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Artificial Intelligence at Any Cost Is a Recipe for Tyranny

American Civil Liberties Union - Wed, 08/23/2017 - 16:15
The more powerful technology becomes, the more governments and corporations may use it to endanger our rights.

This post was adapted from a presentation at an AI Now symposium held on July 10 at the MIT Media Lab. AI Now is a new initiative working, in partnership with the ACLU, to explore the social and economic implications of artificial intelligence.

It seems to me that this is an auspicious moment for a conversation about rights and liberties in an automated world, for at least two reasons.

The first is that there’s still time to get this right. We can still have a substantial impact on the legal and policy debates that will shape development and deployment of automated technologies in our everyday lives.

The second reason is Donald Trump. The democratic stress test of the Trump presidency has gotten everyone’s attention. It’s now much harder to believe, as Eric Schmidt once assured us, that “technology will solve all the world’s problems.” Technologists who have grown used to saying that they have no interest in politics have realized, I believe, that politics is very interested in them.

By contrast, consider how, over the last two decades, the internet came to become the engine of a surveillance economy.

Silicon Valley’s apostles of innovation managed to exempt the internet economy from the standard consumer protections provided by other industrialized democracies by arguing successfully that it was “too early” for government regulation: It would stifle innovation. In almost the same breath, they told us that it was also “too late” for regulation: It would break the internet.

And by the time significant numbers of people came to understand that maybe they hadn’t gotten such a good deal, the dominant business model had become so entrenched that meaningful reforms will now require Herculean political efforts.

How smart can our “smart cameras” be if the humans programming them are this dumb?

When we place “innovation” within — or atop — a normative hierarchy, we end up with a world that reflects private interests rather than public values.

So if we shouldn’t just trust the technologists — and the corporations and governments that employ the vast majority of them — then what should be our north star?

Liberty, equality, and fairness are the defining values of a constitutional democracy. Each is threatened by increased automation unconstrained by strong legal protections.

Liberty is threatened when the architecture of surveillance that we’ve already constructed is trained, or trains itself, to track us comprehensively and to draw conclusions based on our public behavior patterns.

Equality is threatened when automated decision-making mirrors the unequal world that we already live in, replicating biased outcomes under a cloak of technological impartiality.

And basic fairness, what lawyers call “due process,” is threatened when enormously consequential decisions affecting our lives — whether we’ll be released from prison, or approved for a home loan, or offered a job — are generated by proprietary systems that don’t allow us to scrutinize their methodologies and meaningfully push back against unjust outcomes.

Since my own work is on surveillance, I’m going to devote my limited time to that issue.

When we think about the interplay between automated technologies and our surveillance society, what kinds of harms to core values should we be principally concerned about?

Let me mention just a few.

When we program our surveillance systems to identify suspicious behaviors, what will be our metrics for defining “suspicious”?

This is a brochure about the “8 signs of terrorism” that I picked up in an upstate New York rest area. (My personal favorite is number 7: “Putting people into position and moving them around without actually committing a terrorist act.”)

How smart can our “smart cameras” be if the humans programming them are this dumb?

And of course, this means that many people are going to be logged into systems that will, in turn, subject them to coercive state interventions.

But we shouldn’t just be concerned about “false positives.” If we worry only about how error-prone these systems are, then more accurate surveillance systems will be seen as the solution to the problem.

I’m at least as worried about a world in which all of my public movements are tracked, logged, and analyzed accurately.

Bruce Schneier likes to say: Think about how you feel when a police car is driving alongside you. Now imagine feeling that way all the time.

There’s a very real risk, as my colleague Jay Stanley has warned, that pervasive automated surveillance will:

“turn[] us into quivering, neurotic beings living in a psychologically oppressive world in which we’re constantly aware that our every smallest move is being charted, measured, and evaluated against the like actions of millions of other people—and then used to judge us in unpredictable ways.”

I also worry that in our eagerness to make the world quantifiable, we may find ourselves offering the wrong answers to the wrong questions.

The wrong answers because extremely remote events like terrorism don’t track accurately into hard predictive categories.

And the wrong question because it doesn’t even matter what the color is: Once we adopt this threat-level framework, we say that terrorism is an issue of paramount national importance — even though that is a highly questionable proposition.

Think about how you feel when a police car is driving alongside you. Now imagine feeling that way all the time.

The question becomes “how alarmed should we be?” rather than “should we be alarmed at all?”

And once we’re trapped in this framework, the only remaining question will be how accurate and effective our surveillance machinery is — not whether we should be constructing and deploying it in the first place.

If we’re serious about protecting liberty, equality, and fairness in a world of rapid technological change, we have to recognize that in some contexts, inefficiencies can be a feature, not a bug.

Consider these words written over 200 years ago. The Bill of Rights is an anti-efficiency manifesto. It was created to add friction to the exercise of state power.

The Fourth Amendment: Government can’t effect a search or seizure without a warrant supported by probable cause of wrongdoing.

The Fifth Amendment: Government can’t force people to be witnesses against themselves; it can’t take their freedom or their property without fair process; it doesn’t get two bites at the apple.

The Sixth Amendment: Everyone gets a lawyer, and a public trial by jury, and can confront any evidence against them.

The Eighth Amendment: Punishments can’t be cruel, and bail can’t be excessive.

This document reflects a very deep mistrust of aggregated power.

If we want to preserve our fundamental human rights in the world that aggregated computing power is going to create, I would suggest that mistrust should remain one of our touchstones.

Five Reasons Racist Sheriff Joe Arpaio Should Not Receive a Presidential Pardon

American Civil Liberties Union - Tue, 08/22/2017 - 11:45
Donald Trump may pardon Arpaio, but he can’t clear his record of brutality and bigotry.

Last week, President Trump told Fox News that he is “seriously considering” a pardon for former Maricopa County, Arizona, sheriff Joe Arpaio, telling the network that the disgraced ex-law enforcement officer “has done a lot in the fight against illegal immigration” and “doesn’t deserve to be treated this way.”

Arpaio was recently convicted of criminal contempt after he deliberately violated an earlier court ruling that ordered his department to end its practice of illegally detaining people based only on suspicions about their immigration status. That ruling came in a successful case brought by Latino residents to challenge Arpaio’s racial profiling policies.

His conviction came after years of implementing discriminatory policies, flouting the law, and violating the civil rights of the people he was elected to serve. The ACLU was one of the groups that brought the lawsuit against him.

Trump is set to rally his supporters tonight in Phoenix in the same venue where he campaigned with Arpaio during the presidential primary. Following Trump’s victory in the Arizona Republican primary, Trump gushed that he could “not have done it without you Joe!”

Arpaio further endeared himself to Trump for his brutal policing policies — something Trump endorsed just last month — and his “investigation” into President Obama’s birth certificate, an inquiry that Trump regularly praised for supposedly proving that the former president’s birth certificate is “fake.”

Trump’s personal affection for Arpaio and gratitude for his political support may now help the former sheriff get a pardon. Here are five reasons why a pardon of Arpaio would be a miscarriage of justice and an outright endorsement of racism from President Trump.

1. Racially profiling Latino communities

In traffic stops, workplace raids, and neighborhood sweeps, Arpaio ordered deputies to target residents solely based on their ethnicity, often detaining people without reasonable suspicion that they were violating any laws that his office was allowed to enforce.

In the civil rights case against Arpaio, the federal court found that Arpaio systematically targeted Latinos for traffic stops and illegally detained them.

After he was ordered to stop his illegal immigration policies, Arpaio deliberately left his unconstitutional practices in place, leading first to a civil contempt proceeding and then to his contempt conviction.

2. Failing survivors of sexual abuse

The people of Maricopa County paid the price for Arpaio’s pursuit of illegal immigration enforcement policies, suffering damage to community safety. In 2011, the Associated Press found that Arpaio’s office ignored hundreds of sex crime cases, including cases of alleged child abuse. One officer told the AP that many of those cases involved the children of undocumented immigrants.

A Justice Department civil rights complaint similarly stated that the county failed “to adequately respond to reports of sexual violence, including allegations of rape, sexual assault, and sexual abuse of girls,” noting that county’s single-minded focus on immigration arrests led to an increase in the rate of violent crime.

3. Creating brutal prison conditions for detainees

Arpaio is best known for establishing Tent City, a sprawling, outdoor detention center which he once positively compared to a “concentration camp.” Temperatures in Tent City, which is surrounded by an electrocuted fence, could reach up to 141 degrees; one detainee said life in Tent City felt “like you are in a furnace.” People held there were primarily Latinos — he called it “the tent where all the Mexicans are” — and were put into chain gangs and subjected to humiliating practices like public parades.

Women of color in Arpaio’s jails were particularly mistreated. The Justice Department discovered cases where Latina detainees were “denied basic sanitary items” and were “forced to remain with sheets or pants soiled from menstruation” or were put into “solitary confinement for extended periods of time because of their inability to understand and thus follow a command given in English.”

In what was called “the biggest misspending of state funds in the history of Arizona,” Arpaio’s department misappropriated tens of millions of taxpayers’ dollars meant to improve the county’s jails and used the money to conduct immigration sweeps, investigate Arpaio’s critics, and pay for personal travel.

