When Harry met Spot

This is too much.

If marriage isn’t defined as only a union between one man and one woman, state Rep. Arthur D. Hershey believes people will want to marry animals.

Hershey, of Cochranville, who represents the 13th District, was one of about 90 legislators, including four others from Chester County, to cosponsor the Marriage Protection Act, a bill introduced Tuesday to constitutionally define marriage in Pennsylvania.

Hershey said this week that without the bill, “down the road, people will want to marry their dogs and horses to get benefits.”

Daily Local News: 5 county lawmakers co-sponsor marriage bill

Where do they come up with this stuff? Oh, I know. Rick Santorum.

If nothing else, some reps provide quality yucks. You have to laugh. Otherwise, you’ll cry. Or scream. Or bang your head against the wall.

Thankfully, reps like Hershey do an excellent job of destroying their own credibility.

Andy in H-burg

Criminal justice reform discussed at capitol

There’s a headline that will make some heads turn. Today the PA Senate Judiciary Committee held a hearing on S1069, a bill introduced by committee chair Senator Stewart J. Greenleaf (R-Montgomery) that would establish the Innocence Commission of Pennsylvania. This commission would be tasked with investigating why innocent people are convicted of crimes in Pennsylvania and would be made up of prosecutors, judges, defense attorneys, police, corrections officials, victims advocates, academics, and reps from criminal justice organizations.

It’s a bold step by Greenleaf, a former prosecutor, and it is a bi-partisan effort with five Republicans and seven Democrats as co-sponsors.

Witnesses today included three exonerated Pennsylvanians- Nicholas Yarris of Philadelphia, who spent more than 20 years on Pennsylvania’s death row and was nearly ready to accept execution until DNA evidence cleared him; Thomas Doswell of Pittsburgh, who spent 19 years in prison for a rape before DNA evidence cleared him, thanks, in part, to a DNA bill Greenleaf helped pass in 2002; and Vincent Moto of Philadelphia, who was wrongly imprisoned on a rape charge for more than 10 years and whose story is featured in the movie After Innocence, as is Yarris.

The witnesses, who also included representatives from the Innocence Project, Duquesne School of Law, Justice & Mercy, and United Methodist Witness, highlighted several issues that lead to wrongful convictions, including mistaken eyewitness identification, false confessions, and inadequate representation for the poor.

“That is one of the worst problems, inaccurate or coerced identification,” Yarris said.

Stephen Saloom, Policy Director of the Innocence Project, noted that a majority of the nation’s 174 DNA exonerations have included mistaken eyewitness identification.

“Mistaken eyewitness identifications contributed to 75% of the underlying wrongful convictions proven by DNA evidence,” Saloom said. “In many cases, there were multiple mistaken eyewitness identifications of an innocent person as the true perpetrator.”

Saloom and Duquesne Professor John Rago both stated that, as written, this commission could be “a model” for the rest of the country.

“The innocence commission crafted by this bill could be one of the nation’s best,” Saloom said.

Andy in H-burg

Deja Vu

You know it’s a sad day when it’s difficult to keep track of which government agencies are spying on which Americans. In our offices, we have actually been heard to say, “Now which spying case is this again?”

In the past couple of months, it’s been shown that the NSA has been illegally wiretapping US citizens, and that the Pentagon has been keeping a database on anti-war protestors and groups who protest at recruiting stations (although the latter story received little press attention).

Now these are not to be confused with the FBI’s misuse of Joint Terrorism Task Forces to engage in surveillance of non-violent activist groups. In Colorado, for instance, one memo the ACLU obtained indicated an ongoing federal interest in Food Not Bombs, a group that provides free vegetarian food to hungry people and protests war and poverty.

Clearly the powers that be were not history majors, and we’re now doomed to repeat the abuses of power of the late 1960s and 1970s.

Sara in Philly

That pesky 4th amendment

General Michael V. Hayden, Principal Deputy Director of National Intelligence and the former director of the NSA, tried to give a tutorial on the Fourth Amendment at the National Press Club on Monday.

QUESTION: …I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the —

GEN. HAYDEN: That’s what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable —

GEN. HAYDEN: No. The amendment says —

QUESTION: The court standard, the legal standard —

GEN. HAYDEN: — unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.” And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.

(My bold)

So what, exactly, does the Fourth Amendment say?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(My bold again, the Framers couldn’t change their font, unless they dipped for more ink)

NY Times: Leader who worked to reshape agency’s image is on the defensive

Andy in H-burg

A permanent police force: United States Secret Service Uniformed Division

Those are not words that I created. They are from Section 605 of the USA PATRIOT Act reauthorization conference report. The jurisdiction of this crew would be the major players in the executive branch,foreign diplomats, and “a special event of national significance” (The World Series of Poker?).

Here’s my favorite part:

(b)(1) Under the direction of the Director of the Secret Service, members of the United States Secret Service Uniformed Division are authorized to–
…(B) make arrests without warrant for any offense against the United States committed in their presence

Paul Craig Roberts had this to say:

The language conveys enormous discretionary and arbitrary powers. What is “an offense against the United States”? What are “reasonable grounds”?

You can bet that the Alito/Roberts court will rule that it is whatever the executive branch says.

The obvious purpose of the act is to prevent demonstrations at Bush/Cheney events. However, nothing in the language limits the police powers from being used only in this way. Like every law in the US, this law also will be expansively interpreted and abused. It has dire implications for freedom of association and First Amendment rights.

