Trump and Clinton Debate the Bill of Rights

While Monday’s debate touched on a range of issues, from domestic economic policy to foreign policy, the candidates also touched on several civil liberties issue of longstanding importance to the Bill of Rights Defense Committee & Defending Dissent Foundation. These include “stop and frisk,” the terror watch list (“no fly, no buy”), racism, and Islamophobia.

Stop and Frisk

Donald Trump recently made headlines by arguing that he could reduce violence in communities of color by implementing a national stop and frisk program, presumably modeled after the NYPD’s similarly named program.

Debate moderator Lester Holt, however, pointed out to Trump that “stop and frisk had been found unconstitutional.” Trump retorted that it had not, as the ruling had been made a by a “very against police judge” and had Mayor Bill De Blasio elected to appeal the ruling the city would have prevailed.  Hillary Clinton stated her own opposition to stop and frisk and claimed that it had been found unconstitutional because it was ineffective.

Neither Trump nor Clinton’s claims are entirely accurate. In spite of what Trump may think of the judge who found the NYPD’s stop and frisk program to be unconstitutional or his speculation about what might have happened on appeal, the NYPD’s stop and frisk program was found to be unconstitutional and that ruling still stands. Yet, the reasoning for its unconstitutionality was not that it was ineffective, but because it violated the Fourth Amendment.

Stop and frisk as a phrase is used both to refer to the specific NYPD program or to the broader practice of police stopping and frisking individuals, which many police departments deploy. In 1968 in Terry v. Ohio the Supreme Court ruled constitutional a stop and subsequent frisk by a police officer of an individual for whom he lacked probable cause to arrest. The Court ruled that police officers could stop an individual on the street for a brief “investigatory stop” if they did not have probable cause of criminal activity, so long as they had reasonable suspicion, a far lower standard, that crime was afoot.

In addition to this lower level of suspicion required for an “investigatory stop,” the Supreme Court also found that an officer could “frisk” an individual for weapons, as such a search was not meant to gather evidence, but meant for the officer’s own safety. While civil liberties and civil rights groups objected to this reasoning, the Supreme Court ruled 8-1 in favor of allowing such stop and frisks. Even Thurgood Marshall, the former legal counsel for the NAACP Legal Defense Fund, which filed an amicus brief arguing that allowing such police practices would further allow police harassment of communities of color, joined with majority. Only William O. Douglas, arguing that giving the police this much power was a “long step down the totalitarian path.”

Terry did not mention race, but race and racial profiling was a part of stop and frisk from the start. As Prof. Paul Butler notes in “The White Fourth Amendment,” Terry was stopped by police only after he was spotted talking to a white man and “Cleveland police lore held that when a black man and a white man got together, they were likely to be planning a crime”–a fact left out of the Terry opinion. After Terry, Justice Brennan, who sided with the majority in Terry, wrote a letter to Chief Justice Warren expressing his concern that the Terry decision would be used by police “license to them to carry on, indeed widely expand, present ‘aggressive surveillance’” against “ghetto cities.”

Terry is just one of many Supreme Court cases that made it easy for police to engage in racial profiling and generally limit the Fourth Amendment’s protections against unreasonable searches and seizures. While it presents a low bar for such stops, there is still is a bar police must surpass to make their actions lawful under Terry. That the NYPD’s stop and frisk program could not even meet this low bar shows not that the decision was made by a “very against police judge,” but just how blatantly racist the NYPD’s practices were.

Trump has made headlines for his bombastically xenophobic remarks, including his calls to ban Muslims from entering the United States or policing the views of Muslims already in the United States. Trump did not get a chance to reiterate his more outlandish claims, but Clinton took him to task for insulting Muslims abroad and at home. Yet, Clinton did not offer a stinging rebuke of Islamophobia, but instead justified her critique on the basis

They’re [Muslim Americans] on the front lines. They can provide information to us that we might not get anywhere else. They need to have close working cooperation with law enforcement in these communities, not be alienated and pushed away as some of Donald’s rhetoric, unfortunately, has led to.