4. Undermining the health of detainees

People in Arpaio’s jails were subject to substandard health care, sometimes to the point of extreme suffering, even death. The ACLU challenged Arpaio over his failure to meet the health needs of the people in his jails, and won in court when a federal judge agreed that the deficient and dangerous health care system violated detainees’ constitutional right to adequate care. Detainees with mental illnesses were especially victimized in Arpaio’s jails.

Neglect appeared to be standard procedure in Arpaio’s jails. When a diabetic detainee who had not received insulin shots began vomiting and having seizures, she was roundly ignored by prison staff. Eventually, one guard simply moved her into another room to muffle her cries for help.

The Phoenix New Times also discovered that “people hang themselves in the sheriff’s jail at a rate that dwarfs other county lockups,” comparing the medical care found at county jails to those of prisoner-of-war camps.

5. Abusing public office

Arpaio was known to intimidate supposed enemies, including a judge’s spouse, a political rival, a county official, and a reporter. The Justice Department also found that his office “engaged in a pattern or practice of retaliating against individuals for exercising their First Amendment right to free speech,” as deputies tried “to silence individuals who have publicly spoken out and participated in protected demonstrations” against Arpaio.

In one infamous case, people working under Arpaio staged an assassination attempt against him in order to boost his popularity — framing an innocent man in the process. He spent four years in jail waiting to clear his name and eventually received a $1.1 million settlement.

While Trump seems to think that Arpaio is the victim, a presidential pardon for the former sheriff would just be the latest injustice to befall the countless people wronged by his years of racism, lawlessness, and abuse.

Against All Decency, the Government Is Indefinitely Detaining a Man It Cannot Deport

American Civil Liberties Union - Fri, 08/18/2017 - 10:00
What the government is trying to do to Mamadu Balde is clearly unconstitutional and heartless.

In its zeal to deport anyone, the Trump administration has jailed a man that the government has tried and failed to deport in the past. Fortunately for those of us who care about constitutional rights — not to mention basic human decency — the Supreme Court has built a wall around the government’s ability to do such a thing.

In 1999, Mamadu Balde fled Sierra Leone, which was in the middle of a civil war that had started in 1991 and didn’t end until 2002. Mamadu’s hometown was occupied by rebels, the Revolutionary United Front, and his home was burned to the ground. In the fire, he lost all of his personal documentation, and he was separated from his parents and his sister during the occupation.

He never saw them again.

Mamadu fled to New York City, seeking asylum in the United States. Despite the great tragedy he had experienced, the Bush administration and then the Obama administration opposed his application for asylum, and the courts agreed. When his appeals ran out in 2012, he was detained by ICE and incarcerated for more than nine months as the administration tried to deport him.

But a funny thing happened on the way to deportation.

Sierra Leone had no record that Mamadu was a citizen and, thus, refused to issue travel documents. The United States couldn’t send him back. Eventually, he was released from jail, with requirements to check in with Immigration and Customs Enforcement every six months.

At that point, Mamadu Balde went on to live a productive and happy life with his wife, a U.S. citizen, and the couple settled in West Virginia. He was gainfully employed, and he paid taxes. He provided financial support to his niece and nephew after the death of their mother, Mamadu’s sister. And he checked in with ICE every six months, as required.

But something changed this year.

When Mamadu reported to ICE as scheduled in April, he was told he would have to report to a new ICE agent in June. When he reported in June, the new agent told him he had no business in this country and that, if he wasn’t gone by August, the agent would “lock him up.” A week later, the agent told him to report again. When Mamadu dutifully reported, the agent told him that his supervisors had told him to detain Mamadu. They gave no reason. Documents subsequently obtained from ICE justify the detention by “changed circumstances in policy.”

The government could keep Mamadu, a law-abiding man, behind bars forever.

A week later, Sierra Leone officials yet again declined to accept Mamadu back. Mamadu has been held at the York County Prison since then. He has spent over 2 months indefinitely detained behind bars.

The ACLU of Pennsylvania and the law firm of JBM Legal in Pittsburgh are representing Mamadu and have filed a federal lawsuit against ICE and the warden of the York County prison. By holding Mamadu, ICE and YCP have engaged in an unlawful detention and a violation of his Fifth Amendment right to due process.

In 2001, the U.S. Supreme Court held in Zadvydas v. Davis that the U.S. government cannot detain noncitizens who cannot be deported because their native country refuses to accept them. Otherwise, the court ruled, the government could detain people indefinitely, which is unconstitutional. Since Sierra Leone has repeatedly refused to accept Mamadu, including in the past two months, the U.S. government has no legal basis to detain him and the detention is, thus, unconstitutional. If it weren’t, the government could keep Mamadu, a law-abiding man, behind bars forever.

Nevertheless, the Trump administration is willfully defying the Supreme Court’s ruling.

There is no good reason for Mamadu to be incarcerated right now. It was unfair that he served nine and a half months in 2012 when the Obama administration couldn’t secure his removal. It is even more unfair that the Trump administration has jailed him again, especially because it is crystal clear that he can’t be deported and that he has demonstrated over the past five years that he is a good, family-supporting, hard-working member of the community.

With this new lawsuit, we intend to restore Mamadu to his rightful place in the community and ensure the government cannot take someone’s liberty when they’ve done nothing wrong.

We Must Remove Shrines to White Supremacy From Public Property

American Civil Liberties Union - Thu, 08/17/2017 - 16:30
Shrines to white supremacy and racial violence denigrate my existence and that of millions of North Carolinians.

The resurgence of white supremacy and the violence perpetrated by neo-Nazi terrorists in Charlottesville are painful reminders of how much work remains to challenge and defeat systems of hate and racial oppression in our nation.

As a Black woman living in a former slave state adorned with monuments to the Confederate cause, I believe that work requires us to confront our own history and ask: What message do we send when we chose to honor one part of history but not others?

The Confederacy sought to protect slavery, dissolve the Union, and preserve white supremacy. While Confederate armies ultimately failed to achieve those first two goals, the monuments erected in their memory years later under Jim Crow were and remain vile symbols of white supremacy and the terrorization of communities of color.

Shrines to white supremacy and racial violence denigrate my existence and that of millions of North Carolinians.

In my state of North Carolina, there are 90 different monuments to the Confederacy on public land — the second most of any state in the nation, according to the Southern Poverty Law Center. They stand outside our state capitol and our public universities. They greet visitors to courthouses across the state. They are central fixtures of public parks.

This is land that is meant for all members of the public. Yet there are no monuments to many of our other ancestors — to those who were enslaved, to abolitionists, to pro-Union North Carolinians, to the Black soldiers who fought and died to defeat the Confederacy. And, as Professor Timothy Tyson notes, there are no monuments commemorating “the interracial Reconstruction government of the 1860s, which gave us the North Carolina Constitution we still try to live under.”

What we choose to represent and honor in these spaces matters. Shrines to white supremacy and racial violence denigrate my existence and that of millions of North Carolinians. When we enter a courthouse or visit our state capitol and are greeted by monuments to slavery and white supremacy, it sends a clear message that our government endorses the oppression and inequality that they represent. And by doing so, there is only one thing we can take away from it: We are less valued as citizens.

That’s why earlier this week, the ACLU of North Carolina called for these monuments to come down once and for all.

Our governor, Roy Cooper, echoed our call and joined those demanding for the monuments to be removed. But while cities like New Orleans and Baltimore have done just that, North Carolina’s monuments remain protected under a 2015 law barring their removal. That law too must go.

The events of the last week have made it clearer than ever that we must confront our full history, acknowledge the shameful message these statues send, and take action to remove them.

But the work to undo white supremacy cannot end there. From voter suppression and inequitable educational resources, to mass incarceration, the tools of Jim Crow are still being deployed to attack the rights of Black and brown people across the nation. We must live up to the principles of liberty and justice for all by removing monuments and shrines to white supremacy and rooting out racial injustice throughout the land.

After Years of Slammed Doors, Torture Survivors Finally End Impunity Streak

American Civil Liberties Union - Thu, 08/17/2017 - 10:30
I’m in awe of our clients, who courageously pursued justice and prevailed against overwhelming odds.

As an attorney representing victims of torture, one of the most inspiring things I have ever seen is the sheer determination of survivors standing up and publicly confronting those responsible. That’s why I’m so elated that our clients Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and Obaidullah have surmounted so many obstacles in their long pursuit of justice.

Last week, almost two years after filing their lawsuit, our clients prevailed over the final attempt to keep their claims out of court. And today, these brave men secured a settlement from James Mitchell and John “Bruce” Jessen, the two psychologists who designed and implemented the CIA torture program that ensnared two of them and killed a relative of the third.

Torture is about trying to break human beings. Torturers inflict suffering with the goal of making prisoners feel such overpowering fear and despair that they cannot resist the torturer’s demands. As documents revealed in this case prove, Mitchell and Jessen specifically designed their torture program for the CIA to inflict “fear and despair” until prisoners became “helpless.”

After torture, survivors are usually left with feelings of trauma and helplessness — just as their torturers intended. Often, torture survivors report feeling worthless and powerless. It takes a lot of courage for anyone who has been so brutally traumatized to stand up to those responsible. But that is what our clients did in seeking accountability in a U.S. court. 

To understand the legal landscape our clients faced with this lawsuit, it’s important to look back at the much longer story of torture accountability. That story, until today, has been one of total impunity.

