Drug-sniffing dogs have been a staple of police work for years, particularly because courts have historically given police broad discretion to use the dogs. But two challenges before the U.S. Supreme Court Wednesday are questioning the limits of dog sniffs, arguing that police have gone too far in allowing drug-sniffing dogs to go anywhere — even to private homes — and to justify anything — even a search of someone’s car.

In one of the two cases before the court, police used the “alert” that a dog gives when it detects drugs as the basis for conducting a warrantless search of a car during a traffic stop. The Supreme Court already held in 2005 that police could use a drug-sniffing dog during a traffic stop without any probable cause. In this case, police seek to take that a step further and allow that sniff alone to justify a subsequent search. Police have typically argued that the risks associated with drug dogs are small, because they are only sniffing for illegal substances, and are not revealing any other private information. But a drug sniff imposes new risks when it justifies a much broader search of a vehicle – particularly when that dog’s findings are not particularly reliable. As Justice David Souter pointed out in his dissent in the 2005 case, the olfactory skills of dogs are not as reliable as they are widely presumed to be:

The infallible dog … is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. … In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.

Souter cites a range of cases showing that the false positive rates for drug dogs can be as high as 60 percent. What’s more, there are no national standards for acceptable success rates nor for what type of training is sufficient, leaving open the possibility that a drug-sniffing dog is sometimes just a cover for widespread searches that could not otherwise be justified by police.

In the second case the justices are considering, the issue is whether any probable cause is needed to justify a dog sniff search at the front door of a person’s private home. Although the dog is not permitted to go inside the home, the defendants argue that the dog sniff is an embarrassing privacy invasion at a particularly sacrosanct location. What’s more, if this type of police activity is justified without any reason for suspicion, what’s to stop police from just walking down streets and through apartment buildings with drug dogs in tow?

Taken together, these two cases demonstrate the magnitude of intervention that can be justified by the presence of drug dogs in the drastically unsuccessful War on Drugs. As a constitutional matter, a practice with such a high error rate should not alone be used to justify searches with no other suspicion requirement. But as a policy matter, what is alarming is that the War on Drugs is still being used to justify increasingly invasive policing.

New FBI statistics show that more people were arrested for drugs in 2011 than for anything else, including a large proportion for mere possession of marijuana. This War on Drugs has played a significant role in earning the United States the title of highest incarceration rate in the world, while exorbitant spending on this so-called war has hardly decreased drug use.

Our guest blogger is Daniella Gibbs Leger, Vice President for New American Communities Initiatives at the Center for American Progress.

Every election cycle is different, but there are a few tried and true tactics that get pulled out every year. One of the most annoying and cynical ones is the efforts by opponents of immigration reform to put a wedge between the African American community and Latinos. NumbersUSA is an anti-immigrant group that has a history of producing racist ads aimed at causing controversy and division. They are fond of running ads portraying black people as hostile to immigration because, as their story goes, immigrants take away jobs from black people. Their goal is to pull African American support away from pro-immigration candidates and ballot initiatives like the Maryland DREAM Act.

Groups like NumbersUSA don’t let little things like the facts get in their way. For one, there is strong support for immigrants within the African American community. Earlier this year, a coalition of prominent African American clergy from across the country who supported immigration reform joined with Hispanic clergy to push for reform. In April, the NAACP and other African American groups teamed with immigration activists to not only commemorate the historic march from Selma to Montgomery, but also to speak out against Alabama’s severe, anti-immigrant HB56 law. In Maryland, 70 percent of African Americans voters support the “Dream Act.” And across the country, Black legislators have led the fight against harsh Arizona-style bills. Civil Rights leaders and members of the Congressional Black Caucus have stood firmly on the side of pro-immigrant groups because they understand the pain of discrimination and that racism and injustice must be fought no matter where it is found.

