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Obama Has Decriminalized Torture: Do Americans Care?

7:07 am in Uncategorized by Kevin Gosztola

From President Barack Obama’s inauguration to now, he has treated the issue of torture and the legalization of this supreme violation of human rights as an inconvenience. Obama has kept the possibility of holding former Bush Administration officials accountable for torture shrouded in remarks that contain platitudes on nobody being above the rule of law, yet, in those same remarks, he has shifted the responsibility to people like Attorney General Eric J. Holder to prosecute Bush officials, effectively freeing him of any obligation or liability that might stem from having to launch an investigation.

A new report from Human Rights Watch, “Getting Away with Torture: The Bush Administration and Mistreatment of Detainees,” provides opportunity to reflect on the reality that Bush Administration officials committed and effectively legalized torture and the Obama Administration, in its failure to hold these officials accountable, has in a way decriminalized torture.

As a number of news organizations and blogs have noted, the critical thing about the report is that it appears to give up on any possibility of a thorough investigation being launched by the Obama Administration. It encourages “judicial systems in foreign states to pursue investigations” and prosecute “under the doctrines of ‘universal jurisdiction’ and ‘passive personality’ jurisdiction. Under the principle of international that states have an interest in bringing to justice “perpetrators of particular crimes of international concern.” And, it notes that under the Geneva Conventions of 1949, which the US has ratified, “grave breaches” including “willful killing; torture or inhuman treatment; willfully causing great suffering, or serious injury to body or health; and willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial” puts an obligation on countries that have signed to search for those alleged to have committed “grave breaches” and even push for extradition of officials suspected of violations.

While urging foreign countries to prosecute may show human rights groups are desperate, that human rights groups are now pursuing this as an option says a lot about America’s contempt for the rule of law. Kenneth Roth of Human Rights Watch explained on Democracy Now! torture is the “intentional infliction of severe pain and suffering, whether physical or mental.” Mock executions, like waterboarding, have been prosecuted by the US previously. But, the political class and establishment lawyers argue that prosecuting violations under the law will “politicize criminal law.” Or, they display as much interest in addressing the misconduct as those who know the war in Libya is a downright illegal war.

Those who were opposed to Bush Administration policies of torture, like human rights groups and lawyers, have been understandably disappointed with the Obama Administration. It has failed to close Guantanamo, indicated support for indefinite detention of terror suspects without a trial, bowed to the rancor of neoconservatives and decided to prosecute terror suspects with military commissions, refused to release “torture photos” and chosen to not charge any former CIA officials with the destruction of interrogation tapes.

Human rights groups have been very patient with the administration. Not only has the Obama Administration failed to uphold its duty to investigate and prosecute Bush officials under signed treaties like the Convention against Torture but it has let Bush officials tour around with their memoirs—books which contain prideful admissions of torture.

When Osama bin Laden was killed in a targeted operation, the administration put up with people like former Vice President Dick Cheney, who suggested torture had likely helped the Obama Administration kill him. And, with the news that the Justice Department was dropping ninety-nine of the one hundred and one cases against the CIA for abuse and torture, Bush officials were effectively absolved of any real threat of prosecution from the Obama Administration.

Jeff Kaye draws attention to how the “fight for transparency” makes this renewed push for prosecutions important. Kaye highlights how the Department of Defense is now considering a new policy for unclassified information that would enable less openness and more secrecy. This proposal is to be expected from an administration that has derailed torture lawsuits by invoking “states secrets” privileges. For example, in Mohamed v. Jeppesen Dataplan, Inc., in a suit brought by five survivors of the CIA’s rendition program, the ACLU reports, the Obama Administration argued against a lower court ruling, claimed the “case could not be litigated without the disclosure of state secrets.”

What’s more striking is how this report further demonstrates the US has no culture of accountability for those in power who do not commit crimes that involve sexual misbehavior. Probe after probe and investigation after investigation can produce pages of evidence that would fill an entire room. Recommendations on what to do and blueprints for moving forward can be drafted. Nobody in Washington wants to be bothered with the business of correcting injustice.

Today, President Obama could call for a criminal investigation into US government detention practices, as recommended in the HRW report. But, in America, those guilty of crimes in the national security establishment are permitted to commit crimes so long as it appears it happened while trying to protect America from terrorism. They can trash people’s civil liberties, torture people and violate treaties that are law and get away with it just like bank executives on Wall Street can get away with collapsing the US economy.

The effect of not investigating and prosecuting torture is not only that laws are violated but that torture becomes normalized. A rot spreads throughout the American population as Americans find power should be granted the benefit of the doubt and be allowed to torture terror suspects. Ignoring the number of people detained by the US, who are innocent and have no relationship to any terror group, they remember the mythology of 9/11 that has been seared into their brain by leaders like President Bush and President Obama, who countlessly retell the story of 9/11 in war speeches, and see no problem dehumanizing people.

Torture legalized as a tool for those carrying out “counterterrorism operations” becomes legitimate for use throughout America. Guards in Abu Ghraib, Bagram and Guantanamo Bay, who tortured detainees, can come home and become guards at prisons like the Pelican Bay prison and torture prisoners by subjecting them to solitary confinement in a prison-within-the-prison called the Security Housing Unit or the SHU. They can get away with using interrogation techniques, which are tantamount to torture, on political prisoners like Bradley Manning, the alleged military whistleblower to WikiLeaks.

As reported yesterday, the UN Special Rapporteur on Torture Juan Mendez has been restricted from having access to detainees in the US so he can conduct inquiries into torture or inhumane treatment. Mendez reports:

I am assured by the US Government that Mr. Manning’s prison regime and confinement is markedly better than it was when he was in Quantico. However, in addition to obtaining first hand information on my own about his new conditions of confinement, I need to ascertain whether the conditions he was subjected to for several months in Quantico amounted to torture or cruel, inhuman or degrading treatment or punishment. For that, it is imperative that I talk to Mr. Manning under conditions where I can be assured that he is being absolutely candid.

The US Department of Defense has said they would allow Mendez to visit but that he would not be able to have an unmonitored visit, violating “long-standing rules that the UN applies to prison visits.” Mendez reluctantly agreed to a monitored visit, but Manning declined to agree to speaking to Mendez while under close watch by any agents or guards. Now, Mendez concludes the US may no longer wish to allow him to visit detainees in any US prisons if he makes a country visit to the United States.

This prevention of access is not unique to the Obama Administration, as the Bush Administration also put unacceptable conditions on UN visits to Guantanamo Bay. This is part of the “new normal,” an era where officials who commit crimes are shielded from accountability for engaging in warrantless wiretapping, torture, or rendition; state secrets are invoked to prevent transparency; detainees are denied habeas corpus; prisons like Guantanamo and Bagram (along with black prison sites that likely still exist) continue to hold detainees perhaps indefinitely; navy ships hold prisoners that can no longer be sent to Guantanamo because there will be public outrage; the right to target and kill U.S. civilians and bypass due process is asserted; and military commissions or “kangaroo courts” force detainees into Kafkaesque proceedings that make it nearly impossible to not be found guilty.

