One recent Friday night, President Trump quietly nominated a replacement inspector general (IG) for the Department of Health and Human Services (HHS). But this was no ordinary nomination. If confirmed by the Senate, it will force out the acting IG after her office released a survey of hospitals that, to Trump’s vocal displeasure, underscored his administration’s botched handling of the COVID-19 pandemic.
 
The ouster is also only the latest in a series of troubling actions by the president against the nation’s inspectors general, including firing Michael Atkinson, the inspector general of the intelligence community, and demoting the Pentagon’s acting inspector general, which then made him ineligible to serve on the newly-created Pandemic Response Accountability Committee. The new HHS IG nomination itself came amid a top HHS official’s statement that the Trump administration demoted him for refusing to support the president’s promotion of scientifically unproven treatments for the novel coronavirus. The official has now filed a retaliation complaint seeking an investigation by the HHS IG.
 
This personnel chaos, together with news reports of a broader scheme by the president to purge more IGs, has sparked reminders from leaders across the political spectrum about the crucial role of inspectors general in countering waste, fraud, and abuse in the federal government. But the damage from Trump’s moves won’t be limited to more public dollars lost to corruption and graft. It also endangers our civil liberties.
 
As background, inspectors general are nonpartisan watchdog officials who investigate and offer recommendations to correct incompetence, misconduct, and violations of law within the agency they serve, in addition to ensuring honest financial and administrative management. Most federal IGs are required by law to keep both their agency and Congress fully apprised of “serious problems, abuses, and deficiencies” in the federal programs and operations they oversee. As Republican senators and Democratic committee chairs explained in their reactions to Trump’s personnel maneuvers, Congress depends on IGs to do its own job. They are a vital mechanism for ensuring integrity and accountability in the federal government.
 
That’s why over the years, the ACLU has called on IGs across federal agencies to investigate government actions with harmful impact on civil liberties and rights, such as the Justice Department’s involvement in warrantless spying on Americans. And when IGs reveal government wrongdoing or ineptitude, we demand reforms — like when an IG exposed Immigration and Customs Enforcement failures that jeopardize the health and safety of people detained in its custody, and when another IG found that the FBI’s investigative practices lacked even basic civil liberties safeguards.
 
Independence is pivotal to an inspector general’s success and effectiveness. And that’s precisely why the president’s actions are so alarming. The common thread in his machinations against IGs is his hostility toward independent oversight of his administration, especially by those he deems insufficiently loyal to his personal interests.
 
Atkinson’s example is notably illustrative because he had disclosed to Congress, in accordance with the law and to Trump’s dismay, a whistleblower report that detailed the president’s abuses of power in the Ukraine military aid scandal. As the president complained, that act of fulfilling his duty showed Atkinson was “not a Trump fan.” The resulting message from the president is painfully obvious: Act like a “Trump fan” — or else. And as the former Republican chair of the House Oversight Committee warned, “Inspectors General can’t be effective if they believe looking for waste and abuse could cost them their job.”
 
Over the longer term, Trump’s attacks against oversight threaten democratic accountability by weakening a systemic safeguard that is meant to expose injustices by those wielding government power. A president who declares both that he has “total authority” and that “I don’t take responsibility at all” for his decisions cannot be trusted when he claims “I’ll be the oversight” on anything.
 
The assault on IGs also poses a more immediate threat by undermining oversight of the federal pandemic response, which is beset by problems like the dire shortages of medical supplies highlighted by the acting HHS IG and the tendency of the Trump administration’s political leadership to hide key facts and figures from the public. The Justice Department IG has announced an investigation of another problem, that of federal prisons predictably emerging as deadly hotspots — and this investigation will be conducted under the cloud of a retaliation threat.
 
All hope is not lost, however. As a start, Congress should shore up the legal framework governing IGs with safeguards against presidents firing IGs based on a whim. It should also add stronger protections for those who blow the whistle about wrongdoing, waste, or other abuse to IGs.
 
Thankfully, the country’s IG system has long enjoyed widespread, bipartisan support from lawmakers, including those who recognize the broader need for more robust checks and balances, regardless of who is president. If there’s ever a time to activate that bipartisan support to spur concrete legislative action, it’s now.

