The U.S. Supreme Court’s decision in Glacier Northwest v. Teamsters Local 174 is outrageous—valuing property over workers’ rights. But it could have been much worse.
Unions still have the right to strike. Employers still can’t generally sue unions in state court for losses caused by strikes. But the decision does open the door to whittling away those rights more in the future.
The latest evidence that Section 702 of the Foreign Surveillance Intelligence Act (FISA) must be ended or drastically reformed came last month in the form of a newly unsealed order from the Foreign Intelligence Surveillance Court (FISC) detailing massive violations of Americans’ privacy by the FBI.
The FISC order is replete with problems. It describes the government’s repeated, widespread violations—over a seven-year period—of procedures for searching its databases of internet communications involving Americans, all without a warrant. These searches included especially sensitive people and groups, including donors to a political campaign. And it shows the FISC giving the FBI all-but-endless do-overs, each time proclaiming that the executive branch has made “promising” steps toward compliance with procedures that are largely left up to government attorneys to design.
Perhaps most shocking, however, is the court’s analysis of how the Fourth Amendment should apply to the FBI’s “backdoor searches” of Americans’ communications. These searches occur when the FBI queries Section 702 data that was ostensibly collected for foreign intelligence purposes without a warrant but includes a person on U.S. soil in the communication.
Although the court acknowledged that the volume of Americans’ private communications collected using Section 702 is “substantial in the aggregate,” and that the FBI routinely searches these communications without a warrant for routine matters, it held that the government’s oft-broken safeguards are consistent with the Fourth Amendment and “adequately guard against error and abuse.” When EFF writes that Section 702 and similar programs have created a “broad national security exception to the Constitution,” this is what we mean.
As long as Section 702 has been debated, its defenders have assured the public that the FISC is just like any other federal court: independent from the executive branch under Article III of the Constitution and charged with protecting individual rights. But as this latest order shows, the FISC’s performance of this duty bears no resemblance to how other Article III courts have treated the same questions, even when those courts have been hamstrung by unwarranted secrecy around the facts of national security surveillance.
Case in point is the U.S. Court of Appeals for the Second Circuit’s 2019 opinion in United States v. Hasbajrami. Hasbajrami was a criminal case in which government agents read a US-resident’s emails collected using Section 702 and charged him with supporting a terrorist organization. As with every other criminal prosecution involving FISA, the defense did not have access to evidence about how the government actually used 702 to surveil Hasbajrami. Yet even with this unfairly narrow review, on appeal the Second Circuit pressed the government on important constitutional questions, including backdoor searches. It even ordered the government to submit additional briefing on why backdoor searches did not violate the Fourth Amendment.
In its Hasbajrami opinion, the Second Circuit wrote that regardless of the procedures the FBI put in place for backdoor searches, these searches must be treated as “separate Fourth Amendment events.” In other words, each and every time the government runs one of these searches, it must ensure it is not unreasonably violating Americans’ privacy. The court’s reasons for reaching this conclusion are noteworthy:
(1) Under Supreme Court precedent, just because the government comes into possession of a person’s private communications—as the NSA does routinely with Section 702— the government is not necessarily allowed to read them without getting a warrant.
(2) The “vast technological capabilities” of Section 702 mean that the government can simply throw Americans’ communications into databases and search them at a later date unrelated for a purpose unrelated to the original “incidental collection.”
(3) Even though Section 702 prohibits directly targeting US residents, the “the NSA may have collected all sorts of information about an individual, the sum of which may resemble what the NSA would have gathered if it had directly targeted that individual in the first place.”
(4) The agency running the searches matters. The example the court gave that would raise Fourth Amendment concerns? “FBI queries directed to a larger archive of millions of communications collected and stored by the NSA for foreign intelligence purposes, on the chance that something in those files might contain incriminating information about a person of interest to domestic law enforcement.” That’s exactly the issue that was before the FISC in this latest opinion.
Clearly, the Second Circuit opinion raises a number of serious questions about whether a single backdoor search is constitutional. That concern is compounded by the hundreds of thousands of searches done by the government’s aggregate querying under Section 702, representing a massive violation of Americans’ privacy.