The Bush administration turned to torture just over 15 years ago. That shameful policy inflicted violence and suffering on hundreds of mostly brown and black Muslim men held in secret prisons around the world. In the years that followed, we and other attorneys have represented a number of survivors seeking accountability. But, every case, without exception, ended the same way: Courts turned survivors away from the courthouse doors. Judges refused even to consider the abuses that government officials and contractors acting in our name inflicted on our fellow human beings.

In ruling after ruling, judges decided that the CIA’s torture program was too secret for our courts, that the Constitution did not protect prisoners of the United States from torture, that torturers at Guantánamo were immune from liability, that government officials who justified and ordered the torture of a U.S. citizen were immune from liability, that contractors involved in torture could not be sued — and on and on, a depressing litany of impunity.

Torture is about trying to break human beings.

Against this backdrop of despair, our clients stood up. Last year, Mitchell and Jessen argued that torture was a “political decision” on which courts cannot pass judgment. But our clients prevailed. In January, Mitchell and Jessen tried a different tack, arguing that a 2006 law prevented the court from deciding the case. Again, our clients prevailed. This summer, Mitchell and Jessen argued one final time that they could not be liable for the torture inflicted on our clients because they were “simply doing business.” Once more, our clients prevailed.

As Mohamed recently reminded us, “Keep in mind that when we started this lawsuit, I didn’t expect it to go this far, to get to this excellent level.” But he stood up anyway. He and Suleiman and Obaidullah each flew thousands of miles to tell their stories. They endured depositions and medical exams. And they prevailed over every obstacle.

As a result, our clients secured multiple court decisions cementing the rights of torture survivors to seek justice from those responsible. They forced hundreds of pages of formerly secret documents into the light. For the first time ever, the psychologists and top CIA officials were made to answer questions, under oath, from attorneys representing torture survivors. Our clients’ stories, and much of the broader CIA torture story, are in the public domain.

Justice can be a long time coming. But Mohamed, Suleiman, and Obaidullah remind me of why we keep fighting for accountability against what can feel like insurmountable odds. Now they want to turn to healing, and we can get closer to finally turning the page on torture. Now torturers who think they can hide from the courts know that impunity is not guaranteed.

Accountability is a process. Recovery is a process. Survival is a process. And today was a good day.

Overcrowding in Nebraska’s Prisons Is Causing a Medical and Mental Health Care Crisis

American Civil Liberties Union - Wed, 08/16/2017 - 09:45
We’re suing to end the inhumane conditions in Nebraska’s prison system.

Nebraska’s prison conditions are inhumane and unconstitutional, and ultimately, they hurt public safety. We can’t reduce recidivism rates among former prisoners if, instead of being given rehabilitation opportunities, they have been horribly traumatized during incarceration.

According to the U.S. Department of Justice, Nebraska’s prison system is one of the most crowded in the nation. All but one of our state prisons are over capacity — some are at 200 percent of capacity, and one is at more than 300 percent. The system is supposed to house approximately 3,275 people and is currently housing 5,228 people.

call for an end to dangerous conditions in Nebraska prisons

This means that people are sleeping in hallways and jammed into small cells designed for far fewer people. Even worse, there are critical shortages in medical and mental health staff, as well as a lack of frontline security officers.

In Nebraska’s prisons, you’ll find people who have waited months to be seen by a doctor for a broken bone, people who have not received medication for serious mental health conditions like schizophrenia or bipolar disorder, and people who are deaf or blind and have been given no accommodations for their disability. Besides that, there are hundreds of people who are being held for inappropriately long periods in solitary confinement. In fact, 13 percent of prisoners are isolated 23 hours a day, making Nebraska first or second in the nation for having the largest percentage of prisoners in solitary, according to a 2016 study by the Vera Institute of Justice. Many states only have 2 or 3 percent of their prison population in segregation.

These dire conditions have led to tragedy: riots, assaults on staff, and prisoners seriously beaten or killed. In the last two years, there have been multiple riots that left prison staff seriously injured and four prisoners dead. This must change, and we’re filing a class action lawsuit against the Nebraska Department of Correctional Services on behalf of all the men, women and youth behind bars to reform these conditions.

The stories from our clients who are currently incarcerated are horrifying.

We represent three prisoners who have spent months in 23-hour-a-day isolation as juveniles. We represent a deaf man who has had almost no opportunity to communicate with anyone who uses American Sign Language. Other clients are three prisoners who are blind and have been denied accommodation items provided by the state Commission for the Blind for free, like a talking clock. Some clients who use wheelchairs or walkers have only limited access to prison programs because not all parts of the prison are accessible.

Some of the abuses we’ve documented are inexplicable failures of the most basic medical care: a man with epilepsy who has landed in the hospital several times because he didn’t receive seizure medication. One woman who reported, upon entering prison, that she’d been raped six months earlier. She was given a routine physical exam, yet the staff somehow missed the fact she was pregnant until she unexpectedly went into labor.

These and other grave failures of medical care are connected to severe overcrowding. How did it come to this? Nebraska’s prison crisis is the result of decades of the failed “tough on crime” mindset and its attendant policies.

Nebraska lawmakers have repeatedly created new crimes and enhanced penalties while defunding mental health and substance abuse programs. This has given prosecutors more power to over-charge defendants. In fact, only New York and Washington D.C. have higher marijuana possession arrest rates than Nebraska. In a different era, a person caught with marijuana in Nebraska might have faced a single charge of drug possession. Now that person may face multiple felony charges: possession of the drugs, intent to distribute the drugs to others, failure to pay the drug tax stamp, and possession of cash related to the drugs.

This shift has helped to pack Nebraska’s prisons -- with 14 percent of prisoners serving time for drug related offenses. Another 16 percent are serving time for nonviolent property offenses such as theft, fraud, burglary, and shoplifting.

In other states, these people might receive intensive probation or early parole release. In Nebraska, 63 percent of prisoners are nonviolent offenders. These individuals could be back at home with their families, working and contributing to their communities, rather than being a burden on taxpayers in severely overcrowded prisons.

State lawmakers have approved some sentencing reforms that should curb growth in the prison population. But Nebraska is still sending too many nonviolent offenders and people with mental health and substance abuse issues to prison and there hasn’t been any improvement in the appalling living conditions for the thousands of Nebraskans already serving time.

We are better than this, as a state and as a nation. The Eighth Amendment to the U.S. Constitution requires humane treatment of prisoners. Until state leaders fix Nebraska’s prison system, we’ll be fighting for safe conditions in the courts and in the legislature.

Equality, Justice and the First Amendment

American Civil Liberties Union - Tue, 08/15/2017 - 18:00
An open letter about Charlottesville.

For all people of good will — regardless of party affiliation, race, creed, or color — the events that took place this weekend in Charlottesville were sickening and deeply disturbing.

Several clear themes emerged for me this weekend. And while they are pretty obvious, I thought I would share them with the broader ACLU community, in an effort to give voice to what many of us are feeling and to spark a further discussion that will allow us to move together with greater hope and resolve through what are likely to be troubling days ahead.

While the events of this weekend — with white supremacists holding lit torches — frightened and outraged many Americans, we can never underestimate the impact of these images on African-Americans. That rally reflected this nation’s history of slavery, racial violence, and terrorism, which has left an indelible mark on our democracy to this day. As employees, members, or supporters of an organization dedicated to racial justice, we are all affected. Many of us are even more directly affected because we and our family members are the direct targets of the white supremacists.  I know that speech alone has consequences, hurtful and deep, and that’s why I believe it’s important to place the ACLU’s representation of white supremacist demonstrators in Virginia in the broader context of the values and principles that have guided this organization for nearly a century.

First, the ACLU unequivocally rejects the ideology of white supremacists and we work actively with all our might to oppose that ideology in diverse communities across the country and to defend the right of all Americans to speak out against those views. By budget allocation, the national ACLU’s top issue areas are ending mass incarceration, protecting LGBT rights, and safeguarding immigrants’ rights, demonstrating our commitment to advancing equality and justice with communities that are often the targets of white supremacists' bigotry and hate.

The ACLU has represented or publicly supported Black Lives Matter activists in First Amendment matters at least five times in recent months. Our work against police agencies’ surveillance of activists has been frequently in support of the Black Lives Matter movement and American-Muslim organizations and individuals.  We’ve represented and taken public positions in support of anti-Trump protesters more than five times since the election and represented one of the Standing Rock protesters in a free speech case. The ACLU has also defended the free speech rights of African-American environmental activists in Alabama against a defamation lawsuit brought by the toxic waste-generating corporation they opposed. This is all in the past year alone.

We are not newcomers to this work. We’ve defended individuals targeted for their socialist, anarchist, and communist affiliations, for anti-war speech, and for civil rights activism throughout our history.  We have repeatedly defended the free speech rights of day laborers against city ordinances — grounded in anti-Latino racism — that would have prohibited their expressing their availability for work. The ACLU was founded in 1920 when the attorney general of the United States carried out his “Palmer raids” to round up immigrants based on their “subversive” views. And we stood shoulder-to-shoulder with the emerging labor movement of the early 20th century. The First Amendment —freedom of speech, freedom of association, freedom of the press, and freedom of religion — has always been foundational for our organization.

Second, and more directly related to the events of this weekend, there are important reasons for our long history of defending freedom of speech — including speech we abhor. We fundamentally believe that our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. Not all speech is morally equivalent, but the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate. This contestation of values can only happen if the exchange of ideas is out in the open.  

