Vol. 14, Nos. 43 & 44
Covering Cases Published in the Advance Sheets through Oct. 29, 2007

Supreme Court Agrees to Rule on District of Columbia's 30-year Old Ban on Handguns

Court Rejects DEA Request to Use a Cell Phone to Track a Drug Suspect

Second Circuit Rejects Muslims' Civil Rights Claims Over Searches, Detention at Border

Court Voids BOP Regulation Banning Inmates From Publishing Under a Byline

In Re United States, C.A. No. Misc. 07-127/8/9 (S.D.Tex. Nov. 7, 2007) (Magistrate Judge Owsley)

The ongoing debate about amending FISA and other laws that affect the Government’s ability to eavesdrop on suspected terrorists has effectively hidden from public view Government’s growing practice of using unlawful surveillance in non-terrorist cases. It is becoming increasingly clear, however, that the Government has been aggressively ignoring the law even when spying on persons suspected of engaging in non-terrorist activities - and those illegal surveillance tactics are quickly becoming the norm.

In early November, Magistrate Judge Brian Owsley of the Corpus Christi division of the S.D.Tex. issued stinging rebukes to the DEA in three brief orders he issued in denying identical requests by a DEA agent for Orders “(1) authorizing the installation and use of a pen register and trap and trace device; (2) authorizing release of subscriber and other information; and (3) authorizing the disclosure of location-based services.”

Judge Owsley noted that the agent had simply alleged that the subject trafficked in narcotics and money laundering, and that he used the phone to do so. The agent then concluded in summary fashion that the DEA had “identified’ or ‘determined’ certain matters.”

In a caustic response, Judge Owsley wrote that “these identifications, determinations or revelations are not facts, but simply conclusions by the agency.” For all those reasons, Judge Owsley rejected the DEA’s efforts to obtain the requested Orders, stating that the agent’s affidavit:

“fails to provide any information to support the assertion that the Subject is using the Target Device, or that the Target Device is being used in the criminal enterprise. Moreover, the affidavit simply alleges that the Subject is engaging in narcotics trafficking and money laundering. It fails to focus on specifics necessary to establish probable cause.”

The three DEA applications that Judge Owsley addressed are, sadly, no longer the exception: they have become the norm. In a front-page article entitled "Cellphone Tracking Powers on Request: Secret Warrants Granted Without Probable Cause," that was published in the Washington Post on Nov. 23, 2007, staff writer Ellen Nakashima reported that:

“Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data so they can pinpoint the whereabouts of drug traffickers, fugitives and other criminal suspects, according to judges and industry lawyers.

“In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime. Privacy advocates fear such a practice may expose average Americans to a new level of government scrutiny of their daily lives.”

It is not surprising that the Government has expanded its lawless surveillance tactics in fields other than terrorism. After all, neither Congress nor the courts have shown much willingness to stop the Administration from arrogantly flouting the law in its war on terrorism; so why not use those same tactics when pursuing other suspected criminals. But, what is surprising is how quickly those unlawful practices have spread to other law enforcement agencies and have so permeated their investigative tactics that they have become “routine.” It is both a disgrace and a tragedy.

Tabbaa v. Chertoff, No. 06-0119-cv (2nd Cir. Nov. 26, 2007) (Judge Straub)

Over the Christmas holidays in 2004, some 13,0000 Muslims from across North America traveled to Toronto, Canada to attend a Muslim conference known as the Reviving the Islamic Spirit (“RIS”) conference in the Toronto Skydome. The three-day conference involved “religious and cultural activities, musical performances, a series of prominent Islamic speakers, and communal prayer three times a day.” But the Bureau of Customs and Border Protection (“CBP”) suspected that something more sinister was taking place, after it received some intelligence reports indicating that the RIS conference would also serve as a meeting place for terrorists.

Relying on that intelligence, customs officials were instructed to take travelers who said they attended the conference to a separate area in the customs facilities, where the travelers were subjected to special screening methods. As a result, the five plaintiffs - all Muslim citizens with no criminal record or individual connection to terrorism - each spent four to six hours being detained, searched, questioned, fingerprinted, and photographed on their way back from the RIS conference.

The five individuals filed a civil rights lawsuit against various Government officials and agencies, claiming that the government’s decision to subject them to the same sort of border search as suspected terrorists, based solely upon their attendance at a religious conference, violated the First and Fourth Amendments, as well as various federal statutes, including the Religious Freedom Restoration Act (“RFRA”).

The district court (Judge William Skretny of the W.D.N.Y.) granted summary judgment for the defendants, reasoning that the CBP's actions did not violate the Fourth Amendment because the searches were not so invasive as to be beyond the type of "routine" border searches that do not require reasonable suspicion or probable cause. He further concluded that the Government’s interest in border control outweighed the intrusion to the plaintiffs; and he wrote that the detentions were “unfortunate,” but not unconstitutional.

On appeal, the Second Circuit affirmed the dismissal of the lawsuit. On the plaintiff’s Fourth Amendment claim, the Court conceded that since the plaintiffs had been subjected to “a form of border processing normally reserved for suspected terrorists,” it was “not unreasonable for plaintiffs to have felt there was a stigma attached to the searches.”

However, the Court also stated that suspicionless searches at the border are permissible under the Fourth Amendment so long as they are considered to be "routine.” Then, looking at the evidence in this case, the Court then concluded that “none of the specific measures taken by CBP was more invasive than the types of searches at the border that courts have regularly held to be routine.”

