Checks and Balances are for Wusses.

In a 73-24 vote, the US Senate confirmed the nomination of Valerie Caproni as New York’s newest District Court Judge on Monday. The position is a step up for Caproni, but perhaps not so much for New York citizens interested in maintaining the system of checks-and-balances on which the US has long prided itself.

Prior to her current position as Vice President and Deputy General Counsel at Northrup Grummond, Caproni served in the FBI’s general counsel’s office for 8 years and, according to some lawmakers, illegally expanded the scope of the PATRIOT Act to enable federal law enforcement agencies to collect metadata on US citizens —including records of telephone and email communications.

While many NSA spying programs have only recently come to light, Caproni’s role in authorizing these actions was questioned as far back as 2010.  As head of the House Judiciary Committee, Rep. John Conyers (D-MI) called for her termination, saying “The FBI broke the law on telephone records privacy and the general counsel’s office, headed by Valerie Caproni, sanctioned it and must face consequences.”

Caproni’s disregard for privacy concerns was noted by former Department of Justice official Lisa Graves, who recalled a 2007 conversation when Caproni pointed out the myriad channels through which the US government could secure phone records, from a “215 Order” (part of the PATRIOT Act) to a grand jury subpoena — all of which would remain secret.  This, said Graves, illustrates Caproni’s “lack of regard for Americans’ countervailing interest not to have records about their communications or business transactions swept up in secret by government agencies without any indication that they themselves have done anything wrong.”

Perhaps more egregious, we have since learned that Caproni at best misled, at worst blatantly lied, to Congress when she testified in 2008 that, after a thorough review of data collected by the FBI ensured that it “retained only exigent letter-related telephone records for which we had a lawful basis.” Further, if phone records obtained by the FBI were found to be unrelated to an open investigation, and there was no emergency rationale for their retention, “we purged the telephone records from our files and databases.” The nation has since learned that such records are routinely stored for 5 years.

Opposition to President Obama’s nominee particularly from Senators Chuck Grassley (R-IA) and Dick Durbin (D-IL), prompted Caproni to write to Durbin in July, pledging to recuse herself from any case “where my impartiality could be reasonably questioned” and those where “I had personal or supervisory involvement in a matter while at the FBI.”

That appears to have been sufficient for Senate Committee confirmation. It remains to be seen whether the full Senate will demand further inquiry. In June, Sen. Grassley implied that he might hold up the nomination if Caproni didn’t provide copies of unclassified emails that the Senator requested in 2008. “I only received a few of these emails, and they were heavily redacted,” said Grassley. “Ms. Caproni was general counsel of the FBI at the time and told me that the documents I was waiting for were on her desk, awaiting her review. Well, it’s now 2013 and as of her hearing, I had never received these documents.”

Far from questioning her on the issue, Sen. Kirsten Gillibrand (D-NY) praised Caproni as “a woman with impeccable credentials. This country needs more women like her.”  Gillibrand, who represents the very people who were subjected to NYPD Chief Kelly’s (wholly unsuccessful) witch hunt, may want more women who flout the Constitution, reject Congress’ authority, and find it acceptable to spy on innocent American citizens. I’d prefer judges who put those kind of women in jail.

Aside

It’s not just racism that brought us to this point: we, as a nation, sped ourselves here on the tattered wings of our own apathy.

When it overturned Section 5 of the Voting Rights Act, the Supreme Court did the right thing. It wasn’t the most desired outcome, but it was the right one.

Would it be preferable for the VRA continue unimpeded? Absolutely.

Will the SCOTUS decision open the door for discriminatory voting restrictions and blatant gerrymandering? Undoubtedly.

Are we in for bigger battles, longer lines, and more egregious corruption of the U.S. electoral system than ever before? Most likely.