Even if the FISC did not wrestle with these questions adequately in the past—and it didn’t—you would expect the court to take notice of the Hasbajrami opinion and offer its own analysis. You’d be wrong. The newly unsealed opinion is apparently the first time the FISC has considered Hasbajrami, and in just over a page, the FISC wrote that it “respectfully” disagreed that each search should be viewed as a separate Fourth Amendment event. Instead, it “adhered” to its previous conclusion that the government’s own procedures safeguard privacy “as a whole.” So the scope of the collection and searching was irrelevant, as was the government’s consistent inability to even follow its procedures. But as we’ve said before, allowing the government to claim that protocols are sufficient to protect our constitutional rights turns the Fourth Amendment on its head.
The FISC’s treatment of backdoor searches makes a mockery of the right to privacy. In Hasbajrami, the court did not have a record of backdoor searches run against Mr. Hasbajrami, meaning that it could not say definitively what the Fourth Amendment required. In this FISC opinion, however, the court was presented with an extensive record of backdoor searches—as well as the ability to supplement the factual record to its satisfaction— and the court nevertheless refused to confront what was staring it in the face.
The FISC’s refusal to enforce the Fourth Amendment is yet another reason the surveillance enabled by Section 702 needs to be ended or drastically reformed. A starting point is a requirement in the law itself that the government obtain a warrant before searching its databases for Americans’ communications, which would address the Second Circuit’s concerns in Hasbajrami. Our privacy should not depend on the FBI’s self-policing and the secret court’s contorted interpretation of the Constitution.
Neuroscience has made progress in deciphering how our brains think and perceive our surroundings, but a central feature of cognition is still deeply mysterious: namely, that many of our perceptions and thoughts are accompanied by the subjective experience of having them. Consciousness, the name we give to that experience, can’t yet be explained — but science is at least beginning to understand it.
On Tuesday, former President Donald Trump announced on his campaign site that, if he’s elected in 2024, on his first day back in the White House he’d issue an executive order ending birthright citizenship — an action that would be unconstitutional and likely face an immediate challenge in the courts. “As part of my plan to secure the border, on Day One of my new term in office, I will sign an…
On March 17, the International Criminal Court (ICC) indicted and issued arrest warrants for Russian President Vladimir Putin and Russian Commissioner for Children’s Rights Maria Lvova-Belova. They are the first and only white people to be indicted by the court. All 44 of those previously indicted have been Africans.
Neither Russia, China, nor the US have accepted the court’s jurisdiction. The US Congress even passed what’s colloquially known as the Hague Invasion Act , which makes it lawful—not internationally, but lawful according to US statute—for the US to invade the Netherlands to save any US official, service member, or citizen, or those of any of its allies, should they ever be brought before the International Criminal Court in The Hague, no matter how heinous or well-documented the crime.
The indictments of Putin and Lvova-Belova allege that they were responsible for the abduction and “unlawful deportation” of Ukrainian children to Russia.
The indictments of Putin and Lvova-Belova allege that they were responsible for the abduction and “unlawful deportation” of Ukrainian children to Russia. Defenders of Putin and Lvova-Belova say that the children were just temporarily removed from a war zone where they might have been in danger.
Putin is scheduled to represent Russia at a conference of the BRICS nations—Brazil, Russia, India, China, and South Africa—in South Africa in August. However, the plan has become controversial there because South Africa is a state party to the ICC and might therefore be expected to arrest Putin. Thirty-three African nations are states parties to the court and thereby accept its jurisdiction.
I spoke to David Paul Jacobs, a Canadian attorney who has practiced in international law about the indictment.
ANN GARRISON: David, I think the ICC would be a laughingstock for its racist hypocrisy if there weren’t so many lives lost in the crimes that it considers and fails to consider, but this indictment has the world’s attention and it’s awkward for South Africa. Can you explain South Africa’s legal position as a state party that still accepts the jurisdiction of the court? What does the Rome Statute or any related documents say?
DAVID PAUL JACOBS: The Rome Statute gives the ICC the “authority to make requests to States Parties for cooperation.” South Africa is a state party to the Rome Statute, although in 2016, South Africa indicated its intention to withdraw from the Statute, and later reversed itself.
