Sheriff Joe Arpaio is something of a hero to the anti-immigrant Right. He was one of the most outspoken proponents of Arizona’s draconian anti-immigrant law last year, in a large part because he had already been using the racial profiling tactics it authorized for years. He delighted in punishing prisoners –including protestors of his tactics – by making them wear pink underwear, a practice he commemorated last month by giving Sarah Palin her very own pair. He briefly had his own reality TV show. He was courted by the Tea Party. GOP presidential candidates, including Michele Bachmann and Herman Cain vied for his endorsement, which he ultimately gave to Rick Perry before joining the candidate on the campaign trail.
Arpaio’s reckless flair for self-promotion and disregard for civil rights have been well-known for as long as he has had national fame. But today, the Justice Department released a long and scathing report detailing the Sheriff’s record of civil rights violations, including his discrimination against Latinos and non-English speakers, “excessive use of force” and “unlawful retaliation against individuals exercising their First Amendment right to criticize MCSO’s policies or practices.”
The AP outlines some of the most shocking allegations in the report:
The civil rights report said Latinos are four to nine times more likely to be stopped in traffic stops in Maricopa County than non-Latinos and that the agency's immigration policies treat Latinos as if they are all in the country illegally. Deputies on the immigrant-smuggling squad stop and arrest Latino drivers without good cause, the investigation found.
A review done as part of the investigation found that 20 percent of traffic reports handled by Arpaio's immigrant-smuggling squad from March 2006 to March 2009 were stops - almost all involving Latino drivers - that were done without reasonable suspicion. The squad's stops rarely led to smuggling arrests.
Deputies are encouraged to make high-volume traffic stops in targeted locations. There were Latinos who were in the U.S. legally who were arrested or detained without cause during the sweeps, according to the report.
During the sweeps, deputies flood an area of a city - in some cases, heavily Latino areas - over several days to seek out traffic violators and arrest other offenders. Illegal immigrants accounted for 57 percent of the 1,500 people arrested in the 20 sweeps conducted by his office since January 2008, according to figures provided by Arpaio's office.
Police supervisors, including at least one smuggling-squad supervisor, often used county accounts to send emails that demeaned Latinos to fellow sheriff's managers, deputies and volunteers in the sheriff's posse. One such email had a photo of a mock driver's license for a fictional state called "Mexifornia."
The report said that the sheriff's office launched an immigration operation two weeks after the sheriff received a letter in August 2009 letter about a person's dismay over employees of a McDonald's in the Phoenix suburb of Sun City who didn't speak English. The tip laid out no criminal allegations. The sheriff wrote back to thank the writer "for the info," said he would look into it and forwarded it to a top aide with a note of "for our operation."
Federal investigators focused heavily on the language barriers in Arpaio's jails.
Latino inmates with limited English skills were punished for failing to understand commands in English by being put in solitary confinement for up to 23 hours a day or keeping prisoners locked down in their jail pods for as long as 72 hours without a trip to the canteen area or making nonlegal phone calls.
The report said some jail officers used racial slurs for Latinos when talking among themselves and speaking to inmates.
Detention officers refused to accept forms requesting basic daily services and reporting mistreatment when the documents were completed in Spanish and pressured Latinos with limited English skills to sign forms that implicate their legal rights without language assistance.
The agency pressures Latinos with limited English skills to sign forms by yelling at them and keeping them in uncomfortably cold cells for long periods of time.
These allegations are disturbing enough in themselves. But what’s even more troubling is that the person behind them has been not only held up as a hero by the Right, but has served as an inspiration for immigration legislation around the country. In a report last year, we examined the ways the anti-immigrant Right has worked to dehumanize immigrants in order “to inflame anti-immigrant sentiment and build political opposition to comprehensive immigration reform.” It should come as no surprise that Sheriff Joe is the movement’s figurehead.
In a groundbreaking speech last night, Attorney General Eric Holder promised that the Obama administration would fight back against attacks on voting rights – whether they’re launched by individuals committing voter intimidation or state governments suppressing the vote through restrictive and discriminatory laws.
