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Supreme Court Kills the Old Robocop Dream

Police wearing gas mask

(Creative Commons, Tony Webster)

Today’s Supreme Court ruling against warrantless cellphone searches by the police is a welcome, if overdue, application of the Constitution’s privacy protections to the digital age. “The ruling was particularly striking,” The Nation’s Zoë Carpenter writes, “for the extent to which the Court went in affirming the idea that technological change demands a reconsideration of privacy protections.”

Quite justifiably, much of the debate about rampant government surveillance in recent years has centered on massive, global abuses by the National Security Agency and other major federal intelligence organizations. But as today’s ruling reminds us, surveillance must also be thought of as something that is done by local police organizations for purposes that have nothing to do with stopping terrorism. In both cases, digital surveillance has for far too long operated in a gray area of the law, allowing governments of all levels to invade privacy to an extent never before possible. Today’s ruling may mark the beginning of the end of that unsustainable incertitude.

In the February 3, 1997, issue, Christian Parenti—now a Nation contributing editor—published an article in our pages titled “Robocop’s Dream,” about the explosion of the use of surveillance by local law enforcement agencies, as well as, more generally, the militarization of the police. Parenti highlighted worrying trends which have only become more pronounced and more threatening over the years.

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“Heavy hardware requires heavy action,” Parenti wrote, “and that easily leads police forces to think and act like occupying armies, treating entire populations as suspect. The new hardware craze could easily lead to increased use of excessive force and invasions of privacy.”

Today, the Supreme Court unanimously agreed. It might as well have quoted Parenti’s conclusion: “The policing appropriate for a democratic society takes place on the ground, not in the over-priced, high-tech skies of Robocop fantasy.”

“Robocop’s Dream” is republished in The Nation’s latest archives e-book collection: Surveillance Nation: Critical Reflections on Privacy and Its Threats, available as both an e-book and as a print paperback. Parenti’s article represents one of the many examples of times The Nation “identified threats to privacy and liberty long before they were acknowledged by the broader public and media,” as David Cole writes in his introduction to the volume.”

* * *

Curious about how we covered something? E-mail me at rkreitner@thenation.com. Subscribers to The Nation can access our fully searchable digital archive, which contains thousands of historic articles, essays and reviews, letters to the editor and editorials dating back to July 6, 1865.

 

Read Next: David Cole’s excerpt on the Bureau of Investigation’s surveillance of The Nation

Despite SCOTUS Ban, 15 States Still Have Not Passed Laws Ending Mandatory Life Without Parole for Juveniles

Juvenile facility

A juvenile offender mops the floor during his work program at Circleville Youth Center in Ohio. (AP Photo/Kiichiro Sato)

Exactly two years after the US Supreme Court ruled against mandatory life without parole sentences for juveniles convicted of murder, the majority of states affected by the ruling have not passed laws banning the practice, according to a report by the Sentencing Project.

The Supreme Court ruled five-to-four in Miller v. Arizona that mandatory life without parole (LWOP) sentences for minors violate the Eighth Amendment ban on cruel and unusual punishment. In her majority opinion, Justice Kagan cited research that found that “only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.”

Only thirteen of twenty-eight states that had locked up minors for life without a chance for release have passed laws to comply with the Court’s decision. Several of the states that amended their sentencing laws, however, set lengthy requirements that some juvenile advocates are still calling inhumane. For example, both Texas and Nebraska set new minimum sentences of forty years, practically guaranteeing that some juvenile offenders will spend the majority of their lives behind bars.

“It appears that many states are disregarding the spirit of the Court’s ruling. Of the states that have passed legislative responses to Miller, many replaced their laws with sentences that are as nearly as narrow-minded,” said Ashley Nellis, a senior analyst at the Sentencing Project, in a statement.

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The Miller decision did not determine whether the estimated 2,000 prisoners already serving mandatory LWOP sentences would be eligible for re-sentencing. Ten of the twenty-eight affected states have addressed this issue, passing laws or issuing court decisions that apply Miller retroactively.

The Sentencing Project's report notes that states do not necessarily have to pass new legislation to comply with Miller, but 

States’ practices of sending children to die in prison puts the United States at odds with international standards. In fact, ours is the only nation in the world that sends minors to die in prison, and is one of few that refuses to sign the United Nations Convention on the Rights of the Child, which bans the practice.

(CORRECTION, 6/26/2014): An earlier version of this post suggested that states must pass legislation to comply with Miller. In fact, some states have ended mandatory life without parole for juveniles through litigation. The headline and first paragraph of this post have been updated for clarification.

 

Read Next: A new report criticizes the increasing militarization of American police departments.