There is another practical reason that we have defended the free speech rights of Nazis and the Ku Klux Klan. Today, as much as ever, the forces of white supremacy and the forces for equality and justice are locked in fierce battles, not only in Washington but in state houses and city councils around the country. Some government decision-makers are deeply opposed to the speech we support. We simply never want government to be in a position to favor or disfavor particular viewpoints. And the fact is, government officials — from the local to the national — are more apt to suppress the speech of individuals or groups who disagree with government positions. Many of the landmark First Amendment cases, such as NAACP v. Claiborne Hardware and New York Times v. Sullivan, have been fought by African-American civil rights activists. Preventing the government from controlling speech is absolutely necessary to the promotion of equality.

Third, the First Amendment cannot be used as sword or shield to justify or rationalize violence. Violence — even when accompanied by speech — does not garner the protection of the First Amendment. It is also true that the airing of ideas — no matter how repugnant or loathsome — does not necessarily lead to violence. The violence of this weekend was not caused by our defense of the First Amendment. The ACLU of Virginia went to court to insist that the First Amendment be applied neutrally and equally to all protesters.  Reasonable members of our community might differ on whether we ought to have brought that case. But I believe that having divergent views within an organization dedicated to freedom of speech is a sign of strength not weakness. I also believe the ACLU of Virginia made the right call here. Some have argued that we should not be putting resources toward anything that could benefit the voices of white supremacy. But we cannot stand by silently as the government repudiates the principles we have fought for — and won — in the courts when it violates clearly established First Amendment rights.

Invoking the threat of violence cannot serve as the government’s carte blanche to shut down protests. If that were the case, governments would almost always be able to shut down protests, even when the protesters themselves are peaceful, because others could exercise a heckler’s veto through violence or the threat of violence. We must not give government officials a free pass to cite public safety as a reason to stifle protest. They have a responsibility to ensure the safety and security of all protesters and may make their case in court for reasonable time, place, or manner restrictions. That is what we sought in our lawsuit in Virginia.

The hard job for us now is to find concrete strategies for healing the divides that were laid bare this weekend. For the broader society, this would require that white supremacy, bigotry, and racism be confronted and rejected. Freedom of speech has to be valued and heralded as the cornerstone of our democratic society. Political leaders must shape the political discourse to underscore what binds us together as people, rather than exploit our differences. And government officials must neutrally apply the First Amendment and ensure the safety of all Americans when they take to the streets to exercise their constitutionally protected rights.

For our organization, we must remain focused and vigorous in our defense of civil liberties and civil rights in every community and in every context. Our 97-year history of defending the constitutional rights of all persons — even those we disagree with — is imbued with a belief that these rights are indeed indivisible, unalienable, and granted to each of us in our democracy. Our job is to turn those promises and aspirations into a reality for all people. And that work has never been more important than now.

A Sweeping Search Warrant Targets Anti-Trump Website in Clear Threat to the Constitution

American Civil Liberties Union - Tue, 08/15/2017 - 17:45
The government is seeking the information of more than 1 million people who visited a protest website. The danger is clear.

One of the core principles enshrined in the Fourth Amendment is a prohibition on general searches — meaning, the government cannot simply go fishing for a wide range of information in the hope that some kind of useful evidence will turn up. But that’s exactly what the government appears to be doing with a newly revealed search warrant seeking reams of digital records about an Inauguration Day protest website that could implicate more than 1 million users.

We first learned yesterday that within days of President Trump’s inauguration, the web server hosting company DreamHost received a subpoena from the government seeking records about a website hosted on its servers. Now the government has followed up that initial demand with a search warrant seeking a huge array of records “related to” the website. Those records would include the IP addresses of over 1.3 million visitors to the site.

The demand would've been concerning no matter what, but the particular website being targeted rings serious alarm bells: an organizing website, called disruptj20.org, intended for individuals planning to stage protests at the inauguration of President Trump in January. After DreamHost raised objections to the warrant, which it sees as overbroad under the Fourth Amendment and potentially chilling under the First Amendment, the government went to court in July seeking to compel DreamHost’s compliance. A court hearing on the matter is scheduled for this Friday.

This is not the only time the government has gone after Inauguration Day protesters with unusually aggressive means. The protests have also been at the focus of a major investigation by D.C.’s Metropolitan Police Department. So far, more than 200 protestors have been charged with crimes such as “property damage” and “felony riot,” and the D.C. Police seized and searched hundreds of protestors’ cell phones.

The ACLU has been monitoring this investigation closely. In June, the ACLU of the District of Columbia sued the city of D.C., Metro Police officers, and the D.C. chief of police for making unconstitutional arrests, including of members of the media and legal observers; using excessive force; denying arrested people food, water, and access to toilets; and invasive bodily searches of protesters exercising their First Amendment rights on Inauguration Day.

Also last month, the ACLU and Public Citizen filed a friend-of-the-court brief in the D.C. Court of Appeals in a case involving warrants for the full contents, over a three-month period, of three Facebook accounts of individuals connected to the Inauguration Day protests. In our brief, we argued that the court should lift the gag order the government put in place restricting Facebook’s ability to give notice to the targeted users, who could then challenge the substance of the warrants.

The vast danger in allowing the government — whether this administration, the last one, or the next one — to target political speech through oppressive police crackdown or wide-ranging surveillance demands, untethered to individualized suspicion of criminality, is obvious. The DreamHost warrant in particular is likely to chill the exercise of First Amendment rights — including the right to receive information, to speak anonymously, and to associate with like-minded individuals free from the threat of government unmasking.

With those stakes, we applaud the efforts of DreamHost — and our friends at EFF, who consulted with the company before it filed its legal objections to the warrant — to stand up for the rights of its customers and millions of people who visited the site. As the government seeks to gain access to the countless bits and bytes of personal information we generate daily online, we need companies that are willing to stand in users’ shoes and press the government when requests like this one cross constitutional boundaries.

There’s No Evidence I’m in a Gang — Because I’m Not. But I’ve Been Locked Up for Two Months for Gang Membership.

American Civil Liberties Union - Tue, 08/15/2017 - 13:30
I came to the U.S. to be safe from gangs. Now officials are accusing me of being in one.

One Friday after school last June, I went to play soccer with friends in the park in Brentwood, New York, where I live. I love the soccer fields there. There are lights and grass, and it feels so much nicer and safer than the fields where I used to play. In El Salvador, where I’m originally from, a gun might go off or gang members might grab a player off the field and beat him up.

Walking home with my friend, Juan* around 8 p.m., I felt good. We ran into a kid we knew from school, Andres,* and he joined us. I knew Andres’ face, and I would say, “Hey, what’s up?” when we ran into each other at school, but I didn’t know him well.

As we were walking, Juan and I started to joke around and shove each other, laughing. All of a sudden, we saw a police car pull up. For months, the police had been stopping me frequently and accusing me of being in a gang. Their “evidence” was based on nothing — a doodle they found in my notebook and people I said hello to at school. I had even asked to meet with the police to explain to them that I’m not in a gang.

But this encounter went further. Officers got out of the car and arrested Andres right away. Then they told me and Juan to sit down on the curb. We waited a while, then they called me over to their car.

The cops asked if I was friends with Andres. I said no.

They asked if I knew he was in a gang. I said no.

I asked what was happening. One of them told me I was being arrested for “acting stupid.”

They took Juan and me to the precinct, where we spent the night. For a few hours, I was handcuffed and shackled to the wall, unable to walk around in the cell. The next day, officials took us to court for disturbing the peace. The judge said she would release me because the alleged offense was only an infraction, but the police had called the immigration authorities. We were so scared. They said they were going to deport us.

If Andres was a gang member, I had no idea, and I was never part of any gang. I was terrified. I thought I would lose everything, including my mom, who is the most important person in my life.

The next day, the police brought me to an adult prison. It was a horrible, ugly place, and the guards locked me up with real gang members. When we went outside for recreation, the adult prisoners cursed at us because they thought we were members of a gang. I was so scared. You could be asleep or awake, and it wouldn’t make a difference — it was a nightmare either way.

Days later, my family was able to pay bail and I went home. One of the five police officers who arrested me days earlier came to my house to arrest me again. “You aren’t legal,” he said. “I need to give you to immigration. You’ll probably be deported.

That wasn’t true. I was going through the slow process of hearings to try to get legal status in the United States. I still have no idea why the police officers picked me up that second time. All I know is a few days later, I was driven to the airport and put on a plane. I ended up in a juvenile detention center in Virginia.

I had come to the United States because I’d refused to join a gang, and gang members were threatening my life back in El Salvador. First they started coming up to me in the street when I was on my way to church or to the store. They told me to join them or they’d hurt me. One day when I was home on our farm with my sister, men with guns opened the door and just walked into our house. They said they would kill us if I didn’t join them.

The next day my sister and I ran away to another town. That was the beginning of a trip that would eventually take us to the United States, where our mom had been living.

It was a hard adjustment to school in Brentwood. I struggled with English. I had never taken courses like algebra and biology and history. Sometimes the teachers made negative comments about immigrants. Kids born in the United States picked on immigrant kids all the time.