Holder said the administration would fight for voting rights on three levels: prosecuting voter intimidation, ensuring that state redistricting efforts are not discriminatory; and urging lawmakers to reform election laws “in ways that encourage, not limit, participation.”
A People For the American Way Foundation report in October examined the proliferation of right-wing attacks on voting rights, from restrictive Voter ID laws to illegal but hard to trace deception campaigns.
Holder addressed the efforts of dozens of states to make voter registration more difficult, saying:
As concerns about the protection of this right and the integrity of our election systems become an increasingly prominent part of our national dialogue – we must consider some important questions. It is time to ask: what kind of nation – and what kind of people – do we want to be? Are we willing to allow this era – our era – to be remembered as the age when our nation’s proud tradition of expanding the franchise ended? Are we willing to allow this time – our time – to be recorded in history as the age when the long-held belief that, in this country, every citizen has the chance – and the right – to help shape their government, became a relic of our past, instead of a guidepost for our future?
For me – and for our nation’s Department of Justice – the answers are clear. We need election systems that are free from fraud, discrimination, and partisan influence – and that are more, not less, accessible to the citizens of this country.
Today, Senators Ben Cardin and Charles Schumer introduced legislation that would impose tough penalties on those who create and distribute deceptive information about voting and elections. PFAW Foundation’s Andrew Gillum responded:
Right-wing politicians and talking heads have aggressively pushed the myth that ‘voter fraud’ is a great threat to the sanctity of our elections. However, the evidence shows that the real threat to our democracy comes from laws that discourage whole communities of people from voting and from devious voter suppression practices like those that took place in Maryland last year. We must fight suppressive laws, like Voter ID requirements, at the legislative level. Deceptive practices can, and should, be combated by law enforcement. This bill takes an important step toward ensuring that all Americans are free to exercise their right to vote without intimidation and harassment.
Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation. Moreover, that discrimination continues today and limits their political influence.
[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)
In recent months I’ve written about various contributions to the It Gets Better Project. Dan and Terry. Ellen DeGeneres. President Obama. Secretary Clinton. Civil Rights Division at the Department of Justice. Yesterday brought a video from White House staff members.
The video’s release notes:
Inspired by President Obama’s It Gets Better video, several LGBT White House staffers decided to add their voices to the project. President Obama has more LGBT appointees than any previous administration and he is committed to making his administration reflect the diversity of our nation.
I also just came across a page that collects It Gets Better videos produced by the Obama Administration. Some I’d seen. Some I hadn’t. Check it out!
PFAW agrees that every student, LGBT or not, has the right to be educated in the same way. Click here for more information.
In recent months I’ve written about various contributions to the It Gets Better Project. Dan and Terry. Ellen DeGeneres. President Obama. Secretary Clinton. Today brought a video from the Civil Rights Division at the Department of Justice.
As you can see:
The Civil Rights Division, and the entire Justice Department, is committed to ending bullying and harassment in schools, and the video highlights the Department’s authority to enforce federal laws that protect students from discrimination and harassment at school because of their race, national origin, disability, religion, and sex, including harassment based on nonconformity with gender stereotypes. The video also features Division employees who share their individual stories and personal messages that a better future awaits youth who may be experiencing bullying or harassment.
PFAW agrees that every student, LGBT or not, has the right to be educated in the same way. Click here for more information.
Usually when we talk about Republican obstruction, it’s to explain the immediate problems that need to be fixed, but can’t because Republican Senators won’t let the solutions come up for a vote—an understaffed Department of Justice, empty seats languishing on the federal judiciary, an impending budget deadline, etc.
Currently, for example, there are 34 judicial nominees pending on the Senate floor, the vast majority of which are to fill vacancies deemed “judicial emergencies.” 26 of those nominees have faced no Republican opposition; one received only one negative vote - but all of them are held up anyway, waiting endlessly to start their new jobs.
But perhaps the most damaging effect of this delay won’t become apparent for years. Delaying simple confirmation votes forces nominees to put their lives on hold for months or even years, for a job with longer hours and less pay than they could find elsewhere. The excruciatingly long confirmation process is making it harder and harder to recruit qualified candidates to fill critical government positions.
