scholarly journals Lawful Illegality: Authorizing Extraterritorial Police Surveillance

2020 ◽  
Vol 18 (3) ◽  
pp. 357-369
Author(s):  
Ian Warren ◽  
Monique Mann ◽  
Adam Molnar
Keyword(s):  
United States ◽  
Due Process ◽  
Crime Control ◽  
Physical Geography ◽  
Protective Function ◽  
First Case ◽  
The Us ◽  
Due Process Of Law ◽  
Legal Foundations ◽  
Police Surveillance

This paper examines Lisa Austin’s (2015) concept of lawful illegality, which interrogates the legal foundations for potentially unlawful surveillance practices by United States (US) signals intelligence (SIGINT) agencies. Lawful illegality involves the technically lawful operation of surveillance powers that might be considered unlawful when examined through a rule of law framework. We argue lawful illegality is expanding into domestic policing through judicial decisions that sanction complex and technically sophisticated forms of remote online surveillance, such as the use of malware, remote hacking, or Network Investigative Techniques (NITs). Operation Pacifier targeted and dismantled the Playpen dark web site, which was used for distributing child exploitation material (CEM), and has generated many judicial rulings examining the legality of remote surveillance by the FBI. We have selected two contrasting cases that demonstrate how US domestic courts have employed distinct logics to determine the admissibility of evidence collected through the NIT deployed in Operation Pacifier. The first case, United States v. Carlson (2017 US Dist. LEXIS 67991), offers a critical view of the use of NITs by the FBI, with physical geography constraining the legality of this form of surveillance in US criminal procedure. The second case, United States v. Gaver (2017 US Dist. LEXIS 44757), authorizes the use of NITs because the need to control crime is believed to justify suspending the geographic limits on police surveillance to identify people involved in the creation and dissemination of CEM. We argue this crime control emphasis expands the reach of US police surveillance while undermining due process of law by removing the protective function of geography. We conclude by suggesting the permissive geographic scope of police surveillance reflected in United States v. Gaver (2017 US Dist. LEXIS 44757), and many other Playpen cases, erodes due process for all crime suspects, but is particularly acute for people located outside the US, and suggest a neutral transnational arbiter could help limit contentious forms of remote extraterritorial police surveillance.

scholarly journals Freezing Financial Assets in The United States and in Mexico: Contrasts in Constitutionality and Legal Parallels

2019 ◽  
Vol 11 (2) ◽  
pp. 115
Author(s):  
Delia Sánchez Castillo
Keyword(s):  
United States ◽  
Civil Rights ◽  
Money Laundering ◽  
Legal System ◽  
United States Of America ◽  
Due Process ◽  
The United States ◽  
Financial Assets ◽  
The Us

The purpose of this article is to understand how asset freezing works in the United States of America and in Mexico, as well as the contrasts and similarities in both systems. The threats posed to civil rights that can arise from asset freezing led us to compare the judicial criteria held by the US Courts and the corresponding reasoning in the Mexican legal system. Alternative rulings from European courts are also considered. Finally, some recommendations are made to improve due process in the Mexican legal system after preventing money laundering and funding terrorism when freezing financial assets.

Scottsboro Trials

2019 ◽  
Author(s):  
Eric S. Yellin
Keyword(s):  
United States ◽  
Civil Rights ◽  
White Women ◽  
Due Process ◽  
African American Men ◽  
The United States ◽  
Fourteenth Amendment ◽  
Court Case ◽  
Left Wing ◽  
The Us

In 1931, nine young African-American men were accused of raping two white women in northern Alabama while traveling on a train from Chattanooga to Memphis, Tennessee. The young men—Olen Montgomery, Clarence Norris, Haywood Patterson, Ozie Powell, Willie Roberson, Charlie Weems, Eugene Williams, Andy Wright, and Roy Wright—were innocent. Saved from a mob lynching, they nonetheless endured a series of unfair trials over seven years; eight received death sentences. (Roy Wright, just turned thirteen, was held in limbo until 1937 because of his youth.) Embraced by the Communist Party of the United States of America (CPUSA) as well as a broad collection of left-wing organizations and artists, the fight for the young men’s lives became an international movement. Their defense was eventually paid for by the CPUSA and the National Association for the Advancement of Colored People (NAACP) and taken on by Samuel Liebowitz, a celebrated criminal attorney whose Judaism invited vicious anti-Semitism from white southerners. Their case led to two landmark Supreme Court case rulings regarding due process and equal protection under the Fourteenth Amendment: Powell v. Alabama (1932) reversed the defendants’ convictions based on inadequate counsel, while Norris v. Alabama (1935) established that officials in Alabama had violated the defendants’ constitutional rights by excluding black Alabamans from juries. Over the course of the trials, the two accusers—Ruby Bates and Victoria Price—were celebrated as the epitome of southern white womanhood and then maligned as lying “white trash” harlots. That Bates later recanted and campaigned for the defendants’ freedom did little to earn her full personhood in the received history. The “Scottsboro Boys” spent years, some more than a decade, in America’s worst prisons and suffered physical and psychological damage that would prove irreparable. Five of the defendants were released when the prosecution chose not to proceed with their cases in 1937, though this nolle prosequi decision was not an acquittal, exoneration, or apology. The last to remain in jail, Andy Wright, was released in 1950. Alabama Governor George Wallace pardoned the last living Scottsboro defendant, Clarence Norris, in 1976. Finally, in April 2013, Alabama changed its law to allow posthumous pardons, and the remaining three defendants were officially pardoned that November. The Scottsboro case is a crucial part of the histories of African Americans, the US South, race and gender in the 20th-century United States, the transnational modern civil rights and labor movements, the Great Depression, and the US justice system.

