ACSBlog: The Blog of the American Constitution Society

The federal government is preparing to expand its growing DNA databases, The Washington Post reports.

According to the newspaper, the U.S. government will soon start collecting DNA samples from all citizens arrested in connection with any federal crime and from many immigrants detained by federal authorities. The article says the collections will add “genetic identifiers from more than 1 million individuals a year to the swiftly growing federal law enforcement DNA database.”

The Post reports that some critics of the policy, to be published as a proposed rule in the Federal Register, argued that it poses serious threats to citizens’ privacy rights, noting that those improperly detained could have their DNA samples wind up in the database.

Tania Simoncelli, a science adviser for the American Civil Liberties Union and an author of an American Constitution Society issue brief on DNA databases, told The Post, “Innocent people don’t belong in a so-called criminal database. We’re crossing the line.”

ACS will host a panel discussion on privacy rights on June 14 at its annual convention at the Hyatt Regency Washington on Capitol Hill in Washington, D.C.

The U.S. Supreme Court announced March 31 that it will hear a Utah dispute over a religious group’s request for a display of its religious messages, called “Seven Aphorisms,” in a city park alongside a Ten Commandments monument. The Supreme Court granted cert. for a review of the 10th U.S. Circuit Court of Appeals’ decision, Pleasant Grove City v. Summum, in favor of the Salt Lake City-based religious group.

by Carl T. Bogus, Professor of Law, Roger Williams University School of Law

[Editor's Note: Watch Professor Bogus speak on the Second Amendment at this ACS Press Briefing)

For those of us who believe that the collective rights model is the correct one for the Second Amendment – that is, that the Amendment, properly read, only grants a right to keep and bear arms within the government militia – oral argument in District of Columbia v Heller was ominous.  Based on comments at oral argument or previously, I count six likely votes for the individual rights interpretation: Scalia, Thomas, Kennedy, Breyer, Roberts, and Alito.

The Second Amendment provides a quintessential example of the adage “a little knowledge is dangerous.”  Those who know a little history tend to come out on the individual rights side.  Typically, it is only after one is really steeped in the history of the Founding era that one is converted to the collective rights view.  Several historians have written about this phenomenon.  They are particularly disdainful of lawyers doing “law office history” – failing to adequately understand the period under examination – and making a variety of errors as a result.  One error is not appreciating that people in the eighteenth century held many different views and distinguishing between statements that represented the zeitgeist of the time and those that represented minority views.  See, e.g., Don Higginbotham, The Second Amendment in Historical Context; Jack N. Rakove, The Second Amendment: The Highest Stage of Originalism.

by Yannick Morgan

Coming from a big school in the Deep South, I once believed that when over 100 people camp out on a freezing cold night waiting for tickets in a single file line wrapped around an oversized building, it could mean only one of two things: the biggest collegiate sporting event of the year or a raucous Kenny Chesney concert. When I participated in a Washington version of this ritual for the first time Monday night, I found a no-less impassioned group of people. They had come from all over the United States to witness oral arguments in District of Columbia v. Heller before the highest court in the land.

On March 13, 2008, ACS hosted a press briefing on the Supreme Court case, District of Columbia v. Heller, which concerns the constitutionality of the District of Columbia’s ban on the private possession of handguns. Experts from a variety of perspectives discussed whether the Second Amendment protects only militia-related rights or the rights of private individuals, the appropriate standard for reviewing gun control legislation and the potential legal and policy implications of the first Court decision in this area in nearly 70 years. The Supreme Court will hear oral argument on this case tomorrow.

Below are video clips from the panel discussion that featured Carl T. Bogus, Dave Kopel, John Payton and moderator Dahlia Lithwick. Video and a transcript of the event is available here.  ACS also hosted an online debate on the Second Amendment with Mark Tushnet and Adam Winkler, available here. Watch Lisa Brown, Executive Director of ACS, introduce the panel discussion.

This past week, ACSBlog presented a ten-part conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. The following are brief snippets of the conversation, with links to each blog post.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"
Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning. (more)

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance
No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation? (more)

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7, 8, 9.

Part 10. Professor Winkler: Forecasting Heller

I am inclined to agree with you, Mark, that the most likely outcome is that the Court will recognize a private individual right to keep and bear arms unrelated to militia service. While we know little about most of the Justices’s views on the Second Amendment, five Justices are almost certain to favor of the private right view: Justices Thomas, Scalia, Alito, Roberts, and Kennedy.  

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7, 8.

Part 9. Professor Tushnet: Court Predictions

Ah, reading the tea leaves! Here are the possibilities, I think:

1. The Second Amendment protects a right only in connection with membership in the militia, and there being no such connection here, the District’s law is upheld and the Court of Appeals is reversed.
2. The Amendment protects an individual right, regulations of which are constitutional if they are reasonable in the sense developed in the state-court cases you’ve referred to, and the District’s law is reasonable in that sense, and the Court of Appeals is reversed.
3. The same as (2), except that, because the Court of Appeals didn’t address reasonableness, the case is remanded to it and then to the district court for consideration of the reasonableness of the District’s regulation.
4. The same as (2), except that the record is sufficient to determine that the District’s regulation is not reasonable, so the Court of Appeals is affirmed on different grounds.
5. The Amendment protects an individual right, regulations of which are constitutional if they satisfy a heightened standard of review (something like “intermediate scrutiny”), and the case is remanded to the Court of Appeals to apply that standard.
6. The same as (5), except that the Supreme Court applies the standard and finds the regulation unconstitutional.
7. The Amendment protects an individual right, regulations of which are constitutional only if they satisfy strict scrutiny, and the District’s law can’t possibly survive strict scrutiny, so the Court of Appeals is affirmed.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6, 7.