Yet, even in light of these potentially disastrous consequences, we cannot permit 50-year old statistics and narratives to define current policy. We are a living nation, with a living Constitution, subject to constant review and interpretation. We debate and pass laws to protect our constantly evolving society and the individual’s place within it. We charge our representatives with safeguarding our rights, and we have established processes to ensure that representatives who fail to do so can be removed from office.

The sad fact is that the very representatives who are threatening this most fundamental right are put in office by roughly 40% of the people. That’s the average percentage of eligible voters who cast ballots in state elections. Roughly 2/5 of the country is controlling 100% of the state legislatures. And it is not because of voter disenfranchisement, it’s because of voter apathy.

The media and the vast majority of activists would have us believe that our only recourse in the attack on voter rights is to await resolution of protracted court battles, or hope that a vastly less-partisan Congress will establish and enact a process for election protection. The former is too distant a solution, the latter too unlikely. And regardless, there is a much more expedient means to ensure that those with the authority to promote fair, accessible, transparent elections will do so.

In 2014, 36 out of our 50 U.S. Governors, and 46 of our 50 state legislatures will be up for election. Those sets up a pretty good playing field for anyone who wants legislators who are not threatened by universal suffrage.

But that’s not the story in the media. Instead, pundits and activists are fanning the flames of outrage without proposing that voters grab one of those pails of water waiting for them and douse the fire. As receptive as I am to the general outpouring of “liberal media” indignation, it seems that anyone truly committed to eradicating voter restrictions would advocate action rather than exasperation.

Devoting just two hours out of the roughly 9,000 hours in the average election cycle, a voter could attend a public forum and get candidates on the record statements about their stance on voting policies. In just 15 minutes, a voter can send an email to Rachel Maddow or to Bill O’Reilly and ask them to get guest candidates on the record about voter registration and voter ID laws. We can get them on the record. We can select viable candidates, and we can cast informed ballots to promote justice and equality.

And we can do it all without revisiting who was a poll watcher in Mississippi in 1967. Because the problem isn’t who was blocking access to the polls then. The problem may not even be who’s blocking it today. The problem is that while we were reminiscing about our victory, the opposing camp was rallying its forces. It’s not just racism that brought us to this point: we, as a nation, sped ourselves here on the tattered wings of our own apathy.

The last few weeks have made it clear that we’re willing to walk to the mountaintop to proclaim the problem, but are we willing to walk to the ballot box to eradicate it?

(Supreme) Courting the Vote

Today, the Supreme Court hears arguments on one of the most important legislative initiatives from the Civil Rights era: the Voting Rights Act of 1965. The VRA ensures that all eligible American citizens are able to vote, unimpeded by processes or regulations— from literacy tests and English-only ballots, to moving polling places and redistricting—that could effectively disenfranchise ethnic minorities.

The VRA has been upheld a number of times over the years, upheld by the Supreme Court in 2009 and extended three times by Congress. The most recent extension, through 2031, passed in 2006 by a 390-33 House majority, and passed unanimously by the Senate.  Given that more lawmakers supported the 2006 extension than supported the VRA’s creation (333-85 (H); 77-19 (S)), it seems clear that the American people believe strongly in the need for these continued electoral protections. But certain state legislatures disagree.

Detractors claim that the VRA is outdated, and includes provisions that target the same states and jurisdictions originally included in 1965. Claiming that barriers to minority voting have been addressed over the last 48 years, they cite as proof the many African American officials elected throughout the region. But in fact, the recent elections have illustrated just how important these provisions are.

  • Section 203 requires certain jurisdictions to provide written and/or oral assistance to eligible voters with limited English proficiency. And its impact has been clear: in San Diego alone, Vietnamese registrations increased by 40 percent after the county agreed to provide language assistance in that language.
  • Section 5 requires that certain state and local governments with a history of voter disenfranchisement “preclear” proposed changes in voting or election procedures with either the U.S. Department of Justice or the U.S. District Court for the District of Columbia. This provision gained national attention in the run-up to the 2012 elections, as states around the nation began imposing Voter ID laws, mandating that all voters have state-issued photo identification in order to cast their ballots.  Various states and jurisdictions are covered by Section 5 – including Texas, whose proposed voter ID law was not pre-cleared by the Department of Justice in 2012 on the grounds that it would disproportionately impact Latino voters.