America purports to have moral authority in the world to push for prosecutions for crimes in Third World countries. It condemns Middle Eastern and African countries (excluding Israel), which do not allow access to their countries for investigations of human rights violations. But, it does not investigate and prosecute its own officials, who are responsible for committing and legalizing torture.

The country appears to care little when it is suggested that what happened under Bush could happen again because all too many fail to see how shopping around for legal arguments to create justification for torture or “enhanced interrogation techniques” was wrong. The idea of moving forward instead of looking backward to hold Bush officials accountable enchants the population. And so, the population presses on without collectively confronting the system that has been put in place over the past ten years.

In Court, ACLU Defends US Citizen Detained & Threatened by FBI with Torture

3:31 pm in Uncategorized by Kevin Gosztola

Amir Meshal (photo: The Public Record)

The ACLU was in court today to defend a US citizen, who was illegally detained and mistreated by US officials in Kenya and Ethiopia. The citizen, Amir Meshal, a man from New Jersey, was in Mogadishu, Somalia, studying Islam in December 2006 when violence erupted. He fled to Kenya in a boat, spent three weeks in a forest looking for shelter and assistance and was arrested by the joint US-Kenyan-Ethiopian task force.

After arrest, he fell victim to rendition and wound up back in Somalia and then Ethiopia. As the ACLU’s filed complaint reads, over four months and three days, “He was detained in three different countries without ever being charged, without ever being granted access to counsel and without ever being presented before a judicial officer.”

The complaint further alleges Meshal was interrogated “more than thirty times by US officials who failed to adhere to the most elementary requirements of the Fourth and Fifth Amendments and the Torture Victim Protection Act of 1991.” During interrogations, Meshal was threatened with torture, forced disappearance and forms of serious harm in an effort to coerce him to admit to committing a crime. His detention was also at the “behest of US officials,” with their participation and a result of conspiracy with the FBI and other foreign officials.

The lawsuit filed in 2009 charges two Supervising Special Agents of the FBI, Chris Higgenbotham and Steve Hersem, were both involved in “investigating non-Somalis apprehended along the Somali-Kenyan border in a joint US-Kenyan-Ethiopian operation” in December 2006 and violated Meshal’s rights. The lawsuit also charges that ten other individuals, John Does 1-10, were involved in the violation of Meshal’s rights as well.

Meshal was arrested on January 24, 2007, with four other men in a forest in Kenya He was surrounded by “thirty heavily armed Kenyan soldiers” who apprehended him and “stripped him to his underwear” and tightly bound his hands behind his back with a rope. A soldier asked him to identify himself and seized his US passport, social security card and $800 in cash. He was taken to a village called Kiunga, where seven or eight Kenyans interrogated him.
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Liveblogging the ‘Protecting Children from Internet Pornographers’ Hearing

5:54 am in Uncategorized by Kevin Gosztola

(photo: Project Counsel)

The House Judiciary Subcommittee on Crime & Terrorism, chaired by GOP Representative James Sensenbrunner, is holding a hearing on the “Protecting Children from Internet Pornographers Act” at 10 am ET. The bill might seem like something that would be free from debate, as we all should agree children do not deserve to be subjected to pornography. But, the legislation includes a “data retention” requirement that should fuel debate over rights to privacy.

[*Watch the hearing here.]

The proposed legislation includes a section that reads:

Retention of Certain Records- A provider of an electronic communication service or remote computing service shall retain for a period of at least 18 months the temporarily assigned network addresses the service assigns to each account, unless that address is transmitted by radio communication (as defined in section 3 of the Communications Act of 1934).’. [emphasis added]

Julian Sanchez of the CATO Institute argues, “The handful of provisions in the bill that really deal specifically with child porn are a fig leaf for its true purpose: A sweeping data retention requirement meant to turn Internet Service Providers and online companies into surrogate snoops for the government’s convenience.” And, the Electronic Frontier Foundation (EFF), in a page outlining the issue of data retention, notes not only is storing large databases of IP data expensive but “mandatory data retention harms individuals’ anonymity, which is crucial for whistleblowers, investigators, journalists, and for political speech.”

I will be live blogging this hearing. The witnesses coming before the committee include: Mr. Ernie Allen, President and CEO of the National Center for Missing and Exploited Children; Sheriff Michael J. Brown, Bedford County Sheriff’s Office and Mr. Marc Rotenberg, President of the Electronic Privacy Information Center (EPIC). [Statements that are to be put into the public record will be posted on this blog, as they are made available.]

Here’s the live blog of today’s hearing:

11:32 AM Rep. Sensenbrunner concerned that data retention will be used to investigate crimes other than child pornography.

Sheriff Brown says he is more interested in 18 months. He wants a standard, a uniformed amount of time. Sheriff Brown doesn’t like that there is no standard among ISPs.

Rep. Sensenbrunner addresses subpoena authority in the legislation in Section 11. From the ISP address, how do you know if someone is a registered sex offender?

Allen says that 95% of cases where marshals are able to locate child predators is through Internet-based or communication data.Currently, they have to get all writs act that can take two months. Very nature that he is a fugitive means there has been judicial review. This would allow circumventing the all writs act.

Rep. Sensenbrunner, why do marshals need additional subpoena authority if they are already going after these people? They’re fugitives.

Allen says this is essential tool.

Rep. Sensenbrunner says he has always felt negatively about administrative subpoenas. I fought to keep administrative subpoena authority out of the PATRIOT Act. And what does law enforcement do? They use national security letters (NSLs) to get around the fact that they didn’t get authority.

This could be used for fishing expedition like law enforcement did on PATRIOT Act with NSLs. You should be concerned about that, says Rep. Sensenbrunner.

Thank you witnesses. This bill needs a lot of fixing up. This bill is “not ready for prime time.” Statements being introduced into the record now.

Hearing is adjourned.

11:24 AM Rep. Thomas Marino respects Rotenberg’s opinion but fails to see concern he has over 18 month period of data retention because of what happens to these children and many times the child does not bring information on being victimized til quite some time later. Law enforcement is already finding new techniques for finding perpetrators. Enlighten me.

Rotenberg addresses this remark saying that resources should be given so that law enforcement can go through enormous amounts of data and they would work to focus investigations on perpetrators. Data retention doesn’t focus on the problem. It says we don’t know the problem and will go fishing.

Rep. Marino – Data retention is critical. I’ve been in hospitals with children…Please do more research so you can see what they are put through. We have to double the punishment for child predators. I’ve seen situations where 3 months old children have been exposed.