The obligation to cooperate with the ICC is tempered by Article 98 of the statute which provides that:
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.”
In this case the “requested State” is South Africa and the “third State” would be Russia.
South Africa’s obligations include the requirements of the African Union’s 2015 resolution granting heads of state immunity from ICC prosecution and the provisions of its domestic law: the Diplomatic Immunities and Privileges Act, 2001. Many countries have similar enactments to protect their heads of state and diplomatic personnel and reciprocally protect such persons from other states, for obvious and historic reasons. International law recognizes the jurisdictional immunity of a head of state.
The South African government has now granted immunities and privileges under the Diplomatic Immunities and Privileges Act, 2001 for the BRICS meetings to be held in Cape Town in June and August, 2023.
AG: If South Africa were to arrest Putin, Russia would feel obliged to invade South Africa, wouldn’t it?
DPJ: Given the decision of the South African government to apply immunity to the BRICS meetings, the question, thankfully, does not arise.
It is worth noting that the USA, which is not a state party to the Rome Statute, has enacted the American Service-Members’ Protection Act, aka the Hague Invasion Act, prohibiting US cooperation with the Court, and permitting the President to authorize military force to free any US military personnel held by the court.
AG: Thirty-three African nations, including South Africa, are states parties to the court. Given that the Court has indicted 44 Africans and no one from another continent, do you think they should all withdraw from the court?
DPJ: The African Union has instructed member countries not to cooperate with the ICC.
AG: Regarding the indictment of Putin and Lvova-Belova itself, I know that Ukraine’s bombing of its own Russian-speaking population, its disregard for the Minsk Accords, and perhaps even its desire to join NATO make a moral case for Russia’s invasion of Ukraine, but it’s still a crime of aggression, a violation of Ukraine’s sovereignty, isn’t it?
DPJ: Article 51 of the U.N. Charter provides in part that:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
It has been argued that the right of self-defense includes a right of anticipatory self-defense necessary in the face of overwhelming threats. The decisions of Crimea, the Donbas, etc., to join Russia, and the armed attacks on their territories, ramping up in January 2022, in part provide the bases for such arguments on the part of Russia. Recall, however, that the NATO attack on Yugoslavia was deemed illegal by the late Antonio Cassese who was a President of the ICC.
The US claimed that its wars on Iraq and Afghanistan were all justified as aid in “self-defence” even though NATO countries were not attacked or threatened prior to the attacks.
AG: Why do you think the court indicted Putin for abducting children but not for invading Ukraine, which would seem to be its primary violation of international law?
DPJ: That’s not clear. I do not believe that the indictment is yet released, so we do not know the allegations in full. The ICC has complex provisions regarding the crime of aggression, only recently added to its jurisdiction. Regarding the charge, the Russians claim that children without parental or other support, orphans and such, were moved to safety but many have been returned.
AG: David Jacobs, thank you for speaking to Black Agenda Report.
The diversity, equity, and inclusion industry exploded in 2020 and 2021, but it is undergoing a reckoning of late, and not just in states controlled by Republicans, where officials are dismantling DEI bureaucracies in public institutions. Corporations are cutting back on DEI spending and personnel. News outlets such as TheNew York Times and New York magazine are publishing more articles that cover the industry with skepticism. And DEI practitioners themselves are raising concerns about how their competitors operate.
The scrutiny is overdue. This growing multibillion-dollar industry was embedded into so many powerful public and private institutions so quickly that due diligence was skipped and costly failures guaranteed.
Now and forever, employers should advertise jobs to applicants of all races and ethnicities, afford everyone an equal opportunity to be hired and promoted, manage workplaces free of discrimination, and foster company cultures where everyone is treated with dignity. America should conserve any gains it has made in recent years toward an equal-opportunity economy. Perhaps the best of the DEI industry spurred the country in that direction.
However, the worst of the DEI industry is expensive and runs from useless to counterproductive. And even people who highly value diversity and inclusion should feel queasy about the DEI gold rush that began in 2020 after the murder of George Floyd. A poor Black man’s death became a pretext to sell hazily defined consulting services to corporations, as if billions in outlays, mostly among relatively privileged corporate workers, was an apt and equitable response. A radical course correction is warranted––but first, let’s reflect on how we got here.