At first, I didn’t feel afraid of gangs in Brentwood, because in this country, people respect the law. I didn’t associate with gang members, so I didn’t think I had anything to worry about. Then one day in the fall, I saw on the news that two girls from my school had been killed by gang members.

I felt afraid to go to school. I wanted to change schools or move to a different town. My mom was scared too and said she’d look into moving.

In February, I was coming into school late one day and security guards stopped me in the hallway, searched my bag, and went through all of my notebooks. On one page of a notebook, I had written the numbers 503, the country code for El Salvador. For me the digits were a symbol of home, something I doodled when I was bored in class. But the security guards called the police officer stationed in our school, and he said the digits showed I was part of a Salvadoran gang.

Even though I said I had never been part of any gang, I was suspended, and soon Suffolk County police officers started stopping me in the street all the time. To keep myself safe from gangs, I tried to keep a low profile at school and be friendly to everyone — but officers said I was friends with gang members.

I was moved to juvenile detention facilities in Virginia and California, and now I’m in upstate New York. I hate being locked up, without being able to see my family, without being able touch them. I have the best mother in the world — she’s always believed in me and she wants me to be someone important — and I hate that I’m not with her. I just want to spend my summer with my mom barbequing in the park with sodas and carne asada and joking and talking about our lives.

I don’t belong locked up. I can’t understand why I’ve been in jail for more than two months. I never belonged to a gang. I never hurt anyone. I never threatened anyone. I fled from the gangs in my country. And I thought I was coming to a country where I would be safe.

* F.E. is initials only, and Juan and Andres are both pseudonyms to protect the identities of minors.

5 Years Ago, We Won Our Freedom. Will President Trump Pull the Rug Out From Under the Dreamers?

American Civil Liberties Union - Tue, 08/15/2017 - 12:30
Ten states, led by Texas, are pressuring President Trump to End the DACA program.

When I graduated from college in 2011, the Deferred Action for Childhood Arrivals program didn’t yet exist. So, instead of a graduation day characterized by excitement and possibilities, I faced the iron gate of being undocumented. Without a work permit, I felt a deep level of anxiety of what my future would hold and a locked door blocking future potential accomplishments.

This uncertainty is why so many of us fought — we came out as “undocumented and unafraid” and organized — to win work permits and protection from deportation. We wanted to ensure that the many other young people — including my sister, who call this country their home — wouldn’t have to grow up and live under the constant threat of deportation.

And here’s the inspiring thing: we won.

Five years ago today, the Obama administration accepted the first application for the Deferred Action for Childhood Arrivals (DACA) program. DACA provided new opportunities and futures for nearly 800,000 Dreamers who could then live, study, and work in the United States of America without the fear of deportation.

Each DACA recipient who came forward passed a background check and was granted permission to live and work legally in America. As a result, many have fulfilled their dreams of attending and completing college, purchasing homes and cars, and working legally to build their future and provide for their families.

For the past five years, these young immigrants have gained a sense of stability. DACA allows them to live freely and fully. But today, under the Trump administration and the guide of Attorney General Jeff Sessions, that freedom is threatened.

At the end of June 2017, Texas Attorney General Ken Paxton and nine other states sent a letter to Attorney General Sessions threatening to sue President Trump if he doesn’t end the DACA program by September 5.

By attacking the DACA program, their goal is to drive people back into the shadows and into a life of fear, but they will not succeed.

As my father often says, “If you get up, you’ll fall. If you fall, you’ll get up again.” Come what may, we will get up, unite, and rise together to defend DACA and the Dreamers against any and all attacks. We will not let the current administration prevent us from making even greater progress in the fight to protect our American ideals.

Even President Trump has recognized the great contributions of Dreamers and said earlier this year that he would protect them. The decision is now his. Will he pull the rug out from under these young immigrants or will he uphold the values of the American dream and protect them?

DACA Is and Will Always Be Constitutional

American Civil Liberties Union - Tue, 08/15/2017 - 11:15
The Trump Administration can and should defend the DACA program from attack by 10 states and honor its promise to Dreamers.

The Deferred Action for Childhood Arrivals program has been an unqualified success.

Since its creation five years ago, it has allowed nearly 800,000 young men and women who came to this country as children — or Dreamers — to attend school, support their families, buy homes, begin careers, contribute to their communities, and pursue their dreams. DACA has been a major driver of economic growth for cities and states that reap the benefits of new tax dollars from DACA recipients’ large purchases and new jobs. It’s no surprise then that nearly 78 percent of American voters agree that Dreamers should be allowed to stay in the country.

But now DACA is under attack. In late June, 10 states — led by Texas Attorney General Ken Paxton — wrote Attorney General Jeff Sessions a letter demanding that the Trump administration agree to end the program. If the administration refuses to fall in line by September 5, the states will seek to amend a lawsuit pending in the federal district court in Brownsville, Texas, to stop the program.

Even worse, we don’t know if the Trump administration is committed to defending the program in court. Sessions is a longtime opponent. At his Senate confirmation hearing, Sessions testified that DACA is “very questionable, in my opinion, constitutionally.”

Responding to the states’ June letter, he remarked: “I like [that] states and localities are holding the federal government to account and expecting us to do our responsibility to the state and locals, and that’s to enforce the law.” And former Homeland Security Secretary John Kelly reportedly told members of Congress that “he can’t guarantee that the administration would defend [the DACA program] in court.”

To be clear, a decision to abandon the DACA program would be a political decision — not a legal one. In fact, the U.S. government has repeatedly — and successfully — defended DACA against constitutional challenges. Indeed, every legal challenge to the DACA program has failed.

A new open letter to the president by 105 law professors makes clear that the DACA program is lawful and constitutional. As the letter explains, DACA is a form of temporary protection from deportation known as “deferred action.” Deferred action is one way in which the executive branch historically has exercised discretion over whom should and shouldn’t be deported from the United States. DACA specifically grants people who came to the United States as children, pass a criminal background check, and meet educational and other criteria permission to live and work in the country on a two-year, renewable basis.

Programs like DACA make common sense. The government has limited resources and needs to pick and choose the people it goes after. And that’s especially true when it comes to a penalty as severe as deportation — that is, banishment from your home or what the Supreme Court has called the loss of “all that makes life worth living.”

The ultimate legal authority for DACA lies in the U.S. Constitution. Article II, Section Three of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” Carrying out our immigration laws involves deciding who should be targeted for deportation and who should be allowed to stay. Similarly, Congress has given the executive branch discretion over “the administration and enforcement” of the immigration laws. And the Supreme Court has recognized that “[a] principal feature of the removal system is the broad discretion exercised by immigration officials . . . . Federal officials, as an initial matter, must decide whether it makes sense to pursue [someone’s] removal at all . . . .”

Indeed, for more than four decades, federal immigration authorities have granted deferred action to immigrants in a variety of circumstances. Deferred action has been made available to victims of human trafficking and sexual exploitation, relatives of victims of terrorism, surviving family members of a lawful permanent resident member of the armed forces, spouses and children of U.S. citizens or lawful permanent residents who are survivors of domestic violence, surviving spouses of U.S. citizens, foreign students affected by Hurricane Katrina, and applicants for certain types of visas.

DACA is no different.

Any decision by the Sessions Justice Department to abandon DACA on the grounds that it can’t be defended in court would break completely with established law and the U.S. government’s own consistent legal positions. It would also break the promise our government made to young immigrants five year ago: That if they came forward, passed a criminal background check, and met other criteria, they would be allowed to live and work openly in the country.

The Trump administration should honor its deal with immigrant youth and find the courage and integrity to defend DACA in court.

The Trump Administration Is Detaining Immigrant Kids for Gang Membership Without Evidence. So We Sued.

American Civil Liberties Union - Mon, 08/14/2017 - 14:00
No immigrant kid should languish in detention because of an accusation of gang membership with flimsy or no evidence.

Wearing a blue soccer jersey with “El Salvador” written on it. Doodling an area code from home on a school notebook. Law enforcement agencies have used both of these as “evidence” that a teenage immigrant high school student belongs to a dangerous gang. And both have triggered a process that results in the teenager’s detention in prison-like facilities far from his or her family and home.

In the government’s latest effort to be tough on immigration, federal immigration agents are picking up teenagers in what appears to be a coordinated effort to detain anyone whom they suspect of gang affiliation — regardless of whether they have any real evidence to back that up.

The pattern works this way: Local police pick up an immigrant juvenile based on a relatively minor incident or suspicion that they belong to a gang. The police can’t produce enough evidence to support the charges, or the charges are only minor infractions that don’t demand any jail time. But instead of closing the case, the police notify Immigration and Customs Enforcement. ICE takes custody of the teenager and sends them to the Office of Refugee Resettlement, the federal agency with a division in charge of caring for unaccompanied immigrant children.

So what do ORR officials do?

In testimony in the case of A.H., one of the children involved in our class action suit, an ORR official admitted that the agency had conducted no meaningful review to examine ICE’s “evidence” to justify the child’s jailing. They did not contact the child’s parents or attorneys to notify them of the child’s whereabouts.They held no hearing over their decision to incarcerate the child. Instead, within hours of receiving an email from ICE, with unsubstantiated evidence of gang affiliation, ORR decided to send the child to a secure detention facility across the country.