Kate Oh, Policy Counsel, ACLU National Political Advocacy Department

This piece was first published on USA Today.

Andrea Circle Bear was 30 years old and had only recently given birth when she died of COVID-19. Circle Bear was incarcerated for a drug-related charge at the time of her death. She spent the final weeks of her pregnancy in a local jail and then a federal prison, spaces that are known hotbeds for virus transmission — and it’s likely in one of these places that she contracted the virus. She shared the planet with her baby for only 28 days before she passed. 

While much attention has rightly been given to the risks of COVID-19 in prisons, jails, and detention centers, the risks to pregnant and postpartum women like Circle Bear have largely been overlooked. Pregnancy alone does not appear to be a risk factor for severe illness from COVID-19, but the data is clear that incarceration compounds the dangers associated with pregnancy. They are much more likely to get infected in prison or jail than in the community.

People who are incarcerated also have higher rates of underlying medical conditions —as Circle Bear did — that put them at increased risk of severe COVID-19 illness. Some suggest that people in prisons or jails who have symptoms of COVID-19, including those who are pregnant, be placed in solitary confinement as a form of quarantine. But solitary confinement can be especially damaging to prison or jail populations that are pregnant  or have recently given birth because it can limit access to timely, adequate medical care.

During this time of rampant coronavirus spread and attempts at social distancing to avoid infection, it’s imperative that pregnant populations are prioritized for release and diversion from prisons, jails and detention centers. 

The situation is dire.

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A new study estimates that at least 72% of people held in immigration detention centers are likely to get infected within the next 90 days. And the danger in jails and prisons is equally serious: Prisons that have conducted universal testing have found that an overwhelming number of the people they incarcerated are positive for COVID-19. One model estimates that 100,000 more people could die from COVID-19 than current estimates indicate if jail populations are not immediately and dramatically reduced.

A recent study that I conducted as a doctor and Johns Hopkins OBGYN researcher estimated that from 2016 to 2017, there were nearly 3,000 admissions of pregnant women to U.S. prisons and 55,000 to jails. Thousands are at risk for contracting COVID in custody and exposing their babies to danger.  

As a physician and an attorney who work with populations that are pregnant and incarcerated, we have seen dangerous variability in their care. There is a dearth of protections for them, leaving many vulnerable to inadequate medical care and abuse: loss of reproductive choices, shackling during childbirth and solitary confinement, as well as the inevitable separation from their newborns.

The COVID-19 pandemic is terrifying for anyone who is pregnant. Those who are incarcerated are wrestling with the added COVID risks of their environment, such as close quarters, lack of adequate cleaning and limited protective equipment. These fears only exacerbate the existing dangers and stressors of being pregnant while incarcerated. Pregnancy, incarceration and COVID are a recipe for both increased medical risks and psychological trauma.

Having coronavirus also may mean being separated from newborns at the hospital. This would be a difficult experience for any new parent, but it is particularly devastating and harmful for those who are incarcerated because they are quickly sent back to the prison or jail, unable to see or hold their infants. And since prisons and jails have suspended visitations as a COVID prevention measure, the few opportunities new parents might have had for contact visits are gone. These traumatic separations interfere with their ability to bond with their children and cause severe emotional harm — for both the parent and the child. 

Advocates and officials have made tremendous and rapid strides in depopulating prisons and jails, often focusing on releasing those who are medically vulnerable to COVID-19. We have seen success in some places. In North Carolina, more than a dozen pregnant women were moved out of prison last month. But more efforts are needed. 

The situation for pregnant populations in our nation’s jails, prisons and detention centers has long been serious. But with COVID-19, it is now an emergency.

Circle Bear’s child should never have been left motherless, and she should not have had to face the dangers of incarceration, where she contracted COVID-19.

We must and we can prevent such senseless suffering. 
 
Lauren Kuhlik is an Equal Justice Works fellow at the ACLU National Prison Project.

Dr. Carolyn Sufrin is an OBGYN and anthropologist at Johns Hopkins School of Medicine and the author of “Jailcare: Finding the Safety Net for Women Behind Bars.” 

