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ACLU Pushes For More Transparency On No-Fly List

By Nigel Duara, Los Angeles Times (TNS)

PORTLAND, Ore. — In a case that could help demystify how the FBI deems somebody a terror threat, the ACLU argued in federal court here Wednesday that the government has failed to comply with an earlier court order to tell people how they wound up on the no-fly list.

The case revolves around several Muslim Americans who say they were included on the list unfairly and denied a constitutional right to find out why. The government argues that explaining the process in open court would endanger national security.

At a time when Republican front-runner Donald Trump calls for broad monitoring of Muslims, the case is being closely watched by both civil liberties advocates and those who say the government must do more to prevent terrorism.

The lawsuit was originally filed in 2010 on behalf of 13 U.S. citizens who learned that they were on the list only after trying to board airplanes at U.S. airports. None had been charged or convicted of a violent crime. One was an Air Force veteran. Another had studied in Saudi Arabia.

U.S. District Court Judge Anna Brown gave them a minor victory last year when she ordered the government to come up with a better system for telling people they were on the list and, if possible, why.

The government responded by creating a process to notify people placed on the list and, in limited cases, telling them the reasons.

But back in court Wednesday, ACLU attorneys argued that the effort fell short and that, in its quest for secrecy, the government was continuing to violate the right to due process.

Hina Shamsi, an attorney for the civil liberties group, said the government’s case was “essentially an argument that the sky would fall.”

She noted that six of the original 13 plaintiffs have been taken off the list. “They’ve been moving on with their lives,” she said. “The sky did not fall.”

The plaintiffs, though, have suffered damage to their businesses and personal lives, she said.

“This is an age when the terrorist (accusation) is the most significant one that the government can label someone,” Shamsi said.

In a brief defending the government, U.S. Attorney Brigham Bowen wrote that the government has not erred simply because somebody included on the list “never successfully commits a terrorist act.”

“Rather, the task imposed by statute is to identify persons who may pose threats and deny them access to civilian aircraft and the means to carry out mass-casualty attacks,” he wrote.

In court, Bowen argued that the government has no obligation to tell people why they were placed on the list.

“Government is not required in name of due process to put its national security at risk,” he said. “The plaintiffs’ interest must necessarily give way.”

Created after the Sept. 11, 2001, terror attacks, the no-fly list contains thousands of names of people banned from flying. It is shared with U.S. allies and ship captains.

One of the government’s most public counterterrorism tools, the list has also been one of the most condemned, with critics saying some innocent travelers have been mistaken for terrorism suspects.

The FBI’s Terrorist Screening Center, which operates the list, won’t reveal the evidence against those on the list, allow them to question witnesses or challenge the findings in court.

As President Barack Obama pointed out in an Oval Office address this week, people on the list are not necessarily barred from owning firearms. He would like to change that.

“What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” Obama said. “This is a matter of national security.”

©2015 Los Angeles Times. Distributed by Tribune Content Agency, LLC.

Photo: Scott Feldstein via Flickr

Marijuana Is Legal In Colorado, But Court Rules Employees Can Be Fired For Smoking It

By Nigel Duara, Los Angeles Times (TNS)

The Colorado Supreme Court has ruled that businesses can fire employees who use marijuana during their time off, including those with a legal prescriptions for medical pot.

In a case that has been closely watched by employers in some states that have legalized marijuana for medicinal or recreational use, the Colorado court found that Dish Network lawfully fired a quadriplegic employee and medical marijuana user who failed a drug test. Customer service representative Brandon Coats, 35, used marijuana away from work to deal with painful muscle spasms.

The court ruled that the federal prohibition on marijuana makes the drug unlawful despite Colorado’s approval of its use for medicinal purposes. The ruling, while not binding on other states, adds to a series of court losses by medical marijuana patients who lost their jobs after using pot.

Coats sued after he was fired on June 7, 2010, alleging wrongful termination. He argued that marijuana was made “lawful” for the purposes of employment law when Colorado voters legalized it for medicinal use in 2000. Voters legalized it for recreational use in 2012.

A trial court dismissed Coats’ lawsuit, saying the state’s legalization of medical marijuana provides a defense only against criminal prosecution, and does not make the use of marijuana a “lawful activity” that is protected against employment discrimination.

