How the Supreme Court Authorized Racial Profiling

Supreme Court

Originally published at Huffington Post.

After the civil rights movement of the 1950s and 60s dismantled explicitly racist laws, racism became colorblind to survive. Today, although no law explicitly allows for racial profiling by law enforcement, it still happens at an institutional level. What’s often left out of the discussion about why racial profiling happens is that the highest court in the country has approved it ‒ in more than one case.

Terry v. Ohio (1968)

The Supreme Court’s first step to sanction racial profiling was Terry v. Ohio, 392 U.S. 1 (1968), an 8-1 ruling that developed the “reasonable suspicion” standard (also known as the “stop-and-frisk” rule). The Court, whose opinion was delivered by the usually astute Chief Justice Earl Warren, held that the Fourth Amendment’s prohibition on “unreasonable searches and seizures” is not violated when a police officer has “reasonable suspicion” “in light of his experience” that a crime has been committed. By opening the door to greater law enforcement discretion with respect to whom to stop and search, the Supreme Court in Terry gave its first approval of racial profiling.

Several studies show that police officers perceive young black boys as violent and older than they actually are. One study from 2007 found that officers display a “robust racial bias in response speed” in a simulated shooting exercise of black and white targets. So when police officers are given greater discretion “in light of their experience” as Terry offered them, it’s no surprise that they disproportionately target black people. (That’s in addition to police departments institutionally over-policing poor communities of color compared to their presence in white communities.)

Since Terry, police departments ‒ and the Burger, Rehnquist, and Roberts Courts ‒ have interpreted Warren’s decision as carte blanche for police officers, so much so that UNLV constitutional law professor Thomas B. McAffee described Terry‘s long-term impact on the Fourth Amendment as “truly disastrous.” “The Terry stop-and-frisk doctrine has lent itself too readily to supporting law enforcement efforts rooted in stereotypical generalizations and racial profiling,” he wrote in the Nevada Law Journal.

United States v. Brignoni-Ponce (1975)

United States v. Brignoni-Ponce, 422 U.S. 873 (1975) might seem on the surface to be an anti-racist decision, a good step in Fourth Amendment law. The Court ruled against law enforcement on the grounds that it violated the Fourth Amendment for stopping a vehicle solely on the basis that the driver looked Mexican.

But while the Court acknowledged that, by itself, “apparent Mexican ancestry” does not justify reasonable suspicion that occupants of a vehicle are undocumented drug smugglers, it did rule unanimously that “Mexican appearance” is a “relevant factor.” Ostensibly to help law enforcement justify a stop, Justice Lewis F. Powell offered several reasons sufficient for reasonable suspicion to stop a car near the border with Mexico: “previous experience with alien traffic,” a “heavily loaded” vehicle, a vehicle with “an extraordinary number of passengers,” and finally ‒ the part that justifies racial profiling ‒ “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.”

In other words, a police officer can racially profile a motorist if that officer finds an additional reason to make a stop, effectively deeming race acceptable for reasonable suspicion. As Michelle Alexander wrote in The New Jim Crow, “Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe racial profiling exists only when race is the sole factor.”

The Court in Brignoni-Ponce neglected to recognize what Kevin R. Johnson, a public interest law professor at UC Davis, pointed out in the Georgetown Law Journal: “In fact, people from Mexico run the gamut in terms of phenotypes, with there being persons of both fair and dark complexions of Mexican ancestry. Nevertheless, stereotypes of ‘Mexican appearance’ persist, and the Brignoni-Ponce Court ultimately appears to have sanctioned reliance on such stereotypes by the Border Patrol.”

Whren v. United States (1996)

In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court unanimously sanctioned racial profiling by allowing police officers to make “pretext stops,” wherein an officer pulls over a motorist for a traffic violation with the specific intention of hunting for drugs. “It does not matter, the Court declared, why the police are stopping motorists under the Fourth Amendment, so long as some kind of traffic violation gives them an excuse. The fact that the Fourth Amendment was specifically designed to prevent arbitrary stops and searches was deemed unpersuasive,” Alexander wrote of the decision.

But approving pretext stops wasn’t even the most dangerous legal precedent set in Whren. The Court barred victims of a pretext stop from challenging the admission of evidence on Fourth Amendment grounds, thus ignoring Whren’s argument that police officers may decide which motorists to stop based on factors that should be constitutionally impermissible, such as race. Justice Antonin Scalia ruled, “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.”

Scalia’s ruling left people of color with “an onerous evidentiary burden,” Johnson wrote. The responsibility for proving racism was once again placed on the oppressed. Pointing out that the Court “failed to cite any cases supporting its conclusion that the Equal Protection Clause offered the exclusive constitutional remedy (or, at least, that it offered a remedy where the Fourth Amendment did not),” Johnson noted how difficult it is to prove discrimination under the Equal Protection Clause:

The Fourth Amendment’s exclusionary rule bars the use of unlawfully seized evidence against a defendant; there is no counterpart in the Equal Protection Clause of the Fourteenth Amendment. The inability to exclude the fruits of a stop based on impermissible factors under the Equal Protection Clause make any such claim of limited utility to criminal defendants like Whren and Brown, who wanted to avoid conviction and imprisonment, not to recover damages in a civil action for a violation of their constitutional rights.