I can’t find any defense in not increasing 18 month period, concludes Rep. Marino.

11:17 AM Rep. Dan Lungren says sad to say that my own area of Sacramento is one of the top areas for trafficking problems, at least under FBI statistics. There does appear to be a nexus between trafficking and children, trafficking and young women and trafficking and images of child pornography.

He says this is a bipartisan bill and he introduced form of this legislation in the last Congress.

Lungren asks Marc Rotenberg of EPIC, is there a problem that you have with the access to this information by law enforcement in the event or that the extension of time for which they are required to hold this information allows the potential for abuses in other circumstances?

Rotenberg is concerned with government mandate requiring private companies to keep data it wouldn’t otherwise keep. Congress have made adjustments over time to deal with exigencies (like if you can’t get a warrant). Techniques have developed but this would cross line because up to this time in history of Electronic Privacy Act this has not been allowed.

Here’s more from what I think is a critical exchange:

REP. LUNGREN: Our bill provides that it be 18 months. So, why is that different in nature in terms of the action, the activity of the business and the activity of law enforcement when they have a need to get this data?

ROTENBERG: It’s truly a very different view of wiretap law because up to this point in time the general approach has been to say we will come to you when we have some reason to believe that one of your customers is doing something wrong—

REP. LUNGREN: That’s exactly what they are doing here. All they are saying is they want to make sure that the data is retained.

ROTENBERG: No, because the way data retention works and the distinction between data retention and the current data preservation is data retention says at the outset that you are going to keep this information on everybody because we don’t know at this point in time –

LUNGREN: You’re keeping the information on everybody but you are not making a request for everybody. They’re coming to you with a request based on some information they have on a crime having been committed, allegedly.

ROTENBERG: Yes, so there are at least two concerns there. And this goes to the second part of your question. The two concerns are one, everybody and I do mean everybody know is looking more closely at data minimization techniques because they are realizing just how difficult it is to safeguard the information they’re storing.

REP. LUNGREN: So, when you are talking about data minimization, you are talking about cutting down on the amount of information they store as opposed to criminal minimization…

ROTENBERG: That’s correct.

Time expired.

11:11 AM Rep. Cohen asks if sentencing for child predators should be doubled and if that would be effective deterrent?

Sheriff Brown says we need to impose sentences as judges issue them. I would not say they need to be doubled but judges should give predators their due.

Rep. Cohen says judges find sentencing guidelines are too high. He says 71% think sentencing should not be increased.

Rep. Cohen now describing friend who was convicted of having child porn on his computer and he thinks there could have been alternative ways to handle his crime. There is no proof he did anything to children. And he probably had a brother who had some problem… Anyways, I don’t need to go into those details…

11:09 AM Rep. Steve Cohen now asking questions about system of penalties for child predators.

11:07 AM Rep. Ted Poe asks how many cases are going right now and Sheriff Brown says several hundred.

Rep. Poe asks if there would be an issue in civil litigation. Would anyone want to subpoena data that will be available for 18 months?

Rotenberg says yes, if you’re a good lawyer, you might want to subpoena data.

On Rep. Poe’s question on how they could do better job, Sheriff Brown says they could use more funding.

11:07 AM Allen says that many of the perpetrators are parents, someone trusted and in their lives. Already a hurdle to prosecutions.

11:05 AM First nugget that could make significant headlines: Ernie Allen suggests Attorney General Eric J. Holder is for data retention on all crimes. In Rep. Conyers’ line of questioning, Allen doesn’t argue against having data to go after all crimes. This just feeds into the idea that this is a way to start a system that could be expanded to track all users and not just go after child predators. This is the spread of suspect society into cyberspace.

11:00 AM Rotenberg agrees that there would have to be no wireless provider exemption if this were to work.

Rep. Conyers notes the bill might institute accidentally a data retention policy for all crime and is that over the top, Mr. Rotenberg, or just an exaggeration?

Rotenberg says that is clear from the bill. Let’s establish the ability to identify in ISP record every single user.

Rep. Conyers asks Sheriff Brown asks if he might be troubled by idea that we might set up a system that would have retention of all crime. That isn’t what you came to testify for.

Sheriff Brown says his primary concern was with the retention. I am here for that. We need more time for investigations.

Rep. Conyers says that Allen already noted you are already under-resourced. The big problem is that you don’t have resources necessary.

Sheriff Brown agrees law enforcement already needs more.

Rep. Conyers asks again if they want all crime. Don’t you just want to get at child pornography?

Sheriff Brown doesn’t quite know what to say. He is here for child porn cases, only.

10:53 AM Rep. Trey Gowdy asks if Rotenberg is willing to help a sheriff investigate a crime to strike balance between protecting privacy and

It is not clear that this proposal would make it easier to investigate child predators. This has the potential to turn 99.97% of users into criminals.

Rep. Gowdy asks if Rotenberg has a different way of doing this.

Rotenberg suggests their be more strict penalties for child predators.

Rep. Gowdy wants to know how to get computers if you cannot link to an IP address.

Rotenberg talks about information available to get access to data already available. He concedes it won’t be perfect and there may be cases that won’t be able to be solved.

Rep. Gowdy moves on to Ernie Allen and asks if computer generated images are still defended as not a real image of a child. Allen says defenses in cases still argue images aren’t really kids. And this is why we started a unit to identify child victims.

Rep. Gowdy says this is one more layer that law enforcement has to overcome. The fact we have to prove is real child and not computer-generated. He asks if other countries are cooperative.

Allen says virtual global task force is making progress. Absolutely. Interpol is working with us to collect images.

Rep. Gowdy thanks Sheriff Brown for service.

10:51 AM Rep. Scott asks if sheriffs need probable cause to sift through data. Sheriff Brown says they receive “cyber tip” and then they go to ISP to track that information.

Rep. Scott follows up and ask Rotenberg what is retained. Rotenberg then describes what’s logged and says there can be names of files that were transferred and you could see what information was transferred by reading name of files.

10:50 AM Rep. Scott, what would this data be available for?

Rotenberg says that this data could be used, if retained, for other cases like divorce, contract disputes, copyright infringement and civil subpoena cases. It may not be limited to child porn cases if the ISPs have it.

10:48 AM Rep. Scott asking if law enforcement has enough resources to pursue child predators. Allen confirms this is a problem.

10:44 AM Allen now says child pornography is exploding; 13 million child pornography images and videos reviewed last year, he alleges

We hear all the time isn’t child pornography just adult pornography. Based on what’s sent to us, overwhelmingly there is problem with kids who don’t tell when their image or video of them is put up.

Allen talks about percentage of child predators victimizing children.

Rep. Smith says he took comments from Rotenberg as sincere, constructive criticism. If it is a 50/50 decision, we are going to give law enforcement benefit of doubt.

