NACDL frequently writes to members of Congress, the Department of Justice, and the president on fourth amendment issues. These letters have been collected and are available for download by clicking on the titles below.

Professor Tracey Maclin examines and challenges the collective entity rule, which is the Supreme Court’s long-standing view that an individual who works for a company is not protected by the Fifth Amendment when compelled to produce incriminating records that belong to the company. Maclin says the collective entity rule defies the text of the Fifth Amendment, the common law history of the privilege, and the Court’s Fifth Amendment precedents.

The undersigned organizations representing a diverse universe of constituents who care about civil rights and civil liberties write in support of S. 417, the State Secrets Protection Act. This bill strikes an appropriate balance between allowing plaintiffs to seek justice through our judicial system and protecting information that would endanger national security if released to the litigants or the public. We urge the bill’s immediate passage.

NACDL  advocated for legislation to bolster the due process rights of youth in Maryland.

Amicus Curiae Brief of the Petitioner, National Association of Criminal Defense Lawyers in Support of the Real Party in Interest.
 

We write to express our concern about your recent call to restrict the constitutional rights of individuals in the United States suspected of terrorist activity by seeking to codify or expand the “public safety exception” to Miranda v. Arizona. Current law provides ample flexibility to protect the public against imminent terrorist threats while still permitting the use of statements made by the accused in a criminal prosecution. Weakening Miranda would undercut our fundamental Fifth Amendment rights for no perceptible gain.

NACDL comments to the Judicial Conference of the United States Committee on Rules of Practice and Procedure, Foreign Intelligence Surveillance Court (FISC) Rules Committee, and FISC Presiding Judge regarding proposed amendments to FISC Rules of Procedure 7(j); 11(d); 13(a)(4), (a)(S) & (b)(4); 17(b), (c) & (d); 62(a); and 63.

Concerns with Revisions to the Military Commissions Act of 2006 in the Senate-Passed Version of the National Defense Authorization Act of 2009 … The undersigned organizations want to make clear both our opposition to resuming the use of military commissions to try terrorism suspects, and our concern with numerous provisions in the amendment to the MCA that we strongly urge you to consider. … military commissions would still be incapable of delivering on the twin goals of any effective judicial system: ensuring that justice is fair, and ensuring that justice is swift.

Unfortunately, the Feinstein amendment [to the National Defense Authorization Act for FY 2013 (S. 3254)] fails to address a central concern raised in the public debates: the specter of the military being used to police our streets and detain individuals on U.S. soil. The bill also unintentionally reinforces the false and discriminatory notion that due process protections are only afforded to some – not all – persons within the United States. 

Beyond Guantánamo: Confronting the New Paradigm of Prevention in Domestic Terrorism Cases

Letters to the Maryland State Senate Judicial Proceedings Committee and House of Delegates Judiciary Committee regarding proposed legislation to protect the due process rights of youth and end the practice of automatically charging youth in adult criminal court.

Letter to Attorney General Merrick Garland regarding former Attorney General William Barr's ruling in Matter of Thomas and Matter of Thompson, 27 I. & N. Dec. 674 (AG 2019) changing DOJ and DHS policy so state courts can only affect immigration sentencing if related to underlying criminal proceedings and not the immigration case.

Comments to the Judicial Conference of the United States Practice & Procedure Committee regarding a proposed amendment to define how federal courts should navigate an emergency suspension of rules (new Criminal Rule 62), such as those posed by COVID-19 and directed by the CARES Act (H.R. 748, 2020).

Brief of Amicus Curiae National Association of Criminal Defense Lawyers.

Argument: The Fifth Amendment prohibits using Mr. Valdez’s refused passcode disclosure as evidence of guilt. It is settled law that the State cannot raise a criminal defendant’s silence as evidence of their guilt. The words of the Fifth Amendment’s privilege against compelled self-incrimination should be given their plain meaning. The Fourteenth Amendment’s history is useful guidance when considering an amendment’s curative purpose. The Fifth Amendment’s own language demonstrates the Self-Incrimination Clause’s only limitation is that it is reserved for criminal cases. The State’s search warrant authority does not override a defendant’s Fifth Amendment rights. 

Written Statement of Norman L. Reimer, Executive Director National Association of Criminal Defense Lawyers Before the House Committee on the Judiciary Over-Criminalization Task Force Re: “Mens Rea: The Need for a Meaningful Intent Requirement in Federal Criminal Law”