By ruling that the Fourth Amendment offered no protection against a racially motivated traffic stop, the Court gave law enforcement officials its approval to racially profile motorists and “closed the courthouse doors to claims of racial bias,” Alexander wrote.

The law is supposed to protect the rights of individuals against state abuse. But these cases show how the law can be manipulated by those who wield power to uphold a system of racial hierarchy.

Photo: AP

CIA’s Human Rights Violations Honored By Fordham University

Students and faculty at Fordham University gather in orange jumpsuits to petition President McShane to revoke CIA Director John Brennan’s honorary degree. (Photo: Louie Dean Valencia-García)

Originally published at Huffington Post.

In May just before students and faculty left school for the summer – we are back now – Fordham University President Joseph M. McShane, S.J., announced his much anticipated response to the school’s human rights advocates: the Board of Trustees had voted not to revoke CIA Director John Brennan’s honorary degree. According to Bob Howe, McShane’s press secretary, the vote was unanimous.

After the release of the Senate Intelligence Committee’s report on CIA torture in December 2014, seven Fordham professors formed Fordham Against Torture (FAT), an ad-hoc committee that petitioned McShane with over 730 signatures to revoke Brennan’s honorary degree. It was awarded to Brennan in 2012 when he delivered Fordham’s commencement address, despite protests and a petition by faculty and students.

In his email to FAT, McShane wrote, “While the Board and I condemn torture and extrajudicial imprisonment in the strongest possible terms, as a public servant, Mr. Brennan does not set the policies that have led us to this place, but rather is responsible to the elected officials, including the President, who have. The President, his predecessor, and Congress are legally responsible for the creation of the policies you—indeed all of us—find so shocking.”

McShane’s response embodied classic institutional cover-up for wrongdoing (one often employed by the Obama administration): condemn the bad thing (We oppose torture) and offer a lukewarm excuse for not correcting it (Mr. Brennan isn’t responsible). It’s an easy way out, feeding the establishment media sound bites to make the administration seem morally righteous and free itself from responsibility.

Claiming that Brennan isn’t responsible for the reprehensible counterterrorism policies of the Bush and Obama administrations is like claiming that the FBI didn’t spy on civil rights activists. Brennan is widely known for developing “kill lists” of people targeted for assassination by the U.S. government and the controversial practice of “signature strikes,” drone strikes on unidentified people targeted for their behavioral patterns or for carrying a cell phone SIM card associated with an alleged “terrorist.” In a letter to the Ram, one of Fordham’s undergraduate newspapers, ex-CIA officer Ray McGovern – like Brennan, a Fordham graduate – wrote, “Brennan is now the administration’s strongest advocate of extrajudicial killing of U.S. citizens by drones.” That apparently doesn’t give McShane pause about honoring Brennan.

But even if McShane’s basis for not revoking Brennan’s honorary degree – that Brennan is not responsible for the creation of “shocking” policies – were true, his degree should still be revoked on the grounds that he didn’t, in protest of war crimes, refuse to carry out his superior’s orders. David Myers, history professor at Fordham, offered another reason for revocation on the basis that Brennan simply followed orders: “If you simply look at the last 40 years of this country’s history, subordinates or officers in the presidential administration have been held criminally responsible even though the president was directing them, even though they were just following orders.”

After citing the 1989 massacre of six Jesuits in El Salvador in which the CIA was complicit, McShane wrote, “Do not for a minute believe that honoring John Brennan is the same as honoring the institution for which he works, nor its checkered history.” The phrase “the institution for which he works” makes Brennan sound like some low-level CIA officer, furthering the narrative that Mr. Brennan isn’t responsible. The obvious truth is that John Brennan, arguably the architect of the modern-day CIA, runs the CIA and has directly contributed to its “checkered history.” So while honoring him in 2012 doesn’t honor a massacre in 1989 in which he probably played no role, it certainly does honor the human rights violations committed by the CIA since he began to hold high-level positions (in 1999, when Brennan was appointed chief of staff for then-head of CIA George Tenet). It is thus telling that McShane didn’t condemn any recent specific examples of human rights violations by the CIA, such as the more than 400 civilians killed by its drone program in Pakistan, because then he would have to admit to honoring a war criminal.

My initial reaction to McShane’s response was one of frustration and embarrassment for attending a university that honors a war criminal. Upon further reflection, I’ve realized that I have no reason to be embarrassed. What the Board of Trustees decides does not define Fordham. We, the students and faculty, define Fordham. And I couldn’t be any more proud to work with a community so dedicated to human rights and social justice.

Also, while you’re at it, get rid of Bill Cosby’s honorary degree, too.

Obama’s Crackdown on Whistleblowers: Petraeus Plea Deal Reveals Double Standard for Leaks

Photo: Chip Somodevilla/Getty

Photo: Chip Somodevilla/Getty

Originally published at Huffington Post.