10:43 AM Rep. Smith asks Sheriff Brown for examples of cases where ISPs were unable to not obtain data so child predators went free; Sheriff Brown essentially repeats what he said in prepared remarks

10:38 AM Marc Rotenberg’s remarks: Purpose of privacy laws is to protect privacy data that companies obtain from consumers. “Good faith” reason can push companies to turn data over governments.

Draws attention to serious concerns about data retention: We live in time where there is a great deal of data breaches. Companies are not able to provide protection. This would mandate retention of information companies might not keep. The problem is also that Section 5 and 6 create new type of immunity that has never existed. At same time that ISPs might be told to keep information, what ever happens, if improperly accessed or used, you are off the hook.

As we read Section 5 it doesn’t have qualifying language that normally exists when ISPs cooperate with investigations.

Section 6, that creates “good faith” defense is quite broad and would apply under any other law. There are many state laws that require companies to notify consumers when a breach occurs. Now it appears ISPs will not be obligated to notify consumers of harms.

Problem is not just data retention obligation but also the immunity being offered.

Additionally, clearly a movement toward data minimization in security field. It’s a sensible approach that prevents misues. Data retention pulls in wrong direction.

European countries have tried to implement sweeping data retention requirement and users have objected. Users, ISPs and others have objected. Coruts have found obligations unconstitutional. Please consider this.

10:36 AM Sheriff Brown concludes that the act will ensure the predators, most vilest of society, are punished. It will allow us to protect against evil in the world.

10:35 AM ISPs hold data records for days or months. Lack of uniformity in data retention time can significantly hinder law enforcement’s ability to track down child predators. Rep. Lamar Smith and Rep. Debbie Wasserman-Schultz have introduced this legislation to address this problem and ensure that when law enforcement contacts ISPs identifying information will still exist.

Sheriff Brown describes a case where they were trying to get information on child predator and the ISP only kept information for 30 days. He says this and hundreds like it demonstrate need to make sure ISPs retain data for significant and standard period of time.

10:33 AM Expansion and development of technology has allowed child porn to become epidemic, says Sheriff Brown. Law enforcement often has tough time unmasking child predators on Internet.

10:31 AM Sheriff Brown begins remarks. He’s a retired officer and part of a National Sheriff’s Association.

10:25 AM Allen says center identifies child porn sites with method of payment. Law enforcement makes purchases and captures information that is reported to payment company so they are able to stop payments.

On Section 2, want to make sure nothing in bill prevents financial companies from stopping payments

On Section 4, we think data retention is reasonable and balanced approach. It doesn’t mean content retained but that connectivity data is retained. We have to establish linkage between IP address and a persons. This is analogous to records phone companies are required to keep.

Many companies have policy on data retention but very widely policies are not kept consistently.

10:22 AM Ernie Allen giving remarks now.

10:21 AM Rep. Conyers concludes: Limit law enforcement’s access to Internet pornography crimes against children. It would institute a data retention requirement for all crimes including street crimes.

The bill’s title is a misnomer. It’s not really about protecting children from this crime. It would not exempt wireless providers and would target child exploitation

10:20 AM Rep. Lamar Smith stops Rep. Conyers to say they are working out way to not exempt wireless providers

10:18 AM Rep. John Conyers continues The ACLU, Center for Democracy & Technology, EPIC and some Internet providers and advocates of children oppose the bill. It fails to protect children from Internet pornographers.

First, eliminate exemption of data retention mandate for wireless providers. They’ve got to be included. If it’s important, why wouldn’t we include them? The bill in current form exempts every wireless service that exists. If it’s good enough for others, it might be very important for wireless internet providers.

10:15 AM Rep. John Conyers (D-MI) discussing the legislation. He says protecting children from child pornographers is laudable and a noble objective but the problem is that the legislation, if enacted, would not achieve that goal. It does other damage that doesn’t exist, would create whole new host of problems. It is not accidental that there are negative views about this proposal that are shared by a wide group of leaders and other organizations.

10:14 PM Internet has become virtual playground for sex predators. Rep. Lamar Smith concludes remarks.

10:13 AM Data retention allows law enforcement to get the abusers and stop children from being abused. By the time investigators discover child pornographers, ISPs have already purged the records. Claims both Democrats and Republicans have wanted data retention for decade. ISPs in deleting records delete data to save a child.

The bill strengthens child witnesses and victims.

10:10 AM Rep. Lamar Smith reading his prepared remarks says that this will protect our children from pornography. He claims that ISPs make it difficult if not impossible to access data to apprehend child pornographers.

Bill does not threaten any legitimate privacy interest of Internet users, Smith claims.

Smith says the 18-month data retention requirement mirrors a requirement that has been placed on phone companies.

10:06 AM Rep. Bobby Scott  reads prepared remarks and says  data retention requirement, which adds unknown costs to ISPs. Information before me doesn’t indicate there will be benefit.

In 80% of cases they are able to obtained the data they need. ISPs already hold data for 6-12 months. Rather than addressing the myriad factors against child pornography prosecutions, bill focuses on data retention requirements.

Bill ignores issues of resources and it could add data that would exacerbate an already growing back log of cases.

DOJ has more data than it has adequate personnel to investigate. Budgets cuts already call for cuts to number of FBI agents.

Blanket exemption for all wireless providers, in addition to child porn cases, is concerning. By the end of the year, there were over 300 million wireless connections in the US. This exemption undermines the legislation.

Could data be vulnerable to hacking? Concerns we need to look into.

I too am concerned about the administrative subpoena.

Pelican Bay Prison Hunger Strike Shines Light on True Character of US Prison System

12:42 pm in Uncategorized by Kevin Gosztola

Harold Koh, legal advisor to the US State Department, went before the United Nations Human Rights Council (UNHRC) in November of last year and declared that the US is very proud of its human rights record. He responded to recommendations the UNHRC made in its universal periodic review of the United States’ respect for human rights. Koh said in the section addressing recommendations on criminal justice, “The U.S. criminal justice system rests on the protection of individual human rights and basic principles of due process and fair and equal treatment.” Prisoners striking at the Pelican Bay supermax prison in California are demonstrating to Americans and the world the scale of fraudulence behind the above statement.

On July 1, 2011, Pelican Bay prisoners began an indefinite hunger strike to protest the conditions in the prison. Across prison-manufactured racial and geographical lines, prisoners came together behind five core demands to force the prison officials to end the use of “group punishment”; abolish a “debriefing policy and the current criteria for determining who is and who isn’t a gang member; comply with the US Commission 2006 Recommendation Regarding an End to Long-Term Solitary Confinement and end conditions of isolation, make segregation a last resort, end long-term solitary confinement and grant access to adequate healthcare and sunlight; provide adequate food and stop using it as a tool to punish inmates; and expand constructive programming and privileges for indefinite SHU inmates.

