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The real state of the union: Civil liberties

Before the president’€™s speech, we invited 30 experts to offer straight assessments of the state of the nation in the form of brief reports, by subject. Keep returning for updates

State of the Union 2014
Barack Obama

On Tuesday night, President Barack Obama will give his State of the Union address, fulfilling the Constitution’s mandate and American tradition. In preparation for the speech, we asked 30 authorities to offer their brief thoughts on the many subjects that touch on our country’s predicament. On this page, you can read their views on civil liberties. 

For their perspectives on the economy, click here.

For their perspectives on foreign policy, click here.

For their perspectives on education, immigration and the environment, click here.

We will be publishing these reflections on a rolling basis, so keep coming back for more.

Elizabeth Goitein
Paul Morigi

The state of the union — more precisely, the state of its citizenry — is watched. In 2013 a string of disclosures revealed that the National Security Agency (NSA) collects and stores digital reams of information about ordinary Americans. The NSA’s activities include the bulk collection of our telephonic metadata and the “incidental” but routine collection of our telephone and email content.

The scale of collection dwarfs the domestic spying conducted by intelligence agencies during the early decades of the Cold War. The infamous abuses of that era, including the targeting of activists like Martin Luther King Jr. led to laws and policies barring intelligence agencies from collecting Americans’ information without reason to suspect illegal activity. Those rules were gutted after 9/11, paving the way for today’s surveillance.

The government attempts to reassure us by citing its internal oversight mechanisms and the lack of evidence (thus far) of willful overreach. But any system that relies so heavily on self-policing courts failure. Technologies have changed since FBI Director J. Edgar Hoover’s tenure, but human nature has not. Ambition, fear, pettiness, prejudice and ideological zeal have led officials to abuse powers far less potent and tempting than those the NSA possesses. The risks are high, and the benefits of a dragnet approach are unproven at best.

Nearly half of Americans remain unfazed by NSA surveillance, confident that they have nothing to hide. But their innocence will not protect them against a computer erroneously flagging them as suspicious or against a powerful official deciding that their social or political views present a threat.

The window of opportunity to rein in these activities is small and closing. If Congress and the public give their blessing to the recently revealed programs, they will become the new baseline for permissible surveillance. We must decide now whether we want our union to become a surveillance state.

Elizabeth Goitein co-directs the Liberty and National Security Program at New York University School of Law’s Brennan Center for Justice.

Chase Madar
Courtesy of author

The ever-less-metaphorical war on drugs in the United States is a brutal failure. It has damaged far more lives than it has protected and singles out working-class Americans, especially blacks and Latinos, for especially harsh treatment. There are more than 3,000 Americans serving life terms without a chance of parole for nonviolent drug crimes. Some of these crimes are as trivial as having one gram of meth, trace elements of heroin or $10 worth of marijuana. These unfortunates are only a fraction of some half a million people locked away for drug offenses, a subclass created by multiple-offender laws, federal mandatory minimum sentences and often predatory policing.  

The Obama administration has failed to address this everyday crisis. Policies have not changed, and pardons and commutations have been limited to a miserly trickle. Worse, Obama’s Department of Justice has intensified raids of medical-marijuana dispensaries in states where they are legal.

There is, fortunately, some push-back: A growing number of state and local governments have partially decriminalized marijuana; Colorado and Washington have legalized it. Even Rick Perry, the far-right governor of Texas, has initiated the partial decriminalization of marijuana. Obama’s response has been muted, informing one journalist recently that though he supports some of these policies, decriminalization “is not a panacea.” No kidding! 

Although ending this failed campaign won’t fix the U.S. criminal-justice system, it’s still critically important. The war on drugs has paved the path for the criminalization of schools, of immigration and of other everyday facets of American life. Drawing down the war on drugs would be a terrific place to roll back the overpolicing that is turning the United States into a new kind of police state. This is not hyperbole: Our incarceration rate is nearly triple the peak rate of the old East Germany. Would it be too much for Obama to exercise a little executive leadership?

Chase Madar is an attorney in New York and the author of “The Passion of (Chelsea) Manning: The Story Behind the Wikileaks Whistleblower” (Verso, 2013).

Jill Filipovic
Ryan Muir

Women’s physical and financial health is at stake in 2014, with the GOP set to make abortion a major issue in the midterms even at the expense of the still flailing economy. Their efforts pose a grave threat to gender equality.

