Wednesday, December 7, 2011

Reading the ACLU Policy Guide (Pt. 8)

Series explanation and overview here.

Note: These are my summaries of the 1995 version of the guide, not the policies themselves.

Loyalty and Security

Policy 103 — Clear and Present Danger Test

Personal opinions are constitutionally protected unless they qualify as creating a “clear and present danger” by either being “an integral part of conduct violating a valid law” or “a direct incitement to specific and immediate violation of law” or they “threaten a danger of unlawful acts so great and so immediate that time is lacking for answer, or if need be, for other protective measures against the threats and acts.”

Protected speech includes speech against democracy, so long as it does not constitute a clear and present danger. I take this to mean that speech against free speech rights is still protected by free speech rights.

Policy 104 — ACLU and Totalitarianism

The ACLU is opposed to “any governmental or economic system which denies fundamental civil liberties and human rights.” (This is consistent with the ACLU supporting the right of other groups and individuals to express support for totalitarian systems.)

Policy 105 — Smith Act and Subversive Activities Control Act of 1950

This policy actually concerns three federal acts:
Besides requiring legal, adult aliens to register with the government, the Smith Act made it a crime to advocate for the violent overthrow of the US government. At first glance, this might not sound like such a bad thing to criminalize, but citizens who don't have the slightest chance of putting such ideas into action could have been imprisoned for twenty years for expressing the opinion. Furthermore, entire organizations could have been deemed in violation and all members and tangential supporters would be made criminals, without even expressing the condemned opinion personally.

Further acts specifically hounded anyone with communist associations, or who supported broadly communist ideas whether those ideas were related to violent political change or not.

The ACLU's position is that "there should be no governmental restriction on advocacy of any sort, unless the adovcacy [sic] shall cause, in the existing circumstances of its utterances, a clear and present danger of illegal action." Merely increasing the probability that listeners may choose to commit a crime later is insufficient. Regarding organizational guilt: "Guilt is personal; it may not be attributed by association." The ACLU also opposed the McCarran Act because it required members of communist organizations to report themselves, a violation of the Fifth Amendment.

Policy 106 —Wartime Sedition Act

I'm a little confused about this policy. It references the "Wartime Sedition Act of 1917", but I'm finding information on the Espionage Act of 1917 and the Sedition Act of 1918 (a set of amendments to the first). I agree that the Sedition Act could have been "used against anyone, at virtually any time, to suppress criticism of the government in the name of national security," but I'm seeing multiple sources claiming those parts were repealed a long time ago. Recent ACLU concerns appear to be about last year's WikiLeaks fiasco, as it relates to the original espionage sections.

Policy 107 — Emergency Measures in Peacetime

The ACLU is opposed to indefinitely continuing civil rights-related measures put into play during "genuine war emergencies." This is applied to the Cold War and — I suspect — would apply to our perpetual War on Terror.

Policy 108 — House Internal Security Committee

This policy explains the ACLU's opposition to the House Un-American Activities Committee (later renamed to Internal Security Committee). Instead of doing much in the way of starting legislation for the House, this Committee made a big public show of investigating citizens for expressing "un-American" ideas by a standard "so vague that a citizen cannot know whether the citizen's political activity runs afoul of the Committee's private definition of Americanism." These non-trial trials took away due process rights and chilled free speech. The Committee was dissolved by the mid 70s.

Policy 109 — State and Local Legislation

The ACLU opposes non-federal laws "dealing with advocacy of political doctrine" because there is (or was) already federal legislation in the area, and adding further restrictions just makes the civil liberties situation worse.

Policy 110 — Federal Employee Security

While the ACLU recognizes that some federal jobs directly related to national security warrant security screening, they oppose extending such screening to the many federal "non-sensitive" jobs which only require candidate fitness for the work.

The ACLU specifically opposes investigation into candidates' sexual orientation as a security matter. Apparently, it was claimed that homosexuals were a security risk because they could be blackmailed into betraying their country out of fear of expose. (Notice anything self-fulfilling here? Such investigations create or greatly increase the very motive they seek to exclude.)

Due process must be given to candidates denied positions for security concerns.

Policy 111 — Private Employment Security

The ACLU opposes the practice of any private employers investigating the national security risk of employees or requiring loyalty oaths. If a private employer is contracting with the government in a sensitive area, then the government itself should be the party to conduct security investigations of employees involved in such work.

