eaders of this column will not be surprised to learn that 1998 was no banner year for civil rights and civil liberties. Perhaps the best that can be said is that with everyone's attention focused on the president's personal affair and its very public aftermath, there was less time available to dismantle constitutional protections. The most hopeful signs for the future came not from within but from abroad, as a chorus of international voices expressed growing concerns about the United States' own human rights record.
The best examples of the "no news is good news" point are two cases the Supreme Court did not decide in 1998: Piscataway Township Board of Education v. Taxman and Seif v. Chester Residents Concerned for Living Quality. In both cases, the court was poised to decide important race discrimination issues.
Piscataway looked to be the most controversial case the court would decide in 1998: It asked whether Title VII was violated by a race-based affirmative action layoff in a public school. The case was settled late in 1997 when the defendants, supported by a civil rights coalition, offered the plaintiff more than $400,000 to take her case off the docket.
Seif asked whether there is a private right of action to enforce Title VI regulations requiring recipients of federal funds to avoid disparate racial impacts in their programs. A group of minority residents challenged a state permit authorizing yet another waste site in a predominantly black area already over-saturated with waste facilities. The case had broad implications because Title VI applies to all state and local programs receiving federal funds and often provides the only opportunity to litigate claims of racial disparity where there is insufficient evidence of intentional race discrimination. If the court found no private right of action, that avenue would be foreclosed. But disparate impact claims lived to see another day when the state rescinded the disputed permit on other grounds, mooting the case. These are what pass for "victories" on racial justice issues these days.
In other areas, it is less feasible to stay out of the courts. The criminally accused, for example, have no alternative. For the most part, 1998 continued the familiar but still incredible shrinking of criminal defendants' rights. In some sense, the shrinking has slowed down, but only because there is so little left. One rule that had survived was the age-old requirement that police must knock and announce their presence when executing search warrants on homes. In March, however, the Supreme Court effectively gutted that rule when it unanimously held in United States v. Ramirez that "reasonable suspicion" of danger to police officers -- a standard that will virtually always be met -- overrides the "knock and announce" rule.
In October, the Fourth Circuit U.S. Court of Appeals created a similarly huge loophole when it held in United States v. Sakyi that a police officer may frisk all occupants of a stopped car for weapons as long as she has reasonable suspicion that illegal drugs are in the vehicle. The Supreme Court has long insisted that frisks for weapons are permissible only where there is reasonable suspicion that the individual stopped may be armed, but the Fourth Circuit simply equated drugs with guns, creating, in essence, a "drug" exception to the Fourth Amendment's stop-and-frisk rules. For years, critics have argued that the war on drugs has led courts to water down constitutional protections for the criminally accused, but rarely has a court been so blatant about doing just that.
Immigrants also have nowhere to go for relief but the courts, and Congress has been increasingly trying to cut off even that avenue. In August, a District of Columbia federal court threw out a constitutional challenge to "expedited removal," a procedure by which aliens arriving at the border without proper documents can be summarily expelled by an immigration service bureaucrat, without a hearing and without judicial review. The court reasoned, simply but brutally enough, that aliens seeking to enter the country have no constitutional rights.
Aliens inside the country still enjoy constitutional protection, but sometimes it may be difficult to tell. In about two dozen pending immigration cases, the Immigration and Naturalization Service is using secret evidence to justify detaining aliens or denying them asylum or other immigration benefits. The most basic tenet of an adversary system is that both sides must be able to confront the evidence against them. Yet, in these situations, the INS makes its case behind closed doors, rendering a meaningful defense impossible. In one case, James Woolsey, the former director of central intelligence, who presumably has the highest security clearance given out, is representing several aliens, yet the INS will not even allow him to see the evidence.
The only right as basic as the ability to confront evidence against oneself is habeas corpus -- the right to have a court review whether one's detention is legal. Yet even that right is now endangered for thousands of aliens. In two 1996 statutes, Congress denied judicial review to aliens found deportable for certain criminal offenses, and the Justice Department argues that these statutes eliminated virtually all habeas corpus review for such aliens. Thus far, most courts have been unsympathetic to this attack on one of their most sacrosanct roles in the legal system. The First Circuit in Goncalves v. Reno and the Ninth Circuit in Magana-Pizano v. Reno held that habeas review remains, while the Eleventh Circuit ruled in Richardson v. Reno that habeas review has been repealed. The solicitor general has asked the Supreme Court to reverse the First and Ninth Circuits' decisions.
One bright spot on the horizon -- if one can call it that -- is the growing international focus on our shortcomings in the area of civil rights and civil liberties. For a long time, we considered ourselves the world leader in these matters, an exporter rather than an importer of human rights traditions, instruments and values. Yet in 1998, as the world celebrated the 50th anniversary of the Universal Declaration of Human Rights, we found ourselves subject to international scrutiny for our own human rights violations.
In October, Amnesty International launched a 12-month, worldwide campaign focused on human rights abuses in the United States. The strongly worded and well-documented report that accompanies the campaign calls attention to a string of human rights violations: from police brutality directed at minority citizens; to the inhuman conditions of many of our prisons; to the detention of asylum applicants; and to the administration of the death penalty. Earlier in the year, a U.N. Commission on Human Rights report also criticized our implementation of the death penalty. And the Inter-American Commission on Human Rights declared that the execution of a black man convicted by an all-white Utah jury without any inquiry into substantial evidence of racial motivation violated numerous international law provisions.
It is with respect to the death penalty in particular that we are an undisputed world leader in human rights abuse. In 1998, we executed three juvenile offenders, in clear violation of the International Covenant on Civil and Political Rights, the U.N. Convention on the Rights of the Child and the American Convention on Human Rights. On this issue, we can be judged by the company we keep: only Iran, Pakistan, Saudi Arabia, and Yemen have joined us in executing juvenile offenders in the past decade.
Our response to the prospect of international human rights coming home to roost has not been inspiring. In July, the United States was one of a handful of dissenters (along with China and Israel) to a landmark agreement by 120 nations to establish a permanent international war crimes tribunal. In April, the Supreme Court allowed Virginia to execute a Paraguayan national in the face of an order from the International Court of Justice that the execution should be stayed to allow resolution of an alleged violation of the Vienna Convention on Consular Relations. (On Dec. 10, however, the Supreme Court granted a stay in another death penalty case raising the same issue, this time involving a Canadian citizen.)
As our own courts grow increasingly hostile to civil rights and civil liberties claims, we may need to look to international pressure. Activists in other countries have been doing just that for years. We're only starting to do so here, but it's about time.
This piece originally appeared in Legal Times.
David Cole is a professor at Georgetown University Law Center, a volunteer staff attorney with the Center for Constitutional Rights, and the author of the forthcoming No Equal Justice: Race and Class in the American Criminal Justice System (New Press, 1999).
Readers of this column will not be surprised to learn that 1998 was no banner year for civil rights and civil liberties. Perhaps the best that can be said is that with everyone's attention focused on the president's personal affair and its very public aftermath, there was less time available to dismantle constitutional protections. The most hopeful signs for the future came not from within but from abroad, as a chorus of international voices expressed growing concerns about the United States' own human rights record.