Saturday, July 27, 2013

Not-So-Supreme Decisions

June is always a busy month for observers of the U.S. Supreme Court.  It is the end of the annual judicial term, and the Court often announces its “blockbuster” decisions at that time.  This year four decisions were announced on some of the most contentious and sensitive issues around.  But what was also most interesting was not just what the Court decided, but what they did NOT decide.

Take Affirmative Action (AA).  AA is a “judicial remedy” that came out of the civil rights movement in the 1960s.  It requires entities guilty of past discrimination to make up for and remedy it by over-compensating the future hiring or placement of the class of discriminated victims.  To its supporters, it has been a major tool over the past 50 years to successfully correct many workplace discrimination abuses.  To its critics, favoring one race over another – even for corrective or noble purposes – is yet more discrimination on its face, two wrongs making no right.  There is also a belief that AA’s objectives of equal treatment and opportunity have been achieved in today’s workplace reality, and so the use of the tool should be ended.

The University of Texas-Austin uses racial mix as a criteria to create a diverse student body, believing that exposure to diverse peoples is a major benefit from a college education.  A lower federal court accepted UT’s defense that race was a “last resort” criterion to achieve its diversity aims.  Several members of the Supreme Court expressed critical opinions about this use of Affirmative Action, thereby putting higher education “on notice” to proceed with caution.  But in the end, they did not overturn the UT practice.  They merely sent the case back down to the lower court to re-review “with greater scrutiny and skepticism.”  It was a warning shot across the Affirmative Action bow, though not a fatal blow.  But clearly AA is now a tool to be used carefully and infrequently.  In the end, racial outcomes and fairness will still be the concern.  And other examples of AA’s uses will come to the Court once again to be tested.

Another issue from the 1960s was with the Civil Rights Act of 1965.  That law made possible an enormous expansion of voter participation from racial minorities.  It included a provision that some specified state and local entities that had a long history of racial discrimination in voting would have to have any change in their voting laws pre-cleared by the U.S. Department of Justice (DOJ).  Such pre-clearance thereby prevented many continuing attempts to circumvent the free expression of voting rights.  Congress has near-unanimously renewed the law on multiple occasions ever since its initial passing.

50 years later, the Court determined that the objective of this provision had been achieved for some of the listed entities.  African-Americans now out-vote their White counterparts in many of these jurisdictions, and are now heavily represented in public offices.  Meanwhile, there are some wholly new jurisdictions that have their own new set of issues.  So the Court said that the old list of named entities was outdated, had to go, and communities should not be held captive interminably to past mistakes of 50 years ago.

It is a reasonable and fair legal conclusion on its face.  The Court actually left the pre-clearance feature in place.  It just required a new list of discriminating entities based upon current data and conditions across the country.  It also left intact the DOJ’s ability to sue entities for current discriminatory practices.  So contrary to many editorializers, the Court did not “gut” the Voting Rights Act.
The problem is a logistical one.  And it is a serious problem.  A revised list of offending entities must come from Congress.  And as we know, our current Congress is incapable of passing anything meaningful.  So no new list is likely forthcoming, much less imminent.  Further, lawsuits filed case-by-case after the fact is long, slow, expensive, and laborious.  How the DOJ will react to the flood of new voter ID laws, gerrymandering of voting districts, and other nonsensical actions now racing through various statehouses is hard to predict.  The Supreme Court may have ruled.  But the jury is still out on whether they will be able to succeed in bringing the law into “current reality.”

Which brings us to the two big decisions around same-sex marriage.  One was the California “Prop 8” ballot initiative the voters passed to ban such marriages. The Court had an option to issue a comprehensive ruling about the constitutionality of barring same-sex marriages, but chose not to.  Instead, they made a narrow technical ruling that these particular plaintiffs had no legal standing to sue to overturn the lower court ruling that invalidated Prop 8.  So it essentially threw out the case and said nothing about whether or not same-sex marriage is universally constitutional.  It opted to wait awhile longer for more of American society to collectively move further on this issue.  But this issue will be back on their doorstep.  In the meantime, California has now joined the growing ranks of states allowing such marriages.