Second, immigration is a net positive on our economy. In just one example, if Congress actually passed the DREAM Act, the qualified undocumented immigrants who became legal residents could actually pursue higher education, get higher salaries, spend more and pay more taxes. The economic impact of this alone with be $329 billion and 1.4 million new jobs by 2030.

And third, while the Black unemployment rate is unacceptably high, it is not something that can be pinned on immigration. This isn’t something that just happened once immigration started picking up. Going back decades, Black unemployment has generally been about double that of the White population. If you look at the employment of Blacks and Whites on a graph, they will move up and down with each other, but they will never meet. It is undoubtedly true that some unscrupulous employers use the vulnerability of undocumented immigrants to undercut their existing workforce. But that is a problem addressed by enforcing labor laws against abusive employers and by reforming our immigration laws so that employers cannot lord immigration status over them.

It’s easy to point to high unemployment and the justified anxiety it creates and then launch into the blame game to further your political agenda. But if these groups were serious, we’d be having a real conversation about why African American unemployment is so high and what can be done about it. If conservative groups were really interested in bringing down the Black unemployment rate, they wouldn’t support cuts to programs that support job training or the candidates who propose them.

If there was one thing that really bothered me about the presidential debates, it was that none of them touched on the employment, wage and wealth gaps between people of color and Whites. As we race towards 2050 when there will be no clear ethnic majority in this nation, it is critical to ensure that the communities that are growing the fastest see their disparities dissipate. It’s not just beneficial to African Americans – it will help guarantee a prosperous America in the future. If NumbersUSA was really concerned about the plight of the African American worker, they would put their money into real advocacy and not racist ads. But don’t be fooled. They don’t care. They are only interested in fear mongering and pushing their anti-immigrant stance. They’re just hoping we don’t notice.

Before the Supreme Court largely upheld the Affordable Care Act against a legal challenge that had no basis “in either the text of the Constitution or Supreme Court precedent,” right-wing lawmakers tried to undermine health reform through unconstitutional state laws or ballot initiatives claiming that parts of Obamacare simply did not apply in their state. The fact that these efforts violates the Constitution’s explicit text, which provides that duly enacted federal laws “shall be the supreme law of the land” did not seem to bother them in the least.

Months after the Supreme Court turned away the spurious legal attacks on health reform, conservative Wyoming lawmakers are still pushing this unconstitutional effort to undermine it with a proposed state constitutional amendment that will be on the ballot next week. And their unconstitutional nullification amendment is unusually explicit about the direct conflict it presents with federal law & the Constitution:

No federal or state law, rule or administrative decision shall compel, directly or indirectly, any person, employer or health care provider to participate in any health care system

Ultimately, these kinds of unconstitutional attacks on a entirely valid federal law are cruelest to the conservative voters who turn out to support them. If this initiative passes, many Wyomians will be left with the entirely false impression that they no longer have to comply with a federal law. Some of them may even break the law as a result. But their legal obligations under the Affordable Care Act will not change one bit, even if the proponents of this amendment deceive them into thinking they have.

Outside spending enabled by the Supreme Court’s Citizens United decision surpassed $840 million this election season, according to the Center for Responsive Politics. Super PACs and nonprofits have lavished the bulk of these funds on Mitt Romney and Republican candidates.

Just 858 individuals who contributed at least $50,000 each comprised 60 percent of all the money collected by super PACs, with the top 149 donors raising $290 million. The money overwhelmingly went to produce negative ads, which ate up 88 percent of pro-Romney super PAC Restore Our Future’s funds, and 95 percent of Karl Rove’s American Crossroads expenditures. Pro-Obama super PAC Priorities USA, while far outspent by its right-wing counterparts, spent 100 percent of its $57 million on negative ads.

Nonprofit organizations also played a huge part, with GOP nonprofits outspending Democratic ones by more than 8 to 1. These nonprofits, which are allowed to keep their donors secret, injected more than $245 million in so-called “dark money” into the election.

Romney heavily drew from wealthy donors, while the Obama campaign has been buoyed by grassroots supporters. 34 percent of the Obama campaign’s donations came from individuals who gave $200 or less, while they donated just 18 percent of Romney’s funds.

