NCARL 2007 Newsletters

November 2007

Dear troublemakers,

Defending Dissent Foundation
Our New Executive Director
The Board of Directors of Defending Dissent Foundation is pleased to announce that Sue Udry has agreed to become our new Executive Director. We conducted a nationwide search. We received dozens of resumes from qualified and fascinating people. We conducted many interviews. In the end, within our midst, we found Sue, eager to do the work.

A number of us already knew Sue as a member of our Board before she resigned to seek the Executive Director position. Sue had served on the steering committee of the National Committee Against Repressive Legislation (NCARL), and over a decade ago, had directed our sister organization, the Chicago Committee to Defend the Bill of Rights. After moving to Washington D.C., Sue became the Legislative Director of United for Peace and Justice, responsible for guiding the grassroots lobbying efforts of the coalition’s 1300 member groups, as well as the legislative advocacy of the coalition as a whole. UFPJ is a respected national advocacy group dedicated to affecting the national dialogue on national security, war and peace and a large coalition – critical experience in our estimation.

Sue’s expertise in coalition building, in web and other Internet communication, in legislative action, and in defending dissent activities, makes her a great fit for us. She already knows many of the national organizations with whom we work. She has been part of the national scene for a period of years, and understands the legislative process. Her enthusiasm and energy are palpable.

What she doesn't know so well is many of you (outside of Chicago, of course). She doesn't yet know your experience and your expertise and your history. She will learn the depth of your commitment to the issues and the warmth with which you support and defend this organization.

Finding Sue to step into Kit’s shoes will help ameliorate our sense of loss at Kit’s departure. Because Kit had been with NCARL for fifteen years, she made possible the impossible job of replacing Frank Wilkinson’s forty-year tenure directing NCARL and then, in April of 2001, his directorship the First Amendment Foundation. The ongoing gargantuan civil liberties crises brought on in the wake of the 9/11/2001 terrorist attacks greeted her shortly thereafter.

In the midst of it all, Kit, with Frank, commissioned Jim Dempsey & David Cole's book, Terrorism & the Constitution and then she became midwife to Frank Wilkinson biography – First Amendment Felon. Frank's story neatly ties together our unique history, as the National Committee to Abolish the House Un-American Activities Committee (HUAC) and a poignant story of an indomitable hero and it became what Kit and Frank had envisioned – not a just a regular biography, but the history of government attacks on dissent throughout the 20th century.

Frank regaled most of the country with his stories over the last decades of the 20th century. Now his biography, paired with the Cole and Dempsey text, can do that into the future, which helps us all reconcile to Frank’s death in 2005. Thank you, Kit, for all of that.

And thank you, Sue for joining in this newly more activist role with us, Executive Director of Defending Dissent Foundation. Please join us in welcoming her.

Woody Kaplan, President
Defending Dissent Foundation,
On behalf of the Board of Directors

Hello Defending Dissent Foundation
Dear friends,
As readers of this newsletter know too well, the work of the Defending Dissent Foundation is vital. The Executive branch works in secret (or out in the open) to erode our rights, aided and abetted by the Judiciary… and the Legislature wrings its hands rather ineffectually, or just plain gives in. I don't step into this job lightly.

But I believe in the mission of DDF and am confident that we can meet the challenge we're facing. I am optimistic because activists, youth and students, immigrants and others are taking the threats against our liberties seriously. In my two and half decades as an activist, I have never seen such awareness and concern about civil liberties before. That is partly due to the overreaching of the Bush Administration of course, but also due to the work of NCARL, the First Amendment Foundation, and others who have effectively educated people around the country about the importance of our right to dissent.

I come to the Defending Dissent Foundation with twenty-five years of experience as an organizer on different peace and justice issues. I understand that at the base of it all is our right to dissent, so I am pleased to be back in the NCARL family. I look forward to working with you to keep our rights intact, and hope I can count on your active participation in DDF.

Sincerely, Sue Udry

Kit’s Parting Thoughts
As those of you who’ve been reading the Defending Dissent letter over the last months know, we’ve been searching for a new director. As you can see, we’ve found someone – a person in the family already. Clearly, Sue has civil liberties in her soul. That’ll be a huge help for her as she facilitates us in facing off against a certain array of repressive government limitations on dissent. Why certain? Look at the last century: Palmer Raids to investigations of anti-war activists.

So now that we’ve found Sue and she’s found in us her next career, I can proceed to my next work. I fully intend to be a resource for Defending Dissent Foundation over the next months and probably years. You never really leave the family. I look forward to reading the newsletter rather than writing it every month. I look forward to being told what to do and how to do it by Sue – in defense of the right to dissent. I look forward to the new blood, new ideas, and new directions that will take Defending Dissent Foundation further into the electronic age than I’ve been able to go. Better website, blogs? MyFace? Sky’s the limit.

None of the last 20 years that mark my affiliation with NCARL, First Amendment Foundation and now Defending Dissent Foundation would have been worth it if I felt alone in the effort. On the contrary, there is the Board of Directors – they’ve put in sometimes huge amounts of time, thought, encouragement, and gentle guidance, which have been crucial through my transition into being director.

Then there is my cork board. It’s loaded with notes from you all, and beyond that a file folder with some of the most interesting, funny and welcome of the historical notes (and just to balance it off, a few of the best hate mail). You are activists and you care about our country and making it stand up to its espoused principles. You’ve been a great history lesson for me because among you in the mailing list is an honor role of the who’s who of civil libertarians. Most of the people you’ve ever heard of who stood up against the Red Scare and McCarthyism (or J Edgar Hooverism as Frank Wilkinson used to say), are and were our supporters. And that means that so many more of the people you never heard of, who more quietly stood up to the tyranny against dissent, have been part of the NCARL, now Defending Dissent Foundation family. I am honored to have ‘led’ you. I am gratified and humbled by your support. You make me proud to be an American – when that can be a challenge.

I know you’re not going anywhere, and I’m just stepping down as director. I remain an embraced and comradely troublemaker among the best of troublemakers. Kit

EXECUTIVE BRANCH
Mukasey Twists in the Wind
Last month it looked like Judge Mukasey was a shoe-in for Attorney General. But then, in his testimony the second day before the Senate Judiciary Committee, he hit a wall. Two main issues started to choke the committee. Mr. Mukasey refused to condemn the use of ‘water-boarding’ outright, saying that he didn’t know how it was being implemented, even after Senators described the procedure in its gory detail. And at the same hearing, the judge allowed as how he thought that the President has the right in a time of emergency to ignore the rule of laws.

In response, Senate Democrats have sent a letter requesting clarification in writing of his position on water-boarding. And Republican Senator Arlen Specter has asked for clarification on those issues and also on the Executive override of laws. From Specter’s letter: “If you believe the President can act outside the law, how do you square that belief with your statement at the hearing that ‘The President doesn't stand above the law?’”

Senate Judiciary Chair Pat Leahy has slowed up the process, saying there will be no movement on the nomination until written responses to the letters are received. Both he and Senator Dick Durban (D-IL) have indicated their votes for Judge Mukasey depend on his repudiating water-boarding.

TO DO: Call your Senators with your concerns about these issues – asking them not to confirm an Attorney General who believes the Executive Branch is above the law. Call the switchboard: 202-224-3121 and ask for your Senator’s office. Then leave a message with the receptionist or the staffer who handles judiciary issues.

LEGISLATION
Warrantless Wiretap Bill Mess
After the August passage of the “Protect America Act”, Democrats and some others vowed they’d fix the codification of Presidential warrantless wiretapping. The House introduced a bill, H.R 3773, the Restore Act, which imposes additional limits over the August law, and refuses to allow retroactive immunity to the telecommunications industry for its cooperation with the Executive in facilitating warrantless wiretaps. Then came the Senate on a bipartisan basis to introduce a much worse bill that also would give telecomm immunity. It’s an abomination.

Initially the broad civil liberties community split over the House bill as not being good enough. Then came the Senate version, which we all oppose. It not only would give telecom immunity, but it codifies much of the worst of the August law for a longer period.

TO DO: Call your House member today! Tell them to stand up in support of at least the Restore Act (H.R. 3773) requirements of warrants and oversight by the FISA court, and to oppose telecom immunity. Stand up against the Senate cave-in.

CASES
Holy Land Foundation Mistrial Win
The U.S. government effectively killed the Texas charity in December 2001 when it froze and then seized its assets (money, computers, records, desks, etc.), without a hearing. Some folks affiliated with the former organization appealed the decisions, but failed in court, arguably in significant part because the case involved secret evidence the challengers were not permitted to see, not to mention that there were no organizational funds available to pay to sue. The Federal court in D.C. ruled against the challenge that this procedure denied constitutional rights of due process.

Not satisfied, the U.S. then decided to bring 197 criminal charges against Holy Land Foundation and its board. Here it finally hit a wall. A jury found the individuals innocent of many of the serious charges, and deadlocked on the rest – finding no one guilty of any of the charges. The judge called a mistrial.

This has been the recent trend on the material support for terrorism charges when they hit juries. Sami Al Arian in Florida was found innocent of the toughest charges and the jury deadlocked 10-2 for acquittal on the rest. In Chicago, similarly, two men were acquitted of the most serious charges.

Material support for terrorism is inherently a vacuum cleaner charge – it’s a crime to give money or even volunteer your time to a group labeled terrorist – or even to another group that then gives money to the labeled group. This includes completely charitable activity – money for food, medical care, for children, for example – as was Holy Land Foundation’s purpose. Juries have refused in recent years to buy it. <><>

October 2007

September 2007

Dear friends

LEGISLATION
FISA Fiasco
A week after we wrote the last newsletter, Congress allowed itself to be hoodwinked into passing an almost complete gutting of FISA, the Foreign Intelligence Surveillance Act. The old line – if you don’t pass this legislation, the next terrorist act will be your fault – worked. The new law is called “Protect America Act of 2007.”

Initially the argument was that a new bill had to be passed to allow foreign caller to foreign caller wiretapping without a warrant, even if the call gets connected via a switchboard in the U.S. (which is increasingly common). Legislators generally decided that was rational.

Then, however, the Executive started arguing that it should be able to wiretap on its own authority (without FISA court oversight) anyone abroad who was talking to someone in the U.S. And that is what passed. The FISA-gutting law allows a wiretap without the secret FISA court warrant for any call a person in the U.S. has with someone outside the country, (your Mom, for example). While there is a 6 month sunset on the law, any Attorney General and Director of National Intelligence - authorized tap can proceed for a year. While the Administration argues that the FISA court still has oversight, it only can approve procedures, not specific authorizations.

