Monthly Archives: June 2013

Defend our rights, but from whom?

“We dare defend our rights.”

The motto is ubiquitous in Alabama. One of these days, the people of Alabama — not just the power brokers — need to give it some thought.

Specifically, who is the “we” providing the defense and whose rights are being defended?

Historically, the words were part of a poem slamming the British monarchy. Since becoming Alabama’s official motto — and more recently the slogan of the state GOP, which controls every aspect of state government — it is an attack on the federal government. It also is the unofficial motto of many tea party groups nationwide.

For decades, the words have been the bitter protest of an underdog. Beginning in 1787, when the U.S. Constitution replaced the Articles of Confederation, states’ rights have been on the decline. The Civil War and the reconstruction era that followed put an exclamation point on that decline in Alabama.

It’s a new era, though.

A conservative U.S. Supreme Court has elevated states’ rights and limited federal authority. The rise of the anti-Washington tea party, and its success in capturing ideological control of the U.S. House of Representatives, has left a power vacuum that states have filled.

So the question of whose rights “we dare defend” as a state suddenly has relevance.

Recent Supreme Court pronouncements underline the power of the Alabama Legislature. While the identity of those whose rights officials have chosen to defend often are obscured by discreet political contributions from ever-more-profitable corporations, the identity of those whose rights elected officials prefer to trample are increasingly clear.

On Tuesday, the Supreme Court struck down a portion of the Voting Rights Act that prevented Alabama from enacting laws that effectively kept black Alabamians from voting or otherwise reducing their political power. State officials immediately crowed this new-found state power meant they could proceed with a Voter ID law. The law requires photo identification as a prerequisite to voting, even though in-person voter fraud is essentially nonexistent in the state. Because poverty is endemic among blacks in Alabama, many have no car and thus no need for the most common form of photo identification, a driver’s license. Blacks in Alabama are more likely to vote for Democrats, a fact well-known to the Republican super-majority in Montgomery, and thanks to the Voter ID law they are less likely to vote.

A Supreme Court decision Wednesday irritated some Alabamians by granting same-sex marriages the same federal benefits enjoyed by couples in heterosexual marriages. In doing so, however, it empowered Alabama in its crusade against homosexuals. By denying homosexuals the right to marry, Alabama can also deny them federal benefits that now will be enjoyed by same-sex couples in other states.

The rights that Alabama “dares to defend,” therefore, do not include the voting rights of blacks or the marital rights of homosexuals.

Another Supreme Court decision struck down a portion of the Affordable Care Act that effectively would have required the state to expand its Medicaid program. The decision was another grant of power to Montgomery politicians, who could reject a portion of a federal law.

Because the Legislature dared defend “our rights,” about 300,000 Alabamians — most of whom have low-paying jobs with no insurance — will lose the right to health care that the working poor in other states soon will enjoy.

The state Legislature also passed a law that endeavored to make life so miserable for undocumented immigrants — and for many of their friends and family members who were U.S. citizens — that they would leave the state. Federal courts struck down much of the law, but enough survived to make clear to Latinos that they were not among those whose rights or opportunities were being defended.

In case there was any ambiguity, the state’s two U.S. senators fought vigorously against a bipartisan majority that on Thursday passed a bill that may bring many undocumented immigrants out of the shadows.

Montgomery legislators also have been free of onerous federal oversight as they have found increasingly creative ways to reduce funding for the public schools that provide the only viable educational opportunity for most children of poor and middle-class Alabama families.

What is clear is that the rights state officials “dare to defend” apply to a dwindling subset of Alabama residents. “Our rights” are not defended if we are black or Hispanic or gay. “Our rights” are irrelevant if we are sick or poor.

The proud motto of Alabama, it turns out, gives comfort to precious few Alabamians. State officials are busy defending someone’s rights, but who is defending the rights of the average Alabamian?

If Alabamians — all of them — ever confront the meaning of the state motto, they may arrive at an uncomfortable realization. The greatest threat to their rights may come not from Washington, but from Montgomery.