How Connecticut’s Smart New Pension Plan Can Prevent Poverty in Retirement

Dorry Clay

Website designer Dorry Clay works on her laptop at home in Stonington, Connecticut. (AP photo/Jessica Hill)

Dorry Clay is used to going it alone. She lost her job in the recession, then bounced back by starting her own graphic design business, and even soldiered through cancer treatment. But now that she’s saddled with debt and faces a shaky economy as a self-employed worker, she worries that her biggest struggle will come after she stops working—in retirement. “Financial pressures and growing debt have made retirement savings more a pipe dream than American dream,” Clay recently said in testimony at a Connecticut legislative hearing. “I shouldn’t have to work until I am 70 because I can’t afford to retire.”

Some Connecticut lawmakers have woken up to the issue; the state just passed a law to begin creating a public retirement system for private-sector workers. It would offer a novel statewide retirement benefit, funded through employer and employee contributions, that would be managed by the state and cover workers universally, regardless of whether they work for a big corporation or for themselves.

At a time when some state governments are panicking over public-pension crises, the idea of the government starting up a new retirement fund for private-sector workers may seem reckless. But actually, it’s a remarkably prudent investment—because it costs society less in the long run to help young workers save up today for a dignified life in retirement than to deal with their potential destitution in old age.

Faced with alarming rates of elderly poverty, New York City is also exploring ways to build a public nest egg for private-sector workers, with a new advisory panel on retirement security just launched by City Comptroller Scott Stringer. According to research by the New School’s Schwartz Center for Economic Policy Analysis (SCEPA), many workers in the city are retiring to a precarious life just scraping by on social security and meager personal savings. Just 12 percent of New York metro area workers have a traditional pension plan (and those more generous benefits are far more prevalent among public-sector workers compared to private firms), 38 percent have a 401(k)-type savings scheme, and half have no work-based retirement plan at all.

Declining retirement-benefits coverage reflects overarching structural inequalities: black, Latino and Asian workers in New York City have lower retirement coverage rates compared to whites.

This trend portends massive economic deprivation for the aging population. While traditional pensions allow retirees to attain an income that’s about equivalent to their past earnings, non-pension workers, such as those with 401(k)s, generally see their income drop to about half of what they earned pre-retirement. Even those with hefty 401(k) accounts tend to contribute to inequality, wealthier people benefit more because they can save more, and in turn, get bigger tax breaks.

And the taxes rich people don’t pay aggravate the misery of poor retirees and the aging unemployed who have zero economic security after they stop working.

According to a SCEPA study on poverty among the aging unemployed, the portion of older jobless people living in extreme poverty climbed from 41 percent in mid-2009 to 54 percent in mid-2012, and about two-thirds of the older unemployed had no retirement savings.

The steady decay of retirement security reflects the erosion of labor’s economic and political clout. Historically, retirement, healthcare and other benefits were leveraged in labor negotiations, often in lieu of wage increases (a phenomenon dubbed as “wage deferral”). Now that the old-school pensions are going extinct, workers are left unprotected as the economy undermines their long-term and short-term financial security. And low-wage workers as a whole become increasingly desperate and lose even more leverage to negotiate for better benefits.

Meanwhile, the weakening of unions leaves future generations of workers even less secure, with less collective solidarity.

To deal with this downward spiral, SCEPA Director Teresa Ghilarducci explains via e-mail that in light of the structural burdens facing labor today ” all retirement policies should be aware of fundamental social deficits and distribution inequalities that frame people’s working lives…. Pension reform can’t raise pay, it must be a system that operates within the realities of the labor market.”

That’s where the state can intervene to protect the aging poor—with a publicly administered retirement benefit that builds on Social Security and isn’t tied to freewheeling markets. Under the Guaranteed Retirement Account model proposed by SCEPA, workers and employers both make regular contributions, with a government-guaranteed rate of return. As workers save incrementally, their contribution is offset partially by a tax credit, and after they retire, they receive a stable benefit at 3 percent rate of return, which supplements their Social Security income. The state saves money in administrative overhead because there are no heavy management fees such as often come with Wall Street–oriented 401(k) plans.

When this model is applied to a city like New York, SCEPA projects that a low-wage female worker, contributing 5 percent payments from her $25,000 annual income, would get a financial boost that would bring her income to roughly 63 percent of her pre-retirement earnings—a modest resource, but a major improvement on the 41 percent rate she would otherwise get from social security alone.

As a “public option” in retirement security, SCEPA’s plan has set a framework that California, Massachusetts and now Connecticut have used to design state-level retirement plans. It is much bolder than the White House’s newly proposed savings plan, MyRA, which basically offers a small-scale savings plan for non-covered workers. The problem with that plan, Ghilarducci says, is that it does not actively challenge the existing structure that relies on the often-predatory financial services industry, lacks the economies of scale of a truly universal plan and does not enlist the government as a manager and protector of the most precarious retirees.