The Administration version of the bill passed with 16 Democratic Senators and 41 House Democrats voting for it along with most Republicans – not a party line vote.

After the law passed, many legislators, led by Speaker Pelosi and Majority Leader Reid, promised to amend it to create a more thoughtful and limited change to FISA. There will be a tendency to pass something barely improved quite quickly. On the other hand, Senate Judiciary probably soon will become mired in the Attorney General confirmation process, not to mention considerations about the Iraq war.

TO DO: The new fix FISA bill has yet to be introduced, so we would urge you to call your legislators and ask them to help create a strong new bill that:
1) would confirm that the FISA law is the only mechanism for intelligence collection related to any calls from or to the U.S. ,
2) require penalties for violation of this core principle,
3) leaves the physical process of tapping in the hands of the telecom industry and not the government,
4) require FISA Court oversight of the entire process, and
5) tell the government to destroy any U.S. tap product unless it indicates terrorism planning or activity.

Call 202.224.3121 - which is the main Congressional switchboard where you can request to be connected to your legislators or their staffers tasked with this issue. Have them move swiftly but carefully to fix the FISA mess they left in August.

CASES
Padilla – Did the Constitution Work?
Jose Padilla was found guilty of 3 terrorism-related crimes by a jury of his peers. So in fact the government was able to use the criminal justice system to convict this former ‘enemy combatant’ of crimes for which he’ll likely spend his life in jail, despite years of Executive Branch protestations to the contrary. And what are Padilla’s crimes? Not being a ‘dirty bomber’ and not killing people – he was not charged with those acts – but that great amorphous crime: conspiracy. Conspiracy to commit terrorist crimes. Convicted probably for having a fingerprint on the front of a form used by an Al Qaeda training camp in Afghanistan filled out with another’s name.

But first, as you all know, he spent 5 years in jail, mostly without charge, without access to an attorney, or any visitors, in solitary confinement for years – essentially, extreme sensory deprivation. The rationale – so Padilla could be interrogated without legal intervention – has been rejected by former Supreme Court Justice Sandra Day O’Connor in the 2004 Hamdi v. Rumsfeld decision. By most reports, Padilla’s a pretty damaged human being now. Matches the legal system perhaps.

NSA Cases
Electronic Frontier Foundation (EFF) suit – An argument August 15 before a 3 judge panel of the 9th Circuit U.S. Court of Appeals seemed weighted in favor of the legal challenge. In the suit, Mark Klein, an AT&T whistleblower, maintains that there was a room where AT&T and the National Security Agency collected massive domestic and foreign communications of U.S. people. EFF then brought suit to challenge its legality and the fight was over whether EFF would be allowed to sue on this issue of state secrets.

Among the judges, Harry Pregerson and Margaret McKeown virtually ridiculed government lawyers. When told that they just should trust the government, and that the courts were not the right forum for complaints, Judge Pregerson asked what was the right forum, “Impeachment?” Judge McKeown asked, “If there were in fact widespread surveillance of American citizens, there would be no remedy, yes or no?” and received essentially a negative response.

Al-Haramain Islamic Foundation v. George W. Bush – In the second case argued before the 9th Circuit panel, attorneys for the foundation noted they had mistakenly received a document indicating the lawyers were being surveiled. So they were arguing receipt of the secret document was proof of standing to argue the case in court. Jon Eisenberg, one of the attorneys noted in an 8/13 Adam Liptak op-ed in the NY Times his procedures: “Yesterday, under the auspices and control of my litigation adversaries, I wrote a brief, of which I was not allowed to keep a copy, responding to arguments which I was not permitted to see, which will be met by a reply which I will not be permitted to see.”

FISA Court Orders Govt Response on FISA Orders – On August 17, the ACLU asked the FISA court to function more openly, by making public its otherwise classified rulings on the reach of U.S. authority to wiretap. In response, the FISA court in DC has required the government to file a quick response.

ACLU Challenges Gag on National Security Letter Recipients
On August 15, the ACLU argued in federal court in New York, that people who receive a national security letters and who may not say even that they have received a letter are being unconstitutionally gagged. Since 2001, the FBI has massively increased use of the secret letters, which demand bank or other records (including library use). The Inspector General at the Justice Department has reported that 143,000 NSLs were issued from 2003 to 2005. That’s a lot of gagging.

Holy Land Foundation
We have previously reported on the material support for terrorism case against the Holy Land Foundation now finally being argued. In a weird and reminiscent twist, the government has listed many groups as un-indicted co-conspirators in the case. Among them are over 300 individuals and organizations, including the nationally known Council on American-Islamic Relations. The National Association of Muslim Lawyers, along with the National Association of Criminal Defense Lawyers, wrote an August 15 protest letter to the Attorney General, requesting a meeting to outline their concerns, which include that people have no notice of the listing or ability to challenge it – the link to the letter: http://www.namlnet.org/pdf/AG_ltr_UIC_list_final(1).pdf

On August 16th, CAIR filed a brief asking the court in the Holy Land Foundation case to remove the name of CAIR and the other 300 names as un-indicted co-conspirators from the case: http://www.cair.com/pdf/sp/CAIR_amicus_brief.pdf

EXECUTIVE BRANCH
AG Gonzales Gone But Not Forgotten
Attorney General Alberto Gonzales has finally resigned, effective mid-September. Fortunately, DOJ Inspector General Glenn Fine has told Senate Judiciary Chair Leahy (D-VT) that he is investigating whether Mr. Gonzales lied in statements to Congress among other issues.

Feds to Share Satellite Data With Locals
This fall, Mike McConnell, director of national intelligence, has approved sharing of spy satellite intelligence with border control and probably later on, local law enforcement agencies. Steve Aftergood, of the Federation of American Scientists, said this proposed change “potentially makes a transformation of American political culture toward a surveillance state in which the entire public domain is subject to official monitoring.” Civil liberties advocates are calling for very proscribed and controlled access and stringent court and other oversight rules to be in place before any dissemination of this high resolution data. Rep. Jane Harman (D-CA) calls for “crystal clear” rules to protect privacy of Americans.

Talon Database to be Shut Down
The Pentagon has announced that on September 17 it will close down the “Talon” database widely criticized (including by us) for collecting antiwar protesters names and those of other people who posed no threat to the military. Of course the Pentagon denies the protests are why it’s being shut but rather because the “analytical value had declined.” Ha.

US AID May Screen Foreign Aid Groups’ Staffers
Called the “Partner Vetting System” the US announced in the Federal Register – initially to be effective August 29 – that it will collect personal data to then run a “national security screening” of key employees and board members of NGOs applying for US AID funds. The purpose is to screen out people “associated with terrorism” or a “risk to national security.” Previously, groups have self-certified – thus avoiding government data collections on another big collection of people.

After a big hubbub, the Bush Administration announced on August 29 it will instead begin with a pilot program of groups who get AID grants to do work in the West bank and Gaza. Another example of hubbubs working.

DISSENT
ANSWER Fined for Postering
Around DC it’s not uncommon to see many signs – for dances, real estate, etc., not to mention political signs. An upcoming Sept. 15th demonstration has precipitated another round of ANSWER posters announcing an anti-war demonstration in DC. But now DC is calling the posters improper for having the wrong glue and being plastered in the wrong places, and fining ANSWER thousands of dollars for postering improperly. Needless to say, ANSWER is contesting the fines. Whether or not ANSWER has a history of plastering the city with fliers, there are valid concerns about selective enforcement of postering regulations.

“Impeach Bush” Called Unlawful Advertising
Speaking of posters, it would have been funny if not true, but as reported in the Cleveland Plain Dealer on August 9, police charged Kevin Egler with unlawful advertising in a public space for posting his sign in a public park. The police officer told him that real estate signs typically posted were protected, but not First Amendment based signage. Egler is contesting the charge in Kent Municipal Court. Backwards and upside down – commercial speech ok: political speech forbidden.

DC World Bank Demonstrators Get a Million
The DC government has settled with 120 demonstrators and pedestrians who were arrested September 27, 2002 during the big demonstrations taking place. The city has admitted the arrests were illegal and paid out a million dollars to the arrestees and their lawyers.

Republic Convention 2004 Demonstration – Continued Fallout
Now the NY police department has been required by Judge James Frances IV to release 2000 more pages of its documents regarding the 1800 arrests. With each move in this case, NYC has been getting in deeper doodoo. But these typically long cases are tough to litigate.

Resources
Heidi Boghosian of the National Lawyers Guild (NLG) has produced a new report: “Punishing Protest, Government Tactics That Suppress Free Speech.” It is available for $3 – go to http://www.nlg.org and buy via Paypal, or send a check to the NLG at 132 Nassau Street, Ste. 922 New York NY 10038.

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We’re closing in on hiring a new director for Defending Dissent Foundation. When that is complete, we will introduce you to the new person and vice versa. I am very impressed with the quality of applicants for the position – a number of them would serve us well, so the board will be able to choose from a talented pool.

Of course we will continue to rely on your generosity in supporting our work as we stretch to fit our new name with a new director and retain you stalwart troublemakers. As Defending Dissent Foundation is a 501(c)(3) non-profit, all of your donations to it are tax deductible.

Thanks for all your kind words to me, and ongoing activism and donations. Let’s just keep up the hubbub.

August 2007

Searching for a Director

We’re closing in on finding the right new Director for the Defending Dissent Foundation and have several excellent candidates. With luck, we’ll be on target to start the transition to the new Director this fall. Thanks all for your continued financial support, activism and applications. They are the greatest gifts you can give to our continued important work.

EXECUTIVE BRANCH

FBI ‘STAR’ Computer Profiling System
The System to Assess Risk (STAR) is the newest FBI program to find people who are “emergent foreign threats” (as opposed to other criminal activity). The purpose is to give people ‘risk scores’ (like FICO numbers) to help analysts find potential terrorists. It’s a data-mining system that adds together several other lists – the terror watch list, a person’s country of origin, information from such commercial data brokers as Choicepoint, plus various FBI classified and unclassified information to get one cumulative risk score.

Legislators including Senator Leahy, and privacy experts including David Sobel of the Electronic Frontier Foundation, have expressed concerns. These include a lack of accountability of these programs, and at their core, the likelihood of using unverified information. Garbage in, garbage out. And if inaccurate information about you is on this list, how will you ever get it out? Those of you who’ve gotten your credit information already will know the likelihood of inaccuracies. With the STAR report, you can’t get it to check it.