scholarly journals Pembebanan Pembuktian dalam Tindak Pidana Pencucian Uang

Media Iuris ◽  
2020 ◽  
Vol 3 (1) ◽  
pp. 75
Author(s):  
Muhammad Reza Adiwijana
Keyword(s):  
Due Process ◽  
Crime Control ◽  
Control Model ◽  
Due Process Of Law

Tindak Pidana Pencucian Uang (TPPU) sebagai suatu subsidiary crime atau tindak pidana lanjutan memiliki mekanisme pembebanan pembuktian yang berbeda dengan tindak pidana umumnya. Pada dasarnya hukum acara pidana yang berlaku di Indonesia menempatkan beban pembuktian pada Penuntut Umum, sehingga Penuntut Umum yang harus membuktikan unsur-unur pidana yang didakwakannya terpenuhi. Sedangkan dalam perkara TPPU, regulasi menentukan bahwa beban pembuktian atas suatu TPPU berada pada pihak Terdakwa. Hukum Acara Pidana di Indonesia, sebagaimana diatur dalam Kitab Undang-Undang Hukum Acara Pidana (KUHAP), adalah selaras dengan prinsip Due Process of law. Due Process of law merupakan jaminan yang diberikan konstitusi terhadap masyarakat bahwa hak-hak hukum mereka dilindungi, dan memberikan rasa aman pada diri mereka dari tindakan sewenang-wenang yang mungkin dilakukan oleh penguasa. Perbedaan mekanisme pembebanan pembuktian dalam perkara TPPU yang berbeda dengan mekanisme pembebanan pembuktian dalam KUHAP memunculkan suatu persoalan hukum yakni, Apakah Pembebanan Pembuktian Tindak Pidana Pencucian Uang telah sesuai dengan Due Process of law? Penulis mencoba menjawab persoalan tersebut melalui suatu penelitian hukum. Sehingga, metode yang digunakan dalam penelitian ini adalah metode penelitian hukum. Penelitian hukum merupakan suatu kegiatan yang bertujuan untuk memecahkan isu hukum yang dihadapi dengan cara menemukan aturan hukum, prinsip-prinsip hukum, atau doktrin-doktrin hukum. Hal tersebut sesuai dengan karakter ilmu hukum yang bersifat preskriptif dan terapan. Mekanisme pembuktian dalam perkara TPPU merupakan bentuk konkrit dari crime control model. Paradigma crime control model dalam pembebanan pembuktian TPPU koheren dengan due process of law, sejauh penerapan model tersebut masih memenuhi unsur-unsur minimal dari suatu due process of law.

Part II The US Resolution Regime, 5 Fundamentals of Resolution Authority

2016 ◽  
Author(s):  
Gleeson Simon ◽  
Guynn Randall
Keyword(s):  
United States ◽  
Capital Structure ◽  
Deposit Insurance ◽  
Due Process ◽  
The United States ◽  
The Core ◽  
Current State ◽  
The Us ◽  
Insurance Programme ◽  
Federal Deposit Insurance