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Filed under Alabama politics, Health care, Poverty, States' rights

Alabama needs to end politics of race

By striking down a portion of the Voting Rights Act on Tuesday, the U.S. Supreme Court effectively left Congress and the Alabama Legislature with the responsibility of protecting minority voting rights.
Sadly, neither has shown much indication it is up to the task.

The justices correctly noted that the rampant and undisguised racism of 1965, when the Voting Rights Act passed, has eased somewhat. What has replaced it, however, is just as pernicious.
Intense partisanship, merely an obstacle to good governance in most situations, takes on an evil cast when applied to the politics of race.

Rather than try to adjust their party platform to attract black Americans, Republicans in many states — including Alabama — have erected barriers to keep them from voting.

The state’s Voter ID law is the most recent example. In-person fraud at polls is essentially nonexistent in the state. Because blacks are less likely than whites to have photo identification, the transparent purpose of the law is to create an additional hurdle to keep them from exercising their right to vote. Gerrymandered voting districts also dilute the political influence of blacks in state elections.

This is not, of course, racism in the conventional sense. If most blacks voted Republican, we have no doubt the Republican-dominated Legislature would scrap the Voter ID law.

Instead, it is an ugly shortcut. Rather than adopt policies that are attractive to all Alabamians, regardless of race, the Republican Party is seeking to disenfranchise those who they believe are more likely to vote for Democrats. The open affront, of course, gives black Alabamians even more reason to spurn the Republican Party.

The court invited Congress to amend the formula for determining which states and other voting jurisdictions should remain subject to the preclearance requirements of the Voting Rights Act. Congress, of course, is incapable of passing anything. The U.S. House of Representatives is so virulent in its distrust of the federal government that it seems inconceivable that it would take any action to resurrect the Voting Rights Act.

With Congress paralyzed, it is the Alabama Legislature that must assume the responsibility of leadership.

It’s tough to convince politicians that anything trumps strategies for partisan success. As Alabama tries to shake its tragic history of racism — from slavery to segregation to voter suppression — partisanship needs to take a back seat. Rather than looking for ways to keep blacks from voting, the state Republican Party needs to increase its credibility among black voters.

A good way to start would be the repeal of the Voter ID law before it takes effect in June 2014, or at least a responsible study on its likely affect on minority voting.

The state Legislature had the luxury of engaging in the politics of race when it knew the Justice Department was likely to invalidate discriminatory laws. That luxury ended with Tuesday’s Supreme Court decision. If Alabama is to overcome its past history and current reputation for racism, it is up to the Republican-controlled Legislature to do what is right.

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Filed under Alabama politics, Judiciary, Race, States' rights

Signs of an awful law

If those charged with implementing a law are so disturbed by the damage it will do to the state that they are struggling with the moral dilemma of whether to follow it, it’s probably a bad law.

Such is the case with the Alabama Accountability Act.

Those with the greatest understanding of how the “school choice” law will affect the state are straining to figure out a way to evade it.

The law requires state Superintendent Tommy Bice to come up with a list of “failing schools.”

The Accountability Act — passed deceptively and with no input from educators — gives Bice no discretion in coming up with the list.

The law requires any school that has been in the bottom 6 percent of the state on standardized test scores in any three of the last six years to be labeled “failing.” Students in these schools have the right to transfer to private schools, which will then be subsidized with tax dollars drained from the public school system.

State Board of Education policies demanding — and facilitating — school improvement in recent years mean that many struggling schools have made major advances in the last six years. Consider an extreme hypothetical: If a school was in the bottom 1 percent six years ago, climbed to the bottom 4 percent five years ago and then to the bottom 6 percent three years ago, it must be labeled a failing school. That’s true even if, thanks to aggressive reforms, it was in the top 10 percent in each of the last three years.

That’s an unlikely hypothetical because a school’s test scores have less to do with teaching than with the poverty of its students. But less extreme versions of the hypothetical are common. By shunning advice from Bice and other educators, legislators steamrolled over remarkably effective, ongoing reforms.

Bice originally planned to release his version of the “failing school” list on Saturday. After seeing a preview, the power brokers in Montgomery were furious. Their pushback forced Bice to delay release of the list until Tuesday.