Executive Order Limiting CIA Detainee Treatment – Not Enough
The Military Commissions Act required the White House to issue detailed guidance to the CIA, in compliance with the Geneva Conventions Common Article 3, in how to treat detainees in Iraq and secret prisons elsewhere. While it seems most of the mainstream press has headlined the result, ‘CIA Can’t Waterboard’, the actuality is cloudier and more worrisome. According to the White House, some severe interrogation treatment is allowed – more harsh than is permitted at Guantanamo, for example. Torture, cruel, inhuman and degrading treatment, sexual humiliation and denigration of religion are reportedly prohibited, but the CIA is allowed to come up with a secret list of methodologies for interrogation. The military and domestic police, to the contrary, produce specific public guidance as to their limits to no bad effect. Why can’t the CIA?

And the fact that torture has been proven in repeated studies and real life experience not to yield reliably accurate information is nowhere factored into the order. See David Cole’s Salon article of 7/23/2007, “Bush’s torture ban is full of loopholes.”

CIA – Outsiders Running the Show?
People around the Washington area know that since the Reagan days, the federal government has increasingly been outsourced, privatized, and run by consultants. That has its own very significant problems in general (accountability, killing unions, etc.). But when it comes to national security in general and the CIA in particular, there are additional layers of problems if it gets privatized.

A scary op-ed by R.J. Hillhouse in the July 8 NY Times lays it out dramatically: Hillhouse reports over $42 b(B)illion a year of intelligence agency functions done by private firms. These firms include Booz Allen, Lockheed Martin and Raytheon. They recruit spies, and supervise CIA officers. National security is increasingly done by contract. We’ll leave to others the myriad national security problems this may engender.

For our purposes, the concerns include who’s making sure these folks follow the rules, are held accountable for misbehavior, and keep files on what they do for eventual full understanding of government actions. It was hard enough back in the day – see William Blum’s books – to keep tabs on which governments the U.S. tried to overthrow. But now? How can people even pretend to control their government’s actions when they’re privatized under a cloak of secrecy?

DOJ – Gonzales Pulling it Down?
Every day it’s something new. White House politicized more aspects of the Department of Justice. The White House gained access to way too much privileged information inside DOJ. Attorney General Gonzales gives the finger to the Senate Judiciary Committee, again, lying in the face of conflicting public statements, including from members of the Judiciary Committee itself. On July 26th the FBI director under oath contradicted Mr. Gonzales. Why does all this mess impact the right to dissent? It concerns how warrantless wiretaps were approved and reapproved. It is at the core of the vast expansion of DOJ national security programs authority. At the White House and now at the Justice Department, Mr. Gonzales is the face of overreaching and abuses.

The question now is will Glenn Fine, the Inspector General, an independent counsel, or someone else start investigating and/or prosecuting Mr. Gonzales?

Executive Privilege Expanded to Breaking Point – Ever Heard of John Dean?
One of the more remarkable assertions by the White House in recent days is that it would tell the Department of Justice not to enforce – to block enforcement - of contempt charges brought by Congress against White House officials who refuse to testify before Congress. This, they say, is enforcement of executive privilege.

Now the House Judiciary Committee has voted to cite Harriet Myers and Joshua Bolten for contempt of Congress, for refusing to testify about the political purging of 9 U.S. attorneys. Given that Congress has amassed documentation of possible criminal acts, its need to collect more from the White House is compelling, and likely would withstand appeal to the courts.

John Dean, like Harriet Myers, was White House counsel. He testified in the greatest detail about his conversations with everyone in the White House. The Nixon administration, for all its failings, did not stop him. What makes Harriet Myers different?

CASES

GITMO
US Supreme Court – Will Hear Access to Courts Case Next Session
The U.S. Supreme Court announced at the end of this term (reversing an April decision) that it will hear the legal challenge of Guantanamo detainees that they have the right to appeal their cases to the U.S. court system. As Geo. U. law prof. Neal Katyal put it – this will take on the core issue of whether the U.S. Constitution applies to detainees under U.S. control. This whole issue of Gitmo detention has been such a legal tangle, it is time for some clarity of the big issue.

The Congressional Research Service (CRS) put out a report: “Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court”, which you can get from the Federation of American Scientists: www.fas.org/sgp/crs/natsec/RL33180.pdf.

US Court of Appeals – Outlaws Use of Secret Evidence at Gitmo
A 3 judge panel of the U.S. District Court of Appeals in D.C. unanimously told the U.S. (Bismullah v. Gates) on July 19 that it must give almost all evidence it has to detainees who are contesting their detention. This reminds us of the legal and ‘hearts and minds’ fight we had with the government in the 1990s over the use of secret evidence in deportation proceedings. Then, as now, it was clear to most judges looking at the issue, that a person and their lawyer could not possibly rebut and defend against evidence they could not see.

Gitmo Review Panels Flawed
The above two articles already indicate this, but to nail the coffin, Stephen Abraham has said in an affidavit and testimony that the Combatant Status Review Panels (CSRPs) are a mess. Abraham was on a CSRP as lawyer and lieutenant colonel in the Army Reserve, and so reviewed information on the detainees at Gitmo. It already was clear that there was no due process as the detainees couldn’t call witnesses, and couldn’t see much of the evidence against them in these CSRPs. But Abraham also explained that there was pressure from superiors to believe unsubstantiated statements, the information was often vague and unspecific “garbage”. As well, contrary to others claims that everyone was fine with the process, Abraham had been complaining about problems with the process while he was serving on the tribunal – including to the higher-ups who have testified to the contrary.

OTHER CASES

Warrantless Wiretaps
There are lots of cases across the country challenging the warrantless wiretapping program. The 6th U.S. Circuit Court of Appeals in Cincinnati tossed out a Detroit case on national security grounds. July 24th, 9th Circuit U.S. District Court Judge Vaughn Walker refused to dismiss a case in which 5 states have sought more information on the program. The 9th Circuit appeals court will hear that case Aug 15th. One of the problems with these cases is that it’s hard for defendants to prove standing to sue or damages if they can’t find out for sure if the government has targeted them in particular.

Ward Churchill Fired by the U of Colorado
Perhaps it’s the other shoe dropping, but Ward Churchill has been fired. He made inflammatory statements about 9/11, which precipitated a years-long controversy. He was fired purportedly for academic misconduct – allegedly, plagiarism and research misconduct. But he and David Lane, his lawyer, are filing a civil rights suit claiming this is about speech, not actions.

Phelps Family Saga: Throw In Flag Burning to Free Speech
The now infamous Phelps family in Kansas has more trouble. Shirley Phelps-Roper was charged with negligent child abuse, flag mutilation, etc., when her 10 year old stood on a flag during a demonstration. The Phelps family is known for demonstrating at cemeteries during military funerals, arguing that the deaths are God’s way of punishing the U.S. for accepting homosexuals. Ok. They’re wacko. But they are just demonstrating.

Public Space to Demonstrate Shrinking
In my own Silver Spring, Maryland, the county made an agreement as part of its redevelopment that a city street in downtown was essentially the leased private property of developers. The developers took that to mean that they could prohibit rallies, petition signing, etc. A ruckus broke out and the developers have backed off. The problem is that the law about malls has made it pretty clear that they are private property, but as our communities and downtowns revitalize and regenerate, we need to take care not to make them just look like public spaces but really be private malls in disguise.

Holy Land Foundation
At long last, the Holy Land Foundation trial has begun. This formerly largest Muslim charity in the U.S. is accused of material support for terrorism – accused of supporting Hamas. The offices, equipment and all assets were seized and frozen in 2001. We and others have condemned the use of secret evidence to destroy charities selectively chosen. Other non-Muslim charities support some of the same clinics and orphanages. Kay Guinane of OMB Watch notes that in Britain and elsewhere, governments are able to allow charities to give to the sick and the poor, whereas the U.S. approach says you should not “separate the real charitable work from the alleged terrorist activity.” This is an issue not only on religious grounds, and due process grounds, but also targets people by ethnicity and politics as well.

Mohammed Salah
Mohammed Salah, in Chicago, has been the only U.S. citizen prohibited from all normal life activities – making money or giving funds to anyone in the U.S. for any reason. Over the years he has gotten some govt permits to go around the prohibition. Then he faced an array of criminal charges. A jury in February acquitted him of racketeering conspiracy to support Hamas, but convicted him of lying regarding a related civil case. Now he has been given the lightest prison sentence recommended by federal guidelines – 21 months in jail and a fine.

LEGISLATION

Fixing Terrorism Courts?
Congress is considering proposals to fix the trial system now used at Guantanamo. If they succeed, it might short-circuit the Supreme Court’s consideration of the issue. There are already bills in the pipeline which affirm the right to access to the courts. Some of the possible ‘fixes’ would create yet another court system outside the federal system, potentially allowing the use of secret evidence, keeping the accused from seeing certain evidence, and otherwise messing with constitutional requirements. Jack Goldsmith and Neal Katyal are among those raising alternatives to the current Gitmo or federal criminal court options. They suggest setting up a preventive detention system overseen by judges, urges general use of civilian courts, but allows for a national security court with special defense lawyers, selected judges (like with the FISA court), and a special appeals court, that would all decide if people can remain in detention forever. These folks would not have all the rights criminal defendants do – like to an attorney, and they could be interrogated for significant periods.

TO DO: Tell your Senators and Representatives that you don’t want a new court. The prisoner of war rules and the U.S. criminal courts allow sufficient alternatives for any terrorist.

Assuring the Right to Habeas?
The writ of habeas corpus is the right to challenge your jailing. That’s one of the main issues at stake in Guantanamo and elsewhere. There are several bills in process to assure the right of habeas. Most recently, Senators Arlen Specter and Pat Leahy are now expected to offer a Habeas amendment (SA 2022) to the Defense Appropriations Bill (H.R. 1585) which is expected to be considered after Congress reconvenes in September. The amendment is like S. 185 that was reported favorably out of the Senate Judiciary Committee.

TO DO: While your elected representatives are home for the break, urge them to support the Specter/Leahy habeas amendment to H.R. 1585.

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We have been around a long time – as have many of you. Remember us in your wills and the Defending Dissent Foundation will be continuing our work after we’re gone.

Kit Gage, Director

July 2007

Dear friends,

DEFENDING DISSENT FOUNDATION

Searching for a Director
We have begun to interview candidates for director of the Foundation. Several of the applicants look very good. But if you know of a special person who we should consider, please contact Kit Gage, for the Director Search Committee, at kgage@verizon.net. Send us a cover letter, resume, references and a short writing sample. Kit will remain Director until the position is filled, but we hope to have a new Director in place by the fall.

EXECUTIVE BRANCH

White House of Cards
We are seeing a continuing array of court decisions overturning Executive Branch policies, Congressional hearings and rumblings, and backing off by the Bush administration from many early activities post 9/11. This is not proceeding quickly enough and requires continued calls and letters from you all to keep the momentum going. Tell the Administration: Go after people who commit crimes, not people who disagree with your policies. No more torture. Due process for all. Close Guantanamo. No more secret prisons. Follow the Geneva Conventions. Greater access to non-top secret documents to allow better oversight by us and Congress.