Already, some nominees have decided that they couldn’t, or didn’t want to, deal with the ugly process any longer.
Dawn Johnsen, President Obama’s pick to head the Office of Legal Counsel, eventually withdrew her name because Republican senators so politicized her nomination that they undermined her primary goal of depoliticizing the OLC itself. Mary Smith, nominated to head the Tax Division of the Justice Department, asked for her name to be withdrawn when she concluded GOP obstruction would drag on for months longer. And any number of judicial nominees have displayed borderline heroism by sitting by silently as their reputations are smeared by critics playing fast and loose with the truth.
After seeing the treatment that even exceedingly well qualified nominees receive from the Senate, should it be any surprise if well qualified individuals in the future just decide that they don’t want the trouble?
Of course, if you’re in the business of attacking the Obama Administration at all costs, maybe scaring off qualified government officials isn’t a problem, it’s the goal.
There’s no denying the fact that it was frustrating to see the Paycheck Fairness Act defeated in a 58-41 vote – 2 votes shy of overcoming a procedural hurdle that has stopped the bill itself from coming to the floor.
Valerie Jarrett, Senior Advisor and Assistant to the President for Intergovernmental Affairs and Public Engagement, was herself frustrated.
Today, only Democratic senators voted to support Paycheck Fairness for women -- not a single Republican voted to allow the Senate to move forward. It is notable that the first vote after the election in which the American people sent a clear message that they want Washington to work better, the Republicans blocked a common sense measure aimed simply to help ensure that women get the pay they deserve.
But in the same post, it’s clear that neither she, nor President Obama, nor his Administration are ready to give up.
Despite today’s vote, the Administration will continue its fight for equal pay for women – an issue that in these trying economic times is even more pressing given American families’ reliance on women’s income. The National Equal Pay Enforcement Task Force, with representatives from the Department of Justice, Department of Labor, Equal Employment Opportunity Commission, and Office of Personnel Management, (“OPM”) continues its pursuit of pay equity for women. The agencies are strengthening their own enforcement efforts and working together, building regional partnerships to promote earlier and more effective collaboration on investigations. And with leadership from OPM, we will continue to improve the federal government’s role as a model employer.
This Administration will keep fighting to improve the economic security for women and their families. This includes working hard in this session and the next Congress we will keep fighting for things such as an extension of emergency unemployment insurance, the Earned Income Tax Credit, and other measures we have supported that must now be extended. The President is committed to working with the women who joined us today and people around the country to support women and their families.
I think the President himself said it best.
Click here for People For the American Way’s statement on the vote.
As my colleague Paul recently pointed out, the trouble with voter fraud is not that voters are committing fraud – it’s that we’re constantly being told that voter fraud is a pervasive national problem when it simply isn’t. Paul notes that analysis after analysis has shown this to be true. The Right Wing uses this myth to downplay Democratic gains or keep Democrats away from the polls in the first place.
Here’s some more of what the Right Wing has been up to.
Minnesota. Last year, a group called Minnesota Majority alleged that 1,250 individuals in Hennepin County had committed voter fraud in the 2008 election. This past Tuesday, prosecutor Mike Freeman announced that only a small fraction – 47 – would be charged. And he added that there was no evidence of a coordinated campaign to commit fraud. It’s important to note that Minnesota Majority has admitted membership – but disputes claims of intimidation – in a coalition that Minnesota Congressman Keith Ellison condemned for hanging in plain view of students “posters showing a person in handcuffs, with the warning that ‘voter fraud is a felony.’”
Nevada. If you were to believe a recent fundraising letter from Cleta Mitchell, Counsel to Friends of Sharron Angle, you’d not only think that Harry Reid was committing voter fraud, but you’d think that he had lawlessly hijacked his entire campaign in order to outright steal the election from Angle. In response, Nevada Secretary of State Ross Miller cautions that such serious allegations must “contain specific information, not conjecture and rumor used in support of a plea for financial contributions, as the foundation of the violation.”
