On Tuesday night in Varner, Ark., 28-year-old Christina Marie Riggs was executed for the 1997 murders of her two small children. She was given a lethal injection of potassium chloride, the drug she had originally planned to use to kill her children. (She suffocated them after a botched attempt of the drugging plan.)
Riggs, a former nurse, was put to death despite pleas for her life from anti-death-penalty groups including Amnesty International and the American Civil Libertes Union. In fact, there was little difference between the execution of Riggs and the other 28 executions carried out in the United States so far this year, except that Riggs, who said she wanted to die to be with her “babies,” had refused to appeal her sentence or to seek clemency from Arkansas Gov. Mike Huckabee.
And yet her death was much bigger news.
The cause for intense public soul-searching and beating of breasts was not the nature of Riggs’ crime or her wish to die. It was her gender. It was, for all intents and purposes, a demonstration of garden-variety sexism. And this isn’t the first time our hypocrisy has been blatantly displayed.
Riggs was the first woman to be executed in Arkansas in 150 years, and only the fifth executed in the nation since the U.S. Supreme Court lifted the ban on capital punishment in 1976. Obviously, the very rarity of women’s executions makes them newsworthy. But this is only the statistical manifestation of the stubborn gender discrimination that taints our attitude about capital punishment in this country.
Whether one sees the death penalty as justice or barbarism (and, for the record, I have no moral objection to imposing it for premeditated murder, though the risk of the state taking an innocent life is troubling enough to warrant opposition to the practice), surely the perpretrator’s gender should be irrelevant.
But that is not the way it works in the real world. We are consistently more likely to seek mitigating circumstances for women’s heinous deeds, to see female criminals as disturbed or victimized rather than evil. The thought of a woman in the death chamber makes people cringe — even those who have no problem with sending a man to his death for his crimes.
It appears that chivalry still lives when a woman must die.
Two years ago, there were many more headlines and much more debate as Karla Faye Tucker awaited execution in Texas for a brutal double murder. Tucker had become a born-again Christian and her clemency petition was backed by such unusual suspects as Christian Coalition leader Pat Robertson, Moral Majority founder Jerry Falwell and right-wing hero Oliver North — all generally pro-capital punishment.
While most of Tucker’s champions insisted that redemption and not womanhood was the issue, none had intervened on behalf of male murderers who had experienced similar death-row conversions. And there was ample evidence to suggest that the support for “this sweet woman of God,” as Robertson put it, was not entirely gender-neutral.
On CNN’s “Crossfire,” when asked if the crusade to save Tucker was an instance of “misplaced chivalry,” North gallantly replied, “I don’t think chivalry can ever be misplaced” — though he went on to insist that “gender is not a factor.” Meanwhile, on the left, the chivalrous Geraldo Rivera dispensed with any pretense of neutrality and issued a bizarre plea to Texas Gov. George W. Bush on his CNBC show: “Please, don’t let this happen. This is — it’s very unseemly. Texas, manhood, macho swagger … What are ya, going to kill a lady? Oh, jeez. Why?”
The lady in question, by the way, had used a pickax to dispatch two sleeping people (one of whom had made her angry by parking his motorbike in her living room) and later bragged that she experienced an orgasm with every swing.
Some criminal justice experts, such as Victor Streib, dean of the law college at Ohio Northern University, argue that the double standard favoring women kicks in long before the final death watch, and that women offenders are “screened out at all levels of the system.” Women commit about 10 percent of all murders in the U.S., yet receive only about 2 percent of the death sentences and account for about 1 percent of death-row inmates, since their sentences are more often commuted or reversed.
True, numbers don’t tell the whole story. Male killers are more likely to have committed the kinds of crimes that make them eligible for a death sentence, from cop-killing to murder during the commission of another crime such as robbery. When women kill, their victims are more likely to be family members, including their own children — which, rightly or not, tends to be treated as a lesser crime.
Still, it is worth noting that while women commit nearly 30 percent of spousal murders (excluding homicides ruled to be in self-defense), they account for only 15 percent of prisoners sentenced to death for killing a spouse.
And the disparity between the treatment of male and female defendants can be stunning when you look beyond the numbers. In 1995, Texas executed Jesse Dewayne Jacobs for a murder that, by the prosecutors’ admission, was committed by his sister Bobbie Jean Hogan. It was Hogan who had gotten her brother to help her abduct Etta Ann Urdiales — her boyfriend’s ex-wife who was making vexatious demands for child support — and who had actually pulled the trigger.
When Hogan went on trial, separately from her brother and co-conspirator, her lawyers managed to persuade the jury that the gun went off accidentally and obtained a verdict of involuntary manslaughter. She received a 10-year prison sentence.