There is a detailed examination in the Washington Post June 24 and 25 about the role of VP Cheney in setting up Guantanamo and orchestrating use of torture not only by the CIA but also the military. It is fascinating and revolting. His mantra, according to the Post series: “thoroughgoing secrecy, persistence of focus, tactical flexibility in service of fixed aims and close knowledge of the power map of government.”

Some of the issues we raise in this newsletter don’t have particular bill numbers attached to them. Or the bills are not far along and have many committees to approve them. But all of these issues are susceptible to public pressure (if not to Mr. Cheney). Remember to write letters to the editor of your local paper, and consider organizing community information meetings about some of these issues for your local groups. Consider bringing in experts on the issues that concern you most – to help people understand the larger and deeper picture. And as well, sometimes your Congressional reps need to hear from you on these larger issues not connected or yet connected to particular bills.

Public Call to End Secret Detentions
On point to these kinds of activities, 6 human rights groups released the names of 39 people they have reason to think are secretly jailed somewhere – and called on the U.S. to come forward with information about the men. Amnesty International, the Center for Constitutional Rights, Human Rights Watch, NY Univ.’s Center for Human Rights and Global Justice and two British groups have joined this call.

Rep. Ed Markey has introduced H.R. 1352, the Torture Outsourcing Prevention Act with 52 cosponsors. It would eliminate the U.S. transferring people to countries where they would likely be tortured.

TO DO: Ask your Rep to cosponsor the H.R. 1352 if they have not.

Executive Order 12333
This rule, promulgated by the President, and published in the Federal Register (but not subject to a vote by Congress), was originally issued in 1981 and still serves as the major guidance for each and all intelligence agency responsibilities and practices (other than a few laws and [we keeping reminding the government] UN and other international agreements like the Geneva Conventions) which limit their activities. Now we understand it is being significantly rewritten.

Apparently months ago, the CIA drafted new interrogation guidelines – reportedly prohibiting some of the most controversial techniques like ‘water-boarding’ used in recent years.

While this rewrite may be timely given the expansion of agencies and technologies since 1981, and the massive violations of the old strictures, it must not be used as an opportunity to throw out those timeless rules – like no torture.

Guantanamo Closure Advocates
There’s a bandwagon developing. Former Secretary of State Colin Powell has now stated publicly that he would shut down the Guantanamo military prison and the military commission system because of the horrible impact on the world’s perception of the U.S. Defense Secretary Robert Gates said a few months ago that it should be closed. Of course Democratic candidates for President are taking various stands in general objection; John Edwards says now that he’d shut it down the first day he took office. June 21 there were rumors flying that the Administration was planning to shut it down. Seen any albatrosses, anyone?

There are two kinds of bills in play – S. 1249 and H.R. 2212 to eventually close Guantanamo (more or less), and S. 1469 to cut off funds (more or less) to detain people in Guantanamo. S. 1249, by Sen. Feinstein has 4 cosponsors. Its partner in the House is H.R. 2212 by Reps. Harman and Abercrombie with 8 sponsors. Sen. Harkin’s cut off the money bill, S. 1469 has 4 cosponsors. All are useful to gain momentum on this issue. None is perfect.

TO DO: Get your representatives signed on to these bills.

Due Process Restoration
Restoring the Constitution Act, S. 576 and H.R. 1415 would bring us a clear step toward reestablishing due process rights for detainees. Initiated in the Senate by Sen. Chris Dodd with 12 cosponsors and in the House by Rep. Jerrold Nadler with 56 cosponsors.

TO DO: Again, get your representatives on board these measures. It’ll ramp up pressure, especially as we get Republicans signed up.

FBI Screwed Up Data Collection Again
Perhaps you loyal readers will not be shocked, but yet again the FBI, in an internal audit, discovered over 1000 violations of its own rules regarding national security letters (NSLs). Sometimes the problem was that approval for particular NSLs did not go up the chain of command. Other times third parties (mostly phone companies) gave the FBI more than they asked for, and naturally the FBI kept the information – content of emails etc.

Former Chief FISA Judge Blasts Use of Warrantless Wiretaps
Judge Royce Lamberth of the federal district court of DC, lambasted the Executive Branch over use of wiretaps without even secret judicial authority, as with the FISA court he headed. Lamberth said “judges understand the war has to be fought, but it can’t be at all costs.” He noted that procedures can be changed but not the core values, for example, post 9/11 he approved taps even over the phone.

CASES

Protest Group has Standing to Contest Inaugural Rules
Dating back to the 2005 Inauguration, the government argued that the ANSWER Coalition didn’t have the right to contest the government’s parade permit process. The argument was that the inaugural was over so it was moot. But now the U.S. District Court has recognized that there will be another inaugural (!) and so it is appropriate and legal to allow ANSWER to challenge the rules of the private Inaugural Committee which make the parade a fundraising event and largely preclude demonstrators from the route.

As well the court ruled that the group can challenge “security measures” which stopped protesters from carrying the poles that hold up protest signs. So stay tuned as they get to the heart of the matter. Carol Sobel of the National Lawyers Guild led litigation in this constitutional challenge.

Port of Olympia Protesters Win
Opponents of the war in Iraq held a 10 day protest in May 2006 to challenge shipment of armaments to Iraq out of the Port of Olympia, WA. On June 12, 2007, Thurston County District Court Judge Susan Dubuisson dismissed trespassing charges against the demonstrators, after the prosecution was caught committing misconduct in the case. The prosecution had withheld a police summary of the event, and submitted new reports created a year after the actual event, and belatedly submitted a huge witness list. The judge, citing “gross negligence” by the government, decided with “great regret” to kill the case.

The government had earlier sought to dismiss the case, but unfortunately for it, the evidence was based on spying on the defense’s listserve. Based on the listserve information, the judge had granted a mistrial. When the spying issue was raised with the judge, the mistrial that was earlier granted was undone. And instead, with the judge dismissing the case, the process was essentially reversed.

U.S. Military Court Throws Out War Crimes Charges
This case revolves around the words “illegal enemy combatants.” On June 4, military judges in two separate cases threw out war crimes charges against two people held at Guantanamo, saying that the Military Commission Act of 2006 covers “illegal enemy combatants” and these two men were entitled only “enemy combatants” by a Combat Status Review Tribunal that earlier reviewed their detention.

This was another sign of the decrepitude of the legal underpinnings for those held at Guantanamo.

Due Process for Mr. Marri
Al Saleh al-Marri is a legal permanent resident of the U.S. And while he might well be a dangerous person affiliated with al-Qaeda, he is entitled to constitutional rights in the U.S. The most conservative Court of Appeals in the U.S., the 4th Circuit, ruled unanimously that by declaring him an enemy combatant, the U.S. had denied his right to have a hearing about why he was detained (habeas corpus). It further ruled 2-1 that al-Marri cannot be called an enemy combatant. The court is saying that al-Marri should be charged with a crime and tried in a U.S. court.

FEDERAL/STATE COOPERATION

Immigration Records in Crime Database
It was ironic that in the town of Takoma Park, MD, a nuclear free zone which passed a Bill of Rights resolution a couple years back, Hugo Vinicio Hernandez was deported after a routine traffic stop. Hernandez is a Guatemalan man, stopped by local police, and arrested because the record of his (civil, not criminal) deportation order came up on the police computer. Civil deportation orders now are in the FBI National Crime Information Center database, which Takoma and almost all other local police around the country now use.

We have written about this problem before. Various legal challenges are going through the courts at various stages. The International Association of Chiefs of Police and similar organization oppose non-criminal immigration information in the database. But it’s there. Now.

According to a June 13 article in the Washington Post about the case, there are more than 600,000 outstanding deportation orders. Are local police now expected to enforce these orders? If so, will anyone who is undocumented ever be able to call the police for a rape, theft, child abuse, or otherwise request police assistance? Who will pay for this expanded police work?

Of course this change comes as the Congress daily kills and revives the major immigration law revision with vastly different possible amendments.

Modernized and Expanded Database
A June 7 NY Times article highlighted the huge, high-tech NYPD database. Not only does this database include the NCIC crime database noted above, but also all the stuff of file cabinets – who has visited people in city jails and state prisons, 911 calls.

LEGISLATION

Former DAG Comey Answers Leahy
It was at recent testimony before the Senate Judiciary Committee that former Deputy Attorney General James Comey described the bedside swoopdown on then Attorney General Ashcroft by then White House Counsel Alberto Gonzales, seeking to reauthorize warrantless wiretapping. Now Mr. Comey has sent written answers to committee Chair Pat Leahy about “a particular classified program.”

In the written testimony, Mr. Comey makes clear several items – that the Vice President both knew that the Justice Department had problems with the warrantless wiretapping, and later opposed Mr. Philbin’s promotion (Philbin had helped Comey stop Gonzales from harassing Mr. Ashcroft to extend the wiretap program).

In response to Senator Schumer’s questions, Mr. Comey listed 9 high level people who were prepared to resign over the crisis, in addition to most of his staff, including Robert Mueller, then Director of the FBI.

Subpoenas Approved to Justice on Warrantless Wiretapping
The Senate Judiciary Committee on June 21 voted to approve authorizing subpoenas to the Dept. of Justice to get more detail on the warrantless wiretapping program. This is a shot across the bow – to loosen up more information from DOJ as the Senate seeks with great difficulty to do effective oversight. It was a bipartisan vote.

[Correction: In the June letter, I got my attorneys general mixed up. A couple of you caught it and reminded me that I asked people to complain about Mr. Ashcroft, when I meant Mr. Gonzales. Probably the rest of you just knew what I meant and gave me a pass. Either way, thank you.]

RESOURCES
• Institute for the Study of Dissent and Social Control: www.dissensio.org This is an academic group that publishes studies on government surveillance, and particularly its effect on activist organizations.
• Save Our Civil Liberties: www.saveourcivilliberties.org This is a group formed after police abuses at Miami demonstrations.

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Friends – We don’t charge for the letter so you get no dunning notes and yet are we are supported in great measure by your generosity. Your bequests also are welcome as we forge into the future with our new moniker and consistent work.

Kit Gage, Director

June 2007

Dear friends

DEFENDING DISSENT FOUNDATION

Searching for a Director
After our notice last month that Kit Gage will be going to “senior status”, many of you have sent appreciative notes to us, commending Kit’s work with NCARL and the First Amendment Foundation. It’s a mutual admiration society. You all are a wonderful lot as well. Thank you for the sentiments.

