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Author: Chrissy Clark
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Author: Chrissy Clark
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Author: David Marcus
Donald Trump is not the first president whom opponents tried to drive from office almost from the start of his term. Radical Republicans targeted Andrew Johnson only a few months after he assumed the presidency following Abraham Lincoln’s assassination in April 1865. Johnson committed no legal lapses and left the office poorer than when he entered it. His metaphorical “crime” was adopting a post–Civil War Reconstruction plan modeled after Lincoln’s that was anathema to the Republicans who controlled Congress. Instead, they wanted their own plan, one designed to ensure that the infant GOP stayed in power for years thereafter.
When the Civil War ended, the Republican Party was barely 10 years old. Its leaders worried that it might be strangled in its cradle if the readmittance of Southern states into the Union was not managed in a way that would prevent Southerners from allying with Northern Democrats to regain control of the federal government. Before the war the secession states cast 900,000 white votes. But if Congress could mandate black suffrage in the South, Republicans could gain 700,000 black votes. Additionally, if they could also disfranchise former Confederates, the ex-slave vote could become the region’s majority.
Johnson announced his plan in May 1865 with unanimous agreement from his Lincoln-inherited cabinet. Before the year ended, however, Massachusetts Sen. Charles Sumner secretly helped write a newspaper article calling for Johnson’s impeachment. It was a drastic suggestion because no president had ever before been impeached. From that moment — with more than three years remaining in his presidency — radical Republicans sought any excuse to remove Johnson from office. For decades, men like Sumner and his ally in the House, Pennsylvania’s Thaddeus Stevens, had insulated themselves from the South. They knew nothing of its culture and cared less, whereas Tennessee’s Andrew Johnson was the only Southern senator to remain Union-loyal after Confederate secession. Nonetheless, Sumner claimed, “Massachusetts could govern Georgia better than Georgia could govern herself.”
Congressional Republicans tried in many ways to nullify Johnson’s claim to office, or failing in that, to nullify his authority. In February 1866, Stevens tried unsuccessfully to kick Tennessee out of the Union in order to invalidate Johnson’s presidency. In December 1866, the House Judiciary Committee (HJC) investigated alleged impeachment charges involving election interferences and “corrupt” use of veto and pardon powers. A month later, a Missouri congressman accused Johnson of conspiring, when he was vice president, to assassinate Abraham Lincoln. When the HJC declined to recommend impeachment, Massachusetts Rep. Benjamin Butler fruitlessly continued the investigation as chair of the new Assassination Committee. After Supreme Court rulings that restricted military tribunals threatened to derail congressional Reconstruction plans, some Republicans urged that certain justices be impeached.
In order to gain veto-proof control of Congress, Republicans sought to stack it with representatives from new GOP-loyal frontier states. They got Nebraska in, but failed to achieve admittance for Colorado. Johnson’s veto message for the Colorado bill explained that the territory did not ask for admission and had only 30,000 residents. In March 1867, Congress overrode Johnson’s veto to pass the Tenure of Office Act, a law later ruled unconstitutional, which denied any president the authority to dismiss Cabinet members without Senate approval. Congress passed another law over his veto that undermined a president’s authority as commander in chief. The Command of the Army Act required that all presidential military orders be passed through the general of the Army (then Ulysses S. Grant) who may or may not send them along to his subordinates. The act was designed to give Congress indirect control in the military districts that then ruled the South until each state could be readmitted to the Union under Republican-controlled vassal regimes.
The press lied about and hounded Johnson almost from the start. Lafayette Baker, who headed an informal secret police unit during Lincoln’s administration, published a book in 1867 that stigmatized Johnson by innuendo as entertaining prostitutes in the White House. When the president took a railroad campaign through New York and the Midwest to promote his Reconstruction plan, Republicans paid hecklers to disrupt his speeches. Agitators shouted him down in city after city. The press portrayed his debates with hecklers as undignified, and cartoonists drew insulting caricatures. Some reporters falsely accused him of drunkenness. When the train pulled into Chicago, the opposition staged a funeral march. When it arrived in Indianapolis, agitators started a riot. A mendacious press ridiculed him at every turn.
When the House of Representatives finally impeached him in 1868, they found no legal offenses despite having scrutinized his background and conduct for three years. As a result, they drew up 11 articles, eight of which were connected to the unconstitutional Tenure Act, while the others were equally without merit, including one that condemned him for intemperately criticizing Congress. Only because seven Republican senators defied party disciplinarians and the media by voting against conviction did Johnson win acquittal by a single vote.