This chapter looks at the history and fundamental elements of resolution authority as it has been developed and used in the United States. The goal of resolution authority in the United States has been to deal with failed banks and other financial institutions in a manner that stems runs, avoids contagion and preserves critical operations, the same goal as deposit guarantee schemes. First introduced in the United States in 1933 as part of the deposit insurance programme for banks, resolution authority was originally little more than the method by which the Federal Deposit Insurance Corporation honoured its obligations to insured depositors before evolving to its current state. Resolution authority, as conceived in the United States, has two principal components—the core resolution powers and the claims process. The core resolution powers consist of the authority to quickly separate the assets and viable parts of a failed bank's business (the good bank) from its capital structure liabilities (the bad bank), so that its critical operations are preserved and runs and contagion are avoided. It is virtually always completed in the United States over a weekend commonly known as resolution weekend. The claims process involves determining the validity and amount of the claims of individual holders of capital structure liabilities in accordance with ordinary principles of due process and distributing the residual value of the good bank to such holders in satisfaction of their claims. The claims process typically takes at least six to nine months to be completed in order to comply with ordinary principles of due process for potential claimants.

scholarly journals Gender, Violence, and Trauma in Immigration Detention in the United States

Social Work ◽  
2020 ◽  
Author(s):  
Laurie Cook Heffron
Keyword(s):  
United States ◽  
Human Rights ◽  
Due Process ◽  
The United States ◽  
Economic Security ◽  
Human Rights Violations ◽  
Immigration Detention ◽  
The Us ◽  
The Impact ◽  
Detention Facilities

While international law protects the rights of individuals to seek asylum and to be treated humanely and with dignity, immigration detention, the practice of confining individuals accused of violating immigration law, has surfaced as a growing response to the large numbers of individuals and families on the move throughout the world in search of freedom, safety, and economic security. Detention has long been used as a strategy for enforcement of immigration laws across the globe, and has also been used as a tactic to dissuade and control future migration. The detention of immigrants consistently presents concerns about and allegations of civil and human rights violations and negative bio-psycho-social impacts on those detained. Given the contemporary expansion of the immigration detention system in the United States, this bibliography will focus primarily on the context of immigration detention within the United States. This bibliography includes selected scholarly resources from the social sciences, health, and legal fields to present an overview of immigration detention, the impact on survivors of violence and trauma, and detention alternatives. While the Global Detention Project and other nonprofit organizations aim to track the scope of immigration detention worldwide, numbers of individuals detained, as well as the number and location of detention facilities, immigration detention remain difficult to track. In the United States, the average daily population of immigration detention facilities in the United States had increased from 6,785 in 1994 to more than 38,000 in 2017. That number has risen to closer to 50,000 in recent years and manifests across a wide variety of facilities, including temporary and long-term holding facilities operated by a host of federal, state, local, and private for-profit entities. The US government has broad, though not absolute, power over immigration and immigration detention. Authorization of the detention of immigrants dates back to 1798 with the Alien Enemies Act, which allowed for the detention of immigrants from “hostile” countries during times of war. As of 1875, another series of laws expanded the framework of detention, in particular pertaining to the incarceration of individuals with criminal convictions. Further changes were made in 1952 with the Immigration and Nationality Act, then more drastically in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which served to begin a decades-long expansion of the US immigration detention system. This expansion has also led to numerous allegations of civil and human rights violations related to due process, exploitative labor practices, sexual and physical abuse, and inadequate medical care, as well as growing concern about the impact of immigration detention on survivors of violence and trauma, particularly children, women, and LGBTQ communities. The author would like to acknowledge the significant contributions of Jessenia Herzberg in researching and reviewing literature on immigration detention.

Lost between the fruits and the tree

2015 ◽  
Vol 18 (2) ◽  
pp. 273-329
Author(s):  
Yuval Merin
Keyword(s):  
United States ◽  
Human Rights ◽  
Due Process ◽  
Crime Control ◽  
The United States ◽  
Control Model ◽  
Moral Integrity ◽  
New Model ◽  
European Court ◽  
Procedural Values

The article proposes a new model for the exclusion of evidence obtained as an indirect result of police illegality, which aims to strike the appropriate balance between the intrinsic and the extrinsic objectives of criminal evidence—truth seeking vis-à-vis procedural values. To this end, the article critically examines the underlying theories and the doctrinal approaches to the admissibility of derivative evidence in three legal systems: the United States, the European Court of Human Rights, and Israel. Whereas deterrence, which is the sole justification under current U.S. law, is conceived of as the only theory that clearly warrants the suppression of derivative evidence, the rationales for exclusion that prevail in other jurisdictions—moral integrity and the protection of rights—are regarded as predominantly entailing the suppression of primary evidence. The article argues, however, that all three rationales may equally mandate the suppression of derivative evidence and that only a combination of the guiding principles could sustain a coherent theory for the exclusionary doctrine. It also contends that the different doctrinal approaches are largely based on the degree of each legal system’s adherence to considerations associated with the “crime control model,” and that a narrowly construed discretionary regime, based exclusively on due process considerations, is preferable to a rigid one, as it enables the courts to avoid the adverse consequences of exclusion.

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