Monday, December 24, 2012

Time for Obama and Holder to Truly End Racial Profiling by Law Enforcement

Why can't President Obama and Attorney General Eric Holder do more to ban racial profiling in the United States?

Surely, more so than any of their predecessors, they can understand the injustice and humiliation racial profiling victims feel when they are treated as suspect because of the color of their skin.

Yet, after four years in office, they have made no revisions to the Justice Department guidance regarding the use of race in federal law enforcement issued by Attorney General John Ashcroft in 2003. Ashcroft's guidance was deficient: though it expressly banned racial profiling by federal law enforcement agencies, it left broad exemptions for national security and border integrity investigations.

The Obama administration's failure to close these loopholes has given the FBI a green light to implement a program that uses crass stereotypes about what types of crimes racial and ethnic groups commit to justify mapping entire communities based on race and ethnicity. The FBI has argued that racial mapping is no different than a local police chief putting push pins on a map to see where different crimes have occurred. But the FBI is mapping people, with no evidence anyone within the communities it tracks has committed any crime at all. This is racial profiling on a nationwide scale.

When the ACLU released the FBI records detailing this abusive program (which we obtained through requests under the Freedom of Information Act), we wrote to Holder. We explained that because the American criminal justice system is founded on the idea that government must have probable cause to effect a constitutional arrest, individualized suspicion of criminal activity, not guilt by association, is the rule. Holder never responded. 

Ashcroft prohibited the use of race "to any degree" in most spontaneous law enforcement decisions and limited the use of race in specific investigations to "trustworthy information ... that links persons of a particular race or ethnicity to an identified criminal incident, scheme, or organization.

The only explanation we received was a letter from the FBI that referenced the Ashcroft guidance and earlier guidance from 2008, before Obama took office, to argue that it was acting within federal regulations.
The FBI suggests its mapping program was designed to protect racial communities, But it is hard to see how tracking the growth of the Black community in Georgia would protect it, for example, from so-called "Black separatists," when overwhelming statistics from the Justice Department revealed that blacks are mostly victimized by whites in hate crimes.

Yet, based on the information the ACLU gathered, the FBI is not tracking white communities to the same degree. (But even that, too is wrong because it undermines individualized suspicion as the basis for investigation.) In contrast, FBI records don't show any acts of violence by Black separatist groups -- against anyone -- for more than 20 years.

In a more revealing line, the FBI told us that mapping an entire community of people based only on their race was "no different than limiting a manhunt to the description given by an eyewitness." This flimsy argument shows the constitutional damage of racial profiling - that if one person of a particular race commits a crime, all persons of that race should be treated as suspect. Guilt by association is antithetical to American values.
It is not just the FBI that has embraced racial profiling. Behavioral detection officers with the Transportation Security Administration (TSA) recently came to the ACLU to report that colleagues at Boston's Logan Airport were racially profiling airline passengers in an effort to boost arrests for drug and immigration violations. TSA officers were also previously caught profiling at airports in Newark and Honolulu. What could be the purpose of identifying such communities on a map except to treat them differently when the FBI is making investigative decisions? 

It is long past time for Obama and Holder to end this humiliating, ineffective, and unlawful practice. The Justice Department guidance regarding the use of race should be amended in the following ways:

• Close the loophole for national security and border integrity investigation. It also sends the wrong message to all law enforcement officers that racial profiling is sometimes okay.

• Prohibit profiling based on religion and national origin, which is no less an affront to the Constitution than profiling based on race and ethnicity.

• Explicitly state that the ban on racial profiling applies to data collection, intelligence activities, assessments and predicated investigations. Intelligence practices like racial mapping threaten entire communities.

• Include enforceable standards. The current guidance has no enforcement mechanism.

• Expand the racial profiling ban to all state and local law enforcement agencies that receive federal funding.
These reforms are long overdue, and will only make law enforcement more effective, and our communities safer.

Monday, December 17, 2012

Millionaire Tax Now Likely, But President Obama Wants More

In the fiscal cliff horse trading, President Obama wants a tax increase on anyone earning over $250,000. House Speaker Boehner and the Republicans? No tax increase, thank you. But now the Speaker has signaled that tax hikes on those earning over $1 million would be OK. See Fiscal Cliff Talks: GOP Poses Millionaire Tax-Rate Increase.

It’s compromise time as the fiscal cliff moved ever closer. And Mr. Boehner doubtless thinks the spending cuts he wants in return–and the need for some kind of deal–make it worthwhile. See Boehner Agrees To A Millionaire Tax–And Moves Closer To A Fiscal Cliff Deal. After all, the Bush Era cuts are expiring and there’s no patch in sight.

Semantically, perhaps a tax increase is a misnomer if the cuts simply expire. Yet these lines have long been drawn on this issue. Extensions of the Bush Era cuts for at least some seem almost inevitable, yet for who?
Some of the debate focuses on the rates themselves, including the 35% to 39.6% rate hike. But some of the provisions are harder to absorb, including the phase-out of deductions and credits. Then there’s the expiring 15% capital gain rate and the new 3.8% investment tax under Obamacare.

In his new offer, Mr. Boehner for the first time moved off the no-rate-increase stance and made the first move toward compromise. Mr. Boehner’s proposal would extend all current tax rates, but raise rates only on incomes above $1 million. Those earners would face the jump from the current high of 35% to 39.6%.