And now we’ve put the job description up on the First Amendment Foundation website: www.defendingdissent.org/faf/
Feel free to distribute it widely to your networks. We do prefer that the person live in (or move to) the DC area. Among the highest priorities for the position is a strong background in civil liberties work, and then of course ability to write and speak and manipulate the computer (and others?) in defense of the right to dissent.

Send resumes to kgage@verizon.net please.

LEGISLATION/HEARINGS

Gonzales/Comey
If you’ve been hiding from the media, perhaps you didn’t notice that Deputy Attorney General James Comey testified before the Senate Judiciary Committee in May. He shocked many people with his story about racing in 2004 to then Attorney General Ashcroft’s bedside at D.C’s George Washington U. hospital to stop two White House staffers (future Attorney General Gonzales and then Chief of Staff Andrew Card) from getting a very sick Mr. Ashcroft to re-authorize an early version of the NSA warrantless wiretapping program. Mr. Comey, who was at that moment acting Attorney General, helped stop the maneuver, along with an aide, Patrick Philbin. Oddly, Mr. Philbin had in November 2001 authored the memo giving the president “inherent authority” to establish the due-processless military commissions. So Philbin was hardly a constitutional stickler either.

After this remarkable exercise in chutzpah (of a Machiavellian sort by Mr. Gonzales and Mr. Card), Comey, Ashcroft and others reportedly had planned to resign en masse shortly afterward, in a principled stance reminiscent to many (including us) of the Watergate era “Saturday Night Massacre” mass resignations at Justice. They were only convinced out of the stance after the Madrid bombings happened and they decided they had to stay at Justice to respond to that crisis.

Now this is a dramatic story. And it may ultimately succeed in getting Mr. Gonzales to resign, be fired, be impeached, or whatever. But abhorrence of the late night hospital visit covers up the more important issues: 1) The Attorney General and his top aides were opposed to the government’s warrantless wiretapping program to the point of refusing to reauthorize it. 2) The remaining secrecy of the details of these programs. 3) The current legislative fight over the wiretapping.

For now, this all remains in the shadows as the program and its various iteration details remain secret from the public. We know there’s a program, we know that some of the telecom companies cooperated with the government to do the wiretapping, and we know now that the shape of the program has gone thru some changes. And we don’t like any of what we’ve heard as it all seeks to subvert the Foreign Intelligence Surveillance Act (FISA).

There’s a pitched battle proceeding now on several fronts. The Administration wants legislation passed to give FISA the coup d’gras. Many Democrats and some Republicans want to strengthen, or at least reiterate, the role of FISA – that wiretaps must be approved by FISA judges, even if in intelligence/terrorism-related taps they are approved in secret. Further, there are several lawsuits chugging away, challenging warrantless wiretapping – especially against the telecom companies. Electronic Frontier Foundation is suing AT&T, and others are suing Verizon in New Jersey, objecting to private company cooperation in unlawful activities.

The personal tale is shocking, but the reality of a massive, unregulated, secret (predominantly secret even from Congress) program is the real story. For now the FISA “modernization” bill has not been attached to any bill under active consideration. Further, the House Intelligence Committee has just announced that it will investigate the nature of the telecom cooperation with the National Security Agency. Chair Silvestre Reyes (D-TX) said: “Before granting immunity for any activities, it will be important to review what those activities were, what was the legal basis for those activities, and what would be the impact of a grant of immunity." That should put a hold on any immunity legislation for the moment.
Fortunately, the Senate Judiciary Committee is not too distracted. Chair Patrick Leahy (D-VT) and ranking member Arlen Specter (R-PA) have sent a letter to Mr. Gonzales demanding many types of information, including the following disquieting note:

This Committee has made no fewer than eight formal requests over the past 18 months – to the White House, the Attorney General, or other Department of Justice officials – seeking documents and information related to this surveillance program. These requests have sought the Executive Branch legal analysis of this program and documents reflecting its authorization by the President. You have rebuffed all requests for documents and your answers to our questions have been wholly inadequate and, at times, misleading.

TO DO: Encourage your legislators to keep the pressure on to find out what the Administration has done regarding NSA warrantless wiretapping, before considering any FISA bill. And urge them in general to uphold a strong FISA standard.

Immigration Bill Considered
Most of you have heard that an omnibus immigration bill is under consideration now in the House and Senate. To all accounts, it’s being written as it’s being amended, as horses are being traded. At this moment, a final vote is not expected until early June (if the negotiated general agreement doesn’t collapse), but the changes are so rapid that they don’t lend themselves to detailed description here.

On the pure detention and legal proceeding, due process issues that we tend to focus on, there look to be a few small improvements from current law. The emphasis of course from our standpoint is that people should not be held in indefinite detention in the U.S. without trial for specific charges. They should not be excluded from the U.S. for such non-violent activities as demonstrating or marching about political issues. In immigration proceedings they should have the right to see the evidence against them. We have signed on to a letter organized by Rights Working Group. See more at www.RightsWorkingGroup.org.

Senator John Cornyn (R-TX) would deny citizenship to lawful permanent residents based on secret evidence, in an amendment probably voted on by the time you read this. If these issues are important to you, check out the above, or any of the websites of ethnic rights groups’ or the American Immigration Lawyers Assn.

CASES

Ft. Lauderdale Demonstrators Win
The National Lawyers Guild and others have won a significant settlement agreement with the City of Ft. Lauderdale to allow relatively unfettered speech and assembly in the city. The Florida Alliance for Retired Americans, various Greens, anti-war and other groups had challenged several laws that allowed city officials to limit demonstrations to religious sects rather than political groups, to delay giving permits, to pick and choose the groups to allow based on whether they approved the issue. Now the U.S. District Court has approved the settlement agreement which 1) requires decisions on permits in 2 business days, 2) can’t use subjective factors to deny permits, 3) allows demonstrations without permits on any sidewalk or city street if demonstrators obey traffic regulations and don’t unreasonably obstruct passage to others.
Congratulations to Carol Sobel, Andrea Costello and other litigators, and to the groups for pursuing the issues.

TO DO: Go to www.nlg.org to obtain details on the settlement. Consider similar language for your own city – or compare it to your current regulations.

Update: Military Funeral Protests
A few months ago we reported the difficulty we had supporting the Westboro Baptist Church protesting at soldiers’ funerals that supposedly U.S. soldiers are being killed because of U.S. tolerance of homosexuals. Right. Stupid. But we defend the right to protest nonetheless. The Kansas legislature promptly passed a law prohibiting protests within 150 yards of entrances to cemeteries around the time of military funerals. Now the Kansas Attorney General, Paul Morrison has filed a lawsuit to challenge the law (the process he must follow by Kansas law). Good for him.

Jose Padilla
The criminal case against Jose Padilla, formerly one of two U.S. citizens named “enemy combatants,” is well under way. The bar already was set pretty low; the supposed ‘dirty bomber’ was not charged with being that. Instead he faces lesser charges of conspiring to “murder, kidnap and maim” people abroad.

Even these lower expectations haven’t been met in the prosecution’s case. Evidence by its key witness, Yahya Goba, who is one of the Lackawanna people who apparently received military/terrorism training in Afghanistan in 2001, is underwhelming. Goba confirmed that he lied on the same form that Padilla is alleged to have filled out – also with an alias. That makes it tough to confirm that Padilla was the one who filled in the form the government alleged is his. Judge Marcia Cooke appears not to be impressed by the evidence as well. The trial proceeds in Miami.

Guantanamo Legal Representation
The U.S. Court of Appeals for the D.C. Circuit heard arguments on whether Guantanamo detainees need not have lawyers, but only ‘personal representatives’ who are not required to keep client communications secret from the government. Already the detainees can see only a summary of the evidence, can be judged guilty based on hearsay evidence, and have the burden of proving they are not enemy combatants (the reverse of innocent until proved guilty).

A week before, the court heard the issue of whether the defendants may be given all the evidence the government collected – not just the part the government found most convincing to make its case for detention. Chief Judge Douglas Ginsburg opined during the argument, “How can we [have] any meaningful review of the determination [of enemy combatant status] if we don’t know what we don’t know, but you know?” It reminds us exactly of the situation before 9/11 in which the government was using secret evidence to deny bond in deportation hearings. In both cases, there is no due process if you can’t see the evidence against you.

Lt Cmdr Matthew Diaz
You can argue that this man is a hero instead of deserving to be court-martialed. He gave a list of Guantanamo Bay detainees to a human rights lawyer at the Center for Constitutional Rights when the detainees were not allowed legal representation. The list allowed the representation process to begin. Diaz was found guilty of giving out secret information and sentenced to 6 months in jail. He was found innocent of releasing the documents believing they could harm the U.S., and his sentence was much less than the possible 14 years.

Luis Posada Carriles
For those few stalwarts who still believe that terrorism law is equitably enforced in the U.S., one need only cite Luis Posada Carriles. He is a Cuban-born Venezuelan strongly and widely suspected of bombing a Cuban airliner in 1976, and other attacks. He escaped from jail while awaiting trial in Venezuela. He’s been in the U.S. since 2005. Venezuela sought his extradition for trial almost 2 years ago.

Now, after an immigration fraud proceeding in the U.S. (an unconvincing surrogate for a criminal trial), Posada has been released on bail (despite being an obvious flight risk and quite arguably a danger to others). But politics being what they are, the Bush administration has refused to honor Venezuela’s extradition petition.

TO DO: Write to your Representatives and to Mr. Bush (1600 Pennsylvania Ave, NW, Wash. DC 20500, or call 202-456-1111) and ask for Mr. Posada to be extradited for trial in Venezuela.

EXECUTIVE BRANCH/STATES

Alabama Homeland Security Dept Tags Dissent and Rights Groups as Terrorists
The Alabama Dept of Homeland Security had a website on which it listed various groups as terrorists. This from a May 27th AP story by Bob Johnson. The reported groups which might “spawn” terrorists included gay rights, environmentalists, animal rights and anti-abortion groups. They were listed as “single-issue” terrorists. As the website has been taken down, we can’t confirm the details. When that part of the site was discovered, fortunately a furor ensued.

RESOURCES

ACLU Report on DOJ Domestic Terrorism Guidelines
On the 5th anniversary of the 2002 revised Department of Justice guidelines, the ACLU has released a report: “History Repeated: The Dangers of Domestic Spying by Federal Law Enforcement.” As you would expect, the report provides some history of the guidelines, criticizes continued spying on protesters with no improvement in combating terrorism, and urges a change of the Ashcroft guidelines back to the stronger standards of the original Levi guidelines. We welcome the report. You can get a copy from the ACLU: www.aclu.org/safefree/spying/29902pub20070529.html.