While it’s true that the states highlighted in 1965 are still subject to Section 5 and 203 provisions, it does not follow that these protections are unnecessary. The election of ethnic minorities to government office does not mean that America has met its civil rights challenge. The fact is that demographics have changed, and the minority populations at the heart of the 1965 Act are not necessarily those being targeted today. Objections to the spate of 2012 voter ID laws were based on the disproportionate impact not merely on African Americans, but on Hispanics, Asian Americans, and Native Americans, as well as youth, the elderly, and single females. 

It may well be time to revisit the specific states impacted by Section 5, but this should not be done by overturning the law itself. Such a bold stroke would impact not only oversight of potentially questionable election practices, but would also remove key protections, including those offered in Section 203, which have served to increase civic participation among our nation’s diverse citizenship.

Rather, while upholding current law, Congress could be charged with periodically revisiting what states and jurisdictions should be monitored, using current demographic analyses to determine those areas with significant minority and/or immigrant populations that could be disenfranchised by the manipulation of election processes or regulations.

Doing so in the next few years — perhaps in time to celebrate our nation’s 250th anniversary– might just allow the U.S. to uphold its promise of liberty and justice for all.

A Loaded Question(naire)?

An insidious attack on poor and minority communities, or an innocent cost-cutting measure? Sometimes, it’s just so hard to tell.

Rep. Daniel Webster (R-FL) is concerned that some of the questions in the Census Bureau’s American Communities Survey “hardly fit the scope of what was intended or required by the Constitution.”

The ACS was developed in 2005 to replace the long-form that accompanied each decennial census. The long form Census reviled as a burdensome waste of time. And, in truth, the utility of measuring changes in family size or income or education —or even community population— once each decade is dubious at best. How can a community possibly keep pace with the need for new schools or hospitals if it measures its population just once every ten years?

By sending the ACS to about 250,000 people each month, state, and local governments get more detailed and accurate pictures of the trends and needs in their local communities, and in broader communities nationwide (single parents, high school drop-outs, low-income elderly). The data is compiled in one-, three-, and five-year reports, which are available to the public online. The information is used by government agencies as well as researchers, businesses, think-tanks, and marketers, because it provides details about our communities that can’t be found anywhere else.

The ACS counts minority communities who aren’t included in the decennial census: Japanese Americans, Irish Americans, Arab Americans, and dozens more.  It provides a snapshot of emigration and immigration trends, which can alert local governments to the need for more language and cultural training for municipal employees.  It identifies poverty clusters early, giving localities time to implement programs that will help avoid the accompanying high crime rates, long term health problems, and underperforming schools.  And the federal government gets the information it needs to apportion roughly $800 billion in annual grants and benefits to states and individuals.

Granted, big business will still get the information it needs about customers, with Target and CVS plugging your phone number into their registers so they can see whether you’re buying diapers or denture cream, maxi pads or mustache wax. And the feds will keep tracking you Facebook and Twitter to find out who you’re supporting in 2012 and whether you vacationed in Vale last year. It’s the information age, after all, and there’s plenty of data to be had, if you’ve got the money to collect it. For companies, it’s just a cost of doing business — research costs that they pass on to the consumer.

For the researchers and small governments, though, there aren’t any alternatives. There’s no other way to collect information on the people who need government services the most — the ones who buy groceries at a Mom & Pop Shop, who don’t use Facebook because they can’t afford a computer, the families that have lost their health insurance.