But super PACs have helped the Romney campaign overcome Obama’s grassroots fundraising, as Brad Smith, Republican lawyer and former chairman of the FEC openly admitted:

[Super PACs] have helped to level the playing field between Romney and Obama, whereas otherwise Obama’s spending advantage would have been substantial.

Should Romney win the election, he will be deeply beholden to these large donors. A ThinkProgress analysis identified 8 of Romney’s most generous supporters, all of whom work in either finance or the energy industry.

Citizens United has also given Romney a boost by loosening up the rules preventing employers from directly talking to employees about politics. Many conservative groups and business owners are taking advantage of this new flexibility by pressuring employees into contributing to Romney’s campaign or warning them that their jobs are in jeopardy if Obama wins.

Pushback to state voter suppression campaigns has had a dramatic effect in curbing many of the worst new laws, and courts have played a particularly significant role, concludes a new report from the Brennan Center for Justice,

Since January 2011, at least 180 bills have been introduced in 41 states, but those numbers have been whittled down to 18 new laws and executive actions in 13 states that would make it harder for eligible citizens to vote this election cycle. Below are some of the major victories, from the Brennan Center’s report:

• Restrictive photo ID requirements have been blocked in Pennsylvania, South Carolina, Texas and Wisconsin, and vetoed in Minnesota, Missouri, Montana, New Hampshire and North Carolina;
• Punitive regulations of voter registration drives have been permanently blocked in Florida and vetoed in Michigan;
• Cutbacks to early voting have been blocked in Ohio and mitigated in Florida;
• A law that required documentary proof of citizenship to register to vote has been blocked in Arizona; and
• Laws that would have cut back on voter registration opportunities have been repealed in Maine and Ohio, and vetoed in Montana.

The courts played a particularly significant role in achieving this, with 11 court decisions in eight states that blocked or weakened these laws. The report explains:

Taken together, these decisions dismantle the bulk of the most restrictive new voting laws that would have been in place for the 2012 elections. The states that saw restrictive laws blocked or blunted by courts produce half the electoral votes needed to win the presidency. Without the courts, millions of citizens would have found it harder to vote. This dramatically underscores the importance of the courts in protecting Americans’ fundamental right to vote.

These decisions are noteworthy not only for their overall effect on voters but also for the sheer consistency of results. As noted, almost every court to have considered a law or policy making it harder to vote blocked or mitigated it. There are exceptions. Most notably, a federal appeals court allowed severe restrictions on voter registration drives in Texas to stand; a state appeals court upheld Tennessee’s voter ID law in October 2012. But voters have won the vast majority of cases, at least for now.

Unfortunately, many of these victories were temporary orders, or are subject to appellate review after the election. The U.S. Supreme Court under Chief Justice John Roberts has demonstrated hostility to voter protections — it upheld an Indiana voter ID law in 2008, holding that the state did not need to prove that voter fraud actually existed in order to justify imposing the photo ID burden on voting. The Tennessee Court of Appeals, one of the few courts not to strike down its state’s photo ID law, cited this decision in upholding the state’s law. And the Roberts Court is poised to hear two more cases this term could usher in more voter suppression.

Even in states like Pennsylvania, where the court ultimately blocked the photo ID law, misleading public education campaigns and confusion over shifting requirements have so riddled the system that it’s hard to know how many people will be deterred from visiting the polls.