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Keep those job applications coming – the director position is open until filled. We have some good candidates already – thanks!

May 2007

Dear friends

DEFENDING DISSENT FOUNDATION

Kit Gage
Kit Gage has announced her intention to retire as our Executive Director. TV interviewee, coalition builder, lobbyist, hate and love mail receiver, eternal vigilance maintainer, conference organizer (in 2003 she coordinated the Grassroots America Defends the Bill of Rights First National Conference), skinflint budgeteer, people person, strange bedfellow (collaborating with such as the CATO Institute, the American Conservative Union, and Gun Owners of America, all in defense of dissent), immigrant and ethnic rights protector, First Amendment absolutist, stealth publisher (ushering into print FBI v. The First Amendment by Richard Criley, Terrorism and the Constitution, Sacrificing Civil Liberties in the Name of National Security by James X. Dempsey and David Cole, and First Amendment Felon by Robert Sherrill, Kit has told us she will leave as soon as a replacement can be found.

If we took her literally, then we could rest easy because she is irreplaceable. But some of us having worked with Kit for twenty years, we know when she’s made up her mind, and so we accept her decision with regret but gratitude, for the profound record she leaves – working first with and along side of Frank Wilkinson, and then building on his legacy – will long endure.

For twenty years, Kit has played a critical role in holding together and advancing the agenda of our unique institution. Like Frank was, Kit is a legal worker and not a lawyer. It became a byword of theirs for NCARL that a person need not be a lawyer to read and understand law and policy, and to stand up for what is right, backed up by their own and others’ cogent argument.

The names changed: National Committee to Abolish HUAC became the National Committee Against Repressive Legislation(NCARL); the First Amendment Foundation has become the Defending Dissent Foundation. And the witch hunt targets changed: From reds and their defenders (when the equation was to be a pinko or red was to be a spy) to demonstrators and Muslims, Arabs, South Asians, and people who “look like terrorists.” But the task remained the same.

Whether managing Wilkinson, writing NCARL’s monthly newsletter (this month opposing covert operation, next month exposing the government’s assault on CISPES, etc.), attending to the care and feeding of disgruntled former CIA agents and other potential whistle blowers, promoting the FBI First Amendment Protection Act, or assisting politically active immigrants and civil libertarians to form the National Coalition to Protect Political Freedom, Kit, officially a part-timer, seemed always to be working 24-7 in defense of dissent and First Amendment values.

One project: In 1996, when it developed that Arabs and Muslims were being detained and denied bail with the use of secret evidence, Kit helped found the coalition that included many national Arab American and Muslim groups as well as a nice variety of civil rights and liberties suspects, engaged in a massive PR campaign, and recruited the best lawyers in the country to handle the cases of 20-odd men who were being illegally detained, and although it took three or four years, eventually all were released and the policy discredited even by the Administration.

Kit estimates that she has been to “approximately a billion” demonstrations, managing not to get arrested while being a legal observer and bailing out lots of others. She avoided getting arrested once when being interviewed on the Geraldo show; she narrowly stopped herself from strangling Geraldo for being more than the usual jerk.

Did Kit enjoy her job? One time when she shared the podium with an FBI flack, a teacher asked the agent to list terrorist groups. He obliged but in the midst of his list, threw in “the Sikhs” among them. Says Kit, “I was able to pick up my jaw off the floor, ask the audience if they had heard the agent list an entire religion as a terrorist group (and they nodded), as an example of why there might be a problem. Okay, that was fun.”

Kit’s strange bedfellows work is really a hallmark of hers. She has brought young demonstrators together with old Leftists to share the longevity of government spying on demonstrators. She has connected new Americans to formerly new Americans and homegrown dissenters to forge stronger alliances to oppose present-day government spying. By learning about the Palmer raids, Japanese American internment, COINTELPRO, etc., Kit avers, you can gain strength to oppose current incarnations of First Amendment abuses.

We thank Kit for her commitment, her patience, her energy, her dedication, her idealism, her good humor, her fortitude, her First Amendment DNA, her service.
The Board of Directors

Kit’s additions
It’s a measure how much you all are like a family that I hesitate to let you know of my resignation/retirement as director of Defending Dissent Foundation. Feels a little like I am letting my folks know that I am moving away from home, as I know some of you will be surprised and saddened. But it’s a good time for me to move on to a new project, and appropriate timing for a new director for Defending Dissent Foundation.

I’ve been a staffer for NCARL, the First Amendment Foundation and now Defending Dissent Foundation for 20 years. That doesn’t compare with Frank Wilkinson’s 45 years, but it’s still a long time. We succeeded in getting out the biography of Frank Wilkinson as a mechanism to help people understand the movement to stop the House UnAmerican Activities Committee, and I have largely finished promoting it with trips around the country. With the help of the boards of NCARL and the First Amendment Foundation, we have reframed the groups – with a name that’s self-explanatory and has a distinguishing niche. We’ve melded NCARL into the renamed Defending Dissent Foundation. So now we have created one group out of two, which will be much simpler to run, do the books, and as well, present to the public.

With these projects done I decided this is the time for me to move on to different things – focused more on consulting on native and low maintenance planting and related environmental concerns. But given that Defending Dissent Foundation is clearly part of my extended family, I want to continue to provide assistance as needed, and in particular to function as a connector to the critical historical memory of this amazing group. Editing Bob Sherrill’s book was a graduate level class adding to my existing knowledge base about Frank, NCARL and its early history.

I feel strongly that a new director with different perspectives, expertise and energy will carry Defending Dissent Foundation to a new level. DDF deserves no less. And if I can continue to provide a perspective of duration and some expertise, then that will be worth the effort. I’ll be sticking around for a few months as director to help the board find a replacement.

But we want your help. You know the best civil libertarians in the country. Let us know about them and tell them to apply for the job. We’ll be pleased to forward a job description. The Bill of Rights is not self-enforcing, and that is particularly true of the right to dissent. Likewise Defending Dissent Foundation is made live and functional with your continued help – so help us find a director! We’ll post the job description on our old website: www.defendingdissent.org/faf/, and you can contact me directly at kgage@verizon.net for more information or to apply.

Activist Work

Oops
Last month we gave the incorrect website for the new Right-run civil liberties coalition American Freedom Agenda. It is of course www.americanfreedomagenda.org. Sorry.

Legislation

New FISA Bill – The Wrong Direction
The crisis over warrantless wiretapping has focused on abuses of the Foreign Intelligence Surveillance Act (FISA). While the Administration has somewhat disassociated itself from these activities, now it has proposed a bill to modify “modernize” FISA that would in essence codify warrantless wiretapping.

The bill the “FISA Modernization Act” (no number yet assigned) would do the following:
• Expand National Security Agency (NSA) warrantless surveillance of Americans’ phone and email communications,
• Change the definition of “electronic surveillance” to allow spying without a warrant on the content of all international communications to and from U.S. people, whether they are a citizen or not, as long as that person is not the target of their spying.
• In that changed definition, also allow the NSA to collect “to and from” information on all phone calls and e-mail within the U.S. including by U.S. citizens without a warrant, and store this information indefinitely.
• Allow warrantless collection of the content of communications if “directed at the acquisition of the contents of communications of a foreign power.” This means your kid’s letter to an embassy for country information, your call for visa or shots travel information, and press calls. It requires no connection to foreign intelligence.

More information go to Lisa Graves’ www.cnss.org/FinalCNSS%20FISA%20Memo%204.19.07.pdf, Jim Dempsey’s analysis for CDT at www.cdt.org/security/20070418fisaanalysis.pdf, or the Bill or Rights Defense Committee’s information on an alternative bill, S.1114 that’s better if not perfect: http://www.bordc.org/threats/legislation/index.php#wiretap.

TO DO: Call your Senators and Representative (switchboard 202-224-3121). Tell them the bill is a step.

Cases

Josh Wolf Out of Jail – Gives Up Videotape but Doesn’t Testify
Wolf was jailed for refusing to give his videotape of a demonstration in San Francisco to a grand jury (see our earlier letter). After 224 days in jail, he was released – called the longest incarceration of an American journalist. He then gave both the federal judge and the public (posting it on his website) a copy of the video and answered two questions – denying seeing any attack on an officer or damage to a police car. But his supporters called the release a victory in that he neither testified nor identified people on the videotape.

Seattle WTO Demonstrators Win
In 1999, thousands of demonstrators marched to protest the World Trade Organization meeting and policies. 175 of them were arrested in peaceful protest. Now in a case called Hankin v. City of Seattle, the demonstrators have won their damages case. Seattle will pay $1 million to the demonstrators and probably more importantly, change their police training. Earlier a jury had found the arrests to be unconstitutional. The law firm Public Justice had argued that the illegal arrests had either followed police policy or been approved by policymakers, rendering the City liable for the arrests. Seattle will seal its arrest records in the case, and notify other agencies that the individuals were never tried or convicted of offenses.

EXECUTIVE BRANCH

History Can Help – Census Gave Japanese Names to the FBI
USA Today reported that the US Census Bureau gave information about Japanese Americans and Japanese living in the DC area to US intelligence agencies. The report relied on research from William Seltzer of Fordham University and Margo Anderson of the Univ. of Wisconsin, Milwaukee. American Arab Anti-Discrimination Committee (ADC), the Japanese American Citizens League and the ACLU issued a press release in which Kareem Shora of ADC called on Congress “to ensure that this violation of Japanese Americans’ privacy is not repeated with Arab Americans” given the level of intelligence agencies’ attention to this populace post 9/11.

Japanese Americans file Amicus Brief in Detention case
Similarly, Japanese American children of people who were detained in World War II are now filing a amicus brief to the NY Appeals court in the case of more than a thousand people detained in the New York area right after 9/11, Turkmen v. Ashcroft.

Defense Dept May Close Talon Spy Program –What Will be its Next Name?
As activists have discovered various secret databases that under the rubric or antiterrorism, collect information on protesters, churches and etc., we have called for them to be stopped. Now the Pentagon's new intelligence undersecretary James R. Clapper Jr. "does not believe they merit continuing the [Talon] program as currently constituted, particularly in light of its image in the Congress and the media," said Pentagon spokesman Maj. Patrick Ryder.” The particular concern with this program is the military spying on U.S. activists. But stay tuned. These things get renamed and restructured and pop up again.

Guantanamo – Those Pesky Lawyers
It seems part of the give and take – the Center for Constitutional Rights has been very effective in getting lawyers from around the country to volunteer to help represent people detained in Guantanamo. So now the Bush Administration wants limits on their visits to their clients. But it’s creating a huge uproar in the legal community. The New York City bar has sent a protest letter to the Justice Department. And this won’t be the end of it.