The plaintiffs also asserted a First Amendment claim, based on an infringement of their right to association. The Court acknowledged that had “suffered a significant penalty, or disability, solely by virtue of associating at the RIS Conference: they were detained for a lengthy period of time, interrogated, fingerprinted, and photographed when others, who had not attended the conference, did not have to endure these measures. . . . . Thus, we find that the burden on plaintiffs' associational rights was sufficiently ‘significant’ to implicate the protections of the First Amendment.”

Nevertheless, the Court agreed with the District Court that the Government has a compelling interest in protecting against terrorism, and that it could not have achieved that interest ‘through means significantly less restrictive of [plaintiffs'] associational freedoms’.” Thus, it affirmed the district court's grant of summary judgment on plaintiffs' freedom of association claim.

Finally, the Court addressed the plaintiffs’ claims under the RFRA. That Act provides that the federal government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except . . . if it demonstrates that application of the burden to the person . . . (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling government interest." (42 U.S.C. § 2000bb-1).

In the end, the Court concluded that the plaintiffs’ RFRA claim failed for the same reasons that their First Amendment claims had failed, namely “given the intelligence the government received, subjecting RIS Conference attendees to enhanced processing at the border - including fingerprinting and photographing - was a narrowly tailored means of achieving the government's compelling interest in protecting against terrorism.”

Whatever the legal reasoning, it is clear that Muslim - including Muslim citizens - face an up-hill battle to be treated equally under the law; and that condition will probably continue for a long time to come.

Jordan v. Pugh, 504 F.Supp.2d 1109 (D.Colo. Aug. 9, 2007) (Judge Krieger)

In a ruling that is, at times, amusing, Judge Marcia Krieger of the D.Colo. struck down as unconstitutional a rule that the Bureau of Prisons (BOP) has considered inviolate since it was first promulgated in 1979 - namely 28 C.F.R. § 540.20(b) which provides that an “inmate may not act as a reporter or publish under a byline” (the “Byline Regulation”).

Judge Krieger not only concluded that the Byline Regulation “violates the First Amendment rights of Mr. Jordan, other inmates in federal institutions, and the press” (id., at 1126), but she also enjoined the BOP from punishing any inmate for violating 28 C.F.R. § 540.20(b).

The plaintiff in this case, Mark Jordan, is an inmate at the BOP’s supermax facility in Florence, CO. In 2001, he authored two articles, one under his own name and one under a pseudonym, which were published in Off! magazine, a publication of Off Campus College at the State University of New York. In the first of those articles, Jordan criticized the criminal justice system and his conditions of confinement, including his treatment by the BOP staff. In the second of those articles, Jordan criticized the DNA Backlog Elimination Act of 2000, U.S. law enforcement schemes, and prison officials.

After Jordan wrote those articles, he was punished by the BOP for “Unauthorized Contact with the Public” and for “Conduct which Disrupts or Interferes with the Security or Orderly Running of the Institution.” After exhausting his administrative remedies, Jordan filed the instant civil rights suit pursuant to 42 U.S.C. § 1986, challenging the Byline Regulation on several grounds; and he sought, inter alia, a declaratory judgment that the Regulation was unconstitutional on its face and as applied to him.

Jordan’s lawsuit was initially dismissed on highly technical grounds, in a decision reported at Jordan v. Pugh, 425 F.3d 820 (10th Cir. Sept. 21, 2005) ("Jordan I") (P&J, 10/24/05); but he was persistent and finally got his day in court - a bench trial in the issues he raised.

Although one can imagine many reasons why the BOP would want to suppress any public dissent coming from the inmates it houses, the official - if implausible - explanation given for the existence of the Byline Regulation was that “inmates who might be offended” by the contents of such articles “could identify the author, creating a security risk.” (Jordan I, id., at 823).

Unfortunately for the BOP, one of the witnesses in this case, a Mr. Bair, forgot the party line and did some formidable damage to the BOP’s rationale about the Byline Regulation. Mr. Bair, a former prison warden and a retired criminal justice professor, testified that “there is no historical data to support the proposition than an inmate who publishes will constitute a security risk.” (Id., at 1113). In true Government-arrogance style, the BOP never even attempted to rebut Mr. Bair’s testimony. (Id., at 1120).

Judge Krieger was sharply critical of the BOP’s evidence and its reasoning. She called the BOP’s evidence “speculative” (id., at 1123); and she flatly concluded that “there is no logical connection between the blanket restrictions on outgoing news media correspondence and prison security.” (Id., at 1125). The essence of her ruling, however, was her alert distillation of the real impact of the Byline Regulation on Federal inmates:

“In contrast, the effect of the Byline Regulation is to limit or discourage inmates from submitting their writings to the news media for publication (hereinafter, such correspondence is referred to as "outgoing news media correspondence"). This is because the inmate is punished for the publisher's act of publishing the article under a byline, but the inmate cannot control whether a writing is published or published under a byline once it is submitted to a news media source. It is the news media source, not the inmate, that decides whether the inmate's submission is published and whether a byline is used. Thus, the only way that an inmate can be sure that he or she will not violate the regulation, is not to submit a writing to a news media source for publication in the first place.” (Id., at 1117).

Thus, in a small but important victory for the First Amendment rights of inmates, Judge Krieger held that the Byline Regulation is unconstitutional. Since our current Government thrives in secrecy, we assume this decision will be appealed. After all, think of all the embarrassing stories that inmates might start telling!

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