Our Platform To Reduce Police Violence

The United States is in the middle of a pandemic of racist police violence that shows no sign of abating. For many police officers, expressing verbal opposition to a police killing, police tactic or police budget, is itself an act of unreasoning aggression no sane person could endorse. So it’s at protests against police violence that you see the most police violence; it’s the very expression of the idea that police should submit themselves to the rule of law, that arouses their lawless fury.

For decades, elected officials from both major parties have treated police and the military like a special class. Congressmembers, councilors, mayors and legislators have approved their budgets and acquisitions without question. Till this year, it has been almost politically unimaginable to treat their requests with the same skepticism afforded to other funding requests. Courts, too, have enshrined enormous deference to police and the military into law, through abusive concepts like “qualified immunity.” Drastic change is necessary to change the culture, not only of the police, but of our political system as a whole.

A restored Fourth Amendment requires that people, their communications and their effects be searched or seized only subject to probable cause of involvement in an actual crime. The actual practice of both police and federal agencies is to over-surveil, over-criminalize, over-seize and over-detain, and the law improperly allows them to escape accountability for these violations.

The Restore The Fourth board hereby endorses the following seven specific measures to reduce police violence:

  1. At the federal level, pass the tri-partisan Ending Qualified Immunity Act, so that people can once more sue the police for violating their rights. At the state level, implement changes like that recently approved in Colorado.
  2. Abolish federal civil asset forfeitures, which enable police to steal people’s cash, vehicles, and even homes with impunity, through passing the FAIR Act. At the state level, pass bills similar to the model legislation from the Institute for Justice.
  3. End no-knock warrants, which are a vector for police violence, at the federal level through passing the Justice for Breonna Taylor Act, and at the state and local level through prohibitions such as that passed in Louisville, KY.
  4. Reduce jail churn by reducing arrests: Police should refrain from arrests for misdemeanor quality-of-life crimes, “resisting arrest”, protest-related trespassing, and crimes associated with being homeless. Rather than setting cash bail, judges should implement pretrial detention only where there has been a finding of dangerousness after a hearing.
  5. Abolish DHS, making its constituent agencies independent again; it was a bad idea from the get-go. Among its constituent agencies, abolish ICE, and revert to a unitary agency for both documented and undocumented immigrants.
  6. Pass surveillance oversight ordinances and facial recognition bans at the local, county and state levels, to restrain the police from deploying surveillance without review and consent by local elected officials.
  7. In relation to coronavirus pandemic enforcement, we believe that governments should involve the police only secondarily and as a last resort, such as if someone assaults or murders a member of the public or public health worker trying to enforce a coronavirus-related restriction, or for education and handing out masks. Drones and robots should not be used for enforcement, and contact tracing apps should be used only under tight constraints.

We thank the volunteers of Restore The Fourth, Critical Resistance, the Cato Institute, and the protesters, activists and scholars engaged with Black Lives Matter, for inspiring us to identify and support these measures. If you’d like to help make this platform a reality, contact Restore The Fourth here.

OP-ED: THE COLLAPSE OF “REGULAR ORDER” IN CONGRESS AND WHAT IT MEANS FOR SURVEILLANCE REFORM

Summary

To the surprise of few, Congress is once again failing to function. Congress is in a pickle, and is structurally unable to return to anything resembling “regular order”; The reform or renewal of Section 702 (which allows the infamous ‘backdoor searches’ on American citizens) may be kicked down the road to the spring as a result; we should watch carefully who becomes the new Ranking Minority member of the House Judiciary Committee.

Background

The budget process in Congress is so broken that it has only “worked” (in the sense of having all 12 appropriations bills pass both houses on time) four times in the last forty years. Congress has increasingly relied not on the individual committees, but on the leaders of the House and Senate to pass “omnibus” appropriations bills, and to draft “continuing resolutions” (or CRs) to keep the government open in the interim at existing funding levels.

The strategy of threatening repeated shutdowns of the government, in the manner of Sen. Ted Cruz and the Freedom Caucus, has proved highly successful for Republicans. Not only have voters not punished them for it; voters have rewarded them by giving Republicans control of the House, the Senate and the Presidency. In response, the bureaucratic state – the officials in senior civil service positions – have tried to minimize the damage of shutdowns by defining which employees and departments are essential enough to not be shut down.

In practice, this means that the kinder and more laudable parts of the federal government – the national parks, help for the elderly and disabled, scientific grantmaking – get shut down, but the government’s mass surveillance programs and the bloated Department of Defense get to continue spending money like water for the sake of “national security.”

The 702 surveillance reform debate

702’s surveillance authorities expire as of December 31. All the time is being sucked up with arguments over whether there will be an omnibus spending bill, and if so, what compromises will be acceptable to both Democrats and the Freedom Caucus. The deadline to fund the government is this Friday. We’re expecting there to be a two-week “continuing resolution” Friday to give space for a broader “omnibus” spending bill to pass by December 22, enabling Congressmembers to head home for Christmas and New Year’s. So what will happen to 702?

Well, the intelligence community has begun to float the idea that maybe the legal authorities for mass surveillance don’t absolutely need to be renewed by December 31 after all. This is because mass surveillance depends on programmatic “certificates” issued by the FISA Court. These were last approved on an annual basis on April 26, giving the intelligence community potentially four extra months to persuade Congress to let them continue doing an end-run around constitutional protections for US persons before they really start to panic.

If that happens, it will provide more space for reformers as well, because of an absence of congressional consensus to formally renew these authorities. At the same time, it may be that the leadership of House Judiciary will change. John Conyers, the ranking minority member, has retired under a cloud of sexual harassment allegations. Rep. Jerrold Nadler is the acting ranking member, but it looks like ardent surveillance reformer Rep. Zoe Lofgren is thinking of challenging him for the position. If she were to become the ranking member, it would substantially brighten the prospects for real reform of 702 surveillance authorities.

Mass surveillance should be debated on its own, not reapproved quickly in the early hours of the morning at the last possible moment when nobody is looking. Four months may give us the time we need to get Congress to a better place on 702 mass surveillance.

Fixing The Problem

The hard truth is that the broad problem of the collapse of regular order in Congress is very unlikely to be fixed, because fixing it requires members of Congress to act against their immediate interests. If the recent tax bill had not been stampeded through with no hearings and no time for anybody to read it through, it would not have passed, and Republicans would have no victory to go home with to their voters. There are no votes in restoring regular order, and no officeholder will lose office as a result of Congress’s spectacular and increasing dysfunction. A president so passionately committed to process that he or she did not mind not having a policy legacy of any kind, could restore regular order by vetoing any bill not passed in a procedurally correct manner; but it seems unlikely that Congress can correct it on its own. The best we can manage is Senators who will bleat about how terrible the process is, but then vote for the result anyway.