Part 8. Professor Winkler: Second Amendment Symbolism

No doubt the Second Amendment is a prominent battlefield in the culture wars, as Mark’s posts detail. Indeed, the Second Amendment debate must be cultural in nature because it is almost entirely about symbolism – the weapon of choice in these wars. Whatever right the Supreme Court interprets the Second Amendment to provide, the practical effect of that determination is likely to be marginal. With the people of 42 states already enjoying the private individual right to keep and bear arms under their own state constitutions, most Americans will still enjoy the right to bear arms no matter what.

ACS held a press briefing earlier today on D.C. v. Heller, the Second Amendment case scheduled to be argued on Tuesday before the U.S. Supreme Court. Streaming video is the discussion is available here. (A transcript and video excerpts will follow).

The panel featured:

• Carl Bogus, Professor of Law, Roger Williams University School of Law
• Dave Kopel, Research Director, Independence Institute
• John Payton, Director-Counsel and President, NAACP Legal Defense Fund
• Moderator, Dahlia Lithwick, Senior Editor, Slate

ACSBlog is also hosting an online discussion between Professors Mark Tushnet and Adam Winkler on the Second Amendment.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5, 6.

Part 7. Professor Tushnet: Applying the Reasonable Regulation and Solicitor General’s Standards

Casual observation indicates that the Second Amendment is part of our culture wars, but the way it is, I think, is particularly interesting. It turns out that the Second Amendment isn’t really a “red/blue” issue – that is, one that divides Republicans and Democrats – or an urban/suburban/rural issue, although of course there are correlations. Taken as a whole, Americans have a reasonably moderate position on gun policy and the Second Amendment. People believe that the Second Amendment does protect an individual right, and that fairly extensive regulations of that right are desirable. We appear to want existing gun laws enforced, and somewhat more stringent ones enacted. (In terms of our earlier discussion, it seems as if we think that the state courts’ approach to “reasonableness” is about right.)

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4, 5.

Part 6. Professor Winkler: Applying the Reasonable Regulation and Solicitor General’s Standards

Mark, you ask a good question about how the District of Columbia’s gun laws will fare under the reasonable regulation standard used universally in state constitutional law and the heightened scrutiny proposed by the Solicitor General. The answers are not obvious and it would be no surprise if the Supreme Court in District of Columbia v. Heller upheld or invalidated the District’s challenged gun laws under either standard.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3, 4.

Part 5. Professor Tushnet: Originalist Claims About the Second Amendment on Both Sides of the Issue Are Equally Well-Founded

You’re right, Adam: The role originalism plays in debates over the Second Amendment’s meaning poses a mild puzzle. It’s not quite right to say that the originalist claims are “not well founded,” though. Rather, the problem is that the originalist claims on both sides are about equally well-founded. There’s a good chunk of material from the relevant period that supports the gun-rights interpretation, and a good chunk of material from the same period that supports the gun-control interpretation.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2, 3.

Part 4. Professor Winkler: The Reasonableness of Reasonableness Review

Mark, you are surely correct that many gun rights advocates will be dissatisfied if Heller follows the unanimous choice of state courts and adopts the reasonable regulation standard to adjudicate gun safety laws. But this in itself is curious. Where is the outcry in the gun rights community about the state constitutional law on the right to bear arms, which for over a century has used the reasonable regulation standard? Gun rights organizations, which know the state law well, have been satisfied with this doctrine at the state level. In fact, those groups often cite the pervasive recognition of the individual right to bear arms at the state level as evidence of the fundamental nature of the right in American history.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See parts 1, 2.

Part 3. Professor Tushnet: How Reasonable is a "Reasonableness" Standard?

Adam, compromise is sometimes a good thing, but compromises have to give something to each side. And it’s not clear that settling on a “reasonableness” standard of review is acceptable to the gun-rights side of the dispute here. Certainly the advocates reject such a standard, but that’s to be expected. What matters is whether people who support gun-rights will see a “reasonableness” standard as acceptable – or, perhaps more accurately, whether they will do so after the advocacy organizations they listen to describe what the Court (we’re assuming) has done.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller. See part 1.

Part 2. Professor Winkler Examines the Appropriate "Standard of Review" and Looks to the States for Guidance

No doubt one of the more interesting aspects of District of Columbia v. Heller is the debate over the appropriate standard of review, assuming the Court finds an individual right to keep and bear arms unrelated to militia service. The vast majority of the scholarly and legal literature to date has focused on identifying the underlying right protected by the Second Amendment. But the Supreme Court’s decision to hear Heller has sparked considerable focus on the standards question. If there is a private individual right to bear arms, how are courts to adjudicate the constitutionality of gun control legislation?

Fortunately for the Court, this question has been asked and answered numerous times in American constitutional law. Forty-two states have constitutional provisions providing for an individual right to bear arms unrelated to militia service and, under these provisions, state courts have ruled on the permissibility of almost every form of gun control. There are hundreds of published state court decisions addressing the constitutionality of restrictions on guns. Interestingly, every single state, without exception and despite wide differences in political ideology and demographics, applies the same standard of review.

This week, ACSBlog presents a conversation between Professors Mark Tushnet and Adam Winkler on the Second Amendment and Professor Tushnet's new book "Out of Range: Why the Constitution Can't End the Battle Over Guns." The U.S. Supreme Court will hear oral argument next week in D.C. v. Heller, the first case involving the Second Amendment heard by the High Court since its 1939 decision in U.S. v. Miller.