The more interesting ruling was on the Defense of Marriage Act (DOMA) passed by Congress in the 1990s.  DOMA prevented federal benefits and guarantees that are given to “married couples” from being extended to legally married same-sex couples.  DOMA was struck down for same-sex couples living is a state that legally recognizes their marriage.  For this Court, marriage is a marriage is a marriage.  It does not come in gradations.

As expected, the conservative Right went apoplectic over this one.  The supposedly “conservative-friendly” Court had once again – after approving Obamacare – failed them.  Yet the very great irony on this decision is that the ruling was based upon accepting one of the conservatives’ most prized ideals – states’ rights – and then turned that idea on its head.  Each state has always been the primary defining authority of who is “married” within its jurisdiction.  13 states now consider same-sex marriages as fully legal.  Hence, in acknowledging the primacy of the states on this topic, the Court said the federal government has no right to discriminate (or de facto invalidate or override) such state decisions!  For conservatives, it was a classic example of “be careful what you ask for.”

But once again, what was left unanswered?  De facto, the Court recognized the legality of same-sex marriage in those states where they have been authorized.  They have not yet ruled on whether the remaining states can prohibit such marriages – just as the court was called upon to rule 50 years ago regarding laws banning interracial marriage.  Further, states have always had reciprocal agreements among themselves to honor marriages conferred in other states.  So when a legally married same-sex couple in Massachusetts moves to North Carolina, where such marriages are now prohibited by a state constitutional amendment hurriedly passed in 2010, will their marriage still be considered legal?  Will DOMA then intercede and become valid and still apply to this North Carolina couple?  This is the next case coming to the Court.

Stay tuned.  None of these Rights and Citizenship issues is done quite yet.  The Court is not done quite yet.  We are not done quite yet.

©2013 Randy Bell

Friday, July 5, 2013

The Secret About Secrets

Recently, a reader wrote to me asking about my thoughts on the NSA revelations and the whistleblower.  My response was not quickly forthcoming, as I feel drawn in multiple directions by its several implications.

The first issue is the accusation of governmental spying.  If the nature of the National Security Agency’s activities is as reported, then it is questionable to describe it as “spying.”  The agency is gathering together existing data from commercial communications networks and loading it all into one super-database.  The stated intention is that if a terrorist threat arises, this database would facilitate quickly identifying linkages among potential suspects.  No phone conversations are listened to; no emails are read.  NSA is simply gathering together and logging existing information.  To take this second step requires a court-ordered warrant as is standard for any other review of otherwise confidential personal information.  No new data has been created.

We already have much personal information that we have surrendered to thousands of computer networks.  Information that is tracked long after its moment of creation.  Information that is available in criminal investigations when proven justified.  As long as a court warrant stands between the details of this information and law enforcement, it is hard to see how the fact of my phone call (versus the content) differs from records of my fingerprints, bank and credit card transactions, my motor vehicle and driving records, or the frequency of my voting (versus who I voted for).  Or the new databases of DNA data.

The counterforce to our privacy rights is the very real threat from terrorists.  Americans have become very fearful of various physical and mental threats over the past two decades.  And more desirous of avoiding even the natural risks of life, much less the crimes of terrorist actions.  Hence more demands for “guaranteed safety” – a goal that is not at all achievable.  We see this evidenced in all the finger pointing that goes on after a terror incident (e.g. in the aftermath of the Boston Marathon bombing).  The expectation of absolute safety keeps rising even as the techniques of the terrorists grow ever more sophisticated and pervasive.

In some instances, our fears have led to an excessive surrender of our rights of privacy.  Hence my strong abhorrence of the post-9/11 “Patriot Act” that was not at all patriotic.  But some surrender is required.  It is the reality of the global linkages and terrorist partnerships that exist in today’s digitally-connected world.  If we keep demanding greater protection, then we have to grant greater access to the available tools that can provide that protection.  This is going to be a delicate balancing dance we will be performing for the foreseeable future, an improvised dance as situations arise each day.