When the case went to the Colorado Court of Appeals, justices differed with the trial court’s reasoning, but still found that Coats was rightfully terminated because marijuana is prohibited by federal law.

The Colorado Supreme Court agreed with that reasoning, voting 6-0 with one abstention.

“Nothing in the language of the (employment) statute limits the term ‘lawful’ to state law,” wrote Justice Allison H. Eid. “Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable law, including state and federal law.”

Coats said in a statement that the decision is a setback for him personally, but advances the cause of medical marijuana patients in the workplace.

“If we’re making marijuana legal for medical purposes, we need to address issues that come along with it such as employment,” Coats said. “Hopefully views on medical marijuana _ like the ones in my specific case _ will change soon.”

Dish Network did not reply to phone inquiries.

Colorado Attorney General Cynthia Coffman, whose office filed friend-of-the-court briefs on behalf of Dish Network, praised the decision because it gives employers complete control over drug use in the workplace.

“Not every business will opt for zero-tolerance,” Coffman said Monday, “but it is important that the latitude now exists to craft a policy that fits the individual workplace.”

The federal Americans with Disabilities Act is meant to protect employees from discrimination based on a medical condition. But the ADA doesn’t protect employees from losing their jobs after testing positive for marijuana because the drug is still listed next to heroin, LSD and Ecstasy on the federal government’s list of Schedule I drugs, its most dangerous category.

Despite the state’s relaxed view on pot, the Colorado Constitution states that employers don’t have to amend their policies to accommodate employees’ marijuana use.

In some other states, employment protection is built into marijuana laws. Such employment protection statutes often dissuade employers from taking action against medical marijuana patients, keeping the matter out of court, said Karen O’Keefe, director of state policies at the Marijuana Policy Project, an advocate of legalization.

Patients in Rhode Island, for example, , may not be denied school enrollment, housing or employment because they are medical marijuana users.

“The issue has only been litigated in some medical marijuana states, so it’s not clear which ones might ultimately be found to protect patients from employment discrimination,” O’Keefe said.

Arizona, Delaware and Minnesota provide the strongest protection to medical marijuana patients, she said, adding that the Colorado Supreme Court’s decision could guide other states.

“For those states with similar language, it could have an impact,” she said.

Even in states where employment protections exist, there is no guarantee that employees fired for marijuana use will prevail in court.

Joseph Casias of Battle Creek, Mich., was using marijuana for the pain associated with an inoperable brain tumor. When he twisted his knee at his job at Wal-Mart, he was ordered to take a drug test. Casias promptly told his manager about his marijuana use, but was fired days later.

He sued, and lost, in court for the same reason Coats lost his job _ the federal ban on marijuana trumped state law.

“The case and many others like it highlight the gray areas and legal fixes needed in Colorado and other states that have reformed their marijuana laws,” the pro-marijuana Drug Policy Alliance said in a statement Monday. “Any rights bestowed upon civilians by state law fall far short of fully protecting medical marijuana patients and legal adult users of marijuana.”

In addition to Colorado, recreational marijuana use is legal in Washington state and Alaska and will be legal in Oregon on July 15.

(c)2015 Los Angeles Times. Distributed by Tribune Content Agency, LLC.

Federal Environmental Review Makes Arctic Drilling More Likely

By Nigel Duara, Los Angeles Times (TNS)

A revised environmental review of a contested Arctic oil lease makes drilling in the area far more likely, a development that has infuriated environmentalists.

The federal Bureau of Ocean Energy Management released the new environmental assessment of drilling leases on Thursday, upping the projected oil yield but saying little otherwise about the potential environmental impact.

The revised report was a particularly bitter disappointment for environmentalists, who had just celebrated the Obama administration’s decision in January to put parts of the Beaufort and Chukchi seas off-limits from future oil and gas leasing.

The contested oil lease held by Royal Dutch Shell in the Chukchi Sea has been tied up in litigation since the government put 30 million acres up for sale in 2008.

Shell bought a piece, and an arm of the Interior Department estimated the company would extract 1 billion barrels of oil.

Environmentalists argued that the figure was too low, and sued.