North Carolina. When poll watching is done right, it serves a very important purpose: root out wrongdoing and help well-intentioned voters make their voices heard. When it’s done wrong, it simply adds another layer of intimidation to the process. Wake County has been plagued by complaints from voters that Republican observers are doing just that. Alarmingly, “the offending observers have reportedly stood behind the registration table (where they're not allowed) and taken pictures of the license plates of voters using curbside voting (also illegal).”
The Right Wing has also taken their campaign online.
Fox News. Megyn Kelly recently disputed good faith efforts by the Department of Justice “to ensure that all qualified voters have the opportunity to cast their ballots and have their votes counted, without incidence of discrimination, intimidation or fraud.” DOJ isn’t doing its job, so Fox will. They’ve set up their very own email account – firstname.lastname@example.org – to field complaints.
American Majority Action. Not to be outdone, American Majority Action has released a voter fraud app that enables iPhone, BlackBerry, and Droid users to “defend our democracy and uphold credibility directly from your phone.”
"I don't want everybody to vote ... our leverage in the elections quite candidly goes up as the voting populace goes down." - Paul Weyrich, founding father of the conservative movement, 1980.
When news hit last week that Democrats were doing better than expected in early voting turnout, Republican Dick Armey - whose FreedomWorks organization ensures that the Tea party is well funded by Big Business - immediately took to the airwaves with two goals: to delegitimize any potential Election Day victories for Democrats, and to justify this year's efforts by Republicans and their allies to keep people of color from voting. Armey told Fox News viewers that:
Democrats vote early because there's "less ballot security," creating a "great opportunity" for fraud. He also claimed that such fraudulent early voting is "pinpointed to the major urban areas. The inner city."
Of course, the former congressman had no more evidence to support his false and inflammatory claims than Joseph McCarthy had for his. But he does have an echo chamber of Republican and allied supporters all making the same unsupported claims of rampant voter fraud to justify aggressive efforts to keep likely Democratic voters - especially African Americans - out of the voting booth.
First, let there be mo mistake: Analysis after analysis has shown that there is no national problem with voter fraud. For instance, in its report The Truth About Voter Fraud, the Brennan Center for Justice has
analyzed purported fraud cited by state and federal courts; multipartisan and bipartisan federal commissions; political party entities; state and local election officials; and authors, journalists, and bloggers. Usually, only a tiny portion of the claimed illegality is substantiated - and most of the remainder is either nothing more than speculation or has been conclusively debunked.
Similarly, when the New York Times turned its investigatory resources to the "problem" of voter fraud in 2007, it found that
[f]ive years after the Bush administration began a crackdown on voter fraud, the Justice Department ha[d] turned up virtually no evidence of any organized effort to skew federal elections, according to court records and interviews.
Nevertheless, the Republicans and their close allies are up to their usual election-time hysterics about voter fraud, especially by nefarious dark-skinned people. They are ginning up fears of stolen elections ... so they can suppress the vote and thereby steal the elections themselves.
Over the past few weeks, as reported in Talking Points Memo and elsewhere:
This isn't new territory for the Right. For instance, in 2006, the Bush Administration fired U.S. Attorneys who refused to press phony voter fraud prosecutions. In 2008, until their plans were exposed, Michigan Republicans planned to use home foreclosure lists to challenge likely Democratic voters at the polls, supposedly to prevent voter fraud. That same year, the Montana Republican Party challenged the eligibility of 6,000 registered voters in the state's Democratic strongholds after matching the statewide voter database with the National Change of Address database to identify voters who aren't living where they are registered to vote. In Ohio, voter caging was used as a prelude to challenge individuals at the voting precinct.
These actions were part of a larger pattern. During the fall of 2008, the Right was setting itself up to challenge the integrity of the election. Across the country, they repeatedly trumped up claims of voter fraud, attacking ACORN and other voter registration efforts and lambasting the Justice Department for its failure to stop this alleged "fraud." However, that effort sputtered when the false claims of voter fraud mushroomed into threats against ACORN workers and vandalism of their offices, which PFAW helped to expose. Last year's doctored "pimp and prostitute" ACORN videos and their aftermath showed the lengths Republicans and their allies are willing to go to demonize and ultimately destroy successful minority voter registration efforts.