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And it turns out that this is better for everyone. Secure retirement for seniors helps stabilize the economy as a whole, because, as Economic Policy Institute explains, it gives workers a safe pathway out of the workforce, so they can “retire when jobs are scarce and shore up consumer demand during recessions.” Plus, the government will not have spend as much later on to shore up impoverished seniors, as retirees will be less likely to be driven into financial ruin, eviction or hunger.

The autumn years present a golden opportunity for lawmakers to revise the government’s social contract with its aging citizens. And it may be the state’s last chance to give the working poor something to look forward to, as they retire in an era of decline.

 

Read Next: Michelle Chen on new laws to protect Massachusetts nannies

Where Are the GOP Supporters of Voting Rights?

Thad Cochran, John McCain and Roger Wicker

Republican Senators Thad Cochran, John McCain and Roger Wicker at a Cochran for Senate rally on Monday, June 23, 2014. (AP/Rogelio V. Solis)

Last night, Mississippi Senator Thad Cochran narrowly defeated Tea Party challenger Chris McDaniel, in part by courting black voters. “Voting rights has been an issue of great importance in Mississippi,” Cochran said yesterday.

Black turnout increased significantly in yesterday’s runoff election, which helped Cochran win by 6,000 votes. “In Mississippi’s twenty-four counties with a majority black population, turnout increased an average of 40 percent over the primary,” reported The Washington Post.

In 2006, Cochran was one of ninety-eight Senators who voted unanimously to reauthorize the temporary provisions of the Voting Rights Act for another twenty-five years. But last year, Cochran applauded the Supreme Court’s decision in Shelby County v. Holder invalidating Section 4 of the VRA, which freed states like Mississippi, with the worst history of voting discrimination, from having to approve their voting changes with the federal government under Section 5 of the act.

“I think our state can move forward and continue to ensure that our democratic processes are open and fair for all without being subject to excessive scrutiny by the Justice Department,” Cochran said.

Cochran was, in effect, celebrating a decision gutting a law that he supported just a few years earlier.

Today, on the first anniversary of the Shelby decision, the Senate Judiciary Committee held the first congressional hearing on the Voting Rights Amendment Act of 2014. Six months after its introduction in January, the new legislation to update the VRA has garnered modest bipartisan support in the House, thanks to former House Judiciary Committee Chairman Jim Sensenbrenner (R-WI), but no GOP co-sponsors in the Senate. There are nineteen Republican Senators still serving who voted for the VRA in 2006, but none have stepped forward to sponsor the new bill.

Today’s hearing illustrated the new partisan divide when it comes to voting rights. Democrats on the Judiciary Committee and three civil rights advocates who testified—Texas State Senator Sylvia Garcia, Georgia NAACP president Francys Johnson and NAACP Legal Defense Fund President Sherrilyn Ifill—unanimously supported the modest VRA fix. “If the Voting Rights Act is not modernized, you are effectively ending the Second Reconstruction of the United States,” Johnson said.

Republicans on the Judiciary Committee and two critics of the VRA who testified—GOP lawyer Michael Carvin and Abigail Thernstrom of the American Enterprise Institute—unanimously opposed the legislation. “The decision in Shelby County was absolutely right,” Thernstrom said. “The statute had become a period piece.”

GOP senators and conservative witnesses maintained that Section 2 of the VRA is an adequate replacement for Section 5. Section 2, unlike Section 5, applies nationwide, but puts the burden of proof on plaintiffs to challenge a voting change, usually requiring lengthy litigation. Wisconsin’s voter ID law was blocked under Section 2, but the statute hasn’t been used much to challenge these new types of voting restrictions.

Civil rights advocates argued that Section 2 is no substitute for Section 5. “We reject the notion that the right to vote should be premised on a voter’s ability to find a lawyer and file a lawsuit,” Ifill said.

North Carolina, which two months after the Shelby decision passed the country’s toughest package of voting restrictions, is a good case study for the difference between Sections 2 and 5. As I explained last year:

Under Section 5 of the VRA—which SCOTUS paralyzed by invalidating the states covered under Section 4—North Carolina would have had to prove to the Justice Department or a three-judge court in Washington that its new law was not discriminatory. The burden of proof would have been on the state and the law would have been frozen until DOJ or the courts weighed in. Given the clear evidence of disparate racial impact in this case—African-Americans are 23 percent of registered voters in the state, but made up 29 percent of early voters in 2012, 34 percent of those without state-issued ID and 41 percent of those who used same-day registration—the law would have almost certainly been rejected.