Meanwhile, after the arrest, the parents of these kids are left in a panic, going days without any information about what happened to their children. Lawyers scramble to find out where the kids are, only to discover too late that they’ve been transported cross-country. The teenagers are denied access to their lawyers and the evidence against them. Meanwhile, they languish in detention. All of this violates a 2008 law that addresses the rights of unaccompanied children, as well as the Flores decree, a longstanding court order that set national standards concerning the treatment of children in immigration detention.

The teenagers in our case came to the United States as unaccompanied children and were placed in custody of ORR, which released them to their family members in the U.S. Since then, they have attended their immigration court hearings and were on the pathway to obtaining lawful immigration status. Now the government is using mere accusations to sweep them back into custody and block their applications for lawful status and put their lives in the U.S. in jeopardy.

One such teenager, F.E.,* was repeatedly harassed by local police officers. They accused him of being a gang member based on scribbles in his notebook and acquaintances at school. He was then picked up by ICE agents, bounced around prison-like facilities in New York, Virginia, California, and back again to New York, all based on unproven allegations of gang affiliation.

F.E.’s story is not unique. We know of multiple juveniles arrested and swept into immigration custody based on similarly flimsy “evidence” of gang membership, like showing pride in their home countries, or being seen with certain people or in certain locations.

To make matters worse, the Suffolk County, New York, police department — where we first heard of cases like F.E.’s — is openly collaborating with ICE to target juveniles when they don’t have enough evidence to keep a child in criminal custody.

“There are times when we know someone is an MS-13 gang member, and we know someone is an active MS-13 gang member, but we’re not in a position to make a criminal arrest,” Timothy Sini, the Suffolk County police commissioner, told The New York Times. “So another tool in our toolbox is to work with the Department of Homeland Security to target active known MS-13 gang members for violation of civil immigration laws, which is another way to remove dangerous individuals from our streets.”

These admissions are troubling given that Suffolk County has already been under federal investigation for racially discriminatory police practices against Latinos. We fear that what is happening in Suffolk County is happening across the country. And we are investigating and pushing back.

In June, the ACLU of Northern California filed suit in the San Francisco federal district court on behalf of one Long Island teenager who was arrested by ICE and whisked across the country within days, without any notice to his family or lawyers. On Friday, the ACLU of Northern California, the ACLU Immigrants’ Rights Project, and the firm of Cooley LLP, working in a pro bono capacity, expanded the case into a class action lawsuit with two additional children — including F.E. — as lead plaintiffs.

Of course, we should address gang violence in our communities. But while trying to appear tough on gangs, the government is tearing children from their families and depriving them of their most fundamental constitutional rights. All children deserve the right to understand why they are being detained and a process to contest their detention before they are taken hundreds or thousands of miles away from their families.

The government’s treatment of juveniles like F.E. is wrong. It violates our Constitution and laws. And we will fight to stop it.

The Trump Administration Is Detaining Immigrant Kids for Gang Membership Without Evidence. So We Sued.

American Civil Liberties Union - Mon, 08/14/2017 - 14:00
No immigrant kid should languish in detention because of an accusation of gang membership with flimsy or no evidence.

Wearing a blue soccer jersey with “El Salvador” written on it. Doodling an area code from home on a school notebook. Law enforcement agencies have used both of these as “evidence” that a teenage immigrant high school student belongs to a dangerous gang. And both have triggered a process that results in the teenager’s detention in prison-like facilities far from his or her family and home.

In the government’s latest effort to be tough on immigration, federal immigration agents are picking up teenagers in what appears to be a coordinated effort to detain anyone whom they suspect of gang affiliation — regardless of whether they have any real evidence to back that up.

The pattern works this way: Local police pick up an immigrant juvenile based on a relatively minor incident or suspicion that they belong to a gang. The police can’t produce enough evidence to support the charges, or the charges are only minor infractions that don’t demand any jail time. But instead of closing the case, the police notify Immigration and Customs Enforcement. ICE takes custody of the teenager and sends them to the Office of Refugee Resettlement, the federal agency with a division in charge of caring for unaccompanied immigrant children.

So what do ORR officials do?

In testimony in the case of A.H., one of the children involved in our class action suit, an ORR official admitted that the agency had conducted no meaningful review to examine ICE’s “evidence” to justify the child’s jailing. They did not contact the child’s parents or attorneys to notify them of the child’s whereabouts.They held no hearing over their decision to incarcerate the child. Instead, within hours of receiving an email from ICE, with unsubstantiated evidence of gang affiliation, ORR decided to send the child to a secure detention facility across the country.

Meanwhile, after the arrest, the parents of these kids are left in a panic, going days without any information about what happened to their children. Lawyers scramble to find out where the kids are, only to discover too late that they’ve been transported cross-country. The teenagers are denied access to their lawyers and the evidence against them. Meanwhile, they languish in detention. All of this violates a 2008 law that addresses the rights of unaccompanied children, as well as the Flores decree, a longstanding court order that set national standards concerning the treatment of children in immigration detention.

The teenagers in our case came to the United States as unaccompanied children and were placed in custody of ORR, which released them to their family members in the U.S. Since then, they have attended their immigration court hearings and were on the pathway to obtaining lawful immigration status. Now the government is using mere accusations to sweep them back into custody and block their applications for lawful status and put their lives in the U.S. in jeopardy.

One such teenager, F.E.,* was repeatedly harassed by local police officers. They accused him of being a gang member based on scribbles in his notebook and acquaintances at school. He was then picked up by ICE agents, bounced around prison-like facilities in New York, Virginia, California, and back again to New York, all based on unproven allegations of gang affiliation.

F.E.’s story is not unique. We know of multiple juveniles arrested and swept into immigration custody based on similarly flimsy “evidence” of gang membership, like showing pride in their home countries, or being seen with certain people or in certain locations.

To make matters worse, the Suffolk County, New York, police department — where we first heard of cases like F.E.’s — is openly collaborating with ICE to target juveniles when they don’t have enough evidence to keep a child in criminal custody.

“There are times when we know someone is an MS-13 gang member, and we know someone is an active MS-13 gang member, but we’re not in a position to make a criminal arrest,” Timothy Sini, the Suffolk County police commissioner, told The New York Times. “So another tool in our toolbox is to work with the Department of Homeland Security to target active known MS-13 gang members for violation of civil immigration laws, which is another way to remove dangerous individuals from our streets.”

These admissions are troubling given that Suffolk County has already been under federal investigation for racially discriminatory police practices against Latinos. We fear that what is happening in Suffolk County is happening across the country. And we are investigating and pushing back.

In June, the ACLU of Northern California filed suit in the San Francisco federal district court on behalf of one Long Island teenager who was arrested by ICE and whisked across the country within days, without any notice to his family or lawyers. On Friday, the ACLU of Northern California, the ACLU Immigrants’ Rights Project, and the firm of Cooley LLP, working in a pro bono capacity, expanded the case into a class action lawsuit with two additional children — including F.E. — as lead plaintiffs.

Of course, we should address gang violence in our communities. But while trying to appear tough on gangs, the government is tearing children from their families and depriving them of their most fundamental constitutional rights. All children deserve the right to understand why they are being detained and a process to contest their detention before they are taken hundreds or thousands of miles away from their families.

The government’s treatment of juveniles like F.E. is wrong. It violates our Constitution and laws. And we will fight to stop it.

Gavin Grimm’s Lawsuit Enters a New Phase

American Civil Liberties Union - Fri, 08/11/2017 - 16:00
ACLU is moving ahead with Gavin's fight to end discrimination against transgender students.

Today we filed an amended complaint in Gavin Grimm’s lawsuit to reverse his school district’s discriminatory policy, which prohibited him and other transgender students from using restrooms consistent with their gender identity. Gavin graduated from high school in June. Rather than continuing to wait for a ruling on his request for a preliminary injunction (which was filed more than two years ago), we’re moving forward with his claim for damages and his demand to end the anti-trans policy permanently.

Gavin was banned from using the boys’ restroom in December 2014, when he was a 15-year-old sophomore at Gloucester High School in Virginia. For the rest of his time at school, he was segregated from his peers and forced to use single-stall facilities that no other student was required to use.

Gavin continues on the legal path in seeking justice for transgender students.

In April 2016, Gavin won a landmark victory in the Fourth Circuit Court of Appeals that allowed him to use the boys’ restroom. Following that ruling, three other courts granted preliminary injunctions sought by other transgender students against anti-trans restroom policies. All three injunctions went into effect and none have been halted.  The plaintiffs in those cases have been able to attend school without being segregated and stigmatized.

But Gavin himself never got the same chance. In August 2016, the Supreme Court blocked the appellate court’s ruling while it decided whether it would take up the case. The Supreme Court did eventually decide to hear the case. But after the Trump administration withdrew policy guidance issued by the Obama administration to clarify protections for transgender students, the Supreme Court sent the case back to the Fourth Circuit for further consideration. As two of the Fourth Circuit judges noted, the Supreme Court’s actions meant that Gavin’s banishment from the boys’ restroom would be “an enduring feature of his high school experience.”

The fight, however, is not over. We remain confident in the strength of Gavin’s case. The withdrawal of the guidance does not change the fact that Gavin and other transgender students are protected under Title IX, a federal law prohibiting sex discrimination in schools, and that the school board’s bathroom policy violates that law. 