Muslim Americans do not exist solely to be informants for law enforcement and Islamophobia is not bad solely because it stops them from doing so. Law enforcement infiltration of Muslim communities, its use of informants, and its inducing vulnerable individuals to participate in phony terror plots is a source of Islamophobia in our society. If Clinton was truly concerned about Islamophobia she would have condemned these policies, as opposed to expressing concern that more blatantly bigoted rhetoric jeopardizes them. Muslim Americans have no more obligation than anybody else to offer themselves up as tools for law enforcement and by insisting that they have a special knowledge about terrorism, even if said knowledge can be used to prevent it, is reinforcing the notion that terrorism is a special problem for Muslims. Instead of truly opposing Islamophobia, Clinton is helping to foster it while ignoring its roots in law enforcement action.

Terror Watchlists

Both Clinton and Trump agreed during the debate with the policy of “no fly, no buy.” That is if you are on a watchlist, you should not be able to purchase a gun. Trump at least acknowledged that some people on the no fly list did not belong there and needed to have some mechanism for getting off. Yet, Trump seemed ok with the fact that individuals who “shouldn’t be on there” would deprived of certain rights under this policy.

Regardless of what one thinks of gun control, the no fly list and other terror watch lists are not policies that should be further entrenched or expanded. Officially, the terror watch list maintained by the Terrorist Screening Center is made of five separate lists, which includes both the no fly list and the “Known or Appropriately Suspected Terrorist” list. The no fly list is currently believed to include the names of 47,000 people and the total watchlist is believed to include the names of over million people.

The sheer volume of individuals on the list would indicate that many, if not most of them, are not “known or appropriately suspected” of anything. These watchlists are notoriously error prone and individuals don’t know when they are added to them and lack effective measures for having themselves removed from them. Worse than the mistakes, many individuals are added to lists due to their political activism or as part of government retaliation for refusing to become informants. The list also disproportionately impacts Muslims, Arabs, and South Asians.

None of this is surprising, as using lists of people to be “watched” or “surveiled” as tool of repression has a  long history in the United States, going as far back as J. Edgar Hoover.     

Instead of legitimizing the list by suggesting it is a valid indicator of who should be able to procure firearms, the list needs to be disbanded. It should certainly not be further entrenched or expanded in scope or purpose.

Superpredators

At one point during the debate, Trump criticized Clinton for using the word “superpredator.” In 1996, while touting the Violent Crime Prevention Act, which included stiffer penalties for crimes and a massive expansion of the federal death penalty, she stated “They are often the kinds of kids that are called superpredators — no conscience, no empathy. We can talk about why they ended up that way, but first, we have to bring them to heel.”

The term superpredators stems from a discredited theory about how the 1990s would see an uptick in violent crime due to a new generation youth, who like Clinton described had “no conscience, no empathy,” i.e. superpredators. Not only did this youth crime spree never take place, but the phrase “superpredator” has heavy racial connotations and is widely considered to be an example of “dog whistle” language.  That is why Clinton has faced protests from the Black Lives Matter movement during the campaign and ultimately was forced to apologize for her statement.

Superpredators are historically closely linked to the Central Park jogger case, when four African-American and one Hispanic teenager were falsely convicted, as the result of coerced confessions, of the brutal rape of a jogger in Central Park. While all five were eventually cleared, the media picked up on an inflamed racial narrative that the five teenagers committed the act as part of an activity called “wilding,” that is a series of violent assaults committed for recreational purposes. The wholly untrue police-media promulgated narrative of a gang of minority youth attacking strangers at random for fun played a large role in promoting the idea of the superpredator.

While Clinton may have relied on this narrative to push a draconian crime bill, Trump played his own role in inflaming the public against the five teenagers. Trump took out a full-page ad in several New York papers with the headline, “Bring Back Our Death Penalty. Bring Back Our Police.” In the ads, which Trump allegedly spent $85,000 to publish, Trump not only calls for the five minors to be executed, but brags about the “hate” he has in his heart for them and states that “Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS!” 

Trump, like Clinton, was asked to apologize for his role in peddling racist hysteria, but has yet to do so. In fact, even after the city settled with the Central Park Five Trump continued to insist upon their guilt–even though DNA evidence shows another individual committed the crime. That Trump could attack Clinton for using the phrase “superpredator,” without apologizing his own role in fanning the flames of racism to push for authoritarian policies, shows a particular hypocrisy. What is equally telling though is that Clinton did not even think to point out this galling hypocrisy. Of course, doing so may have opened up a larger exploration of her role in using racial scapegoating to chip away at the BIll of Rights Rights.

Conclusion

While we would have liked to have seen more attention given to pressing civil liberties issues, such as the FBI political spying or the NSA’s bulk collection programs, the debates did allow the candidates to touch on several important civil liberties issues.