Instead, voting rights groups had to sue North Carolina under Section 2 of the VRA, which applies nationwide but is much more cumbersome than Section 5. Now the burden of proof is on the plaintiffs to show evidence of discrimination and the law is in effect until the courts block it. Unless a federal judge in Winston-Salem grants a preliminary injunction in the summer of 2014, the new restrictions will be in place during the 2014 midterm elections (except for voter ID, which goes into effect in 2016). Those who have been discriminated against will have no recourse until after the election has been decided, when there’s a full trial in 2015, on the fiftieth anniversary of the VRA.

Texas, which has implemented a voter ID law found to be discriminatory by the federal courts under Section 5, is another glaring example of modern-day voting discrimination. Texas State Senator Garcia testified about Pasadena, Texas, which she represents.

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In November 2013, voters in Pasadena—a city of 150,000 near Houston where Hispanics make up a third of the vote— narrowly backed a referendum changing how districts are drawn in the city. As SCOTUSblog reported, there were previously eight city council districts in Pasadena. But the amendment shrunk the number of districts to six, eliminating two predominantly Hispanic districts, while creating two citywide “at-large” seats that will be decided by the town’s white majority. It’s an example of the type of discriminatory voting change that would’ve likely been blocked by Section 5 of the VRA, but is now in effect as a result of the Shelby decision. “The Justice Department can no longer tell us what to do,” said Pasadena Mayor Johnny Isbell.

The Voting Rights Act has always enjoyed strong bipartisan support. But since Barack Obama’s election, GOP-controlled states have embarked on the most significant effort to restrict access to the ballot since Reconstruction—passing new voting restrictions in twenty-two states since 2010—and the bipartisan consensus for the VRA in Congress has collapsed.

As long as support for the VRA remains divided along partisan lines, there’s no chance that a new fix for the law will pass. As Rick Hasen first suggested, Senator Cochran would be a good candidate to step up and break the congressional logjam. Wrote The New Republic’s Alec MacGillis: “Is there any more fitting way for Thad Cochran to express recognition of the role that African-American voters played in his survival—in the face of threats of voter intimidation from his Republican opponent—than to guarantee that black voters in Mississippi and elsewhere are unencumbered in their access to the polls?”

 

Read Next: Ari Berman on why the Voting Rights Act is needed now more than ever.

What Democrats Can Learn From Thad Cochran: Turnout, Turnout, Turnout!

Republican US Senator Thad Cochran addresses supporters during an election-night celebration after defeating Tea Party challenger Chris McDaniel in a runoff election in Jackson, Mississippi on June 24, 2014. (Reuters/Lee Celano)

Thad Cochran just did Democrats a favor.

Yes, yes, of course, the veteran Republican senator’s comeback win in Tuesday’s Mississippi Republican primary runoff made it a lot less likely that the Magnolia State will join Arkansas, Georgia, Louisiana and North Carolina on the list of Southern states where Democrats could win Senate seats this fall. And, yes, that will make it harder for Democrats to hold their majority in the chamber.

But Cochran’s win taught a pair of lessons that Democrats must learn -- not as talking points but as a core concepts -- if they hope to secure positive results in November.

Lesson One: Turnout is definitional.

Lesson Two: Turnout can be substantially increased, even in the most difficult of circumstances, with focused energy, resources and messaging.

In the initial Mississippi Republican Senate primary, Cochran’s Tea Party–backed challenger, Chris McDaniel, narrowly led the conservative—yet relatively genteel—incumbent. McDaniel fell just short of winning 50 percent, however, and under Mississippi law a runoff was required between the top two finishers.

By most measures, that should have been the end of it for Cochran.

Runoffs usually attract lower voter turnout than initial primaries, and Tea Party candidates thrive in low-turnout contests—when the most extreme voters are the most likely to show up.

Cochran was advised to give up.

Instead, he decided to pour time and money into hiking the turnout—especially among voters who were likely to reject a Tea Party candidate.

The strategy worked.

Instead of declining, turnout for the runoff increased. A lot.

The runoff attracted almost 20 percent more voters than the initial primary, for what The Jackson Clarion-Ledger identified an increase of more than 65,000 ballots.

Much of that spike came in counties with substantial African-American populations. Mississippi’s African-American population provides much of the base vote for the Democratic Party in the state. But under Mississippi law, Democrats can “cross over” and vote in Republican primaries and runoffs—just as Republicans can, and often have, voted in Democratic primaries and runoffs.