This case has been down a long, winding road, but the journey continues. As it works its way through the courts, it may yet reach the Supreme Court again. Every step of the way — beginning with his first speech before his school board — Gavin has shown great courage in standing up for himself and for other trans youth. As Judge Andre Davis put it, “By challenging unjust policies rooted in invidious discrimination, [Gavin Grimm] takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.”

Gavin Grimm’s Lawsuit Enters a New Phase

American Civil Liberties Union - Fri, 08/11/2017 - 16:00
ACLU is moving ahead with Gavin's fight to end discrimination against transgender students.

Today we filed an amended complaint in Gavin Grimm’s lawsuit to reverse his school district’s discriminatory policy, which prohibited him and other transgender students from using restrooms consistent with their gender identity. Gavin graduated from high school in June. Rather than continuing to wait for a ruling on his request for a preliminary injunction (which was filed more than two years ago), we’re moving forward with his claim for damages and his demand to end the anti-trans policy permanently.

Gavin was banned from using the boys’ restroom in December 2014, when he was a 15-year-old sophomore at Gloucester High School in Virginia. For the rest of his time at school, he was segregated from his peers and forced to use single-stall facilities that no other student was required to use.

Gavin continues on the legal path in seeking justice for transgender students.

In April 2016, Gavin won a landmark victory in the Fourth Circuit Court of Appeals that allowed him to use the boys’ restroom. Following that ruling, three other courts granted preliminary injunctions sought by other transgender students against anti-trans restroom policies. All three injunctions went into effect and none have been halted.  The plaintiffs in those cases have been able to attend school without being segregated and stigmatized.

But Gavin himself never got the same chance. In August 2016, the Supreme Court blocked the appellate court’s ruling while it decided whether it would take up the case. The Supreme Court did eventually decide to hear the case. But after the Trump administration withdrew policy guidance issued by the Obama administration to clarify protections for transgender students, the Supreme Court sent the case back to the Fourth Circuit for further consideration. As two of the Fourth Circuit judges noted, the Supreme Court’s actions meant that Gavin’s banishment from the boys’ restroom would be “an enduring feature of his high school experience.”

The fight, however, is not over. We remain confident in the strength of Gavin’s case. The withdrawal of the guidance does not change the fact that Gavin and other transgender students are protected under Title IX, a federal law prohibiting sex discrimination in schools, and that the school board’s bathroom policy violates that law. 

This case has been down a long, winding road, but the journey continues. As it works its way through the courts, it may yet reach the Supreme Court again. Every step of the way — beginning with his first speech before his school board — Gavin has shown great courage in standing up for himself and for other trans youth. As Judge Andre Davis put it, “By challenging unjust policies rooted in invidious discrimination, [Gavin Grimm] takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.”

Time Marches Forward and So Do We

American Civil Liberties Union - Fri, 08/11/2017 - 11:30
Watch a short history of trans discrimination, resistance, and survival, and join the fight.

Every day, I am confronted with antagonistic queries about why the ACLU would focus on trans rights work. “How many trans people are there really?” we are asked. Or, “Isn’t this just a new niche issue that doesn’t affect a lot of people?”

The assumption is that trans existence is new, that trans people are so marginal as to be unworthy of advocacy, that discrimination against such a new and insignificant community should not consume our attention or resources.

None of this is accurate.

Trans people have always existed. And while we have and continue to face rampant and deadly discrimination, so too have we built beautiful communities and movements of resistance and love.

A video released today by the ACLU in collaboration with Zackary Drucker, the Transparent producer and artist; Laverne Cox, the Emmy-nominated actress; and the creative team of Molly CrabappleKim Boekbinder and Jim Batt tells this story of trans history and resistance, which is as relevant and as urgent now as ever.

%3Ciframe%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22326%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2FN-lhWEVByZo%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22%2Ffiles%2Fweb17-timemarchesthumb-580x326.jpg%22%20width%3D%22580%22%3E%3C%2Fiframe%3E Privacy statement. This embed will serve content from youtube.com.


Just two weeks ago, President Trump announced on Twitter that he wanted to reverse current policy and ban transgender individuals from military service. Meanwhile, continued legislative efforts in states like Texas seek to ban transgender individuals from public restrooms. The consequences of this discrimination from our government are deadly.

In one comprehensive survey of more than 27,000 transgender individuals, almost one third of respondents reported living in poverty as compared with only 14 percent of the U.S. population. Over half of respondents reported being denied health care related to their gender transition. A quarter indicated that they did not seek medical attention at all due to fear of discrimination. And more than three-quarters reported experiencing harassment in school because they were trans, ultimately leading 17 percent of respondents to drop out of high school altogether.

All of this contributes to a cycle of discrimination and violence that leads to homelessness, incarceration, and ultimately, for many — particularly trans women of color — premature death.

Indeed, at least 15 trans people have been murdered in the country this year, almost all of them women of color. The numbers are likely higher, but violence against trans individuals so often goes unreported, or the victims are inaccurately classified by their assigned sex at birth.

So while there is an increase in visibility and attention to trans people, the discrimination remains staggering. And without accurate information about trans people, our lives, and our rich histories, the impulse to push us out of public life will continue. But we continue to tell our vivid, vibrant, and critical story of trans resistance.

Time marches forward, and so do we.

Time Marches Forward and So Do We

American Civil Liberties Union - Fri, 08/11/2017 - 11:30
Watch a short history of trans discrimination, resistance, and survival, and join the fight.

Every day, I am confronted with antagonistic queries about why the ACLU would focus on trans rights work. “How many trans people are there really?” we are asked. Or, “Isn’t this just a new niche issue that doesn’t affect a lot of people?”

The assumption is that trans existence is new, that trans people are so marginal as to be unworthy of advocacy, that discrimination against such a new and insignificant community should not consume our attention or resources.

None of this is accurate.

Trans people have always existed. And while we have and continue to face rampant and deadly discrimination, so too have we built beautiful communities and movements of resistance and love.

A video released today by the ACLU in collaboration with Zackary Drucker, the Transparent producer and artist; Laverne Cox, the Emmy-nominated actress; and the creative team of Molly CrabappleKim Boekbinder and Jim Batt tells this story of trans history and resistance, which is as relevant and as urgent now as ever.

%3Ciframe%20allowfullscreen%3D%22%22%20frameborder%3D%220%22%20height%3D%22326%22%20src%3D%22https%3A%2F%2Fwww.youtube.com%2Fembed%2FN-lhWEVByZo%3Fautoplay%3D1%26version%3D3%22%20thumb%3D%22%2Ffiles%2Fweb17-timemarchesthumb-580x326.jpg%22%20width%3D%22580%22%3E%3C%2Fiframe%3E Privacy statement. This embed will serve content from youtube.com.

Just two weeks ago, President Trump announced on Twitter that he wanted to reverse current policy and ban transgender individuals from military service. Meanwhile, continued legislative efforts in states like Texas seek to ban transgender individuals from public restrooms. The consequences of this discrimination from our government are deadly.

In one comprehensive survey of more than 27,000 transgender individuals, almost one third of respondents reported living in poverty as compared with only 14 percent of the U.S. population. Over half of respondents reported being denied health care related to their gender transition. A quarter indicated that they did not seek medical attention at all due to fear of discrimination. And more than three-quarters reported experiencing harassment in school because they were trans, ultimately leading 17 percent of respondents to drop out of high school altogether.

All of this contributes to a cycle of discrimination and violence that leads to homelessness, incarceration, and ultimately, for many — particularly trans women of color — premature death.

Indeed, at least 15 trans people have been murdered in the country this year, almost all of them women of color. The numbers are likely higher, but violence against trans individuals so often goes unreported, or the victims are inaccurately classified by their assigned sex at birth.

So while there is an increase in visibility and attention to trans people, the discrimination remains staggering. And without accurate information about trans people, our lives, and our rich histories, the impulse to push us out of public life will continue. But we continue to tell our vivid, vibrant, and critical story of trans resistance.

Time marches forward, and so do we.

Trump and Kobach’s Voter Fraud Lies Are Making More Voters Lose Confidence in Our Elections, Says New Poll

American Civil Liberties Union - Fri, 08/11/2017 - 11:00
Americans deserve public officials who tell the truth about voting.

No matter how many studies have found that voter fraud is extraordinarily rare in the U.S., some public officials continue to tell Americans falsehoods about the state of our elections.

But their untrue claims are, unfortunately, resonating among some voters.

According to a poll unveiled on Thursday in The Washington Post, a majority of Republican voters believe that voter fraud, such as a person impersonating a registered voter or noncitizens voting, is a regular occurrence. Over half of Republicans polled also said they would agree with a hypothetical plan from President Trump to postpone the 2020 election “until the country can make sure that only eligible American citizens can vote.”

As researchers Ariel Malka and Yphtach Lelkes note, the “survey is only measuring reactions to a hypothetical situation,” but it shows that beliefs in voter fraud are widespread and could be used to justify disturbing policies.

A good portion of the blame for that widespread belief rests with the president. Trump has described voter fraud as “very, very common” in elections and tweeted that “DEAD PEOPLE” had “helped get President Obama elected.” Following the election, he blamed his 2.9 million popular vote loss on “the millions of people who voted illegally.