Policy 112— Professional Associations' Membership Qualifications

Mere association with other organizations should not be grounds for removing a member from a professional association (particularly bar associations). It must be shown that a lawyer, for example, is actually not doing his or her duty as a legal professional because of "external obedience" to another organization.

However, the ACLU does recognize some latitude for not admitting a new member to a professional organization if there is thought to be a high probability he or she will not be able to conform to professional duties. This risk still needs to be evaluated on a person by person basis, not as a sweeping prejudice against the membership of other organizations.

Policy 113 — Federal Benefits and Loyalty Tests

"Loyalty oaths or disclaimers of membership in certain organizations violate the First Amendment rights of freedom of belief and association, and may never be required for participation in government-funded programs such as public housing or subsidies, welfare benefits, veteran's benefits, Social Security or Medicate."

Yes, that's the whole policy.

Policy 114 — Military Discharges

Members of the military should be treated as other federal employees, i.e. screening for security should only be done if that individual's job directly relates to national security.

Discharges must be based on job performance, not merely for exercising constitutional rights before or during service.

Policy 115 — Loyalty Oaths

Swearing non-membership in certain organizations has been required "for employment of government workers and teachers, for students seeking government aid, and for Social Security and Medicare recipients and the like." The ACLU opposes such oaths because they suppress free speech and association rights. Plus, they penalize any citizens with a conscientious objection to swearing these kind of oaths, whether they have had the associations in question or not.

Policy 116 — Governmental Surveillance

Police infiltration of organizations is contrary to the Fourth Amendment's protection against "unreasonable searches and seizures," i.e. those not carried out through the use of a targeted warrant issued on probable cause. Otherwise, "[e]verything that is said and everything that is done over an unlimited period of time comes into the hands of the government, no matter how private, how unconnected with a legitimate state interest."

Perhaps this would be less of an issue if there weren't a history of the government collecting files on individuals, and this to their detriment either by denying them government employment or by publicly condemning them without due process in Congressional hearings.

The ACLU does recognize the proper use of "informers" placed or recruited from organizations, if there is probable cause shown that the organization is involved — or is planning to be involved — in "serious criminal acts." A judge must issue a warrant specifying which part of the organization is to be surveilled and for how long. Warrants should be renewed by the original judge and a limit should be set on the number of renewals.

This policy also speaks against using the military to spy on citizens, against building files on citizens merely for protesting government actions, and against keeping attendance lists of lawful gatherings.

Policy 117 — Controlling the Intelligence Agencies

Bill of Rights violations on the excuse of "national security" need to end. The ACLU has a list of specific measures to remedy the situation. Some highlights:
  • Implement only three categories of classified information. (1) Details of defense tech which would help other nations. (2) Tactical military details during declared war. (3) Defensive contingency plans.
  • Explicitly state that any information about the US government engaging in illegal behavior is ipso facto declassified.
  • Allow Congress to "unilaterally" release Executive branch information.
  • Make intelligence agency budgets public.
  • Create detailed charters for government agencies, and prohibit any agency activity beyond these limits.
  • Rename the CIA to the FIA: Foreign Intelligence Agency. Keep it out of the domestic intelligence business entirely.
  • Prohibit all CIA operations intended to secretly manipulate (or just plain overthrow) foreign governments.
  • Prohibit the NSA from monitoring US-to-foreign communications.
  • Destroy all current files kept on citizens for exercising their First Amendment rights.
Policy 118 — Secret Government Aid to Private Agencies

I'm curious what circumstances prompted this 1967 policy. Apparently a government agency was secretly funding a citizen advocacy group...or something like that.  This endangers free discussion "by the clandestine introduction of ulterior motives of government policy into a supposedly open debate."

Policy 119 — Prior Restraint in National Security Situations

"The true test of our devotion to that principle [i.e. freedom of thought and expression] comes in times of stress or alarm, when those who would suppress the interchange of ideas can appeal for supposed justification to some imminent menace threatening the public welfare."

Citing United States v. The Progressive and the Pentagon Papers as instances when prior restraint "safeguarded nothing more than governmental overreaction, embarrassment, and the desire for secrecy," the ACLU believes prior restraint cannot be tolerated at the very times it is most critical that citizens have access to information.

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