Sen. Feinstein (D-CA) has just introduced a bill to close Guantanamo (no number yet. Senator Feinstein said. "This [Guantanamo] has greatly damaged the nation's credibility around the world. Rather than make the United States safer, the image projected by this facility puts us at greater risk. The time has come to close it down."

TO DO: Ask your Senator to co-sponsor Ms. Feinstein’s bill to close Guantanamo.

April 2007

DEFENDING DISSENT FOUNDATION
Status report: the state of California has approved our changed name, and now we await the feds ratifying this by notice – a standard procedure. After that it’ll all be settled. Please continue to write checks to NCARL or the First Amendment Foundation, but if you forget and write them to Defending Dissent Foundation, we’ll hold your check for a bit, assuming that it’ll just be a matter of a week or two until we can deposit them in an account with our new name. Thanks for your patience.

HISTORY OF DISSENT
Some Women’s History
Recognizing Women’s History month, I wanted not to let it pass without a couple of anecdotes of early women’s rights organizing in the 19th century. That movement can help us understand the ebb and flow of political change movements and their cross fertilizations and conflicts. Let’s focus on Elizabeth Cady Stanton and Susan B. Anthony as exemplars of the larger movement. These two women had very different abilities, capacities and concerns. And they both evolved. Stanton was both an orator and writer while Anthony was more of an organizer. Elizabeth wrote many of Susan’s speeches, because Stanton was raising her kids in Seneca Falls and couldn’t travel around the country as could Anthony. More substantively, Stanton advocated a wide array of women’s rights, having come to women’s rights through both the temperance and slavery abolition movements. The exclusion of women in the abolition movement helped push her into organized women’s rights activism. Anthony became even more focused on women’s suffrage.

After the Civil War, some of those more concerned with women’s suffrage came to split with the abolition movement and oppose adoption of the 14th and 15th Amendments giving African American men the vote if all women were not also given that right. That divide also helped split the women’s movement itself. Stanton made some quite racist statements, probably stimulated in part by her frustration at the failure to incorporate voting for all women into these amendments. On the other hand, Sojourner Truth was allied with their position and worked side by side. Stanton and Anthony’s ‘principled’ position finally formally split the women’s rights movement into two groups: the National Women’s Suffrage Association and the American Women’s Suffrage Assn.

After both amendments passed, with no provision for women’s suffrage, the women’s rights movement was further divided when Stanton co-wrote The Women’s Bible, which angered the more religiously conservative women. Her support for the right of women to divorce, hold property, and have access to paid work in addition to a straight suffrage platform, further split her National Women’s Suffrage Association from the one issue American Women’s Suffrage Assn.
Some years later, and presumably water over the dam, the groups rejoined, oddly, with Stanton serving as first president despite mutual reservations.

Stanton, Anthony, and co-suffragist Matilda Joslyn Gage did much to document their own movement in their own lifetimes, helping them keep some control over the way their movement was portrayed.

All of these groups, in addition to their internal divides, suffered from public opprobrium and ridicule. As well they were belittled by the government, arrested occasionally for demonstrating, and roundly condemned.

It’s like a braided stream. The Civil Rights movement, the anti-Vietnam War movement, the Left and the Right in general and more recently the movement to end the war in Iraq have similar tendencies as the early women’s rights movement. They suffer from internal recriminations, and doctrinal disagreements that sometimes change and sometimes stay the same.

A final point. The role that Stanton, Anthony, Gage played, along with perhaps a couple dozen other women and men in the suffrage, abolition, and temperance movements, illustrate the fragility of these movements. When governments target activists, they often not only damage the specific actions or organizations they seek to stymie, but also other political change movements as well.

Communist Party USA Files at Tamiment Library at NYU
A little more history will finally see the light. This time boxes and boxes of it. The Communist Party USA has agreed to give the New York University’s Tamiment Library its files.

At the press conference announcing the donation, Norman Markowitz noted (and you can see his full remarks in www.politicalaffairs.net for which he is contributing editor): “The history of CPUSA activists and allies role in advancing the struggles of the Civil Rights movement during the period of McCarthyism is still largely unwritten and this collection will help both scholars and students understand it.” And he gave a number of specific examples of peoples’ rights movements which were advanced in significant part with the assistance of Party activists. This will not surprise historians of the period. But scholars’ new access to this more detailed documentation of the first half of the 20th century will serve to confirm the brave and organized movement from its founding in the early 1920s, especially in the South, to seek an end to lynching, and to work for a range of civil rights when that was easily a death sentence. It should also help confirm the divisive, top-down and myopic aspects of the CPUSA as well – but these were already widely reported and known.

DISSENT TODAY
The Right Gets Religion on Civil Liberties – American Freedom Agenda
We’ve worked with Bruce Fein and former Rep. Bob Barr before on civil liberties issues. We’re a member of the Liberty Coalition -- a sort of Right-run coalition -- on several of our issues. But now, with great fanfare, another very conservative group has been formed called the American Freedom Agenda. Its website: www.americanfreedomagenda.org. It will focus on Executive Branch overreaching and many issues identical to those of concern to progressives. But this coalition also includes Richard Viguerie, someone who has been and remains on the other side of progressive causes for 30 years at least.

Here’s a partial summary of its 10 point statement of principles: Prohibit military commissions. Prohibit use of secret evidence or evidence obtained by torture. Prohibit detention of American citizens as ‘unlawful enemy combatants’ and restore the right of habeas corpus to all so-called enemy combatants. Stop the National Security Agency (and presumably other agencies) from violating federal law by collecting phone call information, emails and breaking into peoples’ homes. Etc. It’s a clear and strong opening volley that could greatly support the momentum to change this imbalance of powers.

EXECUTIVE BRANCH
Give the FBI an Inch – National Security Letter Abuses
The Office of the Inspector General (IG) at the FBI is a wonderful thing. IG Glen Fine has again released critical information about FBI abuses of a post 9/11 investigative tool, in time to do something about them and before it is merely another historical note about government abuses. See the Inspector General report at: http://media.washingtonpost.com/wp-srv/nation/pdf/doj_fbiletters_032007.pdf

Prior to this report, IG Fine among other things, reported on roundup and detention of Arabs and Muslims in the U.S. without cause, FBI incompetence in failing to identify 2 of the 9/11 hijackers, and failure to detect the Russian spy and FBI agent Robert Hansen.

Now in a March 9 report, Fine’s office has identified that the FBI violated Attorney General guidelines, violated FBI policy and lied (“circumvented” the law). Some headquarters FBI agents used the term ‘exigent circumstances’ – an emergency shortcut – to get permission to obtain many national security letters. Sometimes, contrary to requirements, the records had nothing to do with national security. The process allowed the FBI to get phone, financial, travel and email records without a subpoena. And Fine also found that the FBI often (739 times) didn’t follow-up later with the required subpoena.

Almost as worrying was the finding that lawyers within the FBI were complaining to the FBI headquarters unit which was violating the law that they should fix the errors long before the IG report.. They were ignored, one lawyer was not promoted and now is suing the FBI, and no one up the chain of command was notified of the abuses until the IG report came out.

One of our board members, Jim Dempsey of the Center for Democracy and Technology, is testifying the end of March before the House Intelligence Committee on the issue.

TO DO: Hearings are ongoing in Congress – call your Representative and Senators to keep the pressure on until the FBI is held accountable for these violations, and national security letters are abolished in a larger undoing of USA Patriot Act and general Executive Branch overreaching.

More FISA Messes
The more “accountable” way for the FBI to get national security information is through FISA warrants – in which they go to a secret Foreign Intelligence Surveillance Court (FISA), and request a warrant to do a search of records or even a physical search.

We know that chief judge Colleen Kollar-Kotelly complained about abuses of the system to the Justice Department in December 2005. Now an internal FBI review confirms dozens of inaccuracies (some of which can be called lies) in the requests to the court for warrants due apparently to haste, sloppiness and/or inadequate supervision. As these are the most intrusive searches, obviously these are critical issues.

TO DO: FISA as well must be reinstated to the way it was before 9/11. Add that to your representatives’ to do list.

Military Commission – Call this Justice?
David Hicks, the first Guantanamo prisoner ‘tried’ by the newly reformed military commission just pled guilty to one count of material support for terrorism. He did that after watching two of his lawyers get dismissed by Judge Kohlmann at the hearing. And Hicks’ remaining military lawyer Marine Major Mori repeatedly and publicly has been blackballed for actively trying to represent his client. The scene has been a circus and not a judicial proceeding. Secret evidence may be used; evidence obtained by torture may be used. Hicks has already spent 5 years at Guantanamo. No wonder he pled. It is expected he will be sent to Australia to serve out his sentence – and out of this legal never never land of Guantanamo.

Police Spying Abuses
It is not news to you that both local police and the feds have been spying on demonstrators. The relatively new so-called fusion centers are part of the expanded intelligence collection and sharing between the bodies, and there has been concern that this would vastly expand interference with strictly First Amendment activity. The National Lawyers Guild and ACLU brought suit over mass arrests during the Republican National Convention (RNC) in New York City in 2004. These suits now are yielding masses of documents, and deposition testimony from New York police and others. And the findings are devastating. Jim Dwyer of the New York Times is again writing great articles about the issues – see March 25 and 26, both p.1.

Not only did the police gather information on individuals and groups for whom there was some information that they might engage in illegal activity, but they surveilled everyone planning to protest in any way. Among those spied on – Bands Against Bush (for planned concerts), church-based groups, street theater organizations, peace groups and many others. As well, NY Police infiltrated many groups – not only in New York, but around the US and even in Canada and Europe, to monitor their plans (or worse). Of course they joined all the listserves, visited all the websites they could find, and reported all back as part of the “RNC Intelligence Squad” effort. And they shared some of the information they gleaned with other police departments.

While federal law and policy has been loosened post 9/11, still in New York and other cities there are agreements limiting the surveillance of First Amendment activity by local police. In New York it’s called the Handschu agreement which limits the police to investigating possible unlawful activity of the person or group. Stay tuned – more documentation to come indicating that police did far more.

LEGISLATION
Give DC the Vote!
There’s momentum behind the movement to give citizens in DC actual representation in Congress. They now get the right to vote for a representative who gets to vote only in committee, when her vote is not a tie breaker. Really! That’s an improvement from when the Republicans took the committee vote away.

Now a bizarre arrangement is moving thru Congress. It would create an additional seat in Congress for Republican Utah in exchange for one vote in Congress for DC., whose population would merit one representative. There would be an additional advantage for Utah - it would get an additional committee vote.