Similarly, at the bar of modern historians Johnson’s chief “crime” is the cultural one of sharing racist attitudes that were common in America during his time. Although considered an unforgivable flaw by a consensus of today’s historians, Johnson biographer Albert Castel argues,
Johnson’s anti-black prejudice, which so many modern historians deplore, was indeed deplorable. It rarely — if ever — was decisive, however, in determining his policies and conduct. Furthermore, his attitudes on race did not differ substantially from that of Jefferson, Jackson or Lincoln…. The [modern consensus] that Johnson by his … bull-headed resistance to Congress frustrated the achievement of “democracy” in the South … is, to put it bluntly, nonsense. By establishing “democracy” these neo-Radicals mean specifically the confiscation of land from Southern whites and its distribution among blacks…. There was never, however, the slightest chance of this taking place, Johnson or no Johnson.
In truth, today’s historians who condemn Johnson warrant criticism themselves. They ignore his good qualities, such as standing fast in the Senate after his home state seceded and then becoming Tennessee’s military governor, prompting the Confederacy to classify him as an enemy alien. He was a pioneering supporter of the Homestead Act and a persistent opponent of monopolies. As president he told a reporter that he would have worked for limited black suffrage had he remained Tennessee’s governor. His Reconstruction plan adhered closely to Lincoln’s and was even more strict on the planter class. As president he also urged the popular election of senators and the abolishment of the Electoral College. He had always been a champion of limited government and correctly predicted that the growth of federal agencies would lead to a Deep State, irresponsible to the people. Finally, he was a devout opponent of crony capitalism.
Southern anti-black violence was minimal when his Reconstruction plan ruled. The Ku Klux Klan only became violent after Congressional Reconstruction took away ex-Confederate voting rights in 1867 and began to install puppet carpetbag regimes. Castel was probably correct when he concluded, “Johnson was far from being altogether wrong about Reconstruction, and the Republicans were far from being altogether right.”
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Author: Philip Leigh
I had the chance to meet a scholar recently, a woman from Norway. I went to hear her talk about a historical figure I’ve written about on this site before — Hans Nielsen Hauge (pronounced “HOW-geh”), the early 19th-century Norwegian lay revivalist.
In conversation after the lecture, someone brought up an undocumented but well-attested story — that it was a tradition at a nearby liberal seminary for some of the students to celebrate the anniversary of Hauge’s death with a drinking party where they would make fun of him.
The speaker said this surprised her. “In Norway,” she said, “Hauge is a hero to both sides. The conservatives admire him for his religious activities. The liberals admire him for being one of the founders of their movement.”
That made my ears perk up, because this is something people unfortunate enough to know me are tired of hearing me say: the evangelical revivals of the early 19th century were one of the real roots of genuine liberalism. They were a truly revolutionary social force, undercutting the old political order in a way the French Revolution never could. The French didn’t have the imagination to do anything more creative than blaspheme, reshuffle the players in the oligarchy, and slaughter thousands. It was people like Hauge (1771–1824) who carried out genuine subversion.
Hauge ran afoul of Danish/Norwegian church laws that prohibited lay people from leading religious meetings. He spent 10 years in prison for it. From our perspective, this prohibition was an egregious violation of human rights. But from the authorities’ point of view, it made perfect sense. They recognized revolution when they saw it.
Nowadays it’s hard for Westerners to imagine the way the world worked back then, though traces remain in our language. We speak of “gentlemen” and “ladies.” We speak of someone having a “noble” character. For us, those words have (very properly) assumed behavioral and moral meanings. But originally they simply referred to classes in society. It was assumed that upper-class people were morally better than commoners. Of course a baron would keep his word, while a peasant would lie. Of course a duke would not steal, but a serf would. When aristocrats spoke of the “the best people,” they meant the best in every way.
Then along came people like Hauge. John Wesley in England is a more familiar example to Americans. Through their preaching, they brought people to an experience they felt to be life-changing. All the evidence testifies that it did change lives. The new Christian converts developed new habits. They gave up drinking and gambling. They worked hard and saved their money. Their desire to read the Bible led to increased literacy and better education. Gradually these newly prosperous commoners started writing newspapers and books. They became influential. And gradually it grew apparent to everyone that the lower classes were — in some cases — admirable. In fact, in some cases, they were more admirable than their “betters,” who (people were beginning to notice) were often idle, drunken, and lecherous.