On rare occasions, a depraved act captures the attention of a nation so completely that there is a widespread impulse to vow “never again” and to act in the hope of making good on that promise. Martin Luther King Jr.’s assassination prompted the passage of the Civil Rights Act of 1968. The terrorist attacks of September 11, 2001, triggered a global war against al-Qaeda, among many other things, including the tenuously connected invasion and occupation of Iraq.
Floyd’s murder was similarly galvanizing. Arresting, trying, and convicting the police officers involved, and implementing new police training, was the most immediate response. But Floyd’s story suggested some additional possibilities. With several criminal convictions in his past, Floyd tried to turn his life around, preaching nonviolence in a neighborhood plagued by gun crime, serving as a mentor to young people, and trying to stay employed. He also struggled with drug addiction, layoffs due to circumstances beyond his control, and money problems that presumably played a role in the counterfeit bill he was trying to pass on the day that he was killed. If a callous police officer was the primary cause of his death, secondary causes were as complex and varied as poverty in America.
So how strange––how obscene, in fact––that America’s professional class largely reacted to Floyd’s murder not by lavishing so much of the resources spent in his name on helping poor people, or the formerly (or currently) incarcerated, or people with addictions, or the descendants of slaves and sharecroppers, or children of single mothers, or graduates of underfunded high schools, but rather by hiring DEI consultants to gather employees together for trainings.
In what, exactly?
It is often hard to say. What has one been trained to do after hearing Robin DiAngelo, the best-selling author and social-justice educator, lecture on what she calls “white fragility,” or after pondering a slide deck with cartoons meant to illustrate the difference between equality and equity as critical theorists understand it?
Illustration by The Atlantic. Sources: Getty / Interaction Institute for Social Change
Or after absorbing the racial-equity consultant Tema Okun’s widely circulated claims that attributes including “sense of urgency” and beliefs including “individualism” are traits of “white supremacy culture”? (Okun made these claims in a 1999 article that even she regards as widely misused. She once told an interviewer about the article, “It was not researched. I didn’t sit down and deliberate. It just came through me.” She has launched a website that explains her views in far more detail and with more nuance.)
Consider a specific PR pitch from a DEI consultant in 2021, chosen for how typical it is. It leads by invoking Floyd’s death as the impetus to “take bolder actions.” It promises expertise in “best practices” to corporate leaders. Then it pivots to naming a specific training on offer, “Microaggressions in the Workplace,” which, along with other offerings, will help “create a culture where employees feel valued and are encouraged to be their true selves, celebrating each individual’s uniqueness.” The pitch claims that this training “enables talent acquisition, retention, and career advancement.” Is it not inappropriate to use an unemployed Black man’s murder by police to justify expenditures on reducing unintentional micro-slights at work so the bosses can retain more talent?
Of course, setting aside unseemly invocations of Floyd’s name, an initiative needn’t be a coherent response to his death to be defensible or worthwhile. All companies should invest in being equal-opportunity employers, including affirmative steps to ensure, for example, that managers haven’t unwittingly introduced unjust pay disparities or culturally biased dress codes. Beyond that, if DEI consultants made life better for marginalized groups or people of color or any other identifiable cohort within a given corporation or organization, or boosted corporate profits so that their fees paid for themselves, the industry could be justified on different terms.
But most DEI consulting fails those tests.
Harvard Business Review published an article in 2012 called “Diversity Training Doesn’t Work,” which drew heavily on research published in 2007 by the sociologists Frank Dobbin, Alexandra Kalev, and Erin Kelly. “A study of 829 companies over 31 years showed that diversity training had ‘no positive effects in the average workplace,’” the article reported. “Millions of dollars a year were spent on the training resulting in, well, nothing.” In 2018, Dobbin and Kalev wrote that “hundreds of studies dating back to the 1930s suggest that antibias training does not reduce bias, alter behavior or change the workplace.”