The following are some of the primary legal restrictions to voting (as distinguished from informal suppression efforts) that remain in effect this election, or have already influenced this election season’s voting:

• Four states still have tighter rules for voter registration: Florida’s law was relaxed by a federal court, but this cannot take back the lost time to conduct voter registration drives. The other states are Texas, Illinois and Wisconsin.
• Five states have photo ID laws in effect, although the allowable forms of identification vary significantly. New Hampshire, Rhode Island and Virginia have laxer requirements that allow voters without ID to sign an affidavit or submit a provisional ballot. Tennessee and Kansas, however, are requiring government-issued photo ID at the ballot box. Tennessee’s law was recently upheld by a state appeals court, although the state held that library Ids were an acceptable form of identification.
• Florida, Iowa and South Dakota recently made it more difficult for citizens with past felon convictions to vote.
• Early voting opportunities have been reduced in Florida, Georgia, Tennessee and West Virginia, although the extent of the restrictions varies between the states.

On Tuesday, ThinkProgress reported on how the Romney campaign is training poll watchers to mislead voters in Wisconsin. Now, an election official in the Badger State has weighed in to criticize the Romney campaign’s practice of hiding their poll watchers’ affiliations and confirm that the materials they used in trainings are misleading.

Reid Magney, a spokesman for Wisconsin’s Government Accountability Board, spoke with the Washington Post about the story Tuesday and corrected the Romney campaign’s claims:

Pronouncing Election Day observers “the first line of defense” against illegal voting, the primer gives trainees some questionable advice. It says, for example, that convicted felons are ineligible to vote in Wisconsin. Not exactly true, according to Reid Magney, spokesman for the state’s Government Accountability Board, which administers elections. Felons who are out prison and have completed probation can vote, he said.

“Once you have completed the terms of your sentence your voting rights are restored in Wisconsin,” Magney said.

The materials cautioned observers not to assist voters, even though the law says voters can ask for help from anyone.

Magney also criticized the Romney campaign for instructing their poll watchers not to disclose any affiliation with the campaign when they sign in at the polls (they were told to list themselves as a “concerned citizen” instead). “We would hope that people would accurately represent who they are with,” he said, though he added that state would not card people as a means of enforcement.

The Obama campaign has sent a letter to Wisconsin Attorney General J.B. Van Hollen requesting he open an investigation into the trainings. “These acts of willful misinformation to individuals sent to polling locations to enforce the law raise serious concerns under Wisconsin law,” Bob Bauer, general counsel for the Obama campaign, wrote. “I ask that your office review this matter urgently, and take all necessary steps to protect the rights of our state’s voters.”

As ThinkProgress reported this morning, a top Romney surrogate told socially moderate Republicans this week that the GOP presidential candidate wouldn’t actually threaten Roe v. Wade if elected president, despite months of campaign rhetoric to the contrary. In addition to attacking Roe, Romney’s promised more justices who will immunize powerful corporations from the law, who are likely to roll back key victories for equality, who think the wealthy should be allowed to buy elections, and who believe corporations are people.

Perhaps the most telling sign of how Romney views the judiciary, however, is an op-ed he published just a few months after Masschusetts’ landmark Goodridge decision, which recognized that marriage equality is required under that state’s constitution. In his op-ed, Romney compared Goodridge to the most infamous court decision in American history:

Beware of activist judges. The Legislature is our lawmaking body, and it is the Legislature’s job to pass laws. As governor, it is my job to carry out the laws. The Supreme Judicial Court decides cases where there is a dispute as to the meaning of the laws or the constitution. This is not simply a separation of the branches of government, it is also a balance of powers: One branch is not to do the work of the other. . . .

With the Dred Scott case, decided four years before he took office, President Lincoln faced a judicial decision that he believed was terribly wrong and badly misinterpreted the U.S. Constitution. Here is what Lincoln said: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” By its decision, the Supreme Judicial Court of Massachusetts circumvented the Legislature and the executive, and assumed to itself the power of legislating. That’s wrong.

Mitt Romney is no Abraham Lincoln, and Goodridge could not be any more opposite the Court’s pro-slavery decision in Dred Scott. Dred Scott claimed that black people are “beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

And yet, after drawing a comparison between extending the blessings of liberty to all Americans and keeping millions of innocents in shackles, Romney now wants to be able to choose the next justices on the Supreme Court.