The crossover vote appears to have helped Cochran a good deal. As veteran political scientist Larry Sabato points out, “The Mississippi counties with a black population higher than the state’s county median saw turnout increase by 27 percent over the runoff, and Cochran won these counties by about 25,000 votes. Meanwhile, the counties with a black population lower than the median had a turnout increase of 13 percent, and McDaniel won these counties by about 19,000 votes. Cochran’s overall victory margin of nearly 6,400 votes is about the difference between those two numbers.”

In the first primary, Cochran battled McDaniel for right-wing votes, emphasizing his pro-gun record and social consevatism. In the runoff, however, Cochran switched to a more mainstream message that emphasized his support for federal programs that aid Mississippi and especially for education.

The senior senator also, as The New York Times reported, “attacked Mr. McDaniel for his vows of austerity.”

“Those attacks seemed to work with voters—at least enough to spook Democrats, and even some Republicans, who are accustomed to the protection and seniority of a long line of Congress members going back almost 100 years, including Senators John C. Stennis, James Eastland and Trent Lott and Representatives Sonny Montgomery and Jamie L. Whitten,” explained the Times.

Voters like Jeanie Munn, of Hattiesburg, came to the conclusion that—whatever they might think of Cochran—they needed to get to the polls to stop McDaniel and what they saw as “a threat to the state.”

Of course, McDaniel and his “Tea Party” allies cried foul—refusing even to concede the close race. Sarah Palin objected to the turnout "shenanigans" that saved Cochran. Their griping was rooted in the fact that their faction lost a “sure thing” election because the electorate grew.

The growth in voter turnout on Tuesday helped a mainstream conservative Republican win on Tuesday. But similar growth could help Democrats win in November.

By most measures, 2014 is going to be a tough year for Democrats. They are defending a lot more competitive Senate seats than the Republicans, as this is the election when senators elected on the Barack Obama wave of 2008 are up for re-election. They also face the daunting task of trying to win House seats that were redrawn to favor GOP candidates after the “Republican wave” election of 2010.

If turnout levels remain the same in 2014 as they were in 2010—roughly 38 percent of the voting age population cast ballots that year, according to the United States Election Project at George Mason University—this could be another “Republican wave” year.

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If voting levels increase, however, Democratic prospects improve dramatically, as they did in 2012, when voting-age population turnout was closer to 54 percent.

No one expects that 2014 turnout will rival that of 2012.

But Thad Cochran has proven that focusing on turnout—with resources, organizing and a targeted message that highlights the threat posed by austerity-prone Republicans—can significantly increase voter participation in critical races. And that participation can change the electoral calculus.

If Democrats learn that lesson, they could rewrite the rules of the 2014 general election— just as Cochran rewrote the rules of the Mississippi runoff race.

 

Read Next: Zoë Carpenter on the US Supreme Court’s latest ruling on privacy

Syria Joins War in Iraq on US Side, Even as US Battles Syrian Government in Syria

Syrian solider

A Syrian soldier holds up his rifle and waves a Syrian independence flag in the Damascus suburb of Saqba, January 27, 2012 (Reuters/Ahmed Jadallah)

How weird, weird, weird is the Iraq-Syria civil war? Well, consider this: not only is the United States increasingly involved in military support to Prime Minister Nouri al-Maliki and his Shiite-sectarian government, but it finds itself in direct military alliance not only with Iran but with Syria, too.

Unlike the United States, which supports the Baghdad government against the Islamic State of Iraq and Syria in Iraq but supports ISIS’ allies in the rebellion against Syria’s Bashar al-Assad, Iran strongly backs both Maliki and Assad. Now Syria, which is battling not only ISIS but other Islamist fanatics in Syria who have US and Saudi support, is intervening militarily in Iraq in support of Maliki! According to the Associated Press:

A US official says there are indications Syria launched airstrikes into western Iraq yesterday to slow the al-Qaida-inspired insurgency fighting both the Syrian and Iraqi governments.… The US official said the strikes appear to be the work of the Assad government but offered no other details.

Meanwhile, The New York Times today carries an extensive account of Iran’s military support for the government of Iraq, including massive arms shipments, surveillance drones and military advisers:

Iran is directing surveillance drones over Iraq from an airfield in Baghdad and is secretly supplying Iraq with tons of military equipment, supplies and other assistance, American officials said. Tehran has also deployed an intelligence unit there to intercept communications, the officials said.

Rather hilariously, the Times quotes that noted geopolitical strategist, Sen. Saxby Chambliss (R-GA) saying, “The Iranians are playing in a big way in Iraq.” Well, duh, senator: Iran has been active in Iraqi politics, military affairs, economics and intelligence since long before the US invasion of Iraq in 2003, when the United States topped Iran’s chief enemy and handed Iraq over to the control of Shiite groups closely affiliated with Iran since the 1980s.