Portending the 2020 explosion of DEI, they continued, “We have been speaking to employers about this research for more than a decade, with the message that diversity training is likely the most expensive, and least effective, diversity program around. But they persist, worried about the optics of getting rid of training, concerned about litigation, unwilling to take more difficult but consequential steps or simply in the thrall of glossy training materials and their purveyors.”
And no wonder that DEI consultants struggle to be effective: In a 2021 article in the Annual Review of Psychology, a team of scholars concluded that the underlying research on how to intervene to reduce prejudice is itself flawed and underwhelming while regularly oversold.
A paper published in the 2022 Annual Review of Psychologyconcluded, “In examining hundreds of articles on the topic, we discovered that the literature is amorphous and complex and does not allow us to reach decisive conclusions regarding best practices in diversity training.” The authors continued, “We suggest that the enthusiasm for, and monetary investment in, diversity training has outpaced the available evidence that such programs are effective in achieving their goals.”
Those outside the industry are hardly alone in levying harsh critiques. Many industry insiders are scathing as well. Last year in Harvard Business Review,Lily Zheng, a diversity, equity, and inclusion strategist, consultant, and speaker, posited that the DEI industrial complex has a “big, poorly kept secret”: “The actual efficacy” of most trainings and interventions is “lower than many practitioners make it out to be.” In Zheng’s telling, the industry’s problems flow in large part from “the extreme lack of standards, consistency, and accountability among DEI practitioners.”
When your clients are these companies that are desperate to do anything and don’t quite understand how this works, ineffective DEI work can be lucrative. And we’re seeing cynicism pop up as a result, that DEI is just a shitty way in which companies burn money.
And I’m like, Yeah, it can be.
What if instead of burning the money, we simply redirected it to the poor?
Yes, I understand that it isn’t as if that money would have gone to the neediest among us but for the DEI initiatives of the past few years. Still, I am being serious when I propose that alternative. (I should note that The Atlantic, like many media companies, holds DEI trainings for new hires. These trainings include discussions of Okun’s critique of “sense of urgency” and an updated version of the equity/equality cartoon.)
The DEI spending of 2020 and 2021 was a signal sent from executives to workers that the bosses are good people who value DEI, a signal executives sent because many workers valued it. Put another way, the outlays were symbolic. At best, they symbolized something like “We care and we’re willing to spend money to prove it.” But don’t results matter more than intention?
A more jaded appraisal is that many kinds of DEI spending symbolize not a real commitment to diversity or inclusion, let alone equity, but rather the instinctive talent that college-educated Americans have for directing resources to our class in ways that make us feel good.
In that telling, the DEI-consulting industry is social-justice progressivism’s analogue to trickle-down economics: Unrigorous trainings are held, mostly for college graduates with full-time jobs and health insurance, as if by changing us, the marginalized will somehow benefit. But in fact, the poor, or the marginalized, or people of color, or descendants of slaves, would benefit far more from a fraction of the DEI industry’s profits.
It would be too sweeping to say that no DEI consultant should ever get hired. Underneath that jargony umbrella is a subset of valuable professionals who have expertise in things like improving hiring procedures, boosting retention, resolving conflict, facilitating hard conversations after a lawsuit, processing a traumatic event, or assessing and fixing an actually discriminatory workplace. In a given circumstance, a company might need one or more of those skills. Ideally, larger organizations develop human-resources teams with all of those skills.
But the reflexive hiring of DEI consultants with dubious expertise and hazy methods is like setting money on fire in a nation where too many people are struggling just to get by. The professional class should feel good about having done something for social justice not after conducting or attending a DEI session, but after giving money to poor people. And to any CEO eager to show social-justice-minded employees that he or she cares, I urge this: Before hiring a DEI consultant, calculate the cost and let workers vote on whether the money should go to the DEI consultant or be given to the poor. Presented with that choice, I bet most workers would make the equitable decision.
New study finds U.S. responsible for nearly 300 million deaths—and counting In September, the Victims of Communism Memorial Foundation—established by a bipartisan act of Congress in 1993—opened the Victims of Communism Museum in Washington, D.C., which aims to spotlight the plight of the alleged 100 million victims of Communist ideology. The 100 million figure was […]