Congress must protect privacy rights in cybersecurity bill

Congress must include strong privacy protections in any cybersecurity legislation it adopts, a bipartisan constitutional watchdog group said in a comprehensive report released today.

While acknowledging the importance of protecting government and private computer networks against cyber-attacks, the report prepared by The Constitution Project's (TCP) Liberty and Security Committee says any cybersecurity program adopted by the federal government must have clear legal safeguards to prevent unrestricted access by government officials to individuals' private information when searching network communications for harmful material.

Search Warrant Needed for GPS Tracking SCOTUS Decided in US v. Jones

Today, the Supreme Court decided United States v. Jones, unanimously recognizing that law enforcement agents must get a search warrant before installing a GPS device on an individual’s car and using it to track the car’s movements.   As TCP President Virginia Sloan pointed out in a recent statement, “we welcome the Supreme Court’s recognition that the Fourth Amendment must continue to protect against government intrusions even in the face of modern technological surveillance tools.”   Last September, TCP released a report on location tracking, arguing that without a warrant, law enforcement could not surveill a person for more than 24 hours or install a surveillance device on the person’s property.  Based on the report’s recommendations, TCP filed an amicus brief in Jones.  Though the Court declined to decide whether surveillance without a physical intrusion would still trigger Fourth Amendment safeguards, the two concurring opinions suggest that at least five justices are prepared to find that continuous electronic monitoring violates a reasonable expectation of privacy and requires a warrant under the Fourth Amendment.

Eminent Legal Scholars Debate: Are the President's Recent Recess Appointments Constitutional?

President Obama ignited a significant controversy when he used recess appointments on January 4, 2012, to name Richard Cordray to head the new Consumer Financial Protection Bureau and to fill three vacancies on the National Labor Relations Board. President Obama claimed that he had the power to take these actions under the authority granted to the executive in Article 2, section 2 of the U.S. Constitution. Some Republican senators and others strongly objected, saying the Senate was in "pro forma" session so the recess appointment power could not apply. On January 18, TCP hosted a debate on the issue, featuring Professors Peter M. Shane and Michael McConnell. Professor Shane is a Visiting Professor of Law at Harvard Law School, and Professor McConnell is the Richard & Frances Mallery Professor and Director of Stanford Law School Constitutional Law Center.  To listen to the debate please click here.

Judy Woodruff and Al Hunt Announced as Annual Gala Masters of Ceremonies

Mark your calendars now for our 2012 Constitutional Champions Gala on March 29, 2012 from 6:30 to 9:30 pm. We are excited to present The Constitution Project’s (TCP) annual awards to David Keene, former chairman of the American Conservative Union, and the Digital Due Process Coalition, a diverse coalition of technology companies, privacy advocates, and think tanks. David Keene is being honored for his tireless efforts to preserve individual freedoms by defending the rule of law and reforming the nation’s criminal justice system. TCP is saluting the Digital Due Process Coalition for working together to advance legislation providing fundamental privacy protections for electronic communications and data in a world of rapidly evolving technology. Judy Woodruff, senior correspondent for PBS NewsHour, and Al Hunt, executive editor of Bloomberg News in Washington D.C. and host of Bloomberg Television’s ‘Political Capital with Al Hunt,’ will act as masters of ceremonies. Purchase your tickets online today to reserve your seat at this highly-anticipated event or contact Kelly Davies at 202-580-6942 or kdavies@constitutionproject.org to learn more about sponsorship opportunities and program advertising.

Detainee Task Force Discuss 'Black Sites' with Lithuanian Officials

Ambassador Thomas Pickering, a member of The Constitution Project’s Task Force on Detainee Treatment, and Alka Pradhan, a task force counsel, met with Lithuanian government officials last week to discuss Lithuania’s role in the CIA’s extraordinary rendition program. "There are a number of credible reports that Lithuania housed one or more of the 'black site' detention facilities that the CIA allegedly used to interrogate, and some claim torture, individuals they thought were involved in terrorist activity against the United States," Pradhan said. "Ambassador Pickering and I wanted to get information from the Lithuanian government officials closest to the situation to help the task force ascertain the veracity of these reports," she said. Any information gleaned from their various meetings will be incorporated into the task force’s final report, set for release in early 2013. On January 13th TCP released a statement about the talks.