Clearly, the Right puts a great deal of energy into tackling a non-existent problem. But while these actions may do nothing to prevent instances of voter fraud that were never going to happen in the first place, they do accomplish something very important, as noted above: They intimidate people, often people of color, into not voting. They also work to paint any election victory by Democrats as illegitimate, thereby seriously destabilizing one of the foundations needed for America's constitutional government to work.
Voting is our assurance that those in power govern only by the consent of the people. The theory of American electoral democracy is that We the People act through government officials who we elect to act on our behalf. However, that assumes that all parties are willing to abide by the results of free and fair elections, win or lose.
Unfortunately, when the most powerful groups in society are willing to ignore democratic principles when it’s convenient - when they are eager to disenfranchise those who are most likely to vote against them - the democratic system fails.
In the past, these forces used poll taxes, literacy tests, and even brute force to keep disfavored Americans from voting, staining the legitimacy of the elected government in the process. Today, far more wary of appearances, they use the false accusation of "voter fraud" to do the same thing, often against the same targets: African Americans and other people of color.
On Wednesday night, the Senate left for recess without confirming a single one of the 23 judicial nominees who had been waiting for a vote, most of them for several months. The GOP blocked the majority of these nominees not because of ideology—19 were approved unanimously by the Judiciary Committee—but just for the sake of obstruction. President Obama responded yesterday with this letter to Senate leaders:
Dear Senator Reid, Senator McConnell, Senator Leahy, and Senator Sessions:
I write to express my concern with the pace of judicial confirmations in the United States Senate. Yesterday, the Senate recessed without confirming a single one of the 23 Federal judicial nominations pending on the Executive Calendar. The Federal judiciary and the American people it serves suffer the most from this unprecedented obstruction. One in eight seats on the Federal bench sits empty, and the Administrative Office of the U.S. Courts has declared that many of those vacancies constitute judicial emergencies. Despite the urgent and pressing need to fill these important posts, a minority of Senators has systematically and irresponsibly used procedural maneuvers to block or delay confirmation votes on judicial nominees – including nominees that have strong bipartisan support and the most distinguished records. The minority has even been blocking non-controversial nominees – a dramatic shift from past practice that could cause a crisis in the judiciary.
The Judiciary Committee has promptly considered my judicial nominees. Nonetheless, judicial confirmation rates in this Congress have reached an all-time low. At this point in the prior Administration (107th Congress), the Senate had confirmed 61% of the President’s judicial nominations. By contrast, the Senate has confirmed less than half of the judicial nominees it has received in my Administration. Nominees in the 107th Congress waited less than a month on the floor of the Senate before a vote on their confirmation. The men and women whom I have nominated who have been confirmed to the Courts of Appeals waited five times longer and those confirmed to the District Courts waited three times longer for final votes.
Right now, 23 judicial nominees await simple up-or-down votes. All of these nominees have the strongest backing from their home-state Senators – a fact that usually counsels in favor of swift confirmation, rather than delay. Sixteen of those men and women received unanimous support in the Judiciary Committee. Nearly half of the nominees on the floor were selected for seats that have gone without judges for anywhere between 200 and 1,600 days. But despite these compelling circumstances, and the distinguished careers led by these candidates, these nominations have been blocked.
Judge Albert Diaz, the well-respected state court judge I nominated to the U.S. Court of Appeals for the Fourth Circuit, has waited 245 days for an up-or-down vote – more than 8 months. Before becoming a judge, Diaz served for over 10 years in the United States Marine Corps as an attorney and military judge. If confirmed, he would be the first Hispanic to sit on the Fourth Circuit. The seat to which he was nominated has been declared a judicial emergency. Judge Diaz has the strong support of both of North Carolina’s Senators. Senator Burr has publicly advocated for Judge Diaz to get a final vote by the Senate. And just before the August recess, Senator Hagan went to the floor of the Senate to ask for an up-or-down vote for Judge Diaz. Her request was denied.