Part 1. Professor Tushnet Opens the Conversation: The Solicitor General and the Appropriate "Standard of Review"

Next week the Supreme Court’s going to hear argument in District of Columbia v. Heller, dealing with the constitutionality of the District’s essentially complete ban on the possession of handguns. It’s the first time in nearly seventy years that the Court will take up basic questions about the Second Amendment’s meaning.

Gun control and gun rights are one of the focal points of our culture wars, which are also an important component of our politics (and I hope to say something about the political implications of whatever the Court does in a later post). Over the past several decades gun-rights proponents have achieved a remarkable success in restructuring the legal debate. An indication: Shortly after Chief Justice Warren Burger resigned in 1986 he gave an interview to Parade Magazine in which he remarked, almost off-handedly, that of course the Second Amendment didn’t protect an individual right to own handguns. Burger was of course a conservative jurist, and he was simply stating the common wisdom of the time. Within a decade the conventional wisdom has shifted. Gun-rights proponents were able, not entirely inaccurately, to call themselves advocates of what they called the “Standard View:” that the Second Amendment did indeed protect an individual right to own handguns and rifles.

The Foundation for Individual Rights in Education (FIRE) released this video on Valdosta State University's expulsion of student T. Hayden Barnes for engaging in a peaceful protest against the construction of two new parking decks on campus. A major topic of discussion is the university's use of "free speech zones."

Online Videos by Veoh.com

In this order, the Supreme Court of Nevada overturned Nevada Senior District Court Judge Charles Thompson’s temporary restraining order that would have prohibited NBC Universal, Inc. from proceeding with its planned presidential debate on MSNBC TV without including presidential aspirant Dennis Kucinich.

The RH Blog has a commentary on the intersection between constitutionally protected speech rights, the tactics used by those who oppose abortion, and the right to privacy.

An email sent Monday morning by Will Duffy of the group Colorado Families Against Planned Parenthood calls the businessman "one of the first sub-contractors on the new Planned Parenthood project that really has no qualms about helping build the nation's largest child-killing center."

The email goes on to ask recipients to call the man's business to "let them know how they are helping to one day destroy lives, women, families, and a beautiful neighborhood. Beg them to leave the job site or forever be known as one who helped build America's largest deathcamp [sic]."

Finally, the email asks recipients to call the businessman "directly" and lists his home telephone number. . . .

The "Truth Truck," covered with huge pictures of bloody aborted fetuses, first showed up at his home two weeks ago. It parked in front of his house and across the street from the middle school bus stop.

The truck returned last week with a sign that said his business "takes blood money from an abortion mill." "Auschwitz" is how the sign on the truck referred to Weitz Company, the general contractor for the Planned Parenthood headquarters in northeast Denver.

This week, the Economist eulogized Lieutenant Milo Radulovich, who was expelled from the air force reserve at the height of the Red Scare because of "his close and continuing association with his father and sister." His father had subscribed to a newspaper the government did not like and his sister was photographed picketing a Detroit hotel that had refused admittance to a black singer.

News reporter Edward R. Morrow interviewed Radulovich on "See It Now," despite concerns by CBS that the program would alienate its sponsor and government contractor Alcoa. The broadcast paved the way for the unraveling, censure, and downfall of Senator Eugene McCarthy two years later.

Fifty-two years after his TV appearance with Murrow, Radulovich was hired to advise the makers of a movie about McCarthyism, which led to public demand for him to speak out on civil liberties. The Economist writes:

Though McCarthy's campaign was long dead, a new enemy, terrorism, was stalking the public imagination, and terms like racial profiling and sneak-and-peek searches had entered the language to describe practices that the red-scare demagogue might well have approved of.

The 2001 Patriot Act had given government agencies the right to examine citizens' library and bookshop records, bringing back memories of old Radulovich's supposedly incriminating reading habits. And President George Bush's plans to try “enemy combatants” in military tribunals, with their lower standards than civilian courts, were bringing back memories of the air-force hearing that had condemned the young Mr Radulovich. In that proceeding the air force's lawyer had brandished a sealed envelope supposedly containing evidence, though its contents were never to be seen by the accused or his defenders.

According to Ellen Nakashima of the Washington Post, librarians say domestic surveillance legislation "could allow federal intelligence-gathering on library patrons without sufficient court oversight."

Draft House and Senate bills would allow the government to compel any "communications service provider" to provide access to e-mails and other electronic information within the United States as part of federal surveillance of non-U.S. citizens outside the country.

The Justice Department has previously said that "providers" may include libraries, causing three major university and library groups to worry that the government's ability to monitor people targeted for surveillance without a warrant would chill students' and faculty members' online research activities. . . .

Under the legislation, the government could monitor a non-U.S. citizen overseas participating in an online research project through a U.S. university library, and gain access to the communications of all the project participants with that surveillance target, said Al Gidari, a lawyer with the Perkins Coie firm who represents the Association of Research Libraries and the American Library Association.

"Beginning in February 2001, almost seven months before the 9/11 terrorist attacks, the government's top electronic eavesdropping organization, the National Security Agency, asked a major U.S. telecommunications carrier for information about its customers and the flow of electronic traffic across its network, according to sources familiar with the request," Shane Harris reported in the National Journal.  "The carrier, Qwest Communications, refused, believing that the request was illegal unless accompanied by a court order."

