New York – The Supreme Court announced yesterday that it would not hear Center for Constitutional Rights v. Obama, a lawsuit challenging the National Security Agency’s warrantless surveillance of people within the United States. The suit sought an injunction ordering the government to destroy any records of surveillance that it still retains from the illegal NSA program. The Center for Constitutional Rights issued the following statement in response to the Court’s decision:
The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either.
Despite mounting evidence of government spying on attorneys’ privileged communications, the Court yesterday declined to review the lower court’s determination that CCR attorneys’ fears of surveillance under President Bush’s NSA program, which involved no review by judges or Congress and flew directly in the face of express criminal prohibitions, were too “speculative” to allow CCR to challenge the program in court.
The Court’s decision comes as increasing evidence suggests the government has been surveilling attorney-client communications for some time. The New York Times recently reported that in 2013 the NSA surveilled law firm Mayer Brown while it represented the government of Indonesia in trade talks with the United States. In 2008, The Times reported Justice Department officials had confirmed that attorney-client communications in terrorism cases were sometimes subject to surveillance. And a document accidentally released to an Islamic charity in 2004 indicated that the D.C.-based attorneys for the charity had been subject to surveillance while speaking to their clients.
A memo released by whistleblower Edward Snowden indicated that the government only excludes attorney-client communications from collection when the client is under actual indictment in the United States. Communications of attorneys not directly with a client (for example, with expert witnesses or investigators abroad), or with a client not formally charged in the United States (including, for example, the Center for Constitutional Rights’ many Guantanamo detainee clients, none of whom are charged in federal courts) might now be subject to surveillance under broad orders issued under the current FISA statute.
… There are various ways in which modern law is not married to good sense. For example, one opinion of the United States Supreme Court tells us that your innocence is not constitutionally relevant to whether you should be executed. But recently, British courts have rivalled their counterparts across the pond in competing for the most senseless judgment. The latest example came just yesterday, when three British judges said they could not rule on whether British officials were complicit in murdering Pakistani civilians in US drone strikes because that might embarrass our friends in America.
The case involves a Pakistani called Noor Khan. I have met him. A habitually calm young man, he was understandably incensed when his father was killed – in one of the catastrophes of the US drone age – in the region of Pakistan that borders on Afghanistan. The drone strike was patently illegal; there is no war with Pakistan, and the Predator drone fired hellfire missiles that killed some fifty innocent elders who were holding a jirga or local council meeting, peacefully trying to resolve a local dispute over a chromite mine.
It was the equivalent of bombing the High Court in London. It was both the domestic crime of murder, and the international war crime of targeting civilians.
Sad to say, there is evidence that the British security services have been supplying the US with intelligence that has led to a number of these strikes. The simple claim that Khan was making, too late to save his father, was that GCHQ should not be allowed to do this if their own actions violate British and international law.
British domestic law criminalises the “intentional encouraging or assisting” of the crime of murder. The International Criminal Court Act of 2001 defines one crime against humanity as a mass killing of members of a civilian population. Another is an intentional attack against a person not taking a direct part in hostilities.
Those whose actions are being questioned are not soldiers risking their lives fighting a legal war (who are therefore covered by combatant immunity); they are intelligence officers who, sitting comfortably in Cheltenham over a cup of coffee, are instrumental in one of the most serious criminal acts. … Full article
David Fathi, director of the ACLU National Prison Project, testified today in favor of closing Tamms Correctional Center at a hearing before the Illinois Commission on Government Forecasting and Accountability in Ullin, Illinois. Tamms is a supermax prison where prisoners are held in long-term solitary confinement, often for a decade or longer.
The following is an excerpt from the ACLU’s testimony:
Tamms is a supermax facility in which prisoners — many of them mentally ill — are held in solitary confinement, sometimes for years on end. A 2009 study by the Belleville News-Democrat found that 54 Tamms prisoners had been in continuous solitary confinement for more than ten years.
The shattering effects of solitary confinement on the human psyche have long been well known.
In 1890, the United States Supreme Court described the devastating effects of solitary confinement as practiced in the nation’s early days:
A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.
Half a century later, the Court referred to solitary confinement as one of the techniques of “physical and mental torture” that have been used by governments to coerce confessions.
More recently, the Chicago-based U.S. Court of Appeals for the Seventh Circuit observed that “the record shows, what anyway seems pretty obvious, that isolating a human being from other human beings year after year or even month after month can cause substantial psychological damage, even if the isolation is not total.” The court recognized that “there is plenty of medical and psychological literature concerning the ill effects of solitary confinement (of which segregation is a variant)[.]”
And in 2010, an Illinois federal court found that “Tamms imposes drastic limitations on human contact, so much so as to inflict lasting psychological and emotional harm on inmates confined there for long periods.”
A number of states have dramatically reduced their use of solitary confinement, preserving prison and public safety and saving millions of dollars in the process. None of these states have experienced any adverse effect on prison or public safety as a result of reducing their use of solitary confinement. This is not surprising, as evidence shows that prisoners released from solitary confinement have higher recidivism rates than comparable prisoners released from general population.
Because of the profoundly damaging effects of solitary confinement, particularly on prisoners with mental illness, a number of federal courts have ruled that conditions in supermax prisons like Tamms cause such extreme suffering that they violate the Constitution’s prohibition on cruel and unusual punishments.
A federal court in California characterized housing prisoners with mental illness in a supermax unit as “the mental equivalent of putting an asthmatic in a place with little air to breathe.” And a federal court in Wisconsin ordered prison officials to remove prisoners with mental illness from the state’s Supermax Correctional Institution.
Conditions at Tamms are also inconsistent with international human rights principles. In a global study on solitary confinement, presented last year to the United Nations General Assembly, the U.N. Special Rapporteur on Torture called on all countries to ban the practice, except in very exceptional circumstances, as a last resort, and for as short a time as possible. The Special Rapporteur concluded that solitary confinement can amount to cruel, inhuman or degrading treatment or punishment and in some cases even torture. He recommended a ban on solitary confinement exceeding 15 days, and the abolition of solitary confinement for juveniles and mentally disabled persons.
The U.N. Committee Against Torture, the official body established pursuant to the Convention Against Torture — a treaty ratified by the United States — has also recommended that the practice of long-term solitary confinement be abolished altogether.
Because it is inconsistent with international human rights norms, the use of supermax prisons like Tamms threatens the ability of the United States to secure the extradition of criminal suspects from other nations. The European Court of Human Rights has temporarily blocked the extradition of three terrorism suspects to the United States on the ground that if convicted, their eventual confinement in a U.S. supermax prison might violate the European Convention on Human Rights.
Closing Tamms will advance human rights, preserve public safety, and save Illinois taxpayers tens of millions of dollars. The ACLU respectfully urges the Commission to take this long overdue step.
The full text of the written testimony submitted to the Commission by the ACLU and the ACLU of Illinois is available here. You can also listen to a new podcast with former Tamms prisoner Brian Nelson (pictured above), who spent 23 years in solitary confinement.
- Supermaxed Out: Adios to an Isolation Facility (montanacorruption.org)
- California prisoners ask U.N. to probe solitary confinement (latimesblogs.latimes.com)
- Amnesty International accuses Arizona of abuse in prisons (aboriginalpress.wordpress.com)