Running the show in Iraq for Iran is General Qassem Soleimani, who leads the Quds Force of Iran’s Islamic Revolutionary Guard Corps, its foreign intelligence arm. Soleimani is the coordinator of Iranian support for both Syria and Iraq against ISIS as well as against other Sunni-led forces supported by Saudi Arabia. And, according to the Times, Soleimani is less willing than some of Iran’s political leaders to cooperate with the United States. Indeed, those who believe that the United States can work with Iran in Iraq while opposing Iran in Syria ought to have their heads examined. The Iraq-Syria crisis is now a single war, and one can’t end without the other. That means that Washington has to sit down with Tehran to discuss Iraq and Syria simultaneously. And since the United States isn’t part of the neighborhood, Iran’s interests in the region—in having a nonthreatening, Iran-leaning government in Iraq and an ally in Syria that can work with the pro-Iranian Hezbollah in Lebanon—are paramount. Long distance, there’s not a lot that the United States can do about any of this, other than to seek a diplomatic accord among Iran, Saudi Arabia and Turkey that takes into account all three countries’ strategic needs.

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Inside Iraq, a new political coalition could conceivably emerge to replace Maliki with a broader, more unifying government that could appeal to Shiites, Sunnis and Kurds. But it’s hard to see that happening until the various parties test the limits of what they can win on the ground. The ISIS forces are every day getting more support from Sunni tribal military councils and the Baath party, especially in the battle for control of Iraq’s main oil refinery/power plant complex, while Maliki is falling back on Iranian support and on uncontrollable Shiite militias, including forces led by firebrand cleric Muqtada al-Sadr. Meanwhile, the greedy Kurds—taking advantage of Baghdad’s weakness—have seized control of Kirkuk and no doubt plan further expansionism on the way to their imagined, but impossible, “independent Kurdistan.” (It’s sad to see The Nation publishing outright Kurdish propaganda, too.)

As long as Iraqi factions believe that they can win by fighting, the war will go on. In the end, perhaps some accord can be reached by which Iraq holds together, but that will depend on serious outreach by Baghdad to Sunnis (including the Baath party) and Kurds.

 

Read Next: Bob Dreyfuss, on the folly of helping Iraq’s shattered army.

Supreme Court Issues a Forceful Ruling for Privacy in the Digital Age

Holding iPhone

(Creative Commons, Andy Rennie)

In a broad, unanimous decision, the Supreme Court ruled on Wednesday that police must have a warrant before searching a cellphone belonging to a person who’s been arrested.The ruling was particularly striking for the extent to which the Court went in affirming the idea that technological change demands a reconsideration of privacy protections—an assertion that could have big implications in the debate about the government’s data collection programs.

“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’” wrote Chief Justice John Roberts. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

The ruling covered two cases in which police used information found on arrestees’ cellphones to tie them to a crime. In the first, David Riley was pulled over for driving with expired registration tags, and was subsequently found to have a suspended license and concealed handguns under the hood of his car. When officers searched the smart phone in his back pocket they discovered photos and other information tying him to the Bloods gang. Police traced the guns to an earlier shooting, for which Riley was later convicted; his prison sentence was “enhanced” because of his gang connection.

In the second case, police officers searched a regular flip phone belonging to a man named Brima Wurie, who’d been observed making a drug deal. Officers traced a number listed in Wurie’s phone as “my house” to an apartment complex, which they obtained a warrant to search, finding crack cocaine, weapons and cash.

Both plaintiffs argued that the warrantless phone searches violated their Fourth Amendment rights to be “secure in their persons, houses, papers or effects.” Legal precedent has granted police some leeway for searching an arrestee and the area within his reach, primarily to check for weapons and to keep evidence from being destroyed. But privacy advocates argued that because cellphones now contain vast troves of personal data—“well over a football field’s length of books” in some cases, according to one brief—searching them constitutes a breach of privacy serious enough to demand a warrant.

The Court concurred. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet,” Roberts wrote. “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house.”

According to the ruling, police may inspect a phone to make sure it’s not concealing a weapon, but generally they may not look through its contents without a warrant.

The fact that the Court passed over several suggested rulings that were much more limited in their defense of civil liberties is particularly striking. There was some speculation that the Court might make a distinction between the two cases based on the type of phone, and create separate rules for searches of smart phones and conventional phones. The Court rejected such a distinction, as well as the government’s suggestion that officers be allowed to search phones in cases where they believe it contains evidence of the crime for which its owner was arrested, or that they only be allowed to search areas of the phone which they “reasonably” believe to have information about a crime. In a blunt rebuke, Roberts argued that those standards “would prove no practical limit at all when it comes to cellphone searches.”