According to the article, the purpose behind the pre-9/11 request  was to "watch for computer hackers and foreign-government forces trying to penetrate and compromise U.S. government information system." Although Qwest was unwilling to go along with the request, Harris reported that "some companies were willing to offer data and to assist the government 'as necessary' on a voluntary basis, without a court order."

by Camille Gear Rich, assistant professor of law at the University of Southern California Gould School of Law.

This term in United States v. Williams, the Supreme Court will turn its attention to Congress’s latest attempt to curb the market for child pornography. At issue is the “pandering” provision in the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). The provision makes it illegal to solicit, distribute, present or offer “actual child pornography” — a sexually explicit visual representation of a real minor — or any visual representation of a minor engaging in obscene behavior. 

The PROTECT Act’s pandering provision would garner almost no attention if it merely attempted to regulate real offers to transact in child pornography, cases where the material involved is indisputably illegal in nature.  However, the pandering provision goes much further, criminalizing “purported offers”— offers that characterize otherwise lawful representations as illegal child pornography by emphasizing the material’s prurient appeal. The First Amendment question here is, if the pictures being “pandered” are lawful, can Congress criminalize speech drawing attention to the pictures’ sexual nature, or has Congress committed the ultimate First Amendment sin with its new pandering offense, prohibiting the mere expression of unpopular ideas?

This morning, the Supreme Court will hear argument in the First Amendment case U.S. v. Williams. Camille Gear Rich, assistant professor of law at the University of Southern California Gould School of Law, wrote a guest blog entry (above) that discusses the case.

In the video below, Paul Smith, a partner with Jenner & Block LLP, examines Williams. Follow the link for full video from ACS' Supreme Court Preview. A transcript of Smith's remarks are available below the fold.

The U.S. Supreme Court will hear argument in five cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library.

Monday, Oct. 29

• Klein v. Bd. Of Trade (commodities futures trading market)
• Ali v. Fed. Bureau of Prisons (scope of FTCA waiver of sovereign immunity)

 Tuesday, Oct. 30

• U.S. v. Williams (validity of anti-simulated child pornography pandering law)
• Logan v. U.S. (whether action counts towards sentence enhancement)

 Wednesday, Oct. 31

• Danforth v. Minnesota (whether state courts may apply broader retroactivity standards than the supreme court)

 Questions Presented are below the fold.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit overturned a district court decision and held that the Child Protection and Obscenity Enforcement Act of 1988 is unconstitutionally overbroad and therefore violates First Amendment free speech rights, in Connecting Distribution Co. v. Keisler.

White House press secretary Dana Perino said that because Intelligence Committee Chairman Jay Rockefeller (D-VA) and ranking member Senator Kit Bond (R-MO) "showed a willingness" to amend FISA legislation to include immunity for telecommunications companies that provided consumer data to the National Security Agency, the Bush administration was "willing to show them some of the documents that they asked to see." The Senate Intelligence Committee approved amendments to FISA that included telecom immunity.

The Senate Judiciary Committee will also consider the legislation; Chairman Patrick Leahy (D-VT) and ranking member Senator Arlen Specter (R-PA) wrote to President Bush conditioning "the production of information on prior Senate agreement to provide retroactivity immunity" is "unacceptable and would turn the legislative process upside down."

Judge Michael Mukasey received two letters from members of the Senate Judiciary Committee regarding his testimony in recent confirmation hearings.

Ranking member of the Senate Judiciary Committee Arlen Specter (R-PA) wrote to request Mukasey's "views on the scope of the President's Article II powers to disregard an explicit statutory requirement. If you believe the President can act outside the law, how do you square that belief with your statement at the hearing that 'The President doesn't stand above the law[?]'" Specter added that "it is necessary for you to respond in detail as to your views on the legality and propriety of water-boarding and the appropriate scope of interrogation under U.S. law and the Geneva Convention."

Wired reports on a GAO Report (full version, summary) that says the

nation's centralized watch list has grown to include 755,000 names suspected of having terrorist ties, resulting in nearly 20,000 positive matches of persons against the list in 2006, according to a new report from Congress's investigative reporting arm. Since the list is now used in nearly all routine police stops and for domestic airline travel, Americans made up the bulk of those matches.

The article notes that "individuals who believe they are on the list erroneously or because of a confusion over their name can apply for help through the DHS Advise system, but it is not set up to allow people to contest the information that got them on the list."

The GAO acceded to government request to remove information regarding the frequency the list is used to arrest suspected terrorists or deny entry to the U.S. The article also notes that being on the list is not necessarily enough to deny entry to the country or result in an arrest.

Two bloggers made news when they wrote about and published a Second Circuit opinion — regarding a lawsuit against an FBI agent for coercing a 9/11-related confession — after noticing the Court removed its opinion from its website and later substituted a redacted version that eliminated details regarding an FBI interrogation at the heart of the lawsuit.

The Second Circuit opinion, in Higazy v. Millennium Hotel and Resorts, concerned an Egyptian graduate student who was studying in New York on 9/11 when he was falsely accused of communicating with the hijackers through a radio found in a hotel room safe. Higazy professed his innocence, took a polygraph test, but confessed during an interrogation with the FBI after allegedly being threatened by an agent.

The Federal Election Commission (FEC) held a hearing on Thursday on electioneering communications (advertisements on television and radio thirty days prior to a primary or sixty days prior to a general election) enacted as part of the Bipartisan Campaign Reform Act of 2002 (BCRA) and partially struck down in the 2007 U.S. Supreme Court decision FEC v. Wisconsin Right to Life, which held limits on "issue advertisements" to be unconstitutional.