The Republicans in Congress are upset because we’d spend $2.4 billion over 10 years on the American Communities Survey — that’s $240 million per year to identify where the $800 billion per year in federal funds is most needed. Three hundredths of a percent to make sure that we, as a nation, take care of our most vulnerable citizens. Clearly, it’s too high a price for these Representatives.

The OTHER Other 91%

On April 25, the US Supreme Court is going to hear arguments in State of Arizona v. United States of America, to determine whether states can override federal immigration policy by enacting their own immigration laws. It’s a state’s rights issue, to be sure. But it’s also an issue for every member of an ethnic minority, because you’re the one who’s going to be pulled over and questioned about your legal status. I, for one, don’t carry much information on me that would prove my citizenship if I were stopped on the way to Target. How about you?

Let’s look at Arizona for a minute. Did you know that the Asian American population there grew by more than 90% in the last ten years? The Arab American population was close behind, growing by 86%. In fact, immigrant populations have been booming around the nation. Nearly 14 million new immigrants came to the US between 2000 and 2010, most from Mexico, India, the Philippines, and China. The number of Arabs applying for a “green card” increased by 25% between 2000 and 2007;  more than 2,300 individuals migrate to the U.S. each year from the Maghreb alone.

Of the states likely to be impacted by the Supreme Court’s decision on Arizona v U.S., six have some of the nation’s top concentrations of Arab Americans. Four have the nation’s top concentrations of Asian Americans. Still think this is a Hispanic issue?

Bear in mind: what we’re talking about here isn’t policing our borders or checking IDs on entry. It’s stopping people whose tail light is out and demanding proof of citizenship. It’s charging law enforcement officials with determining whether there’s reasonable doubt about my being a US citizen. And let’s face it – what are the criteria going to be? How do you decide, on the basis of a traffic stop, whether I “seem American?” It’s on the strength of my accent, the color of my skin, the international flag bumper sticker on my rear window.

That’s the definition of profiling. Webster’s may as well put the text of SB1070 under “Racial Profiling” in its next edition.

Immigrant communities have been targeted by immigration policies before. The Johnson-Reed Act of 1924 dramatically restricted the number of immigrants allowed into the U.S., but virtually closed off immigration from the Asian and Arab worlds. The restrictions weren’t lifted until passage of the1965 Immigration and Nationality Act. In the post-9/11 era, travelers from the Arab world were again targeted, this time by programs like NSEERS, which required individuals from 24 countries to provide fingerprints and photographs upon entry into the US –and subjected those already in the US on September 10, 2001 to the same scrutiny. Of the 24 countries, 23 were majority Muslim, and 16 were Arab. All were “brown.”

Arizona’s law is now going before the Supreme Court. But it doesn’t stop there. Florida, Michigan, Pennsylvania, Texas, and Virginia have considered or are still debating immigration “reforms” that could allow law enforcement officers to check on the immigration status of people arrested, or even just stopped for minor traffic violations; to restrict birthright citizenship; to deny in-state tuition to undocumented students, and much more.

According to the 2010 Census, 9% of Americans are native to this country. Those of us who make up the other 91% should recognize immigration as our issue. Whether you came over on the Mayflower a few centuries ago or in the back of a pick-up last year, whether you showed up as a student, a son, or a new bride, you came of your own volition. There’s no documentation, but I’m betting the number of immigrants actually invited to this country  by its native population- particularly after the first wave of diseases decimated the population- is pretty damned small. No, the immigrants weren’t invited. They arrived at a land they had no claim to, and they built a life and a family and a future that they called their own. Sometimes they did it at someone else’s expense. Sometimes they did it in partnership. Always, they did it with the hope of passing on something more than they had before – including the title of “American.”

Now it’s down to you. As an American, you don’t have the right to take that dream from someone else. To the contrary, you have the obligation to make that dream viable for generations to come. Because that is the American legacy.

NYPD – WTF (Why the Fuss?)

