Slaughter-House Cases (1873; text)  — and one manifestly unjust one, United States v. Cruikshank (1875; text), a ruling rivaled in infamy by Dred Scott, Korematsu and few others.

Read the rest of this entry »

The panel
From the left: me, Sharon Bradford Franklin, senior
counsel at the Constitution Project, David Zirin
(The Nation, Campaign against the Death Penalty),
Johnny Barnes, executive director of the National
Capital Area ACLU.
Originally uploaded by Thomas Nephew
For a slideshow of all forum photos, click here.
[All photos are by Madeleine Nephew
-- thank you, Maddie!]

As advertised, I was joined by Sharon Franklin, David Zirin, and Johnny Barnes on Wednesday evening for a forum about the TPPD license plate scanner proposal.  (For background, see my prior posts on this issue or this resource page.)  [UPDATE - video here] [UPDATE - transcript here]

I thank each of them very much again for coming; their discussions were on point and helpful, as was a lively question and answer period with the audience, which included one councilmember, a public safety committee chair, and — by advance request  — Chief Ricucci and Captain Coursey from the police department.

My publicity efforts were not as successful as I’d have liked, but both local press and friends were on hand; my friend Michelle videotaped the proceedings as did the ACLU; assuming there aren’t technical difficulties, that will eventually be online for others to view for themselves.

I prepared some introductory remarks.  An excerpt:

…So far, we have had an upside down process: a grant application for a device before a community decision to seek one, an agency drafting policy after the money is in hand rather than a legislative body doing so before, all before consideration of alternatives.

Some say I’m making “much ado about nothing.” I disagree, and I think after tonight many of you will as well. A decision to subject ourselves to automated surveillance ought to be a very, very hard decision, not an easy one. I think it moots the 4th Amendment and chills freedom of speech and of assembly — especially in a permissive legal environment where we will have little control or even knowledge of how that surveillance is expanded, reused, or shared with federal agencies armed with “National Security Letters.” Even if approved — as I personally hope it will not be — hard questions would remain: when and where to deploy it, which wanted tag databases to download, what kind of safeguards to set up and who will run them, what penalties to impose if those safeguards are violated.

We in Takoma Park do not need to look to what’s merely permissible to police departments. We can also say how we want our community to be, and what safeguards on our rights we will insist on.

The forum produced a few new points of specific information from my perspective.  First, Captain Coursey noted that the city attorney was looking into the question of whether data collected in this fashion could be compelled to be divulged to other agencies.

Second, Chief Ricucci and Captain Coursey appeared to me to be saying that (a) the grant application did not request funding for so-called “back office” hardware and software that would facilitate the reanalysis of stored data, and (b) that they were thereby saying they did not envision doing so.

While that was comforting to me, Captain Coursey also clearly wanted the door kept open for that, pleading for no “rush to judgment” on that score.  Also, the lack of dedicated funding for storage isn’t all that telling.  As the TPPD’s own press release last December stated, “50,000 and 60,000 plate reads equal one gigabyte of hard drive space.” Assuming the interface with the squad car device can be bridged, off-the-shelf PCs could store millions of images; assuming the scanned image tag/time/location records can be downloaded as well, even more simple data records could be stored.  The software requirements are probably not insurmountable either; a simple file/directory system might do, or records could be stored in a conventional database.

But given the open, frank, and cooperative impression both officers made on me and the rest of the audience, perhaps both the press release and the worksession discussion of storage and reanalysis were more about capabilities than firm intentions.  I’m willing to believe they don’t seek this, and that they can support an explicit “no storage” provision by City Council for the device.
Read the rest of this entry »

Change.org’s “Ideas for Change in America” competition is trying to get the Obama administration’s attention — and is likely to succeed:

“The Ideas for Change in America competition was created in response to Barack Obama’s call for increased citizen involvement in government. The final round of voting began on January 5 and is comprised of the top 3 rated ideas from each of the 30 issues in the first round of the competition, which collectively received more than 250,000 votes.