This was deeply troubling to the establishment. They wanted the poor to be humble and obedient. That was virtue enough, thank you. When Oscar Wilde wrote, in The Importance of Being Earnest (1895), “If the lower orders don’t set us a good example, what on earth is the use of them?,” he was articulating a genuine dissonance in his society. By then the examples of the Methodists and the Salvation Army were shaming the elite pretty regularly. The aristocracy had lost their facade of moral superiority. They were beginning to realize — awkwardly — that one could well ask, What was the use of them? From such questions, revolution springs — whether bloody or peaceful.
That social revolution was just getting started in Hauge’s time. But the authorities had the sense to recognize the profound threat his activities posed.
This, I think, needs to be understood: this early (and wildly successful) form of liberalism had little to do with socialism. It had nothing to do with sexual mores. It had nothing to do with the size of government. It was about one thing: the aspiration of the poor to be full participants in society, including in government. It pitted the biblical doctrine of equality before God against time-honored social traditions. It was this kind of liberalism that formed the United States.
Ironically, those old aristocrats considered themselves benefactors and saw the Hauges of the world as ingrates. They were convinced (until proved wrong) that they really were better people. The rules limiting opportunity to the poor were there for their own good. The poor, the aristocrats believed, were like children. They’d perish without the just, wise supervision of their betters.
Today, our own elite congratulate themselves that their many programs and entitlements are all that stands between the poor and starvation. The poor, after all, are like children. They couldn’t make it in the world without help from their betters. Any proposal that calls for expecting more from them, in education or in work ethic or in family life, is denounced as hateful.
What if there were a new liberalism? A liberalism not based on condescension? A liberalism that concentrated on ennobling the poor rather than debasing society as a whole? One that raised people up through honoring them with higher expectations?
“Wishful thinking,” the elite will say.
Hauge would disagree. He knew a secret the elite don’t know. He found it in a Book.
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Author: Lars Walker
Calling all transparency advocates, investigative journalists, and assorted FOIA punks!
It’s once again time to submit your nominations for The Foilies—EFF’s annual, tongue-in-cheek awards for outrageous, ridiculous, and infuriating responses to public records requests.
Each year during Sunshine Week (March 15-21, 2020), EFF publishes The Foilies to shine light on all the manifold ways that authorities thwart the public’s right to examine government records. These might include exorbitant fees, excessive redactions, or even the arrest of reporters for simply asking for documents. We also often highlight some of the sillier mistakes, like that time the CIA misspelled its own name on its FOIA response envelopes.
Some of last year’s winners included:
In addition to running on EFF’s Deeplinks blog, The Foilies are also published by free weeklies around the country through a partnership with the Association of Alternative Newsmedia.
The deadline for nominations is 11:59 p.m. on January 1, 2020. Send them to email@example.com.
The Foilies are not awarded to people who filed FOIA requests. These are not a recognition anyone should actually covet. There’s no physical trophy or other tangible award, just a virtual distinction of demerit issued to government agencies and public officials (plus the odd rock star) who snubbed their nose at transparency. If you filed a FOIA request with the Ministry of Silly Walks for a list of grant recipients, and a civil servant in a bowler hat told you to take a ludicrous hike, then the ministry itself would be eligible for the Foilies.
Nope. Lots of our entries involve state and municipal-level transparency laws, and occasionally some open meetings laws.
Not at all. We’ve had recipients in the U.K. and Canada before. If your country has an equivalent freedom of information law, then it’s eligible. In fact, we’d love to get more international stories into the mix.
In addition to the nominations you send, EFF collects FOIA horror stories all year as they pass across our social media feeds or land in our inboxes. After the nomination deadline, we also spend a significant amount of time scouring the Internet for stories we might’ve missed.
Then, a small team at EFF evaluates the nominees and selects the best, while also trying to create a balance between national and local stories. For the most part, we do not determine the categories in advance. Rather, we look at the nominations we receive, winnow them down, then come up with fitting tributes, such as the “Most Expensive FOIA Fee Estimate” and “Sue the Messenger Award.”