SHU stands for “Security Housing Unit.” In some prisons, the SHU is called “the hole.” The SHU is a “prison-within-a-prison.” Solitary Watch explains the SHU became more widely used after two guards were killed in the Marion, Illinois, federal prison in 1983. That led to the Marion Lockdown with prisoners being “confined to their cells without yard time, work or any kind of rehabilitative programming.” Read the rest of this entry →

Glenn Greenwald: Two Obama Policies That Expand the Assault on Civil Liberties [VIDEO]

4:30 pm in Uncategorized by Kevin Gosztola

Throughout the past couple of days, I have been posting video of  Salon blogger Glenn Greenwald’s speech at the Socialism Conference held in Chicago, IL. last weekend. Instead of posting the speech in full, I have been posting the speech in segments to draw attention and encourage discussion on key aspects of Greenwald’s speech.

My post on Part 1 of the speech is here. My post on Part 2 of the speech is here. And now, here’s part 3.

Greenwald describes two areas where President Obama has embraced two policies that former President George W. Bush never employed. The first is asserting the right to target and assassinate US citizens.

…The Washington Post in January 2010 reported there were four Americans on Obama’s list of individuals, who he has declared without any due process to be terrorists, who the CIA is now not just permitted but instructed to hunt down and murder. One of who is Anwar al-Awlaki, a US-born American citizen in Yemen who the US government hates because he speaks effectively to the Muslim world about the violence that the US commits in that part of the world and the responsibility of Muslims and the need of Muslims to stand up to this violence. The US hates him because this message is resonating and so the solution is not to charge him with crimes, because he’s not committing any crimes because you have the First Amendment right to say the things you say. It’s not even to detain him without process. They’re not bothering with that. They’re trying to kill him. They’ve shot cruise missiles and used drones at at least two occasions in the last year to try and kill this US citizen without due process, not on a battlefield but in his home, in his car, with his children, wherever they find him. And, this power is one that the Obama Administration has asserted for itself in a way that George Bush and Dick Cheney never did. [emphasis added]

As Maria Lahood pointed out on Democracy Now! in May, after the Obama Administration attempted to assassinate al-Awlaki but did not succeed, he has not been charged with anything.

The Center for Constitutional Rights and the ACLU brought a case against the US government charging that al-Awlaki had a right to due process. They weren’t arguing that he could not be killed. They were arguing that if he is guilty of a crime he had the right under international law and the Constitution to be granted due process, a right that most in the American political class appear to have utter contempt for when it is granted to those suspected of engaging or promoting terrorism.

The case, brought on behalf of Al-Awlaki’s father but ultimately thrown out because the court found his father didn’t have the standing to seek relief for his son and the questions raised were “political.” The decision to label him a terrorist and decide to kill him overseas was determined to be not reviewable by a court of law.

The second area Greenwald outlines is the war on whistleblowing, which the Obama Administration is waging, which he argues is important ”because if you combine the extraordinary secrecy powers of the US government…with the unbelievable subservient establishment media that won’t disclose any facts or truths without getting permission from the US government,” you see that “whistleblowing is one of the very few avenues left that we even have to learn about what our government does.” And, according to Greenwald, that is why the US government sees whistleblowing as such a threat.

He talks about WikiLeaks in the context of this war on whistleblowing:

Not only is the Obama Administration trying to criminalize what WikiLeaks is doing; there’s a very aggressive grand jury in northern Virginia to try to turn what they’re doing into a crime, even though all it is is the core of investigative journalism—revealing the secrets of the world’s most powerful corporate and government factions. If that’s turned into a crime, then meaningful transparency and journalism are dead, but they’re also doing a whole other variety of things like trying to invade the social networking communications who anyone who is even suspected of supporting WikiLeaks. And they’ve even gone so far as to execute a policy of detaining anyone they suspect of being associated with WikiLeaks at airports when they try to reenter the country, American citizens. And they’ve not only detained them but they’ve seized their laptops and other electronic devices like thumb drives and the like, memory drives. And then they just seize them and copy their contents, sometimes don’t return them, sometimes return them after a couple months—All without any form of judicial oversight or search warrant. They literally go through and do it routinely. It’s a form of pure harassment. [emphasis added]

David House, co-founder of the Bradley Manning Support Network, and Jacob Appelbaum, a WikiLeaks volunteer, have faced this harassment. Not only have they been harassed at airports, but House has been subpoenaed to appear before a grand jury in Virginia and Appelbaum has had his Twitter user data subpoenaed. You can read more about the government’s repression of Appelbaum and House here.

Also, in the case of New York Times reporter James Risen, the government is arguing there is no such thing as “good leaks,” effectively laying the groundwork for criminalizing whistleblowing in most if not all instances.

Greenwald goes on to further contextualize these two policies the Obama Administration has adopted. And, he concludes after demonstrating the Administration’s utter disregard for the Constitution (call it the “audacity of hope”):

You really do wonder, if we allow these sorts of things, these kinds of breaches of basic constitutional freedom without much backlash or objection, what is it that we would object to? Or what would trigger real backlash? That I think is an important question to answer.

There have been small attempts to preserve American civil liberties. A number of people condemned the recent extensions of provisions of the PATRIOT Act. And, after Bush left office, a number of people pushed for accountability for Bush Administration officials, only to abandon their campaigns for justice because they did not think there was any realistic chance of holding officials accountable.

Many have accepted defeat. Some are just realizing that Obama has been continuing Bush policies that continue and expand attacks on civil liberties (see Part 1 of Greenwald’s speech). Either way, it should be considered stunning and abysmal that the public tolerates what the government is doing. But, unfortunately, those who are most capable of fighting tolerate the apathy or melancholiness of the public and do very little to challenge the Obama Administration.

Wars, Foreign Policy & Civil Liberties Taboo at First-Ever Presidential Twitter Town Hall

12:43 pm in Uncategorized by Kevin Gosztola

A first-ever presidential Twitter town hall with President Barack Obama kept questions from Twitter users focused to jobs and the economy, avoiding the many questions on the wars, foreign policy and civil liberties issues that have primarily been created because of legislation and policies deemed necessary to prosecute a “war on terrorism.”

The questions touched on: mistakes made during the recession, being realistic on job creation, rising cost of higher education, issuing an executive order to raise the debt ceiling, the possible creation of a startup visa program for immigrant entrepreneurs, promoting alternative energy especially in oil states like Louisiana and Texas, protecting collective bargaining rights and stalling the onslaught from state legislatures around the country, helping homeowners who just can’t sell their homes, jobs, growing small business, tax breaks for honorably discharged veterans, changing the tax system to address the deficit, using the free market to help homeowners, privatizing education, tax cuts, space exploration, welfare programs and, very briefly, defense contracting and the war on drugs.