In January 2013, they won. The 9th U.S. Circuit Court of Appeals in San Francisco ruled that the Interior Department did not properly evaluate the impact of oil development in the Chukchi Sea.

The environmental review released Thursday did not provide environmentalists with the victory they hoped for two years ago. It pegged extraction at 4.3 billion barrels of oil and 2.2 trillion cubic feet of natural gas — and left the Shell lease intact.

Michael LeVine, Pacific senior counsel for Oceana, a plaintiff, said: “Despite its failures, Shell continues to push expanded plans for exploration drilling, and the government appears willing to bend over backwards to make it possible by rushing its analysis and refusing to consider foregoing the leases owned by Shell and other companies.”

Shell did not respond to a call for comment.

In the new environmental review, the Bureau of Ocean Energy Management forecast 260 small oil spills of less than 1,000 barrels each during the 44-year production phase of the lease.

It also found a 75 percent chance that one or more spills of more than 1,000 barrels would occur during the entire 77-year lease.

Oceana said in a statement: “Such a spill would be nearly impossible to contain and clean up in the remote environment … and could have significant impacts to the subsistence resources and other wildlife that depend on the Chukchi Sea.”

Photo via Wikimedia Commons

French Satire Magazine’s Raison D’etre: Mocking, Challenging

By Nigel Duara, Los Angeles Times (TNS)

The prophet is locked in an embrace, his arm encircling a French cartoonist, their lips locked. Both drool.

The prophet raises a finger, pointing to a word bubble. “100 lashes if you don’t laugh.”

The prophet is on all fours, genitals exposed, a five-pointed star between his legs. “A star is born!”

These were among the images that brought international attention, scorn, praise and death threats to Charlie Hebdo, the French satirical magazine that takes profane aim at the shibboleths of politics, culture and religion, particularly conservative ones.

On Wednesday, in an attack foreshadowed by a 2011 firebombing, 12 people were shot and killed in an attack on the magazine’s Paris offices. Armed with pump-action shotguns and a Kalashnikov assault rifle, their actions caught on video by onlookers, gunmen killed 10 members of the magazine staff, including its editor, and two police officers. Five more people were reportedly seriously injured.

Editor Stephane Charbonnier knew the risks of publishing such images, particularly those depicting the prophet Muhammad. Several Muslim hadiths — reports about the teachings of the faith — forbid such visual representations. Charbonnier believed the threats came from a small minority that was unlikely to act.

“It just so happens I’m more likely to get run over by a bicycle in Paris than get assassinated,” he told the Los Angeles Times in 2013.

But he wasn’t unaware of the risks. Asked if he was worried about being targeted, he replied, “Yeah, that’s rather bothersome.” He said it would be harder to do the job, which he took in 2009, if he had a family to worry about.

Absent a family, gunmen apparently targeted the closest thing.

Muslims in ardently secular France, many largely marginalized in the Parisian exurbs and facing discrimination over their dress and skin color, considered the magazine’s content a form of hate speech. The Collective Against Islamophobia in France has insisted that the magazine does more harm than good.

“Socially speaking, France is in a bad state,” spokeswoman Sumeja Rahmani said in a 2013 interview with The Times. “What are these cartoons worth other than ridiculing Muslims more and devaluing them, insulting and offending them?

It wasn’t only French Muslims who thought the crude drawings to be in poor taste, as well as needlessly inflammatory. Nor was Islam the only target — far from it. French politicians questioned the balance of editorial freedom and potential harm, some saying the cartoons were weighted heavily toward the latter.

The magazine delighted in reprinting 12 Danish cartoons, most of which depicted caricatures of the prophet Muhammad. Those cartoons incited protests and violence throughout the Muslim world after their publication in 2005 by the Danish newspaper Jyllands-Posten.

But provocation was not the aim. Well, not the only aim.

“Charlie is trying to analyze the controversy and its consequences,” an editorial explained after the newspaper published the Danish cartoons. “It’s a question of showing that the freedom of expression should be stronger than intimidation.”

The New Yorker’s cartoon editor in 2012, Robert Mankoff, offered up what he said was the only inoffensive cartoon possible. “Please enjoy this culturally, ethnically, religiously, and politically correct cartoon responsibly.”

It was four black lines. An empty box.

AFP Photo/ Bertrand Guay