The top 10 rated ideas from the final round will be presented to the Obama administration on January 16th at an event at the National Press Club in Washington, DC, co-hosted by the Case Foundation. At the event we will also announce the launch of a national advocacy campaign behind each idea in collaboration with our nonprofit partners to turn each idea into actual policy.

The idea “Get FISA Right, repeal the PATRIOT Act, and restore our civil liberties” is among the ideas competing for the final ten slots, with the following introduction:

FISA and the PATRIOT Act strike at the core of our Fourth and First Amendment Rights and institutionalize a surveillance society — and  FISA’s telecom immunity clause mocks the rule of law by not holding telecom companies accountable for any illegal actions.  Beginning the new Administration and Congress by focusing on these issues sends one of the clearest signals possible that that the new government is committed to ending the abuses of the last eight years and restoring our civil liberties.

For some specific ideas on rolling back the FISA Amendment Act and “Protect America Act,” see:

• The Constitution Project: Reform of the National Security Surveillance Laws and Procedures
• EFF: What Obama Can and Should Do To Stop Telecom Immunity
• ACLU: First 100 Days: Warrantless Spying

You can vote for “Get FISA Right, repeal the PATRIOT Act” using the embedded widget below (most readers will need to register with a username and password first).  Voting ends January 15, and you get 10 votes to spread around to this and other good ideas.

As Jon Pincus writes in an associated blog post Turning the page on FISA:

The coming year will present a unique opportunity for a broad-based activism campaign to restore our civil liberties and begin rolling back key pillars of the national surveillance state institutionalized by the Bush Administration and Congress over the last eight years. By first pressuring President Obama to follow through in the first 100 days on his campaign promises to uphold the rule of law and protect Americans’ rights and privacy, and then gearing up for a 50-state strategy to pressure the House and Senate to repeal the PATRIOT Act and reform FISA, we can turn the page on this shameful chapter in our country’s history.

=====
UPDATE, 1/7: The “Ideas for Change” voting process can be confusing; here are step by step instructions.
EDIT, UPDATE, 1/9: “Specific ideas” bullet list added.  Other worthy ideas to vote for:

• Appoint a Special Prosecutor for the Crimes of the Bush Administration
• Make the grid green in 10 years
• US Leadership to Abolish Nuclear Weapons Globally

I’m a Constitution Voter
Originally uploaded by Thomas Nephew

I helped get a mass mailing out the door on Wednesday, to members of the facebook and mybarackobama.com “Get FISA Right” groups.  The full text is here or here; from the mailing:

…This election needs to be about more than lipstick, hockey moms, and Blackberries. It’s time to talk about the Constitution and how the two candidates propose to undo the damage of the past eight years.We’re contacting editorial boards across the country asking that they:

• urge presidential candidates to present their views on constitutional issues on September 17 — and for the rest of the campaign
• prepare editorials on restoring the rule of law to the next administration and Congress
• report on and analyze how the candidates would exert their executive authority as President. (Charlie Savage and the Boston Globe did this late last year; it’s time for a remake.)

In addition, we believe it is critical that the televised presidential debates pose questions about constitutional issues like warrantless electronic surveillance, torture, abrogation of habeas corpus, and how to restore our Constitution.

Again, we need your help — in two ways.

1. Please take a moment to write and send a *short* letter (best no more than 4 sentences!) to the editor of your local newspaper, putting these demands in your own words. We wouldn’t be “Get FISA Right” if we didn’t hope you’d mention rolling back the infamous FISA Amendment Act, but these letters will really have more impact if we don’t provide a canned script for you to follow.

If you don’t know your local paper’s letter to the editor email address, use this tool to find ones in your area. (Please don’t send the same letter to multiple newspapers, though.)

2. Help us with our op-ed piece. Collaborative writing — of open letters, blog posts, ad scripts — has always been one of Get FISA Right’s strengths; and with the media attention we’ve gotten so far, we think we’ve got a good shot at getting this op-ed piece placed. Please join in here. [...]