This piece originally appeared in The Hill.

Important issues sometimes divide our nation, but one area where most of us share common ground surrounds is the belief that warrantless secret spying on Americans is unjust. 

Soon, the Senate is scheduled to vote on the USA FREEDOM Reauthorization Act of 2020, a bill that would extend provisions of the Patriot Act that expired in March. These provisions are currently not consistent with Americans’ fundamental rights. However, if Congress chooses to reauthorize them, at a minimum, they should be accompanied by meaningful reforms to address the torrent of surveillance abuses that have come to light over the past year. The legislation in its current form fails to accomplish this basic task, and must be amended.

In 2015, Congress passed the USA Freedom Act in a bipartisan effort to address revelations that the National Security Agency had abused provisions of the Patriot Act to obtain the personal information of virtually every American. The stated goal of the bill was to end bulk and large-scale, indiscriminate collection under the Patriot Act, require transparency to prevent future surveillance abuses, and reform the Foreign Intelligence Surveillance Court, which authorizes surveillance of agents of a foreign power in the United States.

Critical protections that were in the original version of the USA Freedom Act – sponsored by over 150 members of Congress – were omitted in the final version of the bill and it has become clear since the bill’s enactment that the USA Freedom Act did not succeed in limiting unwarranted surveillance under the Patriot Act and other intelligence laws. 

For example, Section 215 of the Patriot Act continues to be used to collect vast amounts of Americans’ sensitive information under a standard far more permissive than a warrant – with the government refusing to disclose the types of records it believes it can collect under the authority. In addition, last year, a report from the Justice Department’s Inspector General revealed unlawful surveillance of Trump campaign adviser, Carter Page.  

Subsequent reports by the Inspector General have shown that the errors in the Page case were not simply one-offs, but rather indicative of systemic deficiencies. For example, a recent audit by the Inspector General of 25 intelligence surveillance applications found “apparent errors or inadequately supported facts” in every single one. It is now abundantly clear that we must dramatically reform both the Foreign Intelligence Surveillance Court and our intelligence laws to safeguard Americans’ rights. 

Fortunately, it’s not too late for Congress to right the ship.  Anticipated proposed amendments proposed to the legislation currently under consideration offer a common-sense, privacy-protecting solution. 

Adversarial process is a cornerstone of our legal system. Americans expect that when the government makes a claim in a court of law that they aren’t the only voice heard in the courtroom. Unfortunately, that is precisely what happens in our intelligence courts. An amendment anticipated by Senators Leahy and Lee would help to tackle this problem head-on by encouraging the Foreign Intelligence Surveillance Court to appoint a “friend-of-the-court” to provide privacy and civil liberties expertise in cases raising pronounced constitutional concerns. 

In addition to this, an amendment anticipated by Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.) would take steps to prevent the Patriot Act from being used to further trample Fourth Amendment rights by limiting collection of internet and search history. Section 215 of the Patriot Act was never intended to give the government carte blanche to engage in the type of collection that typically requires a probable cause warrant under the Fourth Amendment. Under the proposed amendment, the FBI would still be able to get internet search and browsing information in foreign intelligence cases – they would just need to show probable cause like they do in the criminal context.  

Finally, Sen. Rand Paul’s (R-Ky.) has said that he also intends to introduce an amendment that will provide further protections for individuals in the US who are ensnared in the FISA process – something that is sorely needed. 

There’s much more that needs to be done to fix our nation’s broken surveillance system beyond what’s accomplished in these amendments. Among other things, protections are needed to ensure that First Amendment activity is not a basis for surveillance, that the government purges data that is not foreign intelligence, and that intelligence agencies comply with their constitutional obligation to fully notify individuals when information obtained as a result of intelligence surveillance is used against them. 

We all want to keep Americans safe. And we can ensure that safety while also making our government accountable to its citizens’ representatives. Undertaking these reforms will help give the American people the transparency and due process protections they are guaranteed under the Constitution.

Billy Easley, Senior Policy Analyst, Americans for Prosperity,
& Neema Singh Guliani, ACLU Senior Legislative Counsel