We also give weight to whether the FOIA nomination is keyed to a high profile controversy, whether it’s laugh-out-loud absurd, or if there are striking visuals accompanying the nomination.
One thing that is consistent year to year is that are specifically looking for large fees assessments, long processing times, and surreal redactions.
Anyone, regardless of whether you were involved in the issue or just happened to read about it on Twitter. Send as many nominations as you like!
All nominations must have had some event happen during calendar year 2018. For example, you can nominate something related to a FOIA request filed in 1994 if you finally received a rejection in 2018.
Send nominations to firstname.lastname@example.org with “FOILIES 2019 NOMINATION” in the subject line. You can nominate multiple entries in a single email, just make sure to enumerate the nominations so we can easily separate them.
Two styles of entry that we will accept:
A) Short Nomination: Send a relevant link and a couple of sentences. This is great when you have a news article or blog posts that explains everything already. This is also useful for nominating somebody’s else’s horror story.
B) Detailed nomination: Send a longer email with including the information below. This is great when the horror story hasn’t been written about before, you need to add more context, or if you’re just really enthusiastic/peeved off.
Category: One-line suggested award title. We reserve the right to ignore or alter your suggestion.
Description: Succinct explanation of the public records issue and why it deserves recognition.
Links/References: Include any links to stories, records, photos, or other information that will help us better understand the issue.
Contact details: Include a way for us to reach you with further questions. This information will remain confidential.
If we short-list your nomination, we may be in touch to request more details.
To be honest—and please don’t abuse this—we’re flexible. We don’t automatically reject nominations that are a day or two late. We will consider your nomination, regardless of whether you answer all the prompts. We do prefer you use the email@example.com email, but if you tweet your nomination at @EFF, we’ll likely still add it to the mix.
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Author: Dave Maass
Public.Resource.Org has one simple mission: to improve public access to government documents, including our laws. Public Resource believes—and EFF agrees—that everyone should be able to read, analyze, and share the laws that govern us, without having to pay a gatekeeper or sign a contract. Sounds uncontroversial, right? Not for the standards organizations that sued Public Resource, claiming that they have the right to control access to a huge chunk of the law because they convened the people who drafted it.
As a practical matter, the core issue is how these particular laws became legal mandates. In these cases, the works started out as voluntary standards on topics like fire safety, energy efficiency, and test design. Those once-voluntary standards were then adopted as binding law by various city, state, and federal agencies through “incorporation by reference.”
When a standard is incorporated “by reference,” that means its text is not actually reprinted in the body of the government’s published regulations. Instead, the regulations just include a citation to the standard, which means you have to track down a copy somewhere else if you want to know what the law requires. And for many incorporated standards, this is no easy task. In fact, there have even been cases where a court couldn’t determine what the law said because it couldn’t find an incorporated standard.
That’s where Public Resource comes in. Public Resource purchases copies of standards that have been incorporated into law and posts them online, where anyone can read and download them for free. In 2013, six standards organizations sued Public Resource for performing this public service, accusing it of copyright and trademark infringement.
Last year, a panel of appellate court judges recognized that allowing private actors to control access to the law raises serious constitutional concerns. Seeing copyright’s fair use doctrine as a potential solution to those concerns, the appeals court sent the case back to the district court for further consideration of the fair use factors at play.
In two briefs filed this month, EFF, along with co-counsel at Fenwick & West and attorney David Halperin, argues that the public interest must be the touchstone of the copyright fair use analysis where the works in question are the law. A finding of infringement in this case would not just disserve the public; it would violate the First Amendment’s free speech guarantee and the due process protections of the Fifth and Fourteenth Amendments.
We hope the district court will heed EFF’s arguments and the appeals court’s guidance, and will shut down these attempts to block uninhibited public access to the law.
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Author: Cara Gagliano
In a historic opinion on privacy at the border, a federal judge this week recognized that international travelers have significant privacy interests in their digital data and ruled that suspicionless electronic device searches at U.S. ports of entry violate the Fourth Amendment. U.S. District Court Judge Denise Casper in Boston held that border agents must have reasonable suspicion that a device contains digital contraband before searching or seizing the device.
The summary judgment opinion was issued in EFF and ACLU’s case Alasaad v. McAleenan, in which we represent 11 plaintiffs against the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). The case is a constitutional challenge to the agencies’ polices on border searches and seizures of electronic devices.