In January, Trump said that more than three million votes in the last election were fraudulent. To defend his allegation, the president cited Gregg Phillips, an activist who just days after the election tweeted that the “number of non-citizen votes exceeds 3 million” in the election, but to this day has refused to release any evidence to substantive his supposed findings. The only proof Phillips cited to support his “analysis” was Trump’s tweet about his claim: “Our analysis is what it is and we believe that truth is truth and if the president and his team believe the same is true, then maybe they are.”

Get that? But there’s more.

The man Trump tasked to investigate voter fraud across the country, Kansas Secretary of State and vice chair of the commission Kris Kobach, endorsed Trump’s false claim that he lost the popular vote due to fraud, even maintaining that Americans “may never know” if Trump or Hillary Clinton received more votes.

Kobach has made it his mission to spread patently untrue allegations about voter fraud. When it comes to finding actual cases of voter fraud, however, Kobach has come up empty.

But politicians besides Trump and Kobach have also spread the voter fraud myth, which has driven state efforts to pass restrictive laws and policies that are ostensibly meant to root out fraud but in reality disenfranchise voters, people of color in particular.

One study found that 200,000 voters in Wisconsin were disenfranchised by a state photo ID law that, according to a legislative staffer, was driven by a desire to suppress the vote among young voters and residents of Milwaukee. In North Carolina, the Fourth Circuit Court of Appeals found that state lawmakers passed a photo ID law in order to make it more difficult for African-Americans to vote, targeting them “with almost surgical precision.”

While it is absolutely troubling that a substantial number of voters would approve of a hypothetical plan to postpone the next presidential election, it is even more disconcerting that politicians are enacting laws that take away the ability to vote from tens of thousands of Americans under false pretenses.

What the Movie 'Detroit' Says About America Today

American Civil Liberties Union - Thu, 08/10/2017 - 12:45
How little has changed in the treatment of Black Americans since the uprising in Detroit in July 1967.

Watching the movie “Detroit” was like looking into a mirror reflecting the present.  For me, the story didn’t show how things have improved since 1967, it demonstrated how much remains the same 50 years later.

The movie is about the killing of three unarmed teenagers at the Algiers Motel and the shooting and beating of other civilians by the police during the Detroit uprising in July 1967.  It starts with an animated history lesson explaining how black Americans migrated from the South to the North and ended up restricted to a few overcrowded neighborhoods. This is the legacy of redlining and the exclusion of Blacks from home-buying assistance provided by the G.I. Bill — a legacy that still explains much of the gap in net worth that exists between white and Black families in America today. Detroit, and most of America, is as segregated today as it was in 1967.

The police in “Detroit” showed how casually they would resort to violence against Black people, the same behavior we witness time and time again in recent videos of police misconduct.  The culture of policing portrayed in the movie can be seen in places like Ferguson, Chicago, Baltimore, and Madison County, Mississippi, where the ACLU of Mississippi has filed a lawsuit against the county sheriff for illegal use of force against Black “suspects.”  

In “Detroit,” an officer shoots a Black man in the back while he is running away and places an open knife near his hand. I immediately thought of Walter Scott in South Carolina being shot in the back while running away, and the officer who killed him dropping a Taser near his body.  An officer in the movie falsely claims that a man he killed tried to grab his gun, while another officer lies to back him up.  And I was reminded of the three officers who were indicted in Chicago in June for lying about the killing of Laquan McDonald and trying to cover it up.

Just two weeks ago, President Trump suggested in a speech that he would support officers who engaged in unnecessary and unconstitutional violence again suspects. The White House later claimed he was joking, but he was talking about the kind of treatment that caused Freddie Gray’s death in Baltimore — part of a pattern of police killings of unarmed Black people that goes back long before 1967.

Near the end of the movie, a Black character says "police criminality needs to be treated the same way as any other form of criminality." Half a century later, that truth still doesn’t apply to much of America. The not-guilty verdicts for the Detroit officers echo across five decades into courtrooms in Oklahoma, Minnesota, and South Carolina where police killed Black men on videotape, and not one officer was convicted by a jury.  

It turns out that members of The Dramatics were held prisoner by the police in the Algiers Motel on that horrific night. The group had a comeback hit with Snoop Dogg in 1994, and this year Snoop wrote about the police abusing people in the Black community:  “Resident evil – it’s all on camera and they still don’t believe you.” Even with cameras, the results are much the same as in 1967.

I was 11 years old in 1967.  People then and now relied on Martin Luther King Jr. to condemn violence. I wonder if people relying on King know that the speech he was scheduled to give on April 7, 1968, three days after he was assassinated, was "Why America May Go to Hell." I wonder if they remember something he said in 1967, the same year the rebellion in Detroit happened:

Urban riots are a special form of violence.  They are not insurrections.  The rioters are not seeking to seize territory or attain control of institutions.  They are mainly intended to shock the white community…But most of all, alienated from society and knowing society cherishes property above people, [the rioters are] shocking it by abusing property rights.

For me, the Algiers Motel, the treatment of Black Americans, and the music reminds me of another ’60s band. The Who warned: “Meet the new boss, same as the old boss.” The police in “Detroit” looked frighteningly like the police of today. If changing policing in America is on your agenda, our work is far from done.

Lexington County’s Draconian Debtors’ Prison Flies in the Face of Common Sense and Decency

American Civil Liberties Union - Thu, 08/10/2017 - 11:00
In Lexington County, rich people can buy their freedom, while poor people are locked up simply because they’re poor.

Just ask Nora Ann Corder, who spent a whopping 54 days locked up in jail in Lexington County, South Carolina, simply because she could not afford to pay $1,320 in traffic fines and fees. A desperately poor woman, Ann was arrested, handcuffed, and taken to jail only minutes after she arrived in court to fight an eviction action because she couldn’t make rent.

Ann is a victim of Lexington County’s debtors’ prison. But in jail, she learned there was a way to fight back. On June 1, the ACLU filed a lawsuit challenging the unlawful arrest and jailing of indigent people who could not afford to pay fines and fees to Lexington County’s magistrate courts. Two days after her release from jail, Ann joined the lawsuit as a plaintiff.

In Lexington County, rich people can buy their freedom, while poor people are locked away — without any hearing in front of a judge or representation by counsel. Their incarceration only compounds their troubles — causing their children and families to suffer, their jobs to disappear, and their chances of escaping poverty to become even more remote. Plaintiff Twanda Marshinda Brown wrote movingly about being separated from her 13-year-old son and losing her job when she was locked up for 57 days.

Ann fared no better. Fifty-four days in debtors’ prison crippled her ability to fight eviction or hold on to her job at a Waffle House. Upon her release, Ann was homeless and jobless.

We all want a justice system that is fair and provides equal treatment to rich and poor. This is why the Supreme Court ruled more than 30 years ago that people should not be locked up behind bars solely because they are unable to pay court fines and fees they cannot afford. In the case of Danny Bearden, an indigent probationer who faced incarceration for nonpayment of $550 in fines and restitution, the Supreme Court held that “it is fundamentally unfair to revoke probation automatically”—which would lead to incarceration—“if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own.”

Yet since 2010, the ACLU has repeatedly shown that poor people have been arrested and incarcerated in violation of basic rights to fairness and equal treatment under the law when they cannot pay court fines and fees in Arkansas, Colorado, Georgia, Michigan, Mississippi, New Hampshire, Ohio, Texas, and Washington.

But even among the debtors’ prisons exposed by the ACLU, Lexington County stands out as particularly cruel because of the extraordinary length of time for which indigent people are thrown in jail when they cannot afford to pay.

The plaintiffs in our case against Lexington County were locked away for periods of time ranging from 20 to 63 days when they could not pay $647.50 to $1,907.63 in court fines and fees. In contrast, ACLU plaintiff Kevin Thompson was jailed for five days in Georgia because he couldn’t pay more than $800, and ACLU plaintiff Qumotria Kennedy was jailed for five days in Mississippi when she couldn’t afford to pay around $1000.

Take a moment to let that sink in. People have been locked up for two months in Lexington County because they did not have money to pay court fines. This flies in the face of an increasing recognition that jailing people because of their poverty is not only unconstitutional, it’s also wasteful and counterproductive.

Earlier this year, the National Task Force on Fines, Fees, and Bail Practices, a top organization of state court leaders, issued a bench card on the “Lawful Collection of Legal Financial Obligations” — a commonsense, step-by-step guide for state and local judges to use to protect the rights of poor people who cannot afford to pay court fines and fees. These court leaders sent a message to judges and elected officials: Courts are not ATMs for local and state governments, and judges should respect constitutional rights of the poor.

One state got the message.

Last month, the Supreme Court of Missouri adopted the National Task Force bench card, incorporated it into Missouri court rules, and required it to be sent to judges, court clerks, and court staff across the state. It followed in the footsteps of Ohio, Washington, and Michigan, which had already enacted similar guidelines for judges. This was the right thing to do in light the U.S. Department of Justice’s scathing 2015 report on the debtors’ prison in Ferguson, Missouri.

Lexington County and its justice system leaders can never give Ann back the 54 days of her life spent in jail or the home or job she lost while incarcerated. But they can forge a new path by adopting the National Task Force bench card as well as the sorts of reforms embraced by cities like Biloxi, Mississippi, which has pioneered efforts to end debtors’ prisons following litigation by the ACLU.

Common sense solutions to debtors’ prisons abound. It is up to Lexington County and its court leaders to act on them.

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