But Mr. Boehner expects spending cuts to the tune of at least $1 trillion, and at least some of those cuts would come from entitlement programs such as Medicare. Some savings would come from closing certain tax loopholes and limiting deductions. More compromises are likely on the way.

But tax increases now seem quite likely for those earning over $1 million, with top rates jumping from 35% to 39.6% in January. As for long term capital gains, the current 15% rate jumps to 23.8% January 1, wrought from a combination of the new 20% rate plus the 3.8% health care add on that will hit most with incomes above $200,000.

There is no deal yet, of course, but the fact that Mr. Boehner has moved off the no-increase platitude suggests there will be a compromise. Mr. Obama may not get all he wants, and his $250,000 threshold may not hold. Mr. Boehner’s $1 million benchmark may not either. But this may be the first positive sign that it may not be too late for a deal.

Robert W. Wood practices law with Wood LLP, in San Francisco. The author of more than 30 books, including Taxation of Damage Awards & Settlement Payments (4th Ed. 2009 with 2012 Supplement, Tax Institute), he can be reached at This discussion is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional.

Monday, December 3, 2012

Obama salutes entertainers at Kennedy Center Honors

Music legend Led Zeppelin was recognized on Sunday alongside entertainers from stage and screen for their contributions to the arts and American culture at the Kennedy Center Honors, lifetime achievement awards for performing artists.

The eclectic tribute in Washington, alternated between solemn veneration and lighthearted roasting of honorees Academy Award-winning actor Dustin Hoffman, wisecracking late-night talk show host David Letterman, blues guitar icon Buddy Guy, ballerina Natalia Makarova and Led Zeppelin.

"I worked with the speechwriters - there is no smooth transition from ballet to Led Zeppelin," President Barack Obama deadpanned while introducing the honorees at a ceremony in the White House East Room.
Friends, contemporaries and a new generation of artists influenced by the honorees took the stage in tribute.
"Dustin Hoffman is a pain the ass," actor Robert DeNiro, a former honoree, said in introducing the infamously perfectionist star of such celebrated films as "The Graduate" and "Tootsie."

"And he inspired me to be a bit of a pain in the ass too," DeNiro said with a big smile.

At a weekend dinner for the winners at the State Department, Secretary of State Hillary Clinton noted that the performing arts often requires a touch of diplomacy as she toasted Makarova, a dance icon in the former Soviet Union when she defected in 1970.

Makarova, the pride of her national ballet program, said she obeyed an impulse for creative freedom when she sought asylum while in London for a performance.

"It's most incredible because it looks like I lived two lives," the artist told reporters before the event. "I've come a long way, baby, no? That's the way someone said it for me."

The lightest moments came in the tribute to variety show host David Letterman. Several performers said his oddball program was a worthy successor to "The Tonight Show Starring Johnny Carson," which was the standard bearer for late-night shows from the 1960s through the early 1990s.

Comedian Tina Fey, honored with the Kennedy Center's Mark Twain Prize for American Humor in 2010, marveled at Letterman's ability to goad and humble his celebrity guests.

"David Letterman is a professor emeritus at the 'Here's Some More Rope Institute,'" she joked.
Letterman, who joked earlier in the weekend that he was going to fund an investigation to determine how he was given the honor, was at a loss for words on the red carpet.

"I was full of trepidation, but now I am full of nothing but gratitude," he said. "I don't believe this, but it's been nice for my family."

Despite the president's misgivings about his own speech, performances at the Kennedy Center easily transitioned from precision dance tributes for Makarova to gritty blues music when the spotlight turned to Guy, a sharecropper's son who made his first instrument with wire scrounged from his family's home in rural Louisiana.

"He's one of the most idiosyncratic and passionate blues greats, and there are not many left of that original generation," said Bonnie Raitt, who as an 18-year-old blues singer was often the warm-up act for Guy.
Raitt led an ensemble tribute that included singer Tracy Chapman and guitarist Jeff Beck.
Guy, 76, was a pioneer in the Chicago blues style that pushed the sound of electrically amped guitar to the forefront of the music.

"You mastered the soul of gut bucket," actor Morgan Freeman told the Kennedy Center audience. "You made a bridge from roots to rock 'n roll."

In a toast on Saturday night, former President Bill Clinton talked of Guy's impoverished upbringing and how he improvised a guitar from the strands of a porch screen, paint can and his mother's hair pins.
"In Buddy's immortal phrase, the blues is 'Something you play because you have it. And when you play it, you lose it.'"

It was a version of the blues that drifted over the Atlantic to Britain and echoed back in the heart-pounding rock sound of Led Zeppelin.

Jimmy Page, 68, was the guitar impresario who anchored the compositions with vocalist Robert Plant, 64, howling and screeching out the soul. Bassist/keyboardist John Paul Jones, 66, rounded out the band with drummer John Bonham, who died in 1980.

The incongruity of the famously hard-partying rock stars in black tie under chandeliers at a White House ceremony was not lost on Obama.

"Of course, these guys also redefined the rock and roll lifestyle," the president said, to laughter and sheepish looks from the band members.

"So it's fitting that we're doing this in a room with windows that are about three inches thick - and Secret Service all around," Obama said. "So, guys, just settle down."

On stage Sunday night, Nancy and Ann Wilson of the rock band Heart, belted out Zeppelin's emblematic "Stairway to Heaven" to close out the show.