CBP and ICE policies permit suspicionless manual or “basic” device searches. For forensic or “advanced” device searches, the policies require either a vague concern about national security, or reasonable suspicion that the device contains evidence of broadly defined wrongdoing. The policies also permit border agents to access any and all data resident on a device. The policies are based on easily distinguishable legal precedent that authorizes warrantless, suspicionless searches of luggage for border security purposes, specifically, immigration and customs enforcement. We argued, and Casper agreed, that electronic devices are not comparable to suitcases or purses in terms of the privacy interests at stake.
Casper’s ruling is an important win for digital privacy rights for three reasons.
First, she foreclosed wholly suspicionless or random searches, as well as searches based on a mere hunch of border agents. This should greatly reduce the number of innocent travelers swept up by CBP and ICE’s invasive device search practices. The “reasonable suspicion” standard adopted by Casper is not as strong as probable cause (the highest standard contemplated by the Fourth Amendment for searches and seizures), but it still has teeth. As she explained, border agents need “specific and articulable facts, considered together with the rational inferences that can be drawn from those facts” concerning whether a device contains digital contraband. (p. 34)
Second, Casper rejected the legal distinction other courts have made between manual and forensic device searches, and required individualized suspicion for both types of searches. This ensures that border agents cannot avoid a higher legal standard by simply conducting a manual search. In fact, we learned through discovery that most border device searches are manual searches. Casper recognized that the privacy interests at stake involve “an individual’s interest in the contents of his or her electronic devices,” and are not appreciably different depending on the method by which the devices are searched. (p. 24) She further wrote, “a basic search and an advanced search differ only in the equipment used to perform the search and certain types of data that may be accessed with that equipment, but otherwise both implicate the same privacy concerns.” (p. 29) She noted, specifically, that the plaintiffs’ devices when searched contained attorney-client communications, photos without religious attire, and journalism work product. (p. 25) Overall, she recognized the “vast privacy interests” that travelers have in their digital data. (p. 27)
Third, by limiting the permissible scope of all border device searches to only looking for digital contraband (e.g., child pornography, classified information, or counterfeit media), Casper ensured that border agents cannot conduct highly intrusive fishing expeditions of travelers’ electronic devices. As we established through discovery, CBP and ICE invasively search devices at the border to find general evidence of wrongdoing, rather than to find and interdict contraband. But only contraband interdiction, not the uncovering of evidence, is a permissible purpose of the border search exception to the Fourth Amendment’s warrant and probable cause requirements. (p. 18) Casper’s decision is consistent with other courts that have recognized the narrow justifications for border searches. Casper further explained that the government put forth a “dearth of information of the prevalence of digital contraband entering the U.S. at the border.” Thus, she concluded that requiring a higher standard to search electronic devices would not “obviate the deterrent effect of the border search exception.” (p. 21)
In going further than any previous judge in protecting digital privacy at the border, Casper relied on a strong body of case law showing that “the legal tide is turning” toward greater protections for international travelers. (p. 36)
Casper’s reasoning applies not just to U.S. persons (citizens and lawful permanent residents), but also to foreign visitors. She issued a broad ruling: “[T]he Court declares that the CBP and ICE policies for ‘basic’ and ‘advanced’ searches, as presently defined, violate the Fourth Amendment to the extent that the policies do not require reasonable suspicion that the devices contain contraband….” (pp. 46-47) Additionally, she dismissed the government’s argument that suspicionless border device searches are needed to determine whether foreign nationals arriving at the border are inadmissible to the U.S.: “the record is not clear as to what evidence of [inadmissibility] would be revealed by a search of a traveler’s electronic device.” (She strongly rejected this argument for Americans, too, who are automatically admissible to the country.) (p. 20) However, it remains to be seen how DHS will implement this ruling as to foreign nationals who visit the U.S., and what will happen on any appeal in this case.
Casper unfortunately rejected our argument that the Constitution requires a warrant based on probable cause for border device searches. We still believe this should be the rule, given the unprecedented privacy interests travelers have in their digital data, and the lack of evidence that digital contraband is prevalent at the border or that interdicting it on devices materially prevents its entry into the U.S. given the existence of the Internet. Nevertheless, this week’s historic ruling is highly pro-privacy and protects travelers and their highly sensitive data.
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Author: Sophia Cope
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Author: Madeline Osburn
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Author: Tristan Justice
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Author: Tristan Justice