We are seeing in this case what we have seen in all too many others: resistance to highly qualified candidates who, if put to a vote, would be unanimously confirmed, or confirmed with virtually no opposition. For example, Judge Beverly Martin waited 132 days for a floor vote – despite being strongly backed by both of Georgia’s Republican Senators. When the Senate finally held a vote, she was confirmed to the Eleventh Circuit unanimously. Jane Stranch was recently confirmed by an overwhelming majority of the Senate, after waiting almost 300 days for a final vote. Even District Court nominees have waited 3 or more months for confirmation votes – only to be confirmed unanimously.
Proceeding this way will put our judiciary on a dangerous course, as the Department of Justice projects that fully half of the Federal judiciary will be vacant by 2020 if we continue on the current pace of judicial confirmations. The real harm of this political game-playing falls on the American people, who turn to the courts for justice. By denying these nominees a simple up-or- down vote, the Republican leadership is undermining the ability of our courts to deliver justice to those in need. All Americans depend on having well-qualified men and women on the bench to resolve important legal matters – from working mothers seeking timely compensation for their employment discrimination claims to communities hoping for swift punishment for perpetrators of crimes to small business owners seeking protection from unfair and anticompetitive practices.
As a former Senator, I have the greatest respect for the Senate’s role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves. In the 107th Congress, the Judiciary Committee reported 100 judicial nominees, and all of them were confirmed by the Senate before the end of that Congress. I urge the Senate to similarly consider and confirm my judicial nominees.
Back in June, President Obama made a similar plea in a meeting with Senate GOP leaders, but apparently bipartisan cooperation on something as straight-forward as filling seats in the judiciary wasn’t on their list of priorities.
(I also want to point out that while the GOP is holding up most of the 23 stalled nominees for absolutely no reason, there are a handful of nominees who certain GOP senators actively oppose. We’ve explored some of the reasons for this opposition here and here and here.)
A coalition of 35 progressive organizations, including People For the American Way, sent a letter to Attorney General Eric Holder this morning urging him to reconsider his stance on weakening Miranda rights. Holder has said the Obama Administration is open to expanding the “public safety exception,” which allows officers in exceptional circumstances to question suspects before reading them their rights. The coalition, led by the National Association of Criminal Defense Lawyers, argues, “Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.”
As you know, the Supreme Court crafted the "public safety exception" to Miranda more than 25 years ago in New York v. Quarles. This exception permits law enforcement to temporarily interrogate suspected terrorists without advising them of their Miranda rights – including the right to remain silent and the right to an attorney – when "reasonably prompted by a concern for public safety." It allows federal agents to ask the questions necessary to protect themselves and the public from imminent threats before issuing a Miranda warning. Provided the interrogation is non-coercive, any statements obtained from a suspect during this time may be admissible at trial.
Law enforcement used the Quarles “public safety exception” to question Umar Farouk Abdulmutallab, the so-called “underwear bomber,” and Faisal Shahzad, the alleged “Times Square bomber.” Both suspects reportedly provided interrogators with valuable intelligence during that time and continued to do so even after being advised of their rights. As you observed during your May 9, 2010, appearance on “Meet the Press,” “the giving of Miranda warnings has not stopped these terror suspects from talking to us. They have continued to talk even though we have given them a Miranda warning.”
In the nearly nine years since the attacks of 9/11, the Department of Justice has obtained convictions in more than 400 international terrorism or terrorism-related cases without weakening Miranda or risking the safety of Americans. The “public safety exception” is exception enough. Should the need arise to conduct an un-Mirandized interrogation unrelated to any immediate threat to public safety, law enforcement is free to do so under the Constitution. Miranda imposes no restriction on the use of unadvised statements for the purpose of identifying or stopping terrorist activity. The Fifth Amendment only requires that such statements be inadmissible for the purposes of criminal prosecution. Yet even this requirement has exceptions. Un-Mirandized statements obtained outside the public safety exception may still be used for impeachment, and physical evidence discovered as a result of such statements may also be admissible.
Read the full letter here.
Think Progress points out that the Department of Justice is intervening in an LGBT rights case for the first time in a decade.