Maybe we don’t know for certain that gender bias played a role in these different outcomes. Two male accomplices in a crime can receive strikingly disparate sentences, since much depends on the personalities of the jurors and the quality of the defense. But it’s hardly a stretch to conclude that gender matters. Jurors may not intentionally go easy on women, but they may be far more inclined to believe that a gun was not fired on purpose if it was in a woman’s hands. How many times have we seen that one in the movies?
And then there is the perennial persuader in consideration of a woman’s fate before the law: sympathy. When Susan Smith sent her two little sons into the muddy waters of a lake strapped into their car seats, apparently because they were an obstacle to her love life, and made up a story about a black carjacker, she was initially denounced as a cold-blooded monster.
Yet even her image underwent a gradual shift, with revelations that she had been molested by her stepfather as a teen (even though, somewhat less sympathetically, she had continued carrying on an affair with him as an adult and married woman) and suggestions that her no-good husband was really to blame for her anguish (even though there was little reason to believe that he was any more responsible for the breakdown of the marriage than she was). “This is not a case about evil,” Smith’s attorney, Judy Clarke, told the jury that gave her life in prison. “It is about despair and sadness.”
Smith may have cut a pitiable figure. So, apparently, did Guinevere Garcia, who fatally shot her husband for his insurance money 14 years after she had suffocated her 11-month-old daughter — and whose death sentence was commuted to life in prison by Illinois Gov. Jim Edgar in 1996.
Garcia had been sexually abused as a child and was an alcoholic prostitute by the age of 15. But the same was true of Jesse Timmendequas, the sex offender awaiting execution in New Jersey for strangling five-year-old Megan Kanka, the child who gave her name to “Megan’s law.” According to trial evidence, Timmendequas had been brutally beaten and sodomized by his father.
In fact, nearly half of male death-row inmates claim to have been physically abused in their childhood, while more than 1 in 4 say that they were sexually molested. Of course, some of these claims of victimization may be self-serving, but then again, not every woman’s abuse excuse is the gospel truth.
Of course, not everyone champions gender neutrality when it comes to crime and punishment. Some find the fair sex to be justified in getting unfair treatment. “Women and men do occupy separate places in the collective psyche of society, ” Jonathan Last wrote in the conservative Weekly Standard shortly after Tucker’s execution. “Because society has a low tolerance for seeing them harmed, women — even criminals — have traditionally been treated differently by the justice system. Differently, but still, at least possibly, with justice. The loss of that difference is part of what makes [the] destruction of Karla Faye Tucker so disturbing.”
This sort of paternalism — which, as Last explicitly stated, also provides the justification for keeping women out of combat forces — seems precisely the sort of sugar-and-spice rationalization that feminists ought to oppose. Yet they have remained largely silent on the subject, for several reasons. One is that when feminism becomes a movement for the advantage of women (rather than for equal treatment), complaining about favoritism toward women doesn’t make a lot of sense.
Many also find it hard to admit the basic fact that in Western societies in the modern era, patriarchal norms have revolved less around the subjugation of women through violence — one of the feminists’ favorite themes — than around less protectiveness toward women.
Far from denouncing double standards, many feminists have contributed to the excuse-making. When Betty Lou Beets, 62, was facing execution in Texas in February for the murder of her fifth husband, Jimmy Don Beets, battered women’s advocates rallied to her defense, portraying her as a victim of years of domestic abuse. Beets had been convicted of shooting and wounding her second husband, Bill Lane, and had been charged but never tried in the 1981 death of husband No. 4, Doyle Barker. Beets had never claimed to have been battered during her trial, and had tried to blame the slaying on her two children.
Even when the death penalty is not at issue and even when there are no allegations of physical abuse, murderous women can still qualify for lifesaving prizes in the victim sweepstakes.
Some years ago, Betty Broderick, the California housewife who killed her wealthy ex-husband and his young new wife — and claimed that the divorce and the alimony payments of $16,000 a month amounted to “white-collar domestic violence” — became the subject of sympathetic profiles in Ladies Home Journal and Mirabella.
An essay in a feminist anthology on women and violence, “No Angels” (1996), lamented that support for battered women who fight back had not extended to “fighting back against an emotionally abusive husband” and denounced a TV movie portraying Broderick in a negative light as “misogynist.”
Contrary to all the evidence, feminists also have asserted that it’s women who are treated with extra harshness by the system. In her 1996 book “Still Unequal: The Shameful Truth About Women and Justice in America,” Lorraine Dusky asserts that women receive “more severe sentences” for stereotypically male crimes, though she cites no evidence to support this. But according to a 1989 Bureau of Justice Statistics study, male violent offenders were more than twice as likely as women charged with similar crimes to be incarcerated for more than a year.