“There are indeed consequences for those who believe they are above the laws that protect our fellow officers and enable American intelligence agencies to operate with the requisite degree of secrecy,” then-CIA director David Petraeus told his employees in 2012 of the successful conviction of CIA whistleblower John Kiriakou, the only government official to be jailed for any reason related to CIA torture. And in a 2010 interview with David Gregory on Meet the Press, Petraeus said of whistleblower Chelsea Manning’s leaking of classified war documents to WikiLeaks, “This is beyond unfortunate.  I mean, this is a betrayal of trust.” Kiriakou, after serving twenty-three months in prison, is currently finishing his three-month house arrest, and Manning is serving her thirty-five-year prison sentence.

Meanwhile, in March Petraeus agreed to a lenient plea deal which will likely only result in two years’ probation and a $40,000 fine for giving classified information to his mistress and authorized biographer Paula Broadwell. He also has, as the New York Times‘ Matt Apuzzo writes, “a lucrative post-government career” as a partner in a private equity firm. Not only does Petraeus go on speaking tours about national security, but he has also continued to advise the Obama administration on its strategy in Iraq. This stark difference in the way government officials are prosecuted and treated after leaking classified information reveals a double standard for leaks: serious criminal consequences are brought on only those who expose government wrongdoing.

High-level government officials like Petraeus are immune from these consequences because the information they reveal is in the government’s interest. By contrast, low-level employees (like Kiriakou, Manning and NSA whistleblower Edward Snowden) who reveal government corruption, abuse and wrongdoing are prosecuted to the fullest extent because the government wants this information kept secret, and because these low-level employees don’t have the political resources and connections to fight back. The government uses these prosecutions as a method of deterrence for future whistleblowing, giving the message that if you leak classified information that makes the government look bad, you will spend time in prison. (Luckily for the public, this threat didn’t deter Snowden: since the day he went public via the Guardian, he has said numerous times that he is willing to face any consequences provided that he is guaranteed a fair trial.)

Government officials leak classified information without authorization to journalists all the time. But this information makes the administration look good. It details successful military operations overseas or productive discussions with foreign governments. For example, the Obama administration has been accused of intentionally inviting a filmmaker of Zero Dark Thirty, a film spewing U.S. war propaganda, to a talk by former CIA director Leon Panetta who disclosed classified information. Panetta was never prosecuted.

Neither was James Cartwright, a retired Marine general who gave highly classified information to a Times reporter about a joint U.S.-Israeli effort to cripple Iran’s nuclear centrifuges through a cyber attack. The information he leaked is not very different from that leaked by Jeffrey Sterling, an African American CIA officer convicted in January for leaking classified information to Pulitzer Prize-winning Times reporter James Risen about a CIA effort to undermine Iran’s nuclear program. In March, Sterling’s lawyers requested a reconsideration of his conviction considering the lenient treatment given to both Petraeus and Cartwright. “The principal difference between Mr. Sterling and Generals Petraeus and Cartwright are their respective races and rank,” Sterling’s lawyers argue. “Like General Cartwright, General Petraeus is a white, high ranking official […] The government must explain why the justice meted out to white generals is so different from what Mr. Sterling faced.”

As investigative journalist and Intercept co-founder Jeremy Scahill said at the paperback launch of his book Dirty Wars “[current CIA director] John Brennan leaked so much after the Osama bin Laden raid that I wanted to buy him a Depends diaper.” Every detail leaked to the press by Brennan about the bin Laden raid turned out to be false. He revealed them to make the story more jingoistic, to make the military look good. But he was never prosecuted or held accountable for leaking this classified – albeit false – information.

There is another important difference in how the double standard works: unlike Petraeus and Cartwright, low-level whistleblowers get charged with violating the Espionage Act of 1917. The Justice Department under President Obama has used the Espionage Act seven times (Thomas Drake, Shamai Leibowitz, Manning, Stephen Kim, Sterling, Kiriakou and Snowden) in leak prosecutions – more than double the three times that all prior administrations combined have used it. Violating the Espionage Act is a strict liability offense, which means that you can’t mount a defense, so a court cannot consider a person’s intent for leaking classified information. As Jesselyn Radack, a lawyer for Snowden, Kiriakou and Drake, said on Democracy Now!, “It does not matter whether you were leaking secrets to a foreign enemy for profit or whether you were giving information to journalists in the public interest to give back to the people who have a right to know what’s been done in their name.”

No one in government raises an eyebrow when propagandist information is leaked to the media. This is exactly the information that the government wants the public to know. In this environment of state-sponsored journalism wherein the only information leaked to the public is that which the government authorizes the public to know, we as members of the public must demand transparency and accountability. This is why independent journalism – which should be inherently adversarial to the state – is so utterly necessary. It serves as the only challenge to the government’s line. Otherwise, high-level officials like David Petraeus are free to profit from selling propaganda (“The hard-earned progress of the Surge was sustained for over three years”) and lies about the U.S. government while Chelsea Manning faces three decades in prison for exposing the wrongdoing that people like Petraeus wish to keep secret from the public.