One can make the argument that this was to be on jobs and the economy and not civil liberties or the wars or foreign policy. But, job creation and the economy is dependent on the wars and the costly foreign policy, which the Obama Administration continues. Also, there are economic questions that can be asked, which touch on civil liberties issues in America.
Read the rest of this entry →

Glenn Greenwald: Obama Has Maintained Indefinite Detention, State Secrets Powers [VIDEO]

8:32 am in Uncategorized by Kevin Gosztola

The Socialism Conference was held in Chicago, IL, over the weekend. On Saturday, July 3, Salon blogger Glenn Greenwald delivered a speech on civil liberties in the age of President Obama.

I attended the conference and recorded Greenwald’s speech. Part 1 of the speech has already been posted. Now, here’s Part 2.

Up front, Greenwald makes clear the critique of Obama should not be that he has been “slow to reverse” Bush policies. Rather, the critique should be that he ”has affirmatively embraced them as his own and in many cases extended far beyond where George Bush and Dick Cheney ever dreamed of taking them” (and, if you saw Part 1, you understand this is now bipartisan consensus in American politics).

Indefinite detention is the first area he outlines. He describes how ”the heart and soul of the controversy over Guantanamo, over Abu Ghraib, over the universal worldwide system of detention,” the notion of putting a person in cage for life without any shred of due process, has been maintained.

A key salient point:

…If you talk to Democratic partisans and apologists of the president, what they will say is that the reason that he hasn’t close Guantanamo is not his fault. The reason is that Congress passed a law or a series of laws impeding his doing so. And that’s not necessarily untrue. Congress did pass a series of laws barring the closing of Guantanamo, in effect. But, before that ever happened, the president’s plan for a “closing of Guantanamo” was not really to close Guantanamo at all. It was simply to move it a few thousand miles north to Illinois, where the aspects that made it so controversial—namely imprisoning people for life without due process—was going to be fully preserved and maintained.

Now, the controversy as I understood it during the Bush presidency about Guantanamo was not, “Isn’t it so outrageous that George Bush and Dick Cheney are imprisoning people without due process on an island in the Caribbean rather than doing it in Illinois?” …

Recently, in May, Rep. Howard McKeon (R-CA) introduced legislation to “embed in law the principle of indefinite detention without trial for suspected terrorists.” This was a part of the National Defense Authorization Act (NDAA), which gave the president the authority to wage war anytime, anywhere and without congressional authorization (a power that Congress doesn’t need to grant the Executive Branch because it has already claimed the right to engage in worldwide war without the consent of the American people, effectively rendering Congress an administrative and mostly impotent body when it comes to checking the consolidation of power in the Executive Branch).

Greenwald also outlines how habeas corpus rights have been argued against by the Obama Administration:

…Despite the horrendous record of not just imprisoning people without due process but imprisoning obviously innocent people without due process, the Obama Administration took the position that this right the Supreme Court recognized applies only to people in Guantanamo but not anywhere else that the US imprisons people, such as at Bagram, Afghanistan or in places in Yemen or any other places where the US maintains prisons…

By winning this argument in the Supreme Court, President Obama can simply direct agencies and formulate policy that circumvents Guantanamo and instead just use prisons America has in other countries, for example, “black sites.” Or, the US can just use navy ships to indefinitely detain people (and maybe in some cases bring them to trial).

Finally, Greenwald illuminates how Obama has gone along with a Bush policy on state secrets that Bush significantly altered in such a way that his administration was able to guard against judicial review if they were suspected of breaking the law.

[The state secrets doctrine] said that, in certain cases involving national security and certain judicial cases, some documents may be so secretive that, even though they’re relevant to the litigation, even though they’re relevant to the case, even though in all other instances they would be allowed to be used, some documents are so sensitive and risk triggering the disclosure of important state secrets that they can’t be used in the case, even if they’re relevant. And what the Bush presidency did was it converted this doctrine from a document-specific privilege, that said certain documents couldn’t be used, and they developed a new theory that said certain topics are so secretive that they cannot be the subject of litigation, even when the president is accused of breaking the law. And that was basically the tool the Bush presidency used to shield itself from any judicial review for its actions, even the most illegal ones.

Obama has used the state secrets doctrine to guard against investigations into torture, rendition, warrantless wiretapping, etc.

As University of Chicago law professor Geoffrey R. Stone, someone who has spoken publicly about going after WikiLeaks under the Espionage Act, points out in and editorial published on June 26 titled, “Our Untransparent President“:

…The dawn of the Obama administration brought hope that Congress would enact the proposed State Secrets Protection Act of 2009, which would have limited the scope of the doctrine. Indeed, shortly after President Obama took office, Attorney General Eric H. Holder Jr. suggested that the doctrine should be invoked “only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.”

Since then, however, the Obama administration has aggressively asserted the privilege in litigation involving such issues as the C.I.A.’s use of extraordinary rendition and the National Security Agency’s practice of wiretapping American citizens…

*Check back soon for more video of Glenn Greenwald’s speech.

At the President’s Twitter Townhall, #AskObama About His Pathetic & Disgusting Civil Liberties Record

6:23 am in Uncategorized by Kevin Gosztola

*Update:For my report on the Twitter town hall event, go here.

President Barack Obama will be participating in a first-ever Twitter @townhall event. The town hall, moderated by Twitter co-founder Jack Dorsey, is to be limited to discussion of jobs and the economy.

Effectively limiting the discussion to jobs and the economy leaves out an array of issues on the state of freedom, justice and liberty in America that warrant conversation. Should we the people really allow the White House to limit this discussion to just the economy?

The Obama Administration came in pledging to be different than the Bush Administration. It has continued and expanded on many of the Bush Administration “war on terrorism” policies, which effectively shredded the Constitution and eroded American civil liberties. President Obama has been outright atrocious when it comes to protecting American civil liberties and so bad it is no longer clear that he is the lesser evil when compared to former President George W. Bush.

Here are some questions that he should be made to address at the town hall to be held at 2 pm ET:

The Justice Dept has been sending letters indicating state laws may not override federal law on medical marijuana.

#AskObama What’s your position on state moves to decriminalize marijuana so it can be used for medicinal purposes?

Or, to frame the question in terms of jobs and the economy:

#AskObama: What’s your position on growing the economy and increasing jobs by further decriminalizing medicinal marijuana production & use?

Illinois recently recalled and abolished the death penalty.

#AskObama Would you like to see more states follow in the footsteps of Illinois and pass their own legislation to abolish the death penalty?

President George W. Bush admits he authorized waterboarding or torture against detainees as president.

#AskObama Why should US not fulfill legal obligation under Torture Convention & investigate & prosecute fmr Bush officials for torture?