Other research has found that, even when factors such as severity of the offense and prior criminal record are taken into account, women are more likely to have charges dismissed or to receive a light sentence.
Advocates for battered women also have claimed that a woman who kills her mate is sentenced to an average of 15 to 20 years in prison, while a man gets two to six years. This appalling factoid seems to be pure fiction. A Justice Department study of domestic homicides paints a very different picture: Husbands who killed their wives received an average of 16.5 years in prison; wives who killed husbands got six years. While some of the disparity was due to the fact that more women had been “provoked” — assaulted or threatened — before the slaying, the study noted that “the average prison sentence for unprovoked wife defendants was seven years, or 10 years shorter than the average 17 years for the unprovoked husband defendants.”
If one truly believes in the full equality of the sexes, it’s not difficult to see that protectiveness toward women, whether motivated by chivalry or feminism, keeps us from acheiving a legitimate goal. As Patricia Pearson argues in her 1997 book “When She Was Bad: Violent Women and the Myth of Innocence,” making excuses for women’s violence ultimately strips them of moral agency and accountability. What does it say about women’s ability to function in society, to be workers and leaders, if they are seen as more vulnerable to pressure and more easily forgiven for failing to cope with their emotional problems?
If women are to be treated as adults, we cannot recoil from the execution of a woman the way we do from the execution of a juvenile. The debate about capital punishment should focus on humanity, not womanhood. To demand equality — yet ask for a special right to clemency — just won’t do.
New documents obtained by the ACLU show that the FBI has for years been using Census data to “map” ethnic and religious groups suspected of being likely to commit certain types of crimes.
Much is still not known about the apparent large-scale effort in racial profiling, partly because the documents the ACLU obtained through public records requests are heavily redacted.
The FBI maintains that the mapping program is designed to “better understand the communities that are potential victims of the threats,” but the ACLU says it is plainly unconstitutional.
To learn more about the FBI program, its implications for civil liberties and the questions that remain unanswered, I spoke to Michael German, policy counsel at the ACLU’s Washington office and a former FBI agent.
What is the new information that has come to light here?
In 2008, the FBI’s guidelines were changed to create a new category of investigations called assessments, which required no factual predicate. The FBI’s policy in implementing those changes were released around 2010 and showed the FBI was engaged in a program called “domain management,” which included mapping and gathering intelligence on racial and ethnic communities. We were concerned about the program, so we filed a series of Freedom of Information Act requests across the country and we now have documents that indicate what the FBI has been doing with this new authority. Clearly they have been engaging in crass racial stereotyping of minority groups are linked to certain types of crime, and then using Census information to map entire communities based on their race or ethnicity.
When you say “map,” what does that actually look like in practice?
It’s hard for us to know because all the maps were heavily redacted. It’s clear they are maps. They are using Census data in order to identify anybody who identifies with a certain race or ethnicity. In the Detroit memo, it’s based on adherence to Muslim faith or Middle Eastern origin. The purpose of the program is to identify these communities where the FBI can then conduct intelligence or law enforcement investigations.
So what sort of crimes have they linked to various racial groups?
There was a San Francisco memo that suggested because there was Chinese organized crime, there should be a domain management collection program to identify the entire Chinese community in the San Francisco area. That memo also included an effort to target the Russian-American community. There was an Atlanta FBI memo that purported to analyze the black separatist threat. It documented the population growth of blacks in Georgia as part of the assessment. It also identified a couple of actual organizations, but in the information, what is reported is their First Amendment activities: their appearances at different protests and at a congressional campaign event.
Is the ACLU arguing here that this program is unconstitutional?
Yes, we feel it is unconstitutional — and in many cases actually violates the Department of Justice guidance regarding the use of race in federal law enforcement. That guidance purports to ban racial profiling in ordinary law enforcement investigations. The problem is, it has a huge loophole for national security and border integrity investigations. What’s clear from these new documents is that the loophole has swallowed the rule because they are using this program to target communities based on their race in the context of normal criminal activity.
What part of the Constitution does this violate in the ACLU’s view?
It violates the First, Fourth and 14th amendments. This program is entirely targeting communities of people for investigation based on their race, ethnicity, national origin, or religion, denying them equal protection under the law — and also targeting people because of their First Amendment-protected activities. They are then conducting broad suspicionless investigations called assessments, and collecting information in which there are Fourth Amendment concerns that it is unreasonable to conduct such invasive investigations.
One of the documents we released this week is an FBI memo to the field where they discuss what type of information they want collected during assessments. That document shows this isn’t a minimally invasive investigation. It collects a tremendous amount of material so the FBI can build dossiers against people with no reason to believe that they as individuals were involved in any kind of wrongdoing. It also authorizes what it calls a “disruption strategy,” in which, after all the information is collected and the threat is otherwise resolved, the FBI can continue doing other things like performing interviews, arrests and source-directed operations. Back in the Hoover era, the FBI’s COINTELPRO included a disruption strategy that was later found to be aimed at obstructing First Amendment-protected activity. So we have serious concerns about what this new disruption strategy might be doing and who is overseeing it.
When it comes to that Detroit memo about Muslims and terrorism, how do you respond to people who look at this and think, “This is what the FBI should be doing”?
This is racial and religious profiling on an industrial scale. Rather than just stopping an individual based on race, the FBI is identifying an entire community based on race and subjecting them to more intense scrutiny. There are many problems that exist with racial profiling: first that it’s unlawful, but also that it’s ineffective as a methodology because every dollar and every hour of an agent’s time that is spent investigating innocent people is completely wasted. It is also really a dangerous practice because all law enforcement depends on public support to be successful. If they’re alienating entire communities based on race or religion, that is going to be an entirely counter-productive methodology.
The last decade has spawned a massive expansion of the domestic Surveillance State. Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.
Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the “state secrets” privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government — and, for that matter, everyone else in the country — lacks “standing” to challenge the legality of the spying (because nobody knows on whom we’re spying, nobody has the right to sue us for breaking the law).
A government that can spy on its own citizens without judicial review is a government which, by definition, operates outside of the rule of law; as Alexander Hamilton put it in Federalist 15:
It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.
These are the two secrecy doctrines which the Bush and Obama DOJ have repeatedly invoked to shield even the Bush NSA warrentless eavesdropping program from all forms of legal accountability, notwithstanding the fact that three separate federal judges ruled (ultimately without consequence due to reversals on secrecy grounds) that the program violated the Constitution and/or criminal laws such as FISA. Most amazingly, the Obama DOJ has aggressively used these same secrecy doctrines to ensure that no courts ever review or adjudicate any government surveillance programs, including Bush’s NSA warrantless program, even though then-Sen. Obama — when opposing the 2005 nomination of NSA Chief Michael Hayden to become CIA Director — accused Bush of breaking the law in spying on Americans without warrants and then said this on the Senate floor:
We don’t expect the President to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government – Congress and the Judiciary – to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much.
In 2008, the Democratic Congress enacted the FISA Amendments Act, which not only retroactively immunized telecoms from all liability for their role in Bush’s illegal eavesdropping programs (thus terminating all pending lawsuits and ensuring no judicial adjudication of that program), but also, going forward, legalized much of Bush’s previously illegal warrantless spying activities. The FAA was the most drastic expansion of government eavesdropping powers in decades. Numerous scholars documented how blatantly the new surveillance powers it vested violated the Fourth Amendment (the FAA was the bill which candidate Obama, when seeking the Democratic nomination, had unambiguously promised to filibuster, only to turn around, once he secured his Party’s nomination, and vote against a filibuster and then in favor of the underlying bill).
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When Congress enacts a law vesting new domestic spying powers in the NSA that very likely violate the Fourth Amendment, the only solution — at least in theory, as the American system is designed — is for citizens to sue the Government in federal court and argue that the new law is unconstitutional. The Supreme Court unanimously explained back in 1803 in Marbury v. Madison (emphasis added):
It is emphatically the duty of the Judicial Department to say what the law is. . . .If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. . . .
[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
That’s as basic as it gets to the ostensible American design. If citizens are not able to do that — if they have no mechanism to deny the Government the power to transgress the limits imposed by the Constitution — what is the point of even having a Constitution?
Immediately after Bush signed the FAA into law, numerous journalists, human rights activists, and groups such as Amnesty International — represented by the ACLU — adhered to this design by suing the U.S. government, claiming that the FAA was unconstitutional under the Fourth Amendment. They argued that although the secrecy behind which the program was conducted prevented them from proving that they were subjected to it, their well-founded fear that they would be (and the steps they were forced to take in response) was enough harm to confer “standing” on them and allow them to challenge the law’s constitutionality.
In response, the Bush DOJ raised its standard secrecy claims and convinced a lower court judge to dismiss the suit based on “standing.” When the ACLU appealed this ruling to the Second Circuit Court of Appeals in New York, the Obama DOJ raised the same arguments to demand dismissal. But in March, a unanimous three-judge appellate panel rejected the Bush/Obama argument and reinstated the ACLU’s lawsuit, holding that the plaintiffs’ credible fear of being subjected to the FAA’s eavesdropping power entitled them to proceed with their claims that the new law was unconstitutional. The Obama DOJ then sought a review of that decision by the entire Circuit, insisting that plaintiffs should be barred from contesting the constitutionality of the FAA.
Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ’s request. Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it. Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel — allowing the lawsuit challenging the FAA’s constitutionality to proceed — will stand. This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution. But at least for now, this is a good and important development.
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The bulk of the opinions issued by the Second Circuit judges were devoted to fairly standard arguments over the requirements of ”standing.” Here, for instance, was the crux of the argument for recognizing plaintiffs’ standing, as expressed by Judge Gerard Lynch after he reviewed the Goverment’s substantive arguments for why the FAA was constitutional:
The dissenting judges argued that mere fear of being subjected to this spying was insufficient to allow plaintiffs to sue; instead, they must prove they have been or will be spied upon (that nobody can prove this, due to the secrecy in which the program is shrouded, is a Kafkaesque Catch-22 of no apparent concern to these jurists).
But by far the most remarkable aspect of this ruling was the dissenting opinion issued by Dennis G. Jacobs, the Chief Judge of the Second Circuit. Notably, no other judges joined the Chief Judge’s opinion, and it’s not difficult to see why. Jacobs’ opinion is one of the most intemperate, childish, nakedly ideological, and just plain obnoxious judicial outbursts you will ever encounter in writing. But it highlights some important facts about the federal judiciary that make it worth examining.
After accusing the plaintiffs of harboring anti-Americanism for daring to enforce the mandates of the United States Constitution against precisely the activities most feared by the American Founders: unchecked domestic government spying (Jacobs announced his discovery that the plaintiffs’ argument rests on a “buried assumption that the United States is the only threat to liberty that anyone anywhere needs to worry about”), he turned his scornful ire to the ACLU for the crime of representing these plaintiffs — for free — in a lawsuit to enforce the privacy rights of all American citizens. Unprovoked, Jacobs posed the question of what could possibly motivate the ACLU and its clients to bring this lawsuit — apparently, an actual belief that the law is unconstitutional and dangerous could not possibly be the real motive — and this is the answer he supplied:
At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake — for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.
Apparently, only “fantasies of persecution” — as opposed to the most basic knowledge of history — can lead someone to believe that spying powers conducted in secret will be abused. He then added that this Constitutional challenge to the Government’s secret spying powers “bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar.” Not content with maligning their motives and patriotism, he then all but accused the ACLU and its clients of lying in order to sustain the lawsuit (“these affidavits employ all the lawyer’s arts to convey a devious impression . . . affidavits that are craftily worded to skirt actual falsehood”).
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Let’s spend a moment comparing Dennis G. Jacobs to the ACLU lawyers whose alleged motives he just smeared based on his armchair assessments of their psychology (all while ironically criticizing them for “pretenses” to “expertise” for “which they are not fitted by experience”). This comparison not only demonstrates how deceitful and malicious is his attack, but it also speaks volumes about the corrupted role the federal judiciary is playing in our system of government.
Virtually every ACLU lawyer is very smart and well-educated; for instance, the lead ACLU lawyer in this case, Jameel Jaffer, is a graduate of Cambridge University and Harvard Law School, where he served as an editor of its law review. Every one of these lawyers could therefore easily have joined (and could still join) the nation’s most lucrative Wall Street law firms, or enter government and serve in various functionary capacities — presumably what they would do if actually motivated by a need for self-importance, policy influence or financial gain, as Jacobs accuses.
Instead, they labor very long hours in exchange for a salary that is a small fraction of what they could earn at any moment they choose. They work for a non-profit organization that is systematically excluded from the halls of Washington power, often representing the most marginalized, powerless, and scorned segments of society (which, by definition, are most vulnerable to rights abridgments). They do so knowing that they will be continuously smeared and maligned in the most vicious, McCarthyite and public ways by the Dennis Jacobses — or the Lee Atwaters and Weekly Standards — of the world. Nobody with their background and opportunities would do that for any reason other than genuine convictions about basic Constitutional liberties and a passionate commitment to defending them, thus fulfilling what Thomas Paine, in his 1790 Dissertations on First Principles in Government, described as the prime duty for preserving freedom for everyone (a passage Dennis Jacobs, if he would ever read it, would likely castigate as “fantasies of persecution”):
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.
All of that stands in very stark contrast to Dennis G. Jacobs. Immediately after graduating law school, he went to work for a large Wall Street law firm — Simpson, Thacher & Bartlett — and stayed there for the next 19 years, until George Bush 41 appointed him to a life-tenured federal judgeship. How noble. So the entirety of Jacobs’ law career before becoming a judge was devoted to snorting up as much cash as he could as he represented large corporations and banks. That’s the person who just anointed himself the arbiter and smearer of the integrity, psychology and motives of ACLU lawyers and their human-rights-activists clients for daring to challenge a government spying law on Fourth Amendment grounds.
But far more notable is that Jacobs has remained every bit as loyal — indeed, more so — to these large corporate institutions as a federal judge. He has developed a bizarre contempt for pro bono legal work: i.e., lawyers who work for free on behalf of poor and otherwise marginalized clients against the types of clients Jacobs enriched himself representing, in order to provide some minimal degree of fairness and balance in the justice system. In 2008, Jacobs delivered a speech to the right-wing Federalist Society mocking and scorning pro bono work — he entitled the speech ”Pro Bono for Fun and Profit” — and began by depicting himself as some sort of courageous, politically incorrect martyr for bravely attacking pro bono lawyers in front of this right-wing audience:
When lawyers gather and judges speak, you can count on hearing something on the subject of pro bono service. It is always praise of all that is done, with encouragement to do more. This evening I am going to articulate a view that you may not have heard: I will touch on some of the anti-social effects of some pro bono activity.
He then devoted his entire speech to attacking lawyers who challenge government acts as unconstitutional and those who bring civil rights cases on behalf of large numbers of discriminated-against citizens. Most of the rhetoric he spat yesterday at the ACLU, Amnesty and others in his “judicial opinion” was just pre-packaged politicized tripe that he delivered years ago to the Federalist Society. He’s on a one-man ideological crusade to convince the nation of the evils of pro bono work and, especially, effective challenges to government and corporate power.
In 2010, Jacobs again appeared before the Federalist Society’s annual conference and delivered the “Barbara K. Olsen Memorial Lecture,” named after the Fox News legal scholar who spent the 1990s churning out every tawdry allegation against Bill and Hillary Clinton before she died in the 9/11 attack. Ironically, Jacobs delivered a 2006 speech — entitled “The Secret Life of Judges” — in which he purported to reveal a pervasive “bias” among the judiciary: reliance on law and legal procedure in lieu of policy judgments.
Of course, Jacobs is the living, breathing embodiment of judicial bias: a devoted servant to corporate and government power, a right-wing hack who barely attempts to hide his political loyalties, and — most of all — a declared enemy of the very few mechanisms that exist to enable the poor and marginalized to receive competent legal representation and for political power to be subject to some minimal checks (what we call “the Constitution”). It should be anything but surprising that a corporate-serving, political-power-revering, highly politicized figure like this produces judicial opinions that are slightly more restrained versions of a Rush Limbaugh or Bill O’Reilly rant. He churns out right-wing agitprop masquerading as legal reasoning.
But the reason he’s worth examining is because he’s anything but aberrational. He’s the Chief Judge of the second- or third-most important court in the country. He works in a judicial system that more and more does the opposite of what it was ostensibly designed to do: it is now devoted to shielding political officials from legal accountability and transparency rather than exposing them to it, enabling rather than halting transgressions of the Constitutional limits imposed on them, and most of all, further empowering the most powerful factions against the least powerful rather than equalizing the playing field. In that regard, the life of Dennis G. Jacobs — and his slanderous, contemptuous outburst of yesterday — should be studied as a perfect embodiment of how the American judicial branch has become so corrupted as a tool for the nation’s most powerful factions.
(updated below – Update II)
The ACLU decided to use the 10th anniversary of the 9/11 attack to comprehensively survey the severe erosion of civil liberties justified in the name of that event, an erosion that — as it documents — continues unabated, indeed often in accelerated form, under the Obama administration. The group today is issuing a report entitled A Call to Courage: Reclaiming Our Liberties Ten Years After 9/11; that title is intended to underscore the irony that political leaders who prance around as courageous warriors against Terrorism in fact rely on one primary weapon — fear-mongering: the absence of courage — to vest the government with ever-more power and the citizenry with ever-fewer rights. Domestically, the “War on Terror” has been, and continues to be, a war on basic political liberties more than it is anything else. The particulars identified in this new ACLU report will not be even remotely new to any readers here, but given the organization’s status among progressives as the preeminent rights-defending group in the country, and given the bird’s-eye-view the report takes of these issues, it is well worth highlighting some of its key findings.
Let’s begin with the ACLU’s summary assessment of what President Obama has done with regard to these matters:
Last week, the top lawyer and 34-year-veteran of the CIA, John Rizzo, explained to PBS’ Frontline that Obama has “changed virtually nothing” from Bush policies in these areas, and this week, the ACLU explains that “most [Bush] policies remain core elements of our national security strategy today.“ At some point very soon, this basic truth will be impossible to deny with a straight face even for the most hardened loyalists of both parties, each of whom have been eager, for their own reasons, to deny it (and even the two differences cited there, though positive, are wildly exaggerated by Obama defenders: the torture techniques authorized by Bush were no longer in use and the CIA black sites were empty by the time Obama was inaugurated; by contrast, there is ample evidence that the Obama administration continues to use torture by proxy and rendition/CIA-black-sites by proxy as well).
The ACLU then highlights one of the most perverse though revealing ironies of Democratic Party opinion on civil liberties in the Obama age: the way in which Bush’s attempt merely to imprison a U.S. citizen without due process (or merely to eavesdrop on citizens) prompted such outrage, while Obama’s claimed right to assassinate U.S. citizens without due process provokes virtually no protest:
Critically, the ACLU emphasizes that this Obama fixation — wildly expanded programs of targeted killings even of U.S. citizens far from any battlefield — is as threatening to the rule of law, and at least as dangerous, as any policy implemented by Bush/Cheney:
For all the talk about how Bush and Cheney turned the U.S. into a rogue state, here is the escalating result of this Obama policy:
The ACLU then devotes an entire chapter to the way in which immunity for America’s torturers — bestowed jointly by President Obama and a judicial branch meekly deferential to his and Bush’s claims of state secrecy — has contaminated and degraded the entire justice system and made the future reintroduction of torture a virtual inevitability:
Then there’s the ongoing targeting of American Muslims for some of the most invasive and unconstitutional rights-abridging actions in decades. Explains the ACLU: ”No area of American Muslim civil society was left untouched by discriminatory and illegitimate government action during the Bush years . . . In short, the Bush administration used religious, racial, and national-origin profiling as one of this nation’s primary domestic counter-terrorism tools.” And now?
A separate chapter is devoted to what the ACLU calls “A Massive and Unchecked Surveillance Society.” It explains: ”Using Patriot Act authority, the Bush Administration started — and the Obama Administration has continued — to conduct wholesale ‘preventive’ surveillance of innocent Americans without judicial review.” And “the result is a national surveillance society in which Americans’ right to privacy is under unprecedented siege.” But little is known about exactly what is being done by this purely unaccountable hidden government — what The Washington Post calls “Top Secret America” – because of this:
This Surveillance State, like most other Bush/Obama Terrorism policies, is justified by a never-ending orgy of fear-mongering. But other than the enrichment of the private Security State industry (see here and here), its real purpose — as I documented last week — is this:
But the primary cause of this Bush-Obama continuity is the vigorous embrace by both Presidents of the same theory of war and Terrorism — the unlimited global battlefield and the President’s resulting unconstrained power to act anywhere in the world without limits — which was once so controversial during the Bush presidency but has now become mainstream, bipartisan consensus:
Pointing to that core theory of both presidencies, the ACLU dispatches one of the most misleading claims of Obama defenders: that the President’s failure to close Guantanamo is due exclusively to Congressional obstructionism; in fact, long before Congress acted at all with regard to that camp, the President announced his intention to continue its core injustice — indefinite detention — albeit in a different locale:
During the Bush era, the actions and condemnations of the ACLU received ample positive attention from progressives. That, of course, is no longer true, and this damning report will likely be ignored in most of those circles, just as this truly remarkable comment from the ACLU’s Executive Director has been. And, as usual, anyone urging that attention be paid to these facts will be met with demands that eyes be diverted instead to how scary Sarah Palin Christine O’Donnell Michele Bachmann Rick Perry is, and then this will all blissfully fade away in a cloud of partisan electioneering even with the election more than a year away.
Either way, this creeping unchecked authoritarianism marches forward unabated, and is now — rather than the province of the right-wing GOP – fully bipartisan consensus. I really don’t understand how progressives think they’ll be taken seriously the next time there is a GOP President and they try to resurrect their feigned concern for these matters; they’ll be every bit as credible as conservatives who pretend to be deficit-warriors and defenders of restrained government only when the other party is in power.
But even that ultimately matters little: so entrenched is this institutional militarism, secrecy, surveillance and authoritarianism that even if there were greater public debate over it like there was during the Bush presidency, this system would hardly be affected, let alone threatened. Governments and other power factions — especially ones threatened by the prospect of social unrest and upheaval — do not relinquish this sort of authority unless compelled to do so.
UPDATE: Tomorrow morning beginning at roughly 11:20 am EST, I’ll be on NPR’s On Point, discussing 9/11 and civil liberties, along with The Washington Post‘s Dana Priest, who will be on from the start of the show at 11:00 am discussing Top Secret America.
UPDATE II: Donald Rumsfeld becomes the latest right-wing figure — of many — to heap praise on President Obama’s Terrorism and civil liberties policies (h/t flellis):
Former Defense Secretary Donald Rumsfeld says President Barack Obama has come to accept much of the Bush Doctrine out of necessity, despite what he campaigned on in 2008. . . .
“They ended up keeping Guantanamo open not because they like it — we didn’t like it either — but they couldn’t think of a better solution,” Rumsfeld told Fox News’ Greta Van Susteren on Tuesday. . . .
“The same is true with the Patriot Act, and military commissions, and indefinite detention. All of those things were criticized but today are still in place two-and-a-half years later because they are the best alternative to the other choices — and they are in fact successful in keeping America safer,” he says.
Just as nobody could have strengthened the Bush/Cheney Terrorism template the way Obama has, so, too could nobody have provided vindication for those policies the way he has.
What’s good for the police apparently isn’t good for the people — or so the law enforcement community would have us believe when it comes to surveillance.
That’s a concise summary of a new trend first reported by National Public Radio last week — the trend whereby law enforcement officials have been trying to prevent civilians from using cellphone cameras in public places as a means of deterring police brutality.
Oddly, the effort — which employs both forcible arrests of videographers and legal proceedings against them — comes at a time when the American Civil Liberties Union reports that “an increasing number of American cities and towns are investing millions of taxpayer dollars in surveillance camera systems.”
Then again, maybe it’s not odd that the two trends are happening simultaneously. Maybe they go hand in hand. Perhaps as more police officers use cameras to monitor every move we make, they are discovering the true power of video to independently document events. And as they see that power, they don’t want it turned against them.
But wait — why not?
Though you’d expect that uncomfortable question to evoke dissembling, Fraternal Order of Police spokesman Jim Pasco was quite straightforward about it.
Police officers, he told NPR, “need to move quickly, in split seconds, without giving a lot of thought to what the adverse consequences for them might be.” He added that law enforcement authorities believe “that anything that’s going to have a chilling effect on an officer moving — an apprehension that he’s being videotaped and may be made to look bad — could cost him or some citizen their life.”
Obviously, nobody wants to stop officers from doing their much-needed job (well, nobody other than budget-cutting politicians who are slashing police forces). In fact, organizations such as the NAACP have urged citizens to videotape police precisely to make sure police are doing ALL of their job — including protecting individuals’ civil liberties.
This is not some academic or theoretical concern, and video recording is not a needless exercise in Bill of Rights zealotry. The assault on civil liberties in America is a very real problem and monitoring police is absolutely required in light of recent data.
As USA Today reported under the headline “Police brutality cases on rise since 9/11,” situations “in which police, prison guards and other law enforcement authorities have used excessive force or other tactics to violate victims’ civil rights increased 25 percent” between 2001 and 2007. Last year alone, more than 1,500 officers were involved in excessive force complaints, according to the National Police Misconduct Statistics and Reporting Project.
Considering this, Pasco has it exactly wrong. We should want more officers feeling “apprehension” about breaking civil liberties laws, we should hope more of them “give a lot of thought to what the adverse consequences” will be if they trample someone’s rights and we should crave an immediate “chilling effect” on such violations.
That’s what the practice of cellphone recording is supposed to do — not mimic the national security state’s Big Brother culture, but prevent that security state from trampling our freedoms.
Law enforcement officials, of course, don’t like the cellphone cameras because they don’t want any check on police power. So they’ve resorted to fear-mongering allegations about lost lives. But the only police officers who are threatened by cellphone cameras are those who want to break civil liberties laws with impunity. The rest have nothing to worry about and everything to gain from a practice that simply asks them to remember the all-too-forgotten part of their “protect and serve” motto — the part about protecting the public’s civil rights.
(Credit: Duettographics and Thirteen via Shutterstock) 
Dennis G. Jacobs 
In this photo taken Aug. 31, 2011, President Barack Obama speaks in the Rose Garden of the White House in Washington and urged Congress to pass a federal highway bill. In his weekly radio Saturday, Sept. 3, 2011, Obama again called for the passage of a transportation bill, and express concern that "political posturing" may stand in the way. "There's no reason to cut off funding for transportation projects at a time when so many of our roads are congested, so many of our bridges are in need of repair and so many businesses are feeling the cost of delays. "This isn't a Democratic or a Republican issue it's an American issue," he said. (AP Photo/Carolyn Kaster, File)(Credit: AP) 