Guantanamo Turns Ten

Today the Guantanamo Bay Detention Facility turns ten and, despite the avowed desire of two Presidents to permanently close the facility, it remains open. Seven hundred and seventy-nine prisoners have been held at the facility since it opened its doors on January 11, 2002; of those, 171 remain in custody today.  The treatment of those prisoners and their ability to access justice has been the subject of much controversy. Still, most Americans do not have a clear or complete picture of what happened at Guantanamo.

To provide the American people with a broader understanding of what is known—and what may still be unknown—about the past and current treatment of suspected terrorists detained by the U.S. government, both at Guantanamo Bay and elsewhere, TCP has assembled a blue-ribbon panel of experts to review our country’s detention policies over the last two decades, and to offer-up recommendations for future policies that comply with the nation’s legal obligations, foreign policy objectives and historic values.  The Constitution Project’s Task Force on Detainee Treatment expects to release its much-anticipated report early next year.

Supreme Court Ruling on Death Row Inmate’s Case Preserves Justice

On January 18, 2012, the U.S. Supreme Court decided Maples v Thomas in a 7-2 vote in favor of petitioner Cory Maples, who is on Alabama’s death row. The decision held that a lower federal court could consider Maples’ federal habeas petition despite the fact that he missed a filing deadline in state court, which normally would cause his claims to be procedurally defaulted in federal court. Maples missed the previous filing deadline because his lawyers left their law firm without notifying him or the courts.  The Constitution Project has supported Maples since 2009, filing amicus curiae briefs in the U.S. Supreme Court and in the Eleventh Circuit Court of Appeals. In a recent statement, President of The Constitution Project Virginia Sloan, said, “Certainly, when a death row inmate is completely abandoned by his volunteer, out-of-state counsel like Maples was, justice requires excusing the missed filing deadline,” and lauded the Court for, “...prioritiz[ing] justice over technicalities, fundamental fairness over procedural rules.”  Ms. Sloan’s sentiments were noted in a recent article in the Los Angeles Times and the American Constitution Society featured a piece on the case written by TCP Senior Counsel Mary Schmid Mergler.

Obama Nominates Judge Patricia Wald and David Medine to Privacy Board

President Obama has nominated Judge Patricia Wald and David Medine to serve as members of the Privacy and Civil Liberties Oversight Board (PCLOB). Created by Congress based on the recommendations of the bipartisan 9/11 Commission, the PCLOB is designed to play a vital, independent role in oversight of privacy and civil liberties. The Constitution Project has long urged Congress and the President to create and staff an independent board.  Most recently, in August, TCP led a diverse coalition urging the administration to fill the long-standing vacancies on the board. Senior Counsel Sharon Bradford Franklin commented, “We are confident that Wald – a longtime member of TCP’s Liberty and Security Committee, as well as it’s War Powers Committee - and Medine – a reporter for two of the Liberty and Security Committee’s reports – will be exceptionally well suited for these positions and we applaud their nomination.”

Judge and Jury Ignorant of Severe Abuse Death Row Inmate Endured

Robert Gattis suffered extreme and ongoing physical and sexual abuse as a child and adolescent, but the judge and jury never heard about this information was not shared during his trial or sentencing. Gattis has also expressed deep remorse for the murder that he committed and been a model of good behavior throughout his time on death row.  Arguing that the death penalty should be reserved for “the worst of the worst offenders,” a number of former judges and prosecutors, some recruited by TCP, wrote to the Governor of Delaware and the Delaware Board of Pardons urging them to grant Gattis clemency. The calls for clemency from these former judges and prosecutors were bolstered by additional voices of support, including 73 faith leaders and numerous mental health professionals. Gattis is scheduled to be executed on January 20, 2012.