You  missed the deadline for closing Guantanamo.

#AskObama What plans, if any, does your administration have to shut down Guantanamo? Do you still plan to shut it down?

#AskObama While demonstrating interest in closing Guantanamo, you have embraced policy of indefinite detention for detainees. Why?

Your administration’s statistics show the “Secure Communities” initiative invites racial profiling and leads to deportations of people who have committed no crimes or very minor offenses.

#AskObama Why have you ignored law enforcement and political leaders’ concerns on the “Secure Communities” program?

Your administration has deported 779,000 people, more than President George W. Bush’s last two years in office. ICE apparently has a mandate of deportation of 400,000 individuals per year.

#AskObama Why should ICE’s dragnet enforcement that is tearing apart immigrant families in America be acceptable or tolerated?

On same-sex marriage:

#AskObama Why do you think same-sex marriage is a states’ rights issue & why do you seem afraid to become moral leader on this issue?

More and more state legislatures are pushing laws that require drug testing for individuals to be drug tested if they receive public assistance.

#AskObama Do you think it is fair that more & more state are requiring drug testing in order to receive public assistance?

On the continued mass incarceration of people in America, especially people of color:

#AskObama US has 25% of world’s prison population. Are you concerned about mass incarceration of people in America & what should be done?

Government is employing more and more technology, which enables surveillance of US citizens. Police powers are being expanded, with the US Supreme Court often coming down on the side of law enforcement’s efforts make their job easier by not having to be concerned with citizens’ civil liberties.

#AskObama Should citizens abandon expectations of Fourth Amendment rights in the 21st Century?

Hot watches, cell phone tracking, x-ray vans that can see through walls or people’s clothing, etc are new methods of surveillance being used on citizens.

#AskObama Do citizens have a right to know if and when they are under government surveillance & should they?

The PATRIOT Act recently had three key provisions extended.

#AskObama As a constitutional professor, do any parts of the PATRIOT Act concern you any longer?

A religious rights issue:

#AskObama When does your administration plan to make changes to terrorism financing laws so they don’t unfairly target Muslims?

State legislatures around the country are stripping women of their right to an abortion. Some recent state laws are so extreme that they outright degrade and humiliate women, who dare to consider exercising their right to choose.

#AskObama What kind of leadership on reproductive freedom issues does your administration plan to show, if any?

There are currently antiwar and international solidarity activists under investigation by a federal grand jury based in your hometown of Chicago.

#AskObama How do you think your administration has done when it comes to protecting the right to dissent? #stopfbi


#AskObama Do you find it acceptable that the State Dept would like to criminalize US citizens delivering aid to Gaza? #flotilla2

You tremendously failed (and perhaps tainted the case) the last time this question was asked of you. So, I know you might be afraid to answer, but give it another shot. I’ll even ask about him in a different way.

#AskObama Why do you think Bradley Manning, if he did release classified info, isn’t military whistleblower protected under law? #WikiLeaks

And, finally:

#AskObama Why is your administration prosecuting war on whistleblowing & going after people like Thomas Drake, James Risen?

Glenn Greenwald: Bush/Cheney Approach to Civil Liberties Has Been Continued & Embraced by Obama [VIDEO]

3:31 pm in Uncategorized by Kevin Gosztola

The Socialism Conference was held in Chicago, IL, over the weekend. On Saturday, July 3, Salon blogger Glenn Greenwald delivered a speech on civil liberties in the age of President Obama.

I attended the conference and recorded Greenwald’s speech. Throughout the next couple of days, I will be posting video of his speech and, eventually, a full transcript of it will be made available.

In this first part, Greenwald discusses how it has become conventional wisdom that Obama has continued many of the Bush Administration policies, which were once regarded as policies that shredded the Constitution, but now in Democratic circles it is considered to be “Democratic consensus.”

He describes how one year ago it was “controversial” and “provocative” to utter observations that President Obama had virtually continued “the entirety of the Bush/Cheney approach to the war on civil liberties and terrorism.” It was something people found “repellent.” But, now, it has become “so obvious” and “self-evidently true.”

That it has become so blatantly obvious means one no longer has to spend time proving the existence of continuity between the two administrations, Greenwald argues.

One of Greenwald’s most salient points is made as he highlights how the Bush-following American right has had to acknowledge Bush policies have continued under Obama and thus admit he has been strong and courageous on national security.

“The reason why I find it interesting that even the right wing is willing to acknowledge these policies have continued under the Obama presidency is for decades the Republicans have gained really potently on a political level from accusing Democrats of being weak on national security or soft on terrorism in the age of terror,” Greenwald suggests.

He adds:

Now, weak on national security in American political parlance doesn’t mean that somebody shies away from acts of strength and courage. And similarly, strength and national courage doesn’t mean that one acts strongly or engages in acts of courage. It means the opposite. What strength and national security means is a willingness to send other people’s children off to war to risk their lives to kill large numbers of civilians in foreign countries.

Greenwald cites Jack Goldsmith, former National Security Agency head under former President George W. Bush, Michael Hayden, and former Vice President Dick Cheney as proof that one of Obama’s greatest achievements among the political and ruling elite in America is that he has made what was once controversial, and seen as right wing radicalism, part of a bipartisan political consensus. And, by making this part of a consensus, Greenwald argues, debate is effectively ended; the policies are no longer objectionable to the political class in Washington.

Finally, Greenwald notes liberal professors and leaders of liberal groups like the ACLU have noted the continuity and expressed their disgust and outrage at the fact that the assault on civil liberties has continued and in some cases escalated under President Obama.

Discussion of civil liberties and the Obama administration’s assault has been largely absent from conversations. At liberal conferences, discussion has been pushed to the margins.

Netroots Nation had one panel, “What the Government Wants to Know About You,” that looked at some of the policies expanding under Obama. There was little talk about Guantanamo and lack of accountability for torture. Liberal organizers focused on the right wing attack on the middle class, avoiding outright condemnation of the bipartisan support that President Obama has created on national security (although Kaili Joy Gray of Daily Kos did ask White House Communications Director Dan Pfeiffer why Guantanamo hasn’t been closed).

In October, the liberal Campaign for America’s Future that holds a “Take Back America” conference each year is rebranding their conference, “Take Back the American Dream.” Led by Van Jones, there will likely be minimal conversation on civil liberties or national security policy, as the focus will involve a much more politically safe discussion on jobs and unemployment.

A key difference between those who attend Netroots and “Take Back America” conferences and those who attend Socialism conferences is the fact that those in attendance seldom consist of people with radical views, which in American history have been openly condemned and in many cases left people with those views open to government smearing and prosecution. Those with socialist views understand what many liberals take for granted, why civil liberties must be protected.