He is faced with an untenable choice for an education expert whose first priority is helping students succeed. Does he follow the legal mandate and tattoo “failing” on schools that have made great strides? Or does he continue his successful plan, which requires improvement but provides the resources and expertise necessary for reform?

On Tuesday, the state will learn his decision. In an act of civil obedience, he may refuse to follow a terrible law. Or he may decide that he can better protect the students of the state from the Legislature by keeping his job.

The Revenue Department is faced with a related moral dilemma. The governor claims the law does not grant tax credits for families of students already enrolled in private schools.

The issue is important, because such families will drain more than $20 million from public schools. They will do so with absolutely no benefit to the claimed goal of “school choice,” because they not only had a choice but already exercised it.

The problem for the Revenue Department is that the law does not support Bentley’s interpretation.

Like Bice, the Revenue Department has to decide whether to thwart a bad law or follow its mandate.

Legislators should be embarrassed at the crisis they have created for officials who want the best for the state.

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Filed under Alabama politics, education

Harry to blame for NSA mess

Many Americans were shocked to learn last week that the National Security Agency is squirreling away data about their telephone calls.

With no warrant and with barely a nod to the Fourth Amendment, NSA apparently has been compiling a massive database that includes “metadata” — every number we called, when we made the call and the call’s duration. The revelation came when Edward Snowden, an employee with top-secret clearance as an NSA contractor, released a secret order requiring Verizon to give all such data to NSA for a three-month period. Subsequent reports indicate the orders are routine. All major phone carriers apparently have been complying with such orders for the last seven years.

While anyone who has paid much attention to comments by current and former members of the Senate Select Committee on Intelligence — especially U.S. Sen. Ron Wyden — suspected NSA was collecting lots of information, most Americans were surprised at the scope.

The revelation raises all sorts of philosophical and political issues, but the legal issue strikes me as fundamental.

To my knowledge, I am not a suspect in any crime. I do not communicate with terrorists. The NSA probably does not know I exist, and certainly does not have probable cause to think I have run afoul of the law. Yet buried in the bowels of its massive hard drives it has information about every phone call I have ever made or received. Doesn’t the U.S. Constitution protect my privacy?

The short answer is no, and it’s Harry’s fault.

In 1979, Supreme Court Justice Harry Blackmun wrote the majority opinion in the case of Smith v. Maryland. Written in a different technological age, it is the decision that opened our phone records to NSA.

The case revolved around an unusually inept crook. Michael Smith successfully robbed Patricia McDonough’s house. He then started calling his victim, bragging of the robbery and making threats. He also drove by her house. The description of his car led police to identify him as a suspect.

The police then went to the telephone company. They had no warrant, but requested that the company install a pen register to record all numbers dialed by Smith. The phone company obliged. Smith promptly called the robbery victim again. Using the pen register data, the police obtained a warrant to search his home. The evidence they found led to his conviction for the robbery.

Smith’s lawyer was understandably aghast. With no warrant and no probable cause, police had secured private information on the phone calls Smith made. If that information was illegally obtained, the lawyer correctly argued, the evidence it led to was inadmissible and the conviction should be thrown out.

The issue for the Supreme Court: Did the police violate the Fourth Amendment by collecting data on Smith’s phone calls?

No, said Blackmun, speaking for a divided court.

The Fourth Amendment protects citizens “against unreasonable searches and seizures.” In determining whether the use of the pen register was a “search,” Blackmun applied long-standing law. A search only takes place if it infringes on a “legitimate expectation of privacy.”

Blackmun argued that citizens had no legitimate expectation that data regarding their phone calls — as distinct from the content of those calls — was private. Everyone recognizes, he explained, that the phone company must receive data in order to complete the call. Indeed, monthly phone bills include all the data compiled by a pen register, reminding citizens that the information is not private.

The dissenting justices had strong arguments, the most persuasive of which was that merely providing data to a third party should not destroy the expectation of privacy. Citizens know that banks have access to their financial secrets, yet that does not mean the government has unfettered access to bank records. Blackmun’s decision, however, remains good law.

Unless the Supreme Court overturns the decision, successful attacks on the constitutionality of the NSA’s collection of metadata are unlikely.