The New York Police Department is under scrutiny—but in an ironic twist, it’s the Arab American and American Muslim communities that are putting the NYPD under the looking glass. And this time, we have support from Senators Joe Lieberman (I-CT) and Rob Menendez (D-NJ) and New Jersey Governor Chris Christie.

By way of background, we learned in 2011 that the NYPD had been sending undercover officers (“rakers”) into Arab American and Muslim neighborhoods to monitor community members’ actions, and employing “mosque crawlers” to monitor sermons. They’d even established a unit “tasked with scanning arrestees for potential informants.” What does this mean in real terms? It meant asking the New York Taxi Commission to submit a list of all Pakistani taxi drivers with minor infractions—and using those traffic violations as leverage to persuade Muslim cabbies to become police informants.

Wondering who would devise such a plan? How about the CIA? No joke, the NYPD had an undercover CIA employee help build its intelligence programs. Despite federal prohibitions against the CIA conducting domestic surveillance, the agent maintained offices in both NYPD and CIA headquarters while he designed the “rakers” and “mosque crawlers” programs.

In 2011, the NYPD came under fire yet again for using a film titled The Third Jihad: Radical Islam’s Vision for America as part of its police training. NYPD claimed the film had been shown “a couple of times,” but it was later revealed that the film was seen by some 1,500 officers. Produced and funded by The Clarion Fund, The Third Jihad is fictional propaganda at its worst, a purported documentary with footage of an Islamic flag flying over the White House. The film also features interviews with various officials and “experts,” including…wait for it…New York Police Commissioner Ray Kelly.  Kelly originally denied participating in the film, but his memory improved when it came out that he’d provided filmmaker Erik Werth with a 90-minute interview.

And in the last week, more news broke: it turns out that the NYPD has conducted surveillance operations as far afield as Pennsylvania and Connecticut. They joined one Muslim Student Association on a whitewater rafting trip and reporting that they’d (shockingly?) “prayed at least four times” and that “much of the conversation was spent discussing Islam.”

The bad news is that Mayor Bloomberg is defending NYPD’s programs—at least it’s out-of-jurisdiction surveillance programs—saying “We have to keep this country safe. This is a dangerous place.” Much to his credit, Sen. Joe Lieberman (I-CT), head of the Senate Homeland Security Committee shot back “[Terrorism] does not justify transforming our society from a democracy to one where the police are free to spy on people solely based on their faith.”

The good news is that New Jersey’s officials are fighting back. Mayor Cory Booker of Newark, where mosques and neighborhoods were subject to NYPD surveillance, says the spying is “deeply offensive.” Apparently the NYPD submitted questions to Newark officials and asked for a tour of the city, but, says Booker, “if anyone in my police department had known this was a blanket investigation of individuals based on nothing but their religion… it would have merited a far sterner response.

New Jersey Governor Chris Christie called the reports “disturbing,” and said that the New Jersey Attorney General will “get to the bottom of it.” And indeed, the Attorney General’s office has gotten numerous requests, including one from the ACLU, calling for an investigation into the NYPD’s surveillance activities in Newark. Sen. Menendez went a step further, asking US Attorney General Eric Holder and CIA Director Robert Petraeus to look into the matter, citing grave concerns about “law enforcement efforts focused on individuals who were not suspected of any criminal activity.”

In the month since all hell broke loose in New York, the FBI has admitted that its own training resources were less than pristine. In fact, they’ve pulled 900 pages of documents that may have “contained factual errors” and “lacked precision.” That’s some pretty innocuous phrasing for charts that claimed that the more “devout” a Muslim is, the more likely he is to be “violent,” or refer to the prophet Mohammed as “a cult leader.”

And more troubling is the fact that this issues was brought to the attention of federal and local law enforcement agencies by Arab and Muslim groups on numerous occasions. Perhaps the voices of targets don’t carry very well out of the dark chasms of official suspicion.

The Chesser Report: Found Inside Pandora’s Box

In late February, the Senate Committee on Homeland Security and Governmental Affairs (HSGA) got a heck of a gift: a treasure trove for them, a Pandora’s box for the rest of us.