How can one fight a right wing assault on what Democratic Party operatives term the middle class if one’s civil liberties or rights under the constitution have been entirely stripped away or rendered meaningless, especially in cases when one is challenging power?

There’s a Twitter town hall tomorrow at 2 pm ET. This is an opportunity to undermine liberal organization leaderships’ efforts to make nice with the Obama Administration and overlook the Administration’s ever-expanding assault on civil liberties by doubling down on Bush Administration “war on terror” policies.

Purify the Tweet stream for #AskObama with lots of questions and remarks on the continuity between the Bush and Obama Administrations.

*Go here for Part 2 of Glenn Greenwald’s speech.

Obama DOJ’s Indefensible Policy on Medical Marijuana Legalization

8:29 am in Uncategorized by Kevin Gosztola

Even as Republican lawmakers in states like Indiana begin to open up committees to explore the possibility of legalizing marijuana, especially so that patients with health problems can legally use the drug as medicine, the Justice Department (DOJ) appears set to maintain a strict policy of discouraging and even outright deterring the movement toward legalization.

A DOJ memo released last week provides reason for alarm among those in favor of decriminalizing marijuana, as it signals the federal government may leave medical marijuana patients and caregivers alone but cultivators or distributors of marijuana could still face prosecution.

Noting an “increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes” and the fact that some planned “industrial marijuana cultivation centers” have “revenue projections of millions of dollars” that will likely involve the “cultivation of tens of thousands of cannabis plants,” the memo clarifies the federal government never intended to shield such industrialized production, even if the production might be legal under a state’s law(s).

“Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.  Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution.  State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA.  Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.”

In October 2009, US Deputy Attorney General David Ogden sent a memo that supporters of marijuana legalization thought to be a signal the federal government might be backing off on efforts to deter the use of medical marijuana. The Ogden memo outlined guidance for federal investigation in states with medical marijuana laws saying investigations “should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

The ACLU, however, has sent a letter to the DOJ suggesting the Cole memo deviates from the suggested policy described in 2009. The letter also mentions recent letters sent by US attorneys in Washington, Montana, Arizona, Colorado, Rhode Island and Vermont. The letters from US attorneys suggest people, including state employees and state licensed providers of medical marijuana who use marijuana, may be prosecuted, even if they are compliant with state law.

According to the ACLU, the US attorney letters create two significant problems: (1) it appears the DOJ seek to undermine the public legislative process in states through law enforcement and prosecutions and (2) they indicate the DOJ may be intent to obstruct states’ moves to set up legal marijuana distribution centers that allow for healthy and safe distribution of the drug to patients.

Perhaps even more striking, the ACLU alleges this memo conflicts with the DOJ’s response to a lawsuit that arose from “a 2002 DEA raid of a medical marijuana garden sanctioned by City and County officials” in Santa Cruz, California. The lawsuit was thrown out in 2009. DOJ attorneys indicated there had been a “policy shift” and even entered a stipulation in response to concerns from plaintiffs in the case that “the federal government might at any moment abandon the new policy and revert to enforcement that would endanger legitimate entities complying with state law and working most closely with local and state governments to implement state laws.” The ACLU is appropriately concerned the DOJ may reinstate the case, as it officially departs from the position laid out in the Ogden memo.


It’s worth reviewing what has happened in the past six months with regards to state laws passed on medical marijuana and the federal government renewing its standoffish position toward medical marijuana use and production.

Arizona decriminalized the use of medicine marijuana in 2010. In June, California-based company weGrow opened a “superstore-sized garden center in Phoenix” to make it possible for people to purchase all the products and services necessary to “responsibly cultivate” marijuana on their own.  But, as the center was set to open, Gov. Jan Brewer filed a lawsuit against her state’s own law, potentially undermining the outcome of a democratic vote in her state by Arizonans. [As the ACLU pointed out, she didn't like the federal government when it sought to enforce laws on immigration after SB1070 passed but on marijuana? No problem.]

The DOJ sent a letter to the Washington Democratic governor Chris Gregoire. Responding to Gov. Gregoire’s request for guidance on how a bill allowing “state employees to license growers and sellers of the product, as well as retail locations” might conflict with the federal government, the DOJ wrote:

This [bill] would authorize conduct contrary to federal law and thus, would undermine the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries as they will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.

The intimidating and threatening letter ultimately deterred Gov. Gregoire from signing the bill, when it came to her desk in April.

In March, a California seller of medical marijuana claimed the IRS was seeking to destroy the medical marijuana industry. Lynette Shaw of the Marin Alliance for Medical Marijuana (MAMM) planned to take the IRS to court for auditing her tax returns in 2008 and 2009, disallowing her foundation’s business deductions and demanding “millions of dollars in back taxes.” Shaw sought to have marijuana classified as a “controlled substance” and not a narcotic so tax deductions for dispensaries could be legal. (Medical marijuana has been legal under Proposition 214 since 1996.)

Bryan Gonzalez, a border guard, was fired in January for suggesting to a co-worker that marijuana should be legalized. The government issued the guard a “termination letter,” which described Gonzalez as holding “personal views that were contrary to the core characteristics of Border Patrol Agents, which are patriotism, dedication and esprit de corps.” Gonzalez was asked by Customs and Border Patrol’s Office of Internal Affairs if he “wanted to overthrow the American government” and if he was a socialist. The ACLU naturally slammed this “ideological purity” test and Gonzalez filed a lawsuit.

Finally, while the aforementioned might be disturbing, nothing poses a threat to a person’s right to privacy or the Fourth Amendment, which guards against unreasonable searches and seizures, like an 8-1 decision by the Supreme Court in May that warrantless searches are permissible. If the police smell marijuana smoke or think they hear evidence being destroyed, they can under “exigent circumstances” break down a door and bust people they may not even be targeting.

Contrast the US Supreme Court ruling with a Massachusetts high court ruling in April that “police can no longer search or seize someone they suspect of possessing a small amount of marijuana,” because Question 2, according to the ACLU, “made possession of an ounce or less of marijuana a civil infraction instead of a crime.”

A report has been released indicating medical marijuana is now seen as a $1.7 billion market. In fact, Scotts Miracle-Gro is exploring the possibility of going after medical marijuana growers to boost sales of its lawn and garden supplies. Yet, the federal government seeks to maintain “law and order,” even if it means violating what conservatives might call the “free market” by deterring the rise of a robust medical marijuana industry in America.

Isn’t what happened in Massachusetts how it should work? Citizens vote or push state representatives to pass legislation to legalize or decriminalize marijuana. Cases involving possession of marijuana go to court in states, where possession is no longer criminal. The court issues a ruling in line with what the citizens of the state support and the new state laws. Yet, unfortunately, the federal government seems to want state leaders to behave more like Arizona Gov. Brewer and obstruct decriminalization efforts by invoking federal laws in ways that subvert democracy.