The primary concern expressed by Americans is the scope of the NSA’s data collection. It’s one thing to look at Michael Smith’s phone records, but the idea that NSA has the ability to peak at every phone record of every American is more disturbing. Blackmun’s decision, however, makes the size of the information dragnet irrelevant. Collecting the data is not a “search” under the Fourth Amendment, so it does not matter whether NSA targeted one person or 200 million.

The reasoning of Blackmun’s decision also could provide support for other alleged NSA programs. Remember, the issue is whether the citizen has a “legitimate expectation of privacy.” In an age when everyone from Google to department stores collect data about our electronic communications and uses that information to bombard us with targeted ads, the argument that we have a legitimate expectation that any of our electronic communications are private becomes even weaker than it was in 1979.

The fact that Google, Facebook and others are using the information to make money, whereas the NSA is using the same information to protect us from terrorists, complicates the issue even more.

Whether Congress and the NSA have found the right balance between privacy and security is a thorny issue that must be resolved through the political process. When it comes to metadata, though, Blackmun’s decision defeats arguments that the mass collection of phone data violates the Fourth Amendment.

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Filed under Law, NSA, Surveillance

NSA debate could ease DC gridlock

The national debate over revelations about the scope of National Security Agency counterterrorism surveillance has had an unexpected benefit for U.S. political discourse.

For almost the first time since President Barack Obama’s election, the debate is not along party lines.
Democrats are split, some viewing NSA’s collection of telephone data from U.S. residents as gross overreach and others seeing it as a reasonable balance between privacy and security. Republicans have the same split.

Democrats tend to respect both Obama’s sincerity and intelligence. While some see inconsistencies between Obama’s pre-2008 rhetoric on civil liberties and his actions as president as a betrayal, others recognize another explanation. It could be he changed his position not due to hypocrisy, but because the facts to which he became privy in the Oval Office convinced him the threats to Americans were greater than he had previously realized.

Many of these same Democrats, of course, held former President George W. Bush in disdain. They viewed his surveillance efforts as grotesque overreach. He was, they thought, using a terrorist attack as an excuse to increase his power.

The fact that Obama continued Bush’s domestic surveillance efforts forces Democrats to step back. Maybe Bush’s actions were not entirely irrational. The fact that two men with dramatically different philosophies both arrived at the same conclusion when it came to the importance of protecting the homeland tends to undermine the evidence they compiled against Bush.

Republicans are going through some of the same transition. They have clung to the belief that Obama is weak and elevates his global reputation over domestic security, yet it turns out he has been aggressive in fighting terrorism. Indeed, he has been so concerned about protecting Americans that he has been willing to risk derision from his base and to expose himself to claims that his pre-2008 rhetoric on civil liberties were disingenuous.

The utter gridlock in Congress has had less to do with elected officials than with the polarization of the American people. Americans have fallen into the fallacy that their presidents are either all bad or all good. Republicans want to view Obama as an enemy, just as Democrats wanted to view Bush as an enemy.

The disastrous result has been that Republicans in Congress are afraid to work with Obama, because they will pay a political price. The Republican base too often equates a golf game with the president — or agreement with one of his proposals — as fraternization with the enemy. It’s an unhealthy trend that began with Democrats when Bush was president.

The truth — not nearly as interesting for pundits — is that both presidents are imperfect humans who have generally tried to do what is best for their country. If Americans can get past the lazy practice of lauding or condemning their policies based on the source, gridlock in Congress will subside.

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Filed under NSA, obama, Partisanship, Surveillance

Snowden’s troublesome justification

Whether Edward Snowden is a hero or traitor is a question that will be debated for years, but his view of the U.S. political process is disturbing.

The 29-year-old, who worked four years for the CIA before becoming an employee of a defense contractor for the National Security Agency, had top-secret clearance. Using that clearance, he told reporters, he acquired documents giving details of NSA computerized surveillance efforts both in and out of the United States. The Guardian, a British newspaper, has published several and may publish more.

Snowden’s actions were illegal. The surveillance programs he leaked — while highly controversial — apparently were not.

Snowden justified his actions as protecting U.S. democracy.

“These things need to be determined by the public, not just somebody who is hired by the government,” Snowden told The Guardian. “The public needs to decide whether these programs are right or wrong.”