Zachary Chesser: A Case Study in Online Islamist Radicalization and Its Meaning for the Threat of Homegrown Terrorism profiles a 23 year-old Virginia man currently serving 25 years in federal prison on terrorism-related charges. In the Committee’s own words, the report details “the internet radicalization of a homegrown terrorist to violent Islamist extremism and the inadequacy of U.S. policy to counter online radicalization.”

Theoretically, the report is critical to understanding and addressing the “increase in the number of terrorist plots and attacks within the homeland, including by U.S. citizens.” But an independent report by the Triangle Center on Terrorism and Homeland Security, issued just three weeks prior to the HSGA report, documented a sharp decrease in the number of plots by “radicalized Muslim Americans.”

There is, on the other hand, a sharp increase in another insidious activity: government efforts to intercept, track, record, and compile databases on the communications of American citizens. From accessing our international telephone and internet communications, to attaching GPS systems to vehicles without a warrant, to seizing library and bookstore records —and preventing the library, bookstore, car rental agency, etc. from telling the owner that the records have been seized— there is precious little information the government doesn’t believe it is allowed to access without judicial authorization or any real oversight.

It’s done primarily under the guise of protecting Americans. It is, we are told, the only way to deter the ever-looming threat of terrorism –an assertion that the Chesser Report seems almost tailor-made to support. Its publication –and HSGA’s hearing on the Report– come at a time when government surveillance programs are coming under greater scrutiny, and agencies are trying desperately to convince the public that unwarranted surveillance, and programs with no judicial oversight are really in our best interests.

Consider FBI Director Robert Mueller’s comments about individuals the FBI tracked via warrantless GPS devices:

“We have a number of people in the United States who we could not indict, there’s not probable cause to indict them or to arrest them, who present a threat of terrorism, articulated maybe up on the Internet, may have purchased a gun, but taken no particular steps to take a terrorist act, and we are stuck in the position of surveilling that person for a substantial period of time.”

Evidently, we are supposed to be upset that the FBI is being held to a “probable cause” standard before conducting warrantless surveillance on US citizens.  We are meant to believe that the only way the government can protect us from those who hate our freedoms, our liberties, and our Constitution is by taking away those freedoms and liberties and squashing the Constitution. It’s a challenging argument, to be sure.

And even the Supreme Court has found it challenging. It shot down warrantless GPS tracking in January, stating that it violates 4th Amendment protections against unreasonable search and seizure.  The FISA Amendments Act continues to be challenged in the courts. And just days ago, Senators Mark Udall and Ron Wyden acknowledged —and protested—  the “significant gap between what most Americans think [PATRIOT Act Section 215] allows and what the government secretly claims the law allows.”

Nevertheless, law enforcement agencies, from the FBI to the CIA right down to the New York Police Department continue to insist that failure to provide carte blanche for government surveillance and detention will result in inevitable, probably imminent, disaster. The Chesser Report is the latest weapon in the government’s growing arsenal of rationales to justify spying on US citizens. Consider its recommendation for future action:

“The U.S. Government needs a comprehensive Internet strategy to address online radicalization that integrates activities across the State Department, the Defense Department, the Department of Homeland Security, the FBI, and other agencies into a single, coherent approach – while vigilantly respecting the First Amendment rights of all Americans.”

In fact, it is the very lack of vigilant protection of our civil liberties that have resulted in numerous law suits challenging government actions and proposals. To believe that a comprehensive government-run internet surveillance strategy would not violate our First Amendment rights is naïve at best. What is clearly needed is a comprehensive citizen-based strategy for calling to account government programs that profile ethnic and religious minorities, that violate US citizens’ rights to privacy, and that reject centuries-old principles of common law such as the need for probable cause.

HSGA has a case study. Americans, fortunately, have the Constitution.