Beyond criminal justice, the ruling may have significant implications for the government’s surveillance activities. A thirty-five-year old Supreme Court ruling known as Smith v. Maryland, which found that records held by a third party (like a phone company) are not protected by the Fourth Amendment, has been used to justify many forms of surveillance, including tracking a cellphone’s location and the National Security Agency’s dragnet phone records program. In recent years, several judges have argued that the precedent set by Smith does not make sense in the digital age.

The Supreme Court’s ruling on cellphone searches casts yet more doubt on Smith’s role in the age of big data. Based on the Smith ruling, the government had argued that officers should always be able to search a phone’s call log, just as they searched Wurie’s. The Court resoundingly rejected that suggestion: “There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label ‘my house’ in Wurie’s case.”

Critics of government surveillance were quick to note the ruling could be significant in the debate over data collection. “The next step, in my view, is to treat GPS information the same way,” Senator Ron Wyden said in a statement. “I aim to use this decision as a springboard to secure greater privacy rights in the days ahead.”

 

Read Next: Zoe Carpenter on Bowe Bergdahl and conscientious objection.

MSNBC’s Scarborough Unfairly Blames the Media for Chris Christie’s Problems

Joe Scarborough

Joe Scarborough on the set of Morning Joe (AP Photo/Virginia Sherwood)

The real bridge scandal that may lose Christie the chance to be a GOP contender in 2016—not the G.W. Bridge lane closure fiasco of last September but an earlier one related to a different span, the Pulaski Skyway—just isn’t news, according to MSNBC’s Joe Scarborough. The TV motormouth, who rose to prominence in 1994 as part of Newt Gingrich’s Contract-on-America right-wing revolt that took control of the US House of Representatives, is annoyed over the fact that the media are paying attention to the panoply of scandals surrounding Christie, including the GWB; the tangle of conflict-of-interest scandals around the Port Authority and its disgraced chairman, David Samson; and a series of Christie money grabs that looted the PA to pay for New Jersey road projects.

But Scarborough’s annoyance is misplaced. In his MSNBC rant, Scarborough called The New York Times’ coverage of the Pulaski Skyway a “scam” and something that “outrages conservatives.” In fact, however, the Times, which reported yesterday on its front page about the Pulaski Skyway story, is late to the party, since that story has been reported extensively by investigations from the Bergen Record and by Main Justice, and, earlier this month and, back in May, by Christie Watch, too.

So Scarborough ought to be criticizing the Times for being slow to report what is, in fact, the issue that might bring Christie down: namely, that both the Securities and Exchange Commission (SEC) and the Manhattan district attorney are investigating the legality of Christie’s apparently illegal diversion of Port Authority funds to rebuild the Pulaski.

Back in 2011 Christie cancelled a long-planned tunnel project linking New York and New Jersey, and he was determined to use the $1.8 billion that the PA had allocated for the tunnel to pay for internal New Jersey road and bridge projects, including the Pulaski Skyway. The alternative was a gas tax increase—and raising taxes, any taxes, is the kiss of death for a Republican presidential hopeful.

But, as the Times notes, Christie ran into opposition from PA lawyers:

Again and again, Port Authority lawyers warned against the move: The Pulaski Skyway, they noted, is owned and operated by the state, putting it outside the agency’s purview, according to dozens of memos and emails reviewed by investigators and obtained by The New York Times. But the Christie administration relentlessly lobbied to use the money for the Skyway, with Mr. Christie announcing publicly that the state planned to rely on Port Authority funds even before an agreement was reached. Eventually, the authority justified the Skyway repairs by casting the bridge as an access road to the Lincoln Tunnel, even though they are not directly connected…The accuracy of this characterization is now a major focus of the investigations, according to several people briefed on the matter.

As already noted, much of what the Times reported—the objections by PA lawyers, the pressure from Christie administration officials on them to find some basis to approve the funding, the decision of the SEC and the Manhattan DA Cyrus Vance to investigate—has already been reported by the Bergen Record, Main Justice, and Christie Watch.

The Bergen Record, in March, first printed excerpts of numerous memos and emails between PA lawyers and Christie administration officials in which PA lawyers warned that the Pulaski Skyway was not part of the PA’s jurisdiction. It was in fact an access roadway for the Holland Tunnel, which was built before the PA and roads leading to it are not entitled to PA repair funds. Christie’s point man at the PA, deputy executive director Bill Baroni, put the screws to PA lawyers, as the Record noted:

Chris Hartwyk, former deputy general counsel at the Port Authority, wrote that justifying the projects by claiming the roadways were connections to the Holland Tunnel, as the governor previously stated, would be “difficult if not impossible” because of the wording of existing laws. The Holland Tunnel was already built when the Port Authority inherited it in 1931, so the law didn’t permit the Port Authority to build approaches. “It’s evident to say, but we gotta figure this out,” Baroni, who was looped into the discussion, wrote the same day.”