According to Broadcasting & Cable, the FEC will examine whether to either (1) carve out an exemption to allow corporations and unions to directly fund issue ads within the proscribed time, including permitting a mention of the candidate's name, so long as the ad can be interpreted as addressing an issue rather than trying to elect or defeat a candidates, or (2) redefine "electioneering communications" to not include corporation or union ads at all.

The key difference is that in the first instance advertisers would have to identify the source of funding behind the ads to the FEC and on air, but not in the second. Other ads mentioning candidates would also be allowed.

The Brennan Center for Justice reported that interest groups spent $100 million in 2000 on political ads, with 72% of electioneering ads classified by the Center as "attack ads."

On Wednesday, the Supreme Court stayed the execution of a Virginia inmate on death row, which Ohio State University law school sentencing expert Douglas Berman characterized as "a de facto moratorium" entailing "the most profound hiatus in the operation of the death penalty in at least two decades."

Yesterday's stay was the second the Court issued since granting certiorari in Baze v. Rees, which presents the question of whether lethal injection constitutes "cruel and unusual punishment" prohibited by the Eighth Amendment, and the Court on Tuesday declined to vacate a stay issued by the Eighth Circuit. Justice Scalia dissented from that decision, arguing that the lower court's stay "was based on the mistaken premise that our grant of certiorari in Baze v. Rees calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol.”

In response to the stay, Georgia's Supreme Court suspended some executions; this decision is in line with Texas and Nevada, which also suspended executions pending the U.S. Supreme Court's decision in Baze.

The New York Times examined whether there is a moratorium.

The U.S. House of Representatives was poised to vote on the RESTORE Act on Wednesday when it was pulled from the floor in response to a "poison pill" that would have carved out an exemption to permit intelligence officials to conduct any surveillance needed to prevent bin Laden or Al Qaeda from attacking the United States. 

The House legislation, in the words of Lisa Graves, Deputy Director at the Center for National Security Studies, "would go a long way to ameliorate the flaws in the [Protect America Act that temporarily legalized warrantless wiretapping] while requiring a retroactive audit . . . about the President’s Program."  It would have sunset in 2009, and was criticized for allowing year-long "blanket warrants" instead of individualized warrants as existed prior to the recently enacted Protect America Act.

President Bush had threatened to veto the House version, and announced yesterday an agreement with members of the Senate Intelligence Committee to provide full immunity to telecommunications companies that handed over customer data to the government so long as they had followed government orders, even if the requests came without traditional supporting legal documents.

The Senate Intelligence Committee approved the legislation that grants the Attorney General the ability to immunize telecommunications companies; the legislation must still be considered by the Senate Judiciary Committee before going to the floor.

In addition, allegations surfaced that the government may have punished telecommunications companies that resisted government directives the company concluded were likely illegal. The government reimbursed at least one telecommunications company, Comcast, $1,000 for the first month and $750 for each additional month per intercept; Verizon alone turned over information 94,000 times from January 2005 to September 2007.

by Lisa Graves, Deputy Director of the Center for National Security Studies and former Deputy Assistant Attorney General in the Justice Department's Office of Legal Policy

A dear friend of mine once asked me if I knew “the First Rule of Holes.” She said it was “stop digging.” I’m reminded of this rule now on the eve of a planned vote on a bill to restore some of the checks and balances that were eliminated in August. That was when President Bush’s (retired) admiral Mike McConnell, the Director of National Intelligence, bullied Congress into changing decades of settled US surveillance law on the claim that blood would be on the hands of anyone who dared oppose their bill.

That legislation, the so-called “Protect America Act” (PAA), blew quite a hole in Americans’ right to privacy in their international calls and e-mails and set loose the vacuum cleaners of the NSA on the American fiber optic network on the Attorney General and McConnell’s say-so. What this means is that for the past 30 years, until August, the NSA was required to present a warrant from the FISA court to acquire international and domestic calls “to or from” people in the US by accessing the “wire” here (meaning, the NSA could not intercept the fiber optic or copper cables in the US).   

That rule of FISA was the product of thousands of hours of congressional investigation into past invasions of Americans’ privacy. One example was “Operation SHAMROCK,” by which the NSA had acquired almost all international telegrams “to or from” American businesses and individuals in the name of “national security.” Congress determined that a warrant for access to calls to or from Americans was the best way to vindicate the Fourth Amendment, which had been violated in the absence of court oversight. Congress did not, however, extend that rule to radio signals intercepted outside the US—that’s because of the general territorial limits of the Constitution and because radio communications by their nature can be received by anyone with a receiver, a satellite dish or otherwise, and even then FISA barred intentional acquisition of purely domestic radio communications.

The PAA exempted itself from any of these definitions of “electronic surveillance” and “any other law,” when the NSA’s acquisition concerns at least one person believed to be outside the US. It is stunning that this law could have passed in the wake of widespread condemnation of the administration’s warrantless wiretapping program that was first revealed to the public in 2005, as the Senate was debating the Patriot Act’s changes to FISA. Reports indicate that the NSA was targeting the “conversations” of people in the US without the warrants required by law and engaged in a broader effort via the fiber optic network in the US to mine American “communications,” including private data about Americans’ associations.

Verizon provided data to federal authorities without a court order 720 times from January 2005 to September 2007 in response to requests the government designated as an emergency, the Washington Post reports. During that same period of time, Verizon provided information a total of 94,000 times. The records included Internet protocol addresses and phone data.