The problem with Snowden’s justification is that the public, wisely or not, already made that decision.

In a nation as large and diverse as the United States, of course, “the public” is an amorphous term. Even among patriotic citizens, there is no consensus on the proper balance between privacy and security. The public also includes many U.S. enemies.

Americans have arrived at a way to make decisions despite domestic disagreement. The method is spelled out in the Constitution. We elect representatives. They pass laws. The judiciary reviews the constitutionality of those laws. The executive branch — headed by a president whom we elect — implements those laws.

Americans are sophisticated enough to understand that the transparency demanded of the law-making process does not always work in the implementation of those laws. In 1978, Congress created a secretive Foreign Intelligence Surveillance Court. It was a rough compromise by the American people. They prefer transparency, but they also want security. Information released to “the public” is released not just to loyal Americans, but to its enemies. Through its elected representatives, the public sacrificed some transparency for increased security.

The Patriot Act, passed in 2001 and reauthorized as recently as 2011, expanded on the Foreign Intelligence Surveillance Act. Once again, the people — through their elected representatives — opted for a compromise that reduced personal privacy and governmental transparency but increased security. Many disagree with the law, but it was not haphazard. It includes checks and balances that involve every branch of the government.

Time will tell whether Snowden’s decision to release classified documents caused damage as measured in U.S. lives.

What seems clear, though, is that “the public” Snowden believes he served by leaking counter-terrorism strategies already weighed in on the issue. It did so through a political process dictated by the U.S. Constitution. By releasing the information to the entire world — including U.S. enemies — he subverted the American public’s decision on how to balance the conflicting goals of transparency, privacy and security.

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Filed under Democracy, NSA, Terrorism

Who to trust on privacy and security?

A series of leaked documents hinting at the overwhelming scope of National Security Agency intelligence operations ignited, in recent days, an old debate that has simmered since Sept. 11, 2001. To what extent are Americans willing to sacrifice privacy for safety?

Most sources attribute to Benjamin Franklin a quote that resonates more than two centuries later: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” The principles are the same today, but the stakes are dramatically different.

On the security side, today’s terrorist has the theoretical ability to wipe out entire cities. The weapons at his disposal have an indiscriminate destructive power Franklin could not have imagined.

On the liberty side, technological advances provide the government with unprecedented surveillance capabilities.

It would be difficult to find two Americans who agree on the perfect balance between security and privacy. In a representative democracy with constitutionally imposed checks and balances, we must hope our leaders will arrive at reasonable solutions.

The leadership issue, however, is one of the most troubling aspects of recent revelations.

Before his first presidential term, Barack Obama preached an almost libertarian view of the proper balance between security and privacy. The post-9/11 panic, he said, had veered the nation away from fundamental values of freedom and privacy.

Obama was relentless in attacking former President George W. Bush for surveillance programs Obama has since continued and even expanded.

Obama’s reversal smells like hypocrisy.

Suspicion of Obama is appropriate. His version of transparency on surveillance, like armed drones, has been to give pretty speeches after leaks force his hand.

In the midst of suspicion, though, Americans should recognize that finding the proper balance between security and privacy is dependent not just on ideology, but on facts.

It may be, as many Democrats have claimed, that Bush used the 9/11 attacks as an unwarranted excuse to spy on Americans and the world. It may be, as both Democrats and Republicans now allege, that Obama’s pre-2009 rhetoric on civil liberties was hogwash.

In reaching these conclusions, though, we must condemn leaders of both parties in Congress and numerous federal judges, all of whom allowed the surveillance to continue.

The less nefarious possibility is that Bush and Obama embraced the same programs because they had unique access to the same facts, information they did not have before entering the White House.

Real threats face America. Any attempt to balance security and privacy is defective without access to those facts.

Cynicism directed at politicians usually turns out to be merited. Recent U.S. history suggests Obama’s transition from civil libertarian to Orwellian puppetmaster is deserving of scorn.

There is an outside chance, though, that many Americans — confronted with the same facts and responsibilities as Bush and Obama — would have made the same choices. The burden is on Obama, but it’s worth hearing him out.

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Filed under Civil liberties, National security, Obama