The conception and execution of this was interesting; the American Freedom Campaign held a press conference last Friday that a couple of us from “Get FISA Right” attended.  The editorial board outreach effort was AFC’s, and we thought we’d see if we could lend a hand by encouraging a fairly large base of support (about 23,000 people on myBarackObama, and another 2,300 on facebook) to support that with letters to the editor.  The drafting process took place on a “wiki” site (the same one being used for the op-ed piece), which makes it easy to see how a document has changed as different authors add to or subtract from it, and makes collaboration possible even when writers are literally on opposite sides of the country.

Anyhow.  There are plenty of other initiatives going on about constitutional, rule of law, civil liberties and human rights issues this campaign season.  A selection:

• Common Cause: Recapture the Flag Candidate Pledges
• ACLU: I’m a Constitution Voter
• Human Rights First: Elect to End Torture
• National Religious Campaign Against Torture (voter guides, tips on lobbying and questioning Congresspersons during election season)
• People for the American Way: Voter ID toolkits for CA, FL, GA, MI, OH, TX
• Institute for America’s Future: Demand the Debate We Need

Meanwhile, as “Get FISA Right” superactivist Jon Pincus writes, it seems like one of the biggest barriers we face is a deep unwillingness to cover these issues by the media, matched by a general reluctance among politicians to talk about them.  Slate’s Dahlia Lithwick, a rare exception, wrote about this in “It’s the Constitution, Stupid“:

Maybe I live in a teensy little rarefied bubble, in which a handful of constitutional law professors, tetchy libertarians, and paranoid bloggers have been tearing their eyebrows out for the past seven years over the president’s use of the “war on terror” to run his tanks over great swaths of the Constitution and much of the Bill of Rights. Maybe I overestimate American concern that their president likes to eavesdrop on their phone calls and root through their library records. Yet Jane Mayer’s book The Dark Side is on the best-seller list. Sixty-one percent of Americans oppose warrantless wiretapping. And both presidential candidates have recognized Guantanamo for the international disaster it is. So clearly somebody cares about the loss of civil liberties in America. It’s just that nobody wants to talk about it.

Jon concludes:

Like a lot of people, I believe that this election’s a choice between restoring the Constitution and continuing down the path to fascism and a police state.  Okay, maybe that’s not the most pressing issue to everybody … but it certainly seems worth talking about.

Via watching the vote on C-SPAN.

Now is as good a time as any to say I’ll support any reasonably liberal Democrat in the primaries against Senator Mikulski should she run for office again. The opponent should preferably make Mikulski’s votes on FISA a centerpiece of the campaign, but the main thing is that Mikulski must go.

Other Nays include Inouye, McCaskill, Salazar, Hagel (R), Landrieu, Lieberman, Feinstein, Warner.

Ayes include Clinton, Obama. Hm. They’re “Leaders” of “our” “party,” but this is still happening and going down to defeat. Also Menendez, Whitehouse, Boxer in decreasing order of surprise. Also Kerry, Byrd.

The motion has failed 32-66. Roll-call when available. More votes ahead, of course; the Bingaman amendment delaying immunity for 90 days pending investigation of the surveillance is said to have an outside shot of approval.

===

Specter appears to get it, at least re unexamined prior illegal surveillance. Having joined in mid-debate, I’m honestly not sure which amendment he’s referring to; turns out it’s his own. Jay Rockefeller is worried for the poor widdle telecoms: “it’s not fair” to put the burden of assessing legality on them, too. Sorry, that’s what FISA did. That is, that’s what it used to do, as of the expected vote for this disaster later on today.

===

Now voting on Specter’s amendment to the FAA: it failed.

===

Now another two-minute!!!! debate on the Bingaman amendment; Feinstein co-sponsors. He says FISA Amendment Act gets the order wrong. Says opponents and proponents of the FAA itself are cosponsors. Kit Bond gets up and warns Bingaman amendment will get a veto and “we’ll have to start all over.” That would be terrible, of course.

===

Now voting. I’ll have to quit now, but doubt there will be a happy ending.