[HT: Jeremy Hooper]

California’s longest serving death row inmate will no longer be slated for execution, if a Monday ruling by the 9th Circuit U.S. Court of Appeals stands. According to the Los Angeles Times, the appellate court ruled that Doug Stankewitz, convicted of murder in 1978, was improperly represented by his lawyers during the sentencing phase of his trial. The majority held that the incompetence was so gross as to justify vacating the death penalty sentence entirely:

 

The 9th Circuit majority said Stankewitz’s lawyer presented only a “paltry” amount of evidence in trying to persuade jurors against a death sentence, ignoring extensive documentation of the defendant’s “deprived and abusive upbringing,” potential mental illness, long history of substance abuse and use of drugs leading up to the murder.

Stankewitz was born into a filthy, poverty-stricken home without running water or electricity to an intellectually impaired alcoholic mother and an abusive, alcoholic father, the court said. By the age of six, Stankewitz already was severely emotionally damaged, the court said. Judge Raymond C. Fisher, writing for the court, said the jury might have opted for a life sentence had it learned of Stankewitz’s life story and his heavy use of drugs in the hours before the murder.

Cases like Stankewitz’s, where prisoners convicted of the death penalty languish in prison for dozens of years in fear of their impending death, are sadly common. According to the Death Penalty Information Center, the average gap between sentencing and execution increased from roughly 6 years in 1984 to roughly 15 years in 2010. The reason for this increase in wait times appears to be a more extensive appellate process, but the byproduct of these reforms has been to increase the psychological suffering of inmates who have no way of knowing when they are going to be killed. The Center notes that several judges and justices have questioned the constitutionality of the death penalty on these grounds — former Supreme Court Justice John Paul Stevens wrote that “a punishment of death after significant delay is ‘so totally without penological justification that it results in the gratuitous infliction of suffering.’”

For this and other reasons, Stankewitz’s state of California is voting this November on a ballot initiative to abolish the death penalty. The abolitionist side is narrowing the polls as former proponents of the state’s death penalty change their minds and evidence suggests the punishment is busting the state’s budget. More broadly, the American death penalty sentences innocent people to die, is shot through with racial bias, and has not been shown to function as an effective deterrent.

Earlier this month, dozens of billboards appeared in predominantly African-American and Latino neighborhoods in Cleveland and elsewhere warning that “VOTER FRAUD IS A FELONY!” and can lead to prison sentences of up to three and a half years. In no small part because voters are more likely to be struck by lightning than to commit fraud at the polls, the billboards were widely viewed as an effort to intimidate minority voters who are uncertain about their rights from voting. Clear Channel Outdoor, which owns the billboards that displayed the intimidating message, eventually agreed to remove the message and donate space on 10 billboards to display a counter-message clarifying that “VOTING IS A RIGHT. NOT A CRIME!”

Clear Channel explained that it would pull the billboards because they “violate our policy of not accepting anonymous political ads.” The identity of the big GOP funders behind these billboards has now been revealed:

Stephen Einhorn – a Wisconsin venture capital fund manager and major GOP donor – acknowledged Monday that he and his wife Nancy paid for dozens of anonymous billboards in and around Milwaukee and two Ohio cities warning residents of the penalties for committing voter fraud. . . . The Einhorns have made campaign donations to many Republican politicians, including Gov. Scott Walker, to whom they have given $49,750 since 2005, according to the Wisconsin Democracy Campaign.

In addition to funding Wisconsin’s anti-union governor, the Einhorns both made maximum-dollar donations of $2,500 each to Mitt Romney’s presidential election campaign. Both Einhorns also gave to Rep. Paul Ryan (R-WI) in addition to other GOP House and Senate candidates. Stephen donated $25,000 to the tea party group Freedomworks, and Nancy gave $30,800 to the Republican National Committee.

FBI statistics from 2011 show that the War on Drugs is going strong, with more people arrested for drug crimes than anything else. U.S. police arrest someone for a marijuana crime every 42 seconds, and 87 percent of those are for mere possession. These numbers are slightly down from the last two years, but drug crimes still represent more than eight percent of all arrests.