The United States enacted more anti-abortion laws in the past three years than in the previous 10. At the federal level, House Republicans are working to pass the No Taxpayer Funding for Abortion Act, a bill that does pretty much what the name says. They do not seem to care that there is already a federal law — the Hyde Amendment, passed in 1976 — that prohibits federal funding of abortion and makes their bill largely redundant.

Hyde and its copycat bill largely affect poor women, leaving them with few options for coping with unwanted pregnancy. We cannot address inequality in this country without acknowledging that lack of access to birth control and abortion are major drivers of female poverty and social immobility. Women who are denied abortions are three times more likely to be below the poverty line two years later than women who are able to terminate their pregnancies. And too many low-income women are stuck in the Medicaid health coverage gap and unable to access the health care they need.

Supporting reproductive health extends to support of parenting. That means making sure childbirth will not break the bank as well as expanding state-subsidized child-care programs, adequate education funding and universal pre-K. It also means a living wage. No one should have to work three jobs just to put food on the table, least of all someone who is trying to raise their kids on their own. Finally, it means enforcing fair labor and wage-equality laws. Women — and especially mothers — continue to make less money than men, even for the same work.

Reproductive health care and gender equality are cornerstones of any attempt to promote social mobility. The Republican hostility toward women’s physical and financial health does not just hurt their bodies and pocketbooks; it also damages their families, freedom and the economy as a whole. 

Jill Filipovic is a lawyer and writer. She blogs at Feministe and is a weekly columnist at The Guardian. 

Natasha Lennard
Courtesy of author

In this age of unbounded, unending war, the state of the union is a state of exception.

States of exception, as described by Italian philosopher Giorgio Agamben, are times of increased executive power grounded in moments of crisis (historically war) that enable sovereign powers to withhold or suspend rights normally afforded its citizens. What Agamben noted of the George W. Bush era — and what remains true — is that the state of exception has transcended specific terrorist threats and become the norm.

Our prevailing state of exception is best illustrated by the shape of the ill-defined war on terrorism. Creeping shadow drone wars and massive surveillance, built on vast dragnets, transmit a clear message about the state of our union today: In a war without end, border or front line, we are all always already potential threats, potential targets. Our national security state is now structured around this fact. A totalized state of surveillance, justified by hackneyed and demonstrably false claims to national security measures, undergirds the state of the union.

Obama stands in a line of presidents who have grounded the extension of executive powers — over life, death, freedom and privacy — in the necessities of wartime. Lincoln, after all, authorized the suspension of the writ of habeas corpus along the military lines between Washington and Philadelphia, without congressional approval. Agamben, in fact, called the Great Emancipator an “absolute dictator.” Franklin D. Roosevelt appealed to the rhetoric of war in 1933 to push through the New Deal.

The interminable war on terrorism continues to enable the president to appeal to emergency powers at the expense of civil liberties. Without an end to this constant state of exception, untold abuses of power remain inscribed in the state of the union. 

Natasha Lennard is a writer at Salon, covering civil liberties, dissent, nonelectoral politics and rabble-rousing. She works on special projects for The New Inquiry.

Laura Rena Murray
Courtesy of author

There’s no doubt that the past year brought victories small and large for lesbian, gay, bisexual and transgender Americans. After 17 years, the U.S. Supreme Court struck down the Defense of Marriage Act, a law that barred same-sex married couples from receiving federal marriage benefits. Since Massachusetts legalized gay marriage in 2004, 18 more states and Washington, D.C., have worked to strengthen families through marriage equality. (Court rulings in Oklahoma and Utah have been stayed, pending appeal.) And the Senate passed the Employment Non-Discrimination Act, though the House has yet to do the same. Sixteen states outlaw discrimination against Americans because of their gender expression or identity. Even the private sector has embraced gay rights: Some 90 percent of Fortune 500 companies have policies prohibiting discrimination based on sexual orientation.

The challenges are far from over, though. Real reform means fixing the immigration system to extend rights for binational LGBT couples by granting visas to couples in states where they were legally married. Real reform also means ensuring that every American lives free from the threat of violence. Four months ago, 21-year-old Islan Nettles was brutally murdered in New York because she was transgender. Rates of anti-LGBT violence have increased, and the number of homicides in 2012 was the fourth highest ever recorded. The Shepard-Byrd Act of 2009 expanded federal law to include bias-motivated hate crimes on the basis of a victim’s actual or perceived gender, sexual orientation, gender identity or disability. However, only 15 states have laws that address hate crimes on the basis of sexual orientation and gender identity, and only 57 percent of Fortune 500 companies have policies prohibiting discrimination based on gender identity. Fortunately, polls show 73 percent of voters supported protecting LGBT people from workplace discrimination.