The FBI sought information identified the person making the call, the customer receiving the call, and the "two-generation community of interest" -- those people the customer in turn called.

Both Verizon and AT&T said "it was not their role to second-guess the legitimacy of emergency government requests," even if the government did not provide the supporting documentation.

Letters from Verizon, AT&T, and Qwest regarding the turning over of customer data was provided in a letter in response to a request from the House Energy and Commerce Committee. The Electronic Frontier Foundation also commented upon the transmission of customer data.

The Supreme Court announced that argument in Boumediene v. Bush, the Guantanamo Bay habeas case, is scheduled for December 5.

ACS recently released a transcript of a discussion by experts that examined whether recent legislation successfully stripped Guantanamo detainees of the right to bring habeas challenges to contest their incarceration and the propriety of the Combatant Status Review Tribunals.

The transcript is available here. Video excerpts are available here. The entire video is available here.  

The panel included Laurence P. Claus, Professor of Law, University of San Diego School of Law; Jeh Charles Johnson, Paul, Weiss, Rifkind, Wharton & Garrison LLP; Hina Shamsi, Deputy Director & Senior Counsel, U.S. Law and Security Program, Human Rights First; Colonel Dwight H. Sullivan, Chief Defense Counsel, Office of Military Commissions, U.S. Marine Corps Reserve; and Thomas P. Sullivan, Jenner & Block LLP.

by Kate Kendell Esq., Executive Director of National Center for Lesbian Rights

I am concerned that the deletion of express protection against discrimination based on gender identity from Employment Non-discrimination Act (ENDA) would result in a law that does not fully protect lesbians, gay men, and bisexual people in addition to leaving transgender people unprotected.  We are joined in this view by all of the other principal LGBT legal organizations, including the ACLU LGBT Project, Gay & Lesbian Advocates & Defenders, Lambda Legal and the Transgender Law Center. Collectively, our organizations have litigated more cases on behalf of lesbian, gay, bisexual, and transgender people in the United States than anyone else, including handling scores of employment discrimination cases over the past three decades.

Many have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect the LGBT community’s basic rights. While the first version of ENDA introduced this year would have protected the LGBT community, the version introduced last week would not.

I see three significant problems with this weakened version of the bill:

1. Protections for transgender people were removed.
2. Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.
3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.

Yesterday, the First Amendment Center posted an online symposium entitled “Justice Thomas and the First Amendment.”

The 15 contributors to the symposium included Duke University Law Professor (and Dean of UC-Irvine Law School) Erwin Chemerinsky , University of Chicago Law Professor Geoffrey Stone , and Supreme Court litigator Tom Goldstein.

Late last week, U.S. District Judge Alvin Hellerstein of the Southern District of New York ordered ABC News reporter Brian Ross to disclose the identities of anonymous government sources upon whom he relied in 2001 when reporting on anthrax attacks. The order is in accord with a similar recent order from U.S. District Judge Reggie Walton of the District of Columbia with respect to five other reporters from outlets including The Washington Post and Newsweek.

According to ABC News spokesperson Jeffrey Schneider, "We believe firmly in honoring promises of confidentiality to our sources, and we are guided by that principle in this case." While the news organization has not announced whether it will appeal, a reporter shield law is currently being considered by Congress.

The New York Times reported yesterday that the Department of Justice issued a secret memorandum in 2005 on "combined effects" that "for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics." The Justice Department then issued a second secret opinion declaring that Congress' subsequently successful attempts to outlaw "cruel, inhuman and degrading" treatment did not apply to the CIA's interrogation methods, followed by subsequent internal opinions affirming the initial legal conclusions.

The details of the enhanced interrogation techniques are secret, but are believed to include "slaps to the head; hours held naked in a frigid cell; days and nights without sleep while battered by thundering rock music; long periods manacled in stress positions; . . . waterboarding," and combinations thereof.

Mark Tushnet recently published "Out of Range: Why the Constitution Can't End the Battle over Guns," an evaluation of the different policy positions on the Second Amendment and an argument regarding a way to move past the gun debate. He argues that "whether gun-rights advocates or gun-control advocates [win] lots of battles, the levels of crime and violence would be pretty much the same. . . . fighting over [gun policies] might simply be a diversion from efforts that might be more effective."

In Unfinished Business, his new book and the latest in the Inalienable Rights series by Oxford University Press, University of Virginia law professor Michael Klarman examines the history of the civil rights movement and the work that remains to fully achieve its vision. Assessing the ultimate effectiveness of seminal Supreme Court cases such as Brown vs. Board in light of subsequent events, he suggests a potential empirical basis for the constitutional minimalism suggested elsewhere by, for instance, University of Chicago law professor Cass Sunstein.

This morning, the Supreme Court will hear arguments on the election law case Lopez-Torres. Earlier this week, it heard arguments on another election law case, Washington State Grange v. Washington State Republican Party, regarding which Bob Bauer wrote this guest blog entry.  (Transcript of the argument available here).

Paul Smith, a partner with Jenner & Block LLP, examined Lopez-Torres and the other election law cases the Supreme Court will hear this term at ACS' Supreme Court Preview. 

Smith discusses Lopez-Torres in this video excerpt.

Microdrones is selling a 2-foot wide unmanned aerial vehicle equipped with a high-resolution video surveillance equipment and infrared night vision capability. This mini-spy helicopter is already being used by police overseas.

The latest model, costing $60,000, can fly for 20 minutes at a time, follow instructions linked to GPS coordinates, and transmits a color image to its operator who can operate the craft in real-time. It can also fly high enough to remain unseen and unheard.