And yet the White House has indicated it will oppose this small grant of rights, on constitutional grounds that voting is for states only. There are arguments pro and con – go to DCVote.com for more details on the issue.

: The House of Representatives was to have held a full vote March 22, after two committees voted it affirmatively. But the Republicans deep-sixed it by attaching an amendment to repeal a DC handgun ban. That only makes the point that the Congress should have no right as it does not to veto DC’s legislative process.

TO DO: There’s a big demonstration planned in DC the afternoon of Monday April 16 to support the DC Vote bill. Come here for the demonstration, or even better – tell your Representative and Senators that it’s time DC citizens obtained a representative government. No Taxation Without Representation!

March 2007

DEFENDING DISSENT FOUNDATION PROGRESSING
As you can see, we now have a logo to identify ourselves. The state of California is processing our request for a name change and we hope to hear by the next newsletter or two that this has been approved. You may also have noticed that we are using our new address and envelopes. But the kicker, of course, is that for now your donation checks still must be made out either to the First Amendment Foundation or to NCARL.

CASES
LA 8 – 20 Years and a Win?
This was an immigration proceeding, and not a criminal prosecution, so the fact that it has taken 20 years arguably isn’t the most horrible an example of justice delayed being justice denied. But listen to Immigration Judge Bruce Einhorn in the case:

“Since time began to tick, human beings have contemplated their mortality with the certainty that they face a worldly end. Such certainty must come to cases as well.” No wonder. He further calls the government’s behavior in the case “an embarrassment to the rule of law.” He has finally stopped the case as the government refused his June 2005 order to produce evidence the government relied upon but would not share even with the judge. The court had made similar failed requests in 1986, 1993 and 1994.

It’s been 20 years and several evolutions of legal theory. By now, nationally respected lawyer David Cole has spent his entire legal career with this case on his plate. The case started out being characterized as part of the fight against Communism. It ended up being called a pivotal part of the fight against terrorism, and was re-filed under the USA Patriot Act! The formerly young defendants have become grandparents while fighting this First Amendment deportation case. Now, perhaps, they have won their case.

In a nutshell: Initially 7 Palestinians and 1 Kenyan faced deportation for engaging in First Amendment activity in support of the Popular Front for the Liberation of Palestine. This case has been everywhere in the courts – including to the U.S. Supreme Court. It was recognized by both sides eventually that the U.S. was seeking to deport these people solely because of their First Amendment activity. In the last few years, the case has revolved around Khader Hamide and Michel Shehadeh, who were legal permanent residents even when the case began.

Attorneys David Cole and Marc Van Der Hout have pursued the case for the Center for Constitutional Rights and the National Lawyers Guild from the beginning. More recently the ACLU joined the case, now with attorney Ahilan Arulanantham. They, Hamide and Shehadeh are hopeful that the government will finally stop the deportation case, but they are hardly holding their breath.

The government has until Feb. 28 (just after this is written) to decide whether to challenge Judge Einhorn’s decision.

A Win for Demonstrators in NYC
Calling police behavior “egregious,” Judge Charles Haight, Jr. has ordered New York City police not to routinely videotape demonstrators engaged in purely First Amendment activity. Further, if the police have an “indication” there may be unlawful or terrorist activity, the police must get a commissioner’s permission before proceeding.

This demonstrators’ rights case dates back even further than the L.A. 8, to the Red Squad suits of the civil rights movement and Vietnam War demonstrations of the ‘60s and ‘70s. Activists around the country brought suit against local police (as well as the FBI) to stop their spying on activists for their First Amendment activity. In New York, this was known as the Handschu case.

Over the years, early decisions limiting police spying have been whittled away. Post 9/11, they have been squashed. Now we’re again back in a period that judges are beginning to uphold the rights of demonstrators.

In 2003, Judge Haight, who oversees the Handschu agreement, had issued what could be characterized as mild restrictions on NYC police with regard to demonstrators. Now he has ruled that police violated even this limited agreement.

Police had videotaped demonstrators at two demonstrations despite the fact that there was in Haight’s words, “no reason to suspect or anticipate that unlawful or terrorist activity might occur.” Further, they had not applied for permission to videotape the demonstrators. On the basis of this finding, he ruled that the police must stop the routine videotaping, and if they wish to videotape, then the police must apply for permission to the deputy commissioner of the Intelligence Division. In pretty strong language, the judge threatened the police with penalties if they continue to violate his order.

Back in 1980, the original Handschu ruling language required a much higher standard of proof before police videotaping, but this decision at least holds the police to the 2003 standard. And we can proceed from there. The National Lawyers Guild and the ACLU have been advocating for and with the demonstrators.

Jurors
I’m writing this from the county jury waiting room, which reminds me of the fact that ‘we the people’ are the backstop of justice. Attorneys general and prosecutors and politicians can talk about their suspicions of what crimes people have committed, but until the criminal justice system has concluded, there is really no way with the remotest assurance to assume someone is guilty as accused. And as we well know, without the money for competent and well-equipped counsel, even then the results can be pretty sketchy. But it’s so much better than no trial, secret evidence and indefinite detention.

Seattle Demonstrators’ Rights Upheld
In this case, it was a jury which has decided that the City of Seattle is liable for unlawfully arresting 175 demonstrators in a public park at the time of the 1999 WTO protests there. Oddly, while the jury found the city violated the arrestees’ rights against unreasonable search and seizure, it did not decide their First Amendment rights had been violated. The next phase is the penalty – how many million dollars the city will owe the demonstrators and their lawyers.

Another Terrorism Trial Overreaches
Mohammed Saleh and Abdelhaleem Ashqar were acquitted in charges of aiding Hamas in a Chicago trial. Many times over the last 10 years we have talked about these men. Saleh was (is?) the only U.S. citizen placed on a list for whom it is illegal to exchange money, which meant no work, no food, no diapers for his kids until an arrangement was worked out with the feds. Ashqar had, years ago, been jailed for refusing to talk to a grand jury.

Now, after facing huge terrorism charges, Saleh was convicted on obstruction of justice for lying as part of a civil suit against him. Ashqar was convicted of criminal contempt and obstruction of justice – for refusing to testify before a grand jury after he was given immunity. Both sides claimed victory, but given the relatively minor charges on which they were convicted, this must seem somewhat hollow to the government. Sentencing to follow.

Part of the problem with the case is that Hamas was not called a terrorist group when the men were relating to it. Another is that Saleh says he was tortured in jail in Israel, and therefore that tainted testimony should not be used at trial in the U.S. Neither man was convicted of engaging in or planning any violent activity – which was consistent with their claims.

Grand Jury Detainees
As many of you may know, the government has the right to hold people in civil contempt of court for refusing to talk. And throw them in jail. The purpose of the jailing is to convince them to talk. If they are inconvincible, they are to be released, and may later face eventual criminal contempt charges. There are several current high profile detentions at the moment:

Josh Wolf – now has become the longest jailed journalist on civil contempt charges for refusing to give up his unedited tapes. Josh is a young videographer who filmed an anti-capitalist protest in San Francisco in 2005. In the protest a police car tail light was broken and a police officer was injured. Because the police car was partly paid by federal grants, a federal grand jury is seeking Wolf’s tapes. He and his lawyers told the judge he could watch the tapes, to determine that there is nothing on them relating to the crimes, but this isn’t good enough for the prosecutor.

One issue has been whether Wolf is really a journalist. He sold some of the film to mainstream media, who paid him and used it for their coverage of the demonstration. He is better known as a blogger – and so we are again facing the nexus between old and new technology – this time with the press. In November, the Northern California Chapter of the Society of Professional Journalists awarded Wolf Journalist of the Year along with two others.

Wolf’s case has been up to the 9th Circuit Court of appeals – which released him from detention the end of August. Then a 3 judge panel of the appellate court remanded him to jail. A “Grumbles” motion has been filed – asking the judge to release Wolf as it’s clear he won’t give up his tapes.

I have joined other groups to petition the U.S. Congress to have a look at this case as an example of judicial overreaching.

Sami Al Arian – [Disclaimer: I worked closely with Sami Al Arian from 1996-2001 on the constitutional issue of use of secret evidence in deportation proceedings.] His name has been tossed around as if he were the poster child of terrorism. But when it came to his trial, Sami was acquitted of the 8 most serious charges, and the jury deadlocked on the remainder. He then negotiated a plea agreement which was virtually time served – and will take voluntary departure. But now Mr. Al Arian has been brought before two grand juries in Virginia and has refused to testify. So he now is being jailed for additional months for civil contempt in an effort to have him testify.

Sami has responded with a hunger strike, and at this writing has lost 40 lbs into his 36th day of a liquids only diet. No one who knows Sami would expect he will ever talk, and a “Grumbles” (see Wolf, above) motion has been filed to get him released. Local supporters from Florida – a multi-religious group – and many who know his national work, especially in the Arab American and Muslim communities, are calling for his release and deportation. Enough is enough.
We’ve joined with visits to legislators to raise the issue of possible prosecutorial over-reaching. We are concerned that the Justice Department seems to be trying to punish Al Arian in alternate ways, having failed to get its desired convictions.

Indefinite Detention Upheld
If anyone thought Congressional action was not needed on the issue of habeas corpus, or the right to challenge in court your detention, that was upended by the U.S. Court of Appeals for the DC Circuit. It decided Feb. 21 in a combined decision on two cases, that prisoners in Guantanamo do not have the right to appeal their detention.

In the cases – Al Odah v. USA and Boumediene v. Bush – 2 judges out of 3, decided in favor of the U.S. based on the Military Commissions Act ruling that federal courts have no jurisdiction in Guantanamo. The third judge, Judith Rogers, issued a lengthy dissent calling the issue a clear constitutional violation in two ways – one, that the writ of habeas corpus does apply to foreign nationals and two, that the Congress has not formally suspended habeas corpus, as it has 4 times before (including most famously, during the Civil War). This may be the basis of an appeal to the U.S. Supreme Court.
National Lawyers Guild president Marjorie Cohn wrote an excellent description of the decision and context for it in Jurist, which can be found online at: http://jurist.law.pitt.edu/forumy/2007/02/why-boumediene-was-wrongly-decided.php.

Canada Disagrees on Detention
The Canadian Supreme Court decided unanimously on Feb. 23 no longer to hold in jail without a hearing people who are suspected of terrorism activity. Beginning now, the government must hold a bail hearing within 48 hours of someone’s detention. Go Canada!

Canada’s indefinite detention process is called a security certificate system. If two ministers deemed a person a threat to national security, and a judge reviews the information and agrees, the person could be detained without trial or potentially be deported, as long as they would not