Unfathomed dangers in Patriot Act reauthorization

Andy in the HBG

Sticking it to the (Straw) Man

A commmon tactic to gain support for restricting civil liberties is to build a Straw Man out of the opposition, which is then easy to tear down.

Karl Rove has mad skills in this department when he talks about the PATRIOT Act or the NSA spying scandal, as a good editorial in today’s Philly Inquirer points out.

Speaking of the PATRIOT Act, did you know that today is National PATRIOT Act Call-In Day? Yeah, we got the memo kind of late, too. Oh well…they’ll probably be just as excited to hear from us tomorrow.

The legislature’s back and we’re gonna be in trouble

We have a joke in our office about how our civil liberties are safer when the legislature isn’t in session. Well, we aren’t laughing today. The legislature came back from the break today, and eighty-nine of the 203 representatives in the PA House lined up to co-sponsored HB 2381, or what the other side calls the “Marriage Protection Amendment.” We like to call it the “Let’s Write Discrimination into the Constitution! Amendment.” (A personal aside: Can someone please, please explain to me why some people are so interested in controlling the personal lives of others? I sincerely just don’t get it.)

The one bright spot in Harrisburg today was that the House Judiciary Committee did not get to House Bill 698 on mental retardation and the death penalty. The version they would be looking at would have a determination of mental retardation made by the jury after they’ve convicted the defendant. (We, and advocates for the mentally retarded like ARC, support a different version of the bill which states that a judge would make the determination before the trial. For more on this issue see yesterday’s blog entry.) Nonetheless, we expect this bill to surface again soon, so call your representative if he or she happens to be on the Judiciary Committee to encourage him or her NOT to support HB 698. Here’s a list of the committee and their phone numbers.

A New Hope

It’s common for ACLU-PA staff to do presentations with groups of students, including high school students. What is not so common is for our staff to do presentations where the program for the evening includes 11 punk bands, but that is exactly what I did on Saturday night.

And it was great.

A youth center in suburban Harrisburg asked us to take part in their “Activist Night”, an evening of music and preparation for some of the center’s members to go to D.C. to protest the State of the Union speech on Jan 31. Since these young people would be traveling to Washington to exercise their right to free speech, it seemed appropriate to screen the Dissent episode of The Freedom Files, our new television program. Afterwards, we held a Q&A session.

I could not help but be impressed by the awareness of social issues and eagerness to learn more about our rights that this group exhibited. There were about 50-60 teens on hand, and, by and large, they gave me their attention throughout. They were very respectful, too.

When they asked questions about their rights, particularly at school, they weren’t asking because they want to create websites to criticize their teachers or to protest the menu in the cafeteria. They were asking because they want to hand out pamphlets to protest war. They wanted to know how far they could go at school in opposing government policies. They wanted to know about not participating in the Pledge of Allegiance or the National Anthem as a form of political speech.

When I talked about the Patriot Act, the NSA spying program, LGBT rights, and other issues, there were heads nodding in the audience. These young people know what’s up.

I was in awe, and I say that not because the ACLU necessarily endorses these positions (for example, we take no position on war) but because these were teens so ready and willing to use their right to free speech.

Young people get rapped for being unaware and apathetic, but that was not my experience Saturday night. The next time you see a young person with noserings, dyed hair, or a leather jacket loaded with studs (or the next time you see any teen, for that matter), you might be looking at the next generation of civil libertarians.

Andy in the HBG

3 1/2 years later…

…the PA legislature might finally act on the Atkins v. Virginia decision from the U.S. Supreme Court that ended the execution of the mentally retarded. The Court ended the practice but left the states to figure out how to git it done.

But wait! Even when directed by the SCOTUS, this bunch in Harrisburg still might find a way to screw it up. Tomorrow the PA House Judiciary Committee will take up House Bill 698, a bill that only a prosecutor could love. HB 698 would require that the determination on retardation be made after conviction by the jury. After going through an entire trial and recognizing the defendant’s guilt, the jury is expected to give an objective opinion on whether or not the defendant is retarded. Plus, this procedure means that everyone on said jury is “death-qualified”, which means they all support the death penalty. Like I said, it’s a bill that only a prosecutor could love and that only a PA legislator could think is constitutional.

Meanwhile, out here in the rationally thinking world, advocates for the mentally retarded, church groups, and civil libertarians support HB 1410, which would require that the determination on retardation be made pre-trial by the judge.

According to The Death Penalty Information Center, eight states have implemented post-Atkins standards. Six have opted for pre-trial determination, Virginia chose post-trial, and Louisiana is pre-trial, if the prosecutor agrees. (Stop laughing.) Fittingly, a Louisiana state court found the state’s procedure to be unconstitutional for multiple reasons, including the use of a “death-qualified” jury.

You know what to do.

Andy, Harrisburg

Anyone have a black helicopter we can borrow?

Thomas More Center President Richard Thompson exercised his free speech rights recently in an article about the ACLU in Saturday’s Patriot News. (As you may remember, Thomas More Center represented the Dover Area School District in the intelligent design case.)

“I think you always have to keep in mind, the ACLU’s purpose is to destroy the foundation of Americans,” said Richard Thompson. “[The ACLU] wants to remove the basic moral and religious foundations upon which the nation was founded, to move the nation to a one-world government, and they do this under the pretext of enforcing the Constitution — which over the years they have successfully changed through litigation.”

I must confess, the “one-world government” bit is a new one to me. Points for creativity, Mr. Thompson. (But not, alas, for accuracy.)

Sara in Philly