Video of the MicroDrone UAV is action is available at GizmoWatch.

This week was the 50th anniversary of the desegregation of Little Rock Arkansas' Central High School. Michael Klarman writes on Huffington Post about why Little Rock was an "epic event" in the modern civil rights movement.

First, the president's willingness to use troops demonstrated that southern school districts could no longer ignore desegregation orders issued by federal courts. . . .

Second, Little Rock was the first in a series of dramatic public confrontations over civil rights that ultimately shifted national opinion in favor of progressive racial change. . . .

Third, although Little Rock should have discouraged extremism by demonstrating the futility of massive resistance to Brown, its immediate effect was to further radicalize southern opinion and to empower politicians who promised to defy "federal tyranny."

Ultimately, "it was the violence inspired by confrontations like the one in Little Rock that made [civil rights] legislation possible. Ironically, the harder southern whites fought to maintain white supremacy, the more they seemed to accelerate its demise."

Klarman has just published a new book, Brown v. Board of Education and the Civil Rights Movement, which provides an in-depth discussion of the effects of the Brown decision.

Yesterday, the Senate Judiciary Committee held a hearing on the Free Flow of Information Act of 2007 (S. 2035), which would grant journalists limited protection from efforts to force them to reveal their sources in federal courts, the New York Times reported. The legislation is weaker than Department of Justice's guidelines on issuing subpoenas to reports as well as most state's journalist shield laws, says the New York Times, and would apply only to information obtained from confidential sources.

With regard to confidential sources, the bill carves out an exception for when "the information sought would help prevent a specific case of terrorism or 'significant harm to national security that would outweigh the public interest in news-gathering and maintaining a free flow of information to the public.'" It would allow subpoenas in other instances once criminal defense lawyers and civil litigants demonstrate they have "exhausted alternative ways to obtain the requested information, that the information sought was essential to the case, and that the public interest in disclosure outweigh that in the maintaining the free flow of information."

The legislation defines a journalist as "anyone who collects and disseminates information of public interest, including bloggers, with the requirement that the activity be conducted on a regular basis."

In an article on TNR Online, Robert Post and Reva Siegel disagree with the contention that progressives should adopt an originalist approach to constitutional interpretation.

Progressives ought to be wary of a method of interpretation that strongly privileges the history of constitutional lawmaking over the experience of living under the Constitution. Our Constitution has emerged from the understandings of those who made and applied it over many generations. We are faithful to the Constitution when we respect this trust.

 

Originalism was successful, they contend, because it "implicitly pledged to reconstitute the Court in ways that would entrench conservative values." Voters were attracted to its ability to "reshape Supreme Court precedents into a 'living constitution' for right-wing convictions," not its jurisprudential value.

Thus, they argue, in additional to looking at the original understanding of the Constitution, progressives may also appeal to "text, precedent, history, structure, tradition, purpose, principle, prudence, and ethical ideals."

It is a mistake to require progressives to defend their ideals using only original meaning. . . . Constitutional arguments typically draw upon our experience living under the Constitution as well as our experience in making it.

Further discussion of originalism may be found at a panel discussion entitled "Examining 'Backlash' and Attacks on Landmark Decisions" that occurred at the 2007 ACS National Convention. Video is available here.

In Brief

• Dworkin on SCOTUS
• No Taxation of Illegal Drugs
• Death Sentence OK Despite Biblical Intervention
• AA Can't Be Required as 'Get Out of Jail Free'
• DoJ Says "No" to Net Neutrality
• Gov't Spying Extended to "Community of Interest"
  
• Can Foreigners on US Soil Be Spied on Without Warrants?
• Terrorism Screening Center Data Inaccurate Says OIG
  
• White House Did Not Inform Congress About Surveillance
• No Continuity for Congress if Catastrophe Occurs
• TSA Screeners Can Still File Claims
• Patent Bill Passes House

The Courts
The New York Review of Books has a lengthy essay by Ronald Dworkin that beings "The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent." He reviews the changes wrought by decisions from the Supreme Court's last term. He concludes "I suspect that [Robert's] Senate testimony was actually a coded script for the continuing subversion of the American constitution. The worst is yet to come."

Criminal Law
Jeralyn at TalkLeft reports that an appeals court in Tennessee has found the state's tax on illegal drugs to be unconstitutional because it derives revenue from illegal activities. (AP News Article).

Church and State
Religion Clause examines a Ninth Circuit en banc decision that upheld a death sentence despite the jury foreman's notes setting out Biblical arguments for and against the death penalty because, the court concluded, the arguments had no substantial effect on the jury's decision. (The Court's Opinion)

How Appealing reports on a U.S. Court of Appeals for the Ninth Circuit opinion that held Alcoholics Anonymous has enough religious overtones that a parolee can't be ordered to attend its meetings as a condition of staying out of prison. (S.F. Chronicle)

Telecommunications Law
The Washington Post also reports that the DoJ has come out in opposition to "net neutrality," thereby granting phone and cable companies "the option to charge some users more money for loading certain content or Web sites faster than other content."

National Security and Civil Liberties
Wired's blog "Threat Level"  expands on a New York Times article that detailed how the FBI's use of data mining extended beyond "individuals it saw as targets" to "their 'community of interest' — the network of people that the target was in contact with." The FBI stopped the practice, reports the Times, because "of broader questions raised about its aggressive use of the records demands, which are known as national security letters "

Dahlia Lithwick at Slate writes about President Bush's two new nominees to the U.S. Court of Appeals for the Fourth Circuit: Steve Matthews and E. Duncan Getchell.