The case centers on an openly gay 14-year old student named Jacob in Mowhawk, New York* who sued his school district for failing to appropriately respond to the repeated harassment he suffered at school. Now the DOJ, citing Title IX of the Civil Rights Act of 1964, is intervening in the suit, arguing that “the law also covers discrimination based on gender stereotypes.”
According to the Utica Observer-Dispatch, the school district claims that it’s close to a settlement. It also contains an apt summation of the case from Jacob’s father: “He has the right to go to school and feel safe.”
We’re glad that the Justice Department feels the same way.
* - Side Note: Can we all agree on how awesome it is that Mowhawk, New York has an openly gay 14 year old willing to stand up for his rights? Jacob – When you get to college, give us a call. I know some people you should meet.
With a new Government Accountability Office report on the activities of the Civil Rights Division of the Department of Justice between 2001-2007, we are learning even more about a department that had been politicized to a dangerous degree under the Bush Administration. Instead of representing the best interests of the American people, the DOJ had been turned into a political machine. The report, obtained by The New York Times, found:
When compared with the Clinton administration, its findings show a significant drop in the enforcement of several major antidiscrimination and voting rights laws. For example, lawsuits brought by the division to enforce laws prohibiting race or sex discrimination in employment fell from about 11 per year under President Bill Clinton to about 6 per year under President George W. Bush.
The report also found that recommendations of career DOJ lawyers to pursue voter intimidation and other cases were inexplicably rejected, with the supervisors leaving no information explaining why the cases had been closed.
The office also found that case files often had no information explaining why supervisors had decided to close cases, sometimes against the recommendation of career officials. In a companion report, it also found that six years of internal audits about the division’s case-tracking system were missing.
People For the American Way followed the politicization of the DOJ during the Bush Administration, calling for the resignation of then-Attorney General Alberto Gonzales and others who played a part in the department’s politicization. We reported on the U.S. attorneys scandal, in which career attorneys at the department were instructed to follow the lead of the White House, not the rule of law, to smear Democratic candidates, protect GOP candidates, and suppress voter turnout through overzealous pursuit of baseless voter fraud claims. We responded to the Inspector General’s report which confirmed the inappropriate actions surrounding their firing.
Once more, the Obama Administration is in federal court defending government-mandated discrimination against gay and lesbian Americans. This time, it's Don't Ask Don't Tell, in a case arising in a California federal district court.
Previously, DoJ asked the district court to dismiss the lawsuit filed by the Log Cabin Republicans, arguing that Ninth Circuit precedent already clearly addresses the legal issues in favor of the Administration. The court denied the motion to dismiss and allowed discovery to proceed, and the Log Cabin Republicans filed their request for discovery. (Discovery is the pretrial phase of a lawsuit where each party can compel the other parties to turn over documents and other evidence that may be relevant to the case.)
So on Friday, the Department of Justice filed what's called a motion to certify order for interlocutory appeal (legalese for "we want to appeal the court's decision now, instead of waiting until the end of the trial") to avoid its obligation to respond to the discovery requests. The Administration is arguing that the case will eventually be dismissed. Since the plaintiff's discovery requests are so "burdensome" for the Administration, appealing the court’s decision not to dismiss the case will "materially advance the ultimate termination of this litigation."
If the Administration is concerned about bureaucratic burdens, the President can issue a stop-loss order and freeze the anti-gay machinery that is destroying lives and weakening our armed forces.
And if he wants to "materially advance the ultimate termination of this litigation," there's a better way than an interlocutory appeal. That would be for President Obama to show some leadership on this issue. He ought to give a timeline for repealing Don't Ask Don't Tell and push Congress to act on it.
In a disappointing move, Attorney General Eric Holder has decided not to prosecute former head of the DOJ Civil Rights Division and interim U.S. Attorney Bradley Schlozman for lying to Congress, instead giving deference to the decision of the Bush Administration. Operatives like Schlozman led to the massive politicization of the Justice Department during the years of the Bush Administration and created an atmosphere of distrust by the very citizens the DOJ was meant to protect.