“Even excluding the costs involved for later trying and then imprisoning these people, taxpayers are spending between one and a half to three billion dollars a year just on the police and court time involved in making these arrests,” said Neill Franklin, a retired Baltimore narcotics cop who now heads the group Law Enforcement Against Prohibition (LEAP). “That’s a lot of money to spend for a practice that four decades of unsuccessful policies have proved does nothing to reduce the consumption of drugs.” The group is urging passage of the three state ballot initiatives that would legalize and regulate marijuana in Washington, Colorado and Oregon.

GOP presidential candidate Mitt Romney wants the Supreme Court to overrule Roe v. Wade. He called Roe “one of the darkest moments in Supreme Court history.” And there is video of him saying that he wants to appoint Supreme Court justices who will reverse Roe.

Yet, at a Republican Jewish Coalition event on Monday, former senator and top Romney surrogate Norm Coleman (R-MN) was asked to address the concerns of “voters who are worried about the influence of religious conservatives on the Republican Party.” Rather than accurately convey Romney’s position on the issue, Coleman pretended that Romney would somehow be powerless against Roe:

The reality is, uh, choice is an issue for a lot of people, an important issue. President Bush was president eight years, Roe v. Wade wasn’t reversed. He had two Supreme Court picks, Roe v. Wade wasn’t reversed. It’s not going to be reversed.

Watch it:

Math is a notoriously difficult subject for Romney and his campaign, but there is a simple explanation for why President Bush was not able to overrule Roe. Overruling a Supreme Court precedent requires five votes, and the two justices Bush appointed — plus staunchly anti-Roe Justices Antonin Scalia and Clarence Thomas — add up to less than five. Now, however, three justices who have at times voted to uphold abortion rights are over the age of 74. If just one leaves the Court, the next president could easily appoint the fifth vote to kill Roe.

More importantly, while Coleman is correct that a shadow of Roe remains law today, it is simply false to suggest that Bush’s appointees did not succeed in significantly rolling back women’s reproductive freedoms. In their very first full term on the Court, Bush’s two appointees joined a 5-4 decision claiming abortion rights should be restricted because “some women come to regret” their own choices when they are allowed to make them. If President Bush had not replaced Justice Sandra Day O’Connor, this decision would have come down the other way.

As a recent Center for American Progress Action Fund report explains, Roe is just one of many precedents that is at risk in a Romney Supreme Court. By contrast, should President Obama replace one of the Court’s conservatives, the result could be a new renaissance for democracy, consumers and workers rights:
Read more

Mitt Romney’s campaign has been training poll watchers in Wisconsin with highly misleading — and sometimes downright false — information about voters’ rights.

Documents from a recent Romney poll watcher training obtained by ThinkProgress contain several misleading or untrue claims about the rights of Wisconsin voters. A source passed along the following packet of documents, which was distributed to volunteers at a Romney campaign training in Racine on October 25th. In total, eight such trainings were held across the state in the past two weeks and 17 since late September.

One blatant falsehood occurs on page 5 of the training packet, which informed poll watchers that any “person [who] has been convicted of treason, a felony, or bribery” isn’t eligible to vote. This is not true. Once a Wisconsin voter who has been convicted of a felony completes his or her sentence, that person is once again eligible to vote.

The training also encouraged volunteers to deceive election workers and the public about who they were associated with. On page 3 of the packet, Romney poll workers were instructed to hide their affiliation with the campaign and told to sign in at the polls as a “concerned citizen” instead. As Kristina Sesek, Romney’s legal counsel who just graduated from Marquette Law School last year, explained, “We’re going to have you sign in this election cycle as a ‘concerned citizen.’ We’re just trying to alleviate some of the animosity of being a Republican observer up front.”

This packet could cause major problems if Republican observers across the state try to enforce such wrong and misleading information on Election Day. Even if they simply slow the voting process down, this could discourage voters waiting in line and drive drown turnout.