Which brings us to the issue of secrets and whistleblowers.  Not everyone in the world is our friend.  We need to not create enemies and false demons where they do not exist.  But we do need to respond appropriately to those who genuinely intend to harm us.  How we go about that response must, at times, be kept secret in order to be effective.  The surprise attack is still often more effective than the frontal assault.  These defensive tactics are valid “national security secrets.”  Unfortunately, we have a penchant for over-classifying too much information as “secret.”  When that over-information is revealed by a courageous whistleblower, I applaud those efforts.  That light of transparency keeps lesser men and women from hiding their corrupt and self-interested actions.  But when someone inappropriately reveals genuinely secure information, especially when it endangers the lives of people who live every day in personal risk as they work to protect the public, then that is not being a “whistleblower.”  That is someone putting personal self-righteousness ahead of reasonable judgment about consequences.

Over 40 years ago, Pentagon analyst Daniel Ellsberg released “The Pentagon Papers” – a secret historical analysis commissioned by the Pentagon that ultimately documented the lies and underhanded hidden dealings that contributed to the morass of the Viet Nam War.  Yet there was no security apparatus or spy operative names or public safety tactics revealed by that release.  The information made public served to inform the debate while jeopardizing no one’s safety.  After Ellsberg made his revelation, he then nobly stood to face the consequences of his actions against the American legal system.  I continue to regard Daniel Ellsberg very highly for his reasoned action and his willingness to take ownership for what he did.

No so with this NSA release.  Edward Snowden is not a whistleblower.  He is a criminal who violated his signed oath of confidentiality without regard for his consequences, or without consideration of a balanced review of rights versus safety.  He has acknowledged that he sought his NSA job specifically to access these secrets in order to reveal them to the American public.  Yet the information has also simultaneously gone to unfriendly terrorists and foreign governments.  He dumped the information out, then ran off seeking asylum from countries who are the epitome of government secrets and a lack of freedom of speech and press.  He is not the whistleblower who reveals corporate pollution, false drug research trials, or political corruption, and thereby stimulates needed correction.  Instead, his actions have endangered the lives of many innocent people.  He is the wrong person on the wrong topic at the wrong time with the wrong outcomes.

Balancing rights versus safety, privacy versus citizen responsibility, whistleblowing versus treason, is very hard.  In this particular instance, I am willing to call reasonable a database that only tracks instances of data, versus listening to my conversations which is unreasonable.  I am willing to give credence to the oversight of the courts and to the bipartisan support from Congressional leaders who have known about and monitored this program since its inception.  But this acceptance is not a blanket one.  It is still a case-by-case discussion, and an assessment of each person-by-person whistleblower.  And unless it is absolutely otherwise necessary, the default remains for the government to stay out of my personal life.

The true overriding “big picture” issue here is the idea of secrets themselves.  We increasingly live in a “tell-all” Facebook age where sharing the details of our lives – even with near-strangers – has become the expectation.  Post-Woodward & Bernstein, the media builds upon that new culture and presumes how dare one not be forthcoming to any question they ask – whether pertinent or not.  And all conversations within government are expected to be made public.  Secrets are seen inherently as being bad.

But there is a case for secrets.  We all have parts of our lives and history not intended for public consumption.  Performance conversations between a manager and an employee are not appropriate to tell other employees.  Debates to determine policy and to give guidance to leaders require secrecy around frank discussions to develop best-considered recommendations.  One of the greatest government secrets of all was the four months of meetings which produced our marvelous Constitution – a total secrecy kept from the public by all convention delegates.  James Madison later reflected that had there not been such secrecy to allow for wide-open discussions and changes of opinions, our Constitution which embodies our freedoms would never have been produced.  So let us not have a modern-day knee-jerk reaction to secrecy itself.  Let us pause to judge the appropriateness of each secret on its own merits.  And judge the revelation of that secret, and the revealer, on the broadest measure of its consequences.

©2013 Randy Bell