During Schlozman’s testimony to the Senate in 2007, he repeatedly evaded questions regarding his actions, including hiring practices during his tenure. Furthermore, Schlozman repeatedly refused to take responsibility for the Civil Rights Division’s failure to fully investigate thousands of claims of disenfranchisement during elections, instead choosing to pursue unmeritorious claims of voter fraud in key battleground states.
Because of such politicization by operatives like Schlozman, People For the American Way Foundation and numerous other civil rights and voting rights organizations were forced to defend the rights of voters across the country and protect them from disenfranchising tactics such as voter ID laws and overly stringent registration policies. Fortunately, massive mobilization efforts like the Election Protection program were able to help meet this challenge, but it should not have to been our responsibility to protect voters from their own Department of Justice.
While we understand the desire of Attorney General Holder to move forward and applaud his steps to reinvigorate the Civil Rights Division and eliminate the tarnish left by the previous Administration, we should not allow bad acts to go unpunished. It is clear that Schlozman perjured himself during his testimony to the Senate, as concluded by the Office of Professional Responsibility’s internal report. The American people deserve justice and we had hoped that bad actors such as Schlozman would be prosecuted as a testament to the American public that the DOJ will no longer play politics with justice.
Today I had the opportunity to moderate a discussion with Senator Sheldon Whitehouse on a conference call with PFAW members and activists.
As we’ve mentioned before, Senator Whitehouse has been one of the leading voices in the push to restore the integrity of the Department of Justice and confirm Dawn Johnsen to the Office of Legal Counsel.
Before the conversation, we solicited questions from our participants and got an enthusiastic response. Many of those questions focused on similar themes: What exactly happened at OLC? How can we fix it? And what can individuals do to help move the process forward?
Senator Whitehouse repeatedly emphasized the importance of OLC in providing honest legal advice, and he called on citizens in red and blue states alike to urge their senators to support Dawn Johnsen’s confirmation (and although he didn’t mention it, I’m sure he’d be happy to have you sign our petition as well.)
If you weren’t able to join our call, you can get a taste of what Senator Whitehouse shared with us from his appearance on Rachel Maddow’s show earlier this week.
UPDATED: You can listen to the conference call using the player below, or read the transcript here.
Sunday's New York Times included an editorial calling for the impeachment of Jay Bybee, a U.S. Appeals Court Judge on the Ninth Circuit (nominated by Bush) who, while at the Department of Justice, authored memos providing the "legal" justification for the Bush administration's torture policies.
The Times is absolutely right: "These memos make it clear that Mr. Bybee is unfit for a job that requires legal judgment and a respect for the Constitution. Congress should impeach him."
Here's some more from the excellent editorial regarding the investigation that should take place (my emphasis added):
That investigation should start with the lawyers who wrote these sickening memos, including John Yoo, who now teaches law in California; Steven Bradbury, who was job-hunting when we last heard; and Mr. Bybee, who holds the lifetime seat on the federal appeals court that Mr. Bush rewarded him with.
And if the administration will not conduct a thorough investigation of these issues, then Congress has a constitutional duty to hold the executive branch accountable. If that means putting Donald Rumsfeld and Alberto Gonzales on the stand, even Dick Cheney, we are sure Americans can handle it.
If the administration won't do it, Congress must hold the executive branch accountable. Sounds familiar.
Checks and balances. What a novel concept...
According to the Daily Beast, the GOP is threatening to filibuster President Obama’s legal nominees if he moves to release the infamous “torture memos” that came out of the John Yoo-era Office of Legal Counsel:
A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.
It was bad enough that George W. Bush spent the last eight years politicizing the Department of Justice and degrading the rule of law. Now, instead of working with the new administration to clean up the DOJ, Republican Senators are apparently doubling down and desperately attempting to cover up the Bush Administration’s misdeeds and their own complicity.
As several of the Democrats on the Senate Judiciary Committee said during the Committee’s vote on Dawn Johnsen’s nomination: bring it on. If the GOP wants a public debate about what’s been going in on the Justice Department, that’s the kind of debate the American people will understand.
In the mean time, now would be a good time to remind every member of the U.S. Senate, Democrat and Republican alike, that it’s time to confirm Dawn Johnsen and clean up the DOJ.