So, as the Record noted, PA lawyers christened the Pulaski Skyway and related roads as access highways to the Lincoln Tunnel, which was entitled to PA funds, even though that tunnel is miles from the Skyway. In an editorial on the subject yesterday, the Newark Star-Ledger notes that one of its reporters asked cab drivers at Newark’s airport if they’d use the Skyway to get to the Lincoln Tunnel, with hilarious results.)

The Times article does expand on the quotes and excerpts from e-mails between PA lawyers and Christie administration officials showing the pressure exerted to get the PA to provide a justification for the funding, adding new details on the role of two other officials:

In meetings, emails and letters between November 2010 and February 2011, administration officials including James Simpson, the New Jersey transportation commissioner, and Richard Bagger, the governor’s chief of staff, continued to press the Port Authority for funding. Mr. Baroni wrote that Port Authority lawyers could find “absolutely no support” for repairing the Skyway.

The Times reports that among those subpoenaed by Vance was Jeffrey Chiesa, who was Christie’s chief counsel, when the PA lawyers were being pressed to find a legal reason to fund the Skyway. But the Times doesn’t mention that later as Attorney General he signed off on other papers making clear that the PA was the sole funder of the Pulaski repairs.

And while the Times notes that the PA memos questioning the legality of the PA-Pulaski deal were given to Deborah Gramiccioni, then the director of the governor’s authorities unit, they didn’t report that she too has been subpoenaed. Gramiccioni is now deputy executive director of the PA, picked by Christie to replace Bill Baroni, after he was forced to resign for his role in the GW Bridge lane closures. She told the Times that “the administration ‘did everything in our power’ to avoid placing pressure on the Port Authority by asking the attorney general’s office to work directly with agency lawyers.”

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However, as Christie Watch detailed earlier, the Authorities Unit she headed operated as the governor’s eyes and ears at the various independent agencies, implementing his agenda, and we noted that “a feature on Gramiccioni in The Philadelphia Inquirer when she headed the Authorities Unit made clear she was an enforcer for the governor.” Said the Inquirer:

“We’re asking more questions than ever before, and that is taking a number of these authorities by surprise,” said Gramiccioni, who talks in rapid-fire bursts punctuated by wide smiles. The result? “Angry defiance has become the norm in my world…” Gramiccioni is most like her boss in one way: She relishes a good rumble. “I have very thick skin, I’m prepared for a fight, and I know how to go on offense when necessary,” she said. “I go to sleep at night knowing the next day is going to be another battle. And I look forward to it.”

In its editorial, the Star-Ledger concludes:

But Christie was following his own road map. This was all part of a grand plan to make him into a major player in Republican politics. Yet once again, his big ambition may have led to a big mistake.

 

Read Next: Christie panders to the Christian right at Faith and Freedom” event.

Why Obama Needs to Ignore ‘Armchair Warriors’ and Focus on the Global Economy

Obama American Flag

(Reuters/Jason Reed)

Editor’s Note: Each week we cross-post an excerpt from Katrina vanden Heuvel’s column at the WashingtonPost.com. Read the full text of Katrina’s column here.

As Iraq blows up (again) and tensions rise in the Ukraine and in the South China Sea, the United States’ debate is focused on military intervention. Neoconservatives, having learned nothing from the debacle they caused in Iraq, indict the president for not intervening in Syria and for leaving Iraq. Liberal interventionists, having learned nothing from the calamities now visited on Libya, call for modulated bombing in both. The beleaguered administration sends planes to the Baltic states and Poland, ships to Asia, token troops to Baghdad, sustains hundreds of bases around the globe and is accused of withdrawing from the world. Commentators fret over whether the war-weariness of the American people will keep the “indispensable nation” from doing what must be done.

When you have a hammer, as the adage goes, everything looks like a nail. The United States’ hammer is the most sophisticated military in the world—and nails appear in infinite variety across the globe.

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Virtually absent from the debate is any awareness of how much the United States’ commitment to police the world detracts from dealing with the real security needs of its people and the globe. Last week, Richard Trumka, president of the AFLCIO, delivered a short address that reminded us of what is being lost in the muscle flexing.

Read the full text of Katrina’s column here.

Take Action: Tell President Obama: No Military Intervention in Iraq

Read Next: How many times do neocons get to be wrong about Iraq before we stop listening?