The president opted to casually insult Virginia's two home-state senators by disregarding a list of five bipartisan selections who would have easily been confirmed, sent to the White House last June from Sens. John W. Warner, R, and James Webb, D. Bush picked one candidate who Warner and Webb considered and rejected—and a second who appears to be of the view that what the law needs more of is Rush Limbaugh.

Is it that Bush simply doesn't care about the need for the support of home-state senators in the judicial confirmation process or that he doesn't fully understand that the judiciary committee is no longer under Republican control? Does he hope no one will notice that his judicial picks are as radical today as they were six years ago? The answer, surely, is that Bush is fighting a symbolic war over the courts.

Regarding Steve Matthews, she writes:

Now, I am certain Mr. Matthews is an able lawyer, and the fact that he has logged no time at all as a judge should not necessarily count against him. But a brief glance at his résumé suggests that Matthews' strongest credentials for this federal appeals court seat include . . . his membership on the board of directors for the Landmark Legal Foundation.

The Landmark Legal Foundation? Wait: Isn't that the outfit run by Mark R. Levin, the man who brought us Men in Black: How the Supreme Court Is Destroying America? The constitutional theory proffered in that book was, as you may recall, that any judge who arrives at a different legal conclusion than Levin or Rush Limbaugh is an "activist" who threatens America with imminent "tyranny." Matthews is thanked by name in Men in Black. Is it a bit strange that Bush's latest judicial nominee was intimately involved in a best-selling book that argues for kneecapping the federal judiciary? . . .

Also championing Matthews is Fred Fielding, counsel to President Bush. Apparently, Matthews and Fielding worked together during Reagan's second term in the mid-1980s. Matthews' online résumé notes that "[a]t Justice, he advised Attorney General Edwin Meese III and President Reagan on the selection of nominees for federal judgeships, and served as special counsel to Attorney General Meese on the Iran-Contra investigation." That certainly rounds out Matthews' résumé, but it doesn't make him an attractive candidate for senators seeking bipartisanship and compromise.

As for Getchell:

Of course, those same senators who sought bipartisanship and compromise—in this case, Webb and Warner—were themselves rudely smacked upside the head with the president's second nominee, Virginia's E. Duncan Getchell, whom they'd met with but left off their final list.

Boston Globe reporter and book author is blogging on TalkingPointsMemo regarding the Bush administration’s efforts to expand presidential power, and about the book, which aims to be a comprehensive account of this extraordinary project to reshape American government.

Charlie Savage released a new book, Takeover: The Return of the Imperial Presidential and the Subversion of American Democracy, which The San Francisco Chronicle has characterized as "A masterful work of investigative journalism . . . [that] deserves to be remembered as one of the key texts of the Bush years."  Savage recently won a Pulitzer prize for his reporting on presidential signing statements.

According to the New York Times:

Behind the walls of federal prisons nationwide, chaplains have been quietly carrying out a systematic purge of religious books and materials that were once available to prisoners in chapel libraries. . . .

Prison chaplains, and groups that minister to prisoners, say that an administration that put stock in religion-based approaches to social problems has effectively blocked prisoners’ access to religious and spiritual materials — all in the name of preventing terrorism.

The story reports that chaplains were directed by the Bureau of Prisons to remove all materials not on a list of approved resources, permitting a maximum of 150 book titles and 150 multimedia resources for each of 20 religious categories. The DoJ says it relied on religious “experts” to compile the lists, but the identities of the experts -- and the list of pre-approved books -- have not been made public.  

Chaplains routinely reject any materials that incite violence or disparage, and donated materials already had to be approved by prison officials.

Georgetown law professor and award-winning author David Cole critiques the Bush administration's “preventative paradigm” in the "war on terror” in his new book Less Safe, Less Free, which will be released this week.

Dean Harold Koh of Yale Law School applauds the book:

This compelling, necessary volume demolishes the doctrine of preemptive self defense as a dangerous oxymoron, whose acceptance will surely render us less safe, less free, less American, and less able to lead globally through the rule of law.

The HuffingtonPost reports a federal judge in New York struck down part of the USA Patriot Act, holding investigators must have a court's approval before they can order Internet providers to turn over records without telling customers.

U.S. District Judge Victor Marrero said the government orders must be subject to meaningful judicial review and that the recently rewritten Patriot Act "offends the fundamental constitutional principles of checks and balances and separation of powers."

The American Civil Liberties Union had challenged the law, complaining that it allowed the FBI to demand records without the kind of court order required for other government searches.

The ACLU said it was improper to issue so-called national security letters, or NSLs  -- investigative tools used by the FBI to compel businesses to turn over customer information -- without a judge's order or grand jury subpoena. Examples of such businesses include Internet service providers, telephone companies and public libraries.

Update: Here's a link to the decision

Several groups have filed a lawsuit to prevent the Department of Homeland Security from enforcing a rule that, the groups contend, "will threaten jobs of U.S. citizens and other legally authorized workers simply because of errors in the government's inaccurate social security earnings databases."

"I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making” Jack Goldsmith, former head of the Justice Department's Office of Legal Counsel, said to the New York Times.

The Washington Post reviewed Goldsmith's recent book, "The Terror Presidency," which discussed White House resistance to Goldsmith's constitutional concerns:

As I absorbed the opinions, I concluded that some were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President. . . . I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.

The Times reported Goldsmith as saying he withdrew more legal opinions than any of his predecessors.