Real reform also means housing the 68 percent of LGBT kids who are kicked out of their families and homes because of their sexual orientation. Forty percent of America’s homeless youth identify as lesbian, gay, bisexual or transgender. What’s more, LGBT youth are four times as likely to attempt suicide as other young people. Forty-one percent of transgender people have attempted suicide, compared with 1.6 percent of the general population. Until we make America safe for all youth, we cannot claim to have made real progress. 

Laura Rena Murray is a San Francisco–based investigative journalist and one of the founding journalists of Uncoverage, a new crowdsourcing platform for investigative journalism.

Abe Sauer
Courtesy of author

“We have weathered the storm,” said Steve Sanetti, president and CEO of the National Shooting Sports Foundation, the firearms industry’s lobbying group, two weeks ago at the Shooting, Hunting, Outdoor Trade Show. And he was right. The show set a new attendance record. 2013 gun sales also set new records. Attempts to implement gun control failed nationally; the NRA’s “good guy with a gun” solution has become a wedge issue for Tea Party activists to challenge moderate incumbents and even resulted in the recall of state legislators who were successful in shepherding some regulations through.

Eight kids are still shot every day in America. A review published in the Annals of Internal Medicine found that gun access directly correlates to being twice as likely to be the victim of a homicide. School and workplace shootings have continued unabated since Sandy Hook. And yet no meaningful gun legislation has been passed.

But amid the bleakness that permeates America’s unchecked culture of the gun, there is some hope. In Texas, Travis County just took a brave stand to terminate its partnership with Saxet, one of the state’s largest gun-show organizers, after it refused to implement checks on all gun sales and transfers, including private sales. It cost the county $100,000 in uncollected taxes. The effort to challenge Saxet was led by a group called Moms Demand Action, formed in the immediate aftermath of the Sandy Hook shooting. The grass-roots group already claims 130,000 members. What’s more, it presents a flummoxing opponent for the NRA because instead of eggheads and “libtards,” it’s made up of moms. How does one smear a mom?

The industry congratulated itself for weathering the storm. But if there is one sad thing that we can be assured of, it’s that 2014 will almost certainly bring another storm. As will the next year and the year after that. And the year after that. 

Abe Sauer is the author of “How to Be: North Dakota” and “Goodnight Loon.” He writes frequently about gun culture at and is a concealed-carry weapon permit holder.

David Cay Johnston
Cheryl Amati Martin

Now that the war on terrorism is winding down and the dividends of peace may be reaped, it is time to shift U.S. law-enforcement efforts toward the most critical problem of the past decade: the epidemic of white collar fraud that led to the 2008 financial crisis and subsequent Great Recession.

Since the White House is unable to get initiatives through Congress, it should do this by taking executive action and devoting resources to pursuing high-level criminals instead of cheap and easy cases against small fry.

FBI’s recent change in mission statement from “law enforcement” to “national security” should be rescinded. Thousands of FBI agents assigned to terrorism after 9/11 should return to investigating the various frauds that wrecked the economy and may do so again in the future.

The IRS and the Securities and Exchange Commission should pursue the highest-level frauds, rewarding whistle-blowers generously while relegating minor cases to the back burner.

If Americans believe in equal justice, not partial justice for Wall Street executives, the immediate resignation of Attorney General Eric Holder, who told the Senate he is afraid to prosecute the big banks (and is now trying to walk that back), should be demanded.

To return integrity and trust to financial markets — crucial to widespread prosperity — the president should nominate law Professor William K. Black as attorney general.

Who is Black? He is the bank regulator whose diligence resulted in 1,000 felony convictions of high-level insiders during the savings-and-loan scandals of the late 1980s and early 1990s. Black’s specialty is control fraud, in which executives convert an honest business, through various tried-and-true fraud mechanisms, into a criminal enterprise.

Although Congress has been uncooperative with confirming nominees, if legislators value the integrity of markets and economic prosperity, they must go along.

David Cay Johnston, an investigative reporter who won a Pulitzer Prize while at The New York Times, is a best-selling author who teaches the business, tax and property law of the ancient world at Syracuse University College of Law.