Here are four misleading or incorrect pieces of information distributed by the Romney campaign:

CLAIM: Any “person [who] has been convicted of treason, a felony, or bribery” isn’t eligible to vote. (Page 5)	FACT: Once a person who has been convicted of a felony completes his or her sentence, including probation and fines, that person is eligible to vote.
CLAIM: Page 8 lists 10 items as “The ONLY Acceptable Forms of “Proof of Residency”.	FACT: The list used is incomplete. There are many other documents people can use to prove residency that are not included, such as letters from public schools, student loan papers, correspondence with a Native American tribe in Wisconsin, vehicle registration, and food stamp correspondances. In addition, the list fails to mention that homeless voters may use an affidavit from a public or private social service agency as proof of residency.
CLAIM: “If a handicapped voter is unable to come into the polls to vote, an assistant can deliver the ballot to the voter if the CEI verifies the elector’s proof of residency.” (Page 10)	FACT: Under Wisconsin law, the CEI (Chief Election Inspector) does not have to verify proof of residency so long as the voter is registered.
CLAIM: “Election Observers should not assist [voters].” (Page 10)	FACT: A voter can ask for assistance from anyone, including a poll watcher, so long as the voter initiates the request and does not engage in electioneering.

Here are the documents in full:
Read more

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice

• Posting may be light today on account of the hurricane.
• In spite of Hurricane Sandy, the U.S. Supreme Court heard arguments yesterday as scheduled, but it shut its doors today, rescheduling oral arguments for Thursday, Nov. 1.
• Yesterday, the justices took action on several cases. They declined to review the Oklahoma Supreme Court’s decision to strike the state’s proposed “personhood” amendment from the November ballot, but they agreed to hear an appeal by Texas death row inmate Carlos Trevino. The justices took no action on several closely watched challenges to the Voting Rights Act.
• The first of the Federalist papers were published 225 years ago this weekend. NPR talks with historian Jon Meacham about their relevance today.

 

Undeterred by Hurricane Sandy, the U.S. Supreme Court justices were back in their chairs Monday morning hearing arguments in an important case about government eavesdropping. The case takes up one of several challenges to the government’s broad post-9/11 power to electronically monitor foreigners and Americans. The plaintiffs – human rights activists, journalists and lawyers – say this eavesdropping is invoking a justified fear that their confidential conversations about sensitive foreign information will be intercepted. This has had a chilling effect on their work, and has prompted them to travel abroad to have confidential conversations, rather than have them via phone or electronically, they say.

But there is an obstacle to their challenge that has plagued almost every other attempt to question the sweeping federal policy: the plaintiffs must show that they particularly have been harmed by the government’s policy, i.e., that have “standing” to sue. While the federal appeals court in this case found that plaintiffs did have standing because they incurred significant expense traveling abroad, other courts have held otherwise (including the trial court in this case), reasoning that their fear is merely “abstract,” since they cannot prove whether their communications are actually being intercepted.

Of course, this is precisely the problem with the Foreign Intelligence Surveillance Act – no one will know if they are under surveillance or not because, under 2008 amendments to the law, the government does not have to share much of anything at all – not even with the secret FISA court tasked with reviewing the government’s actions. Here are some of the many things we don’t know about the government’s spying:

• We don’t know whether the government is following its own law. The Foreign Intelligence Surveillance Act was initially passed in 1978 to set limits on surveillance, in the wake of a Supreme Court decision that held warrantless surveillance of Americans unconstitutional. But after President George W. Bush’s post-9/11 disregard for FISA’s limits, Congress passed amendments to FISA in 2008 that in many ways codified Bush’s approach and rolled back the requirements for obtaining surveillance permission by a secret FISA court. The result is that, while the government is still technically required to target only foreigners and not Americans, we don’t know if they are actually doing so, because the court charged with vetting FISA surveillance has very limited power, and its determinations may be ignored by the government.
• We don’t know who the government is targeting. Under the Foreign Intelligence Surveillance Act, the government is supposed to limit its spying to cases in which the target is a foreigner (though the foreigner can be communicating with Americans). But under the 2008 Amendments, the government doesn’t have to disclose who the targets are.
• We don’t know if the government has a justification for its spying. Typically to obtain a warrant under the Fourth Amendment, the government has to show that it has “probable cause” to search the particular person or place for the particular information it is seeking. But under FISA, no such justification is necessary. Instead, the government merely has to show that there is probable cause that the target of the surveillance is a “foreign power or an agent of a foreign power.” As Garrett Epps writes in the Atlantic, “It’s a license for wholesale spying, as long as the communications involve one party in another country.”
• We don’t know what type of information the government is gathering. Not only is the government exempted from identifying its targets; it also doesn’t have to identify the places, facilities and phone lines it is monitoring, let alone the type of information it is seeking.
• Even if the U.S. Supreme Court strikes down the 2008 Amendments to FISA (however unlikely), we won’t know if the government is spying on us. From the U.S. government’s brief: “Even without the FAA, the United States could monitor such persons abroad with, for instance, ‘NSA surveillance programs’ not covered by FISA or surveillance under traditional FISA orders.” Epps interprets the government’s argument in a must-read piece about the case:

In other words: You’re right. Big Brother is watching. Whatever the Court decides, Big Brother will still be watching. Big Brother may be watching you right now, and you may never know. Since 9/11, our national life has changed forever. Surveillance is the new normal.

Because of a legal rule known as the “first sale doctrine,” people who buy books or music or other copyrighted works are allowed to resell them to friends or a used book store without seeking permission from the owner of the copyright. As Slate’s John Villasenor explains, “if you legally purchase a Taylor Swift CD in the United States, you are free to lend it to a friend who lives down the street or sell it at your garage sale next spring.” Yet, because the federal law that permits such lending or resales is, in the words of one federal court, “utterly ambiguous,” it may not apply to copyrighted works that are purchased overseas.

That’s the issue facing the Supreme Court today in Kirtsaeng v. John Wiley & Sons. The petitioner, Supap Kirtsaeng , started importing and reselling textbooks manufactured by John Wiley & Sons on eBay after noticing that prices were significantly lower in his native Thailand. Wiley claims such resales of imported textbooks is illegal. As Vilasenor explains, a victory for Wiley could create a great deal of uncertainty for consumers:

“Taylor Swift and her record label are American, but suppose her CDs are “manufactured” in Asia. Does that mean you can’t lend the CD after all? What about items that we know are manufactured overseas? Are we committing willful infringement if we donate a Chinese-manufactured laptop computer to a neighborhood school?”

Other questions loom beyond the concerns raised about how this affects the resale of goods manufactured internationally. What if you pick up a book from a vendor on the streets of Rome can you bring it back with you? What about works of art? Foreign language sections of libraries? How will this affect digital markets, where things are already complicated by copyright owners’ desire to keep consumers from copying and distributing pirated material? What if you purchase a game online that was coded in the U.S. but the server you downloaded it from was hosted internationally? Concerns around these and other questions resulted in Kirtsaeng receiving support from a diverse constituency of tech giants, libraries, resellers, and art museums.

Yet Wiley also has good reason to want to prevent scheme’s like Kirtsaeng’s. Selling books at a higher price point in the developed markets allows them to extend sales to developing markets at a price point feasible for consumers with lower standards of living. American students may be able to afford a $60 textbook, but that price would be utterly crippling in Thailand. The challenge for the Court — or more appropriately, for Congress — should be to figure out how to protect Wiley’s legitimate need to sell its products at prices its international consumers can afford without shoving American consumers into an unpredictable bedlam.

The outcome of this case likely turns on just one person, Justice Elena Kagan. Two years ago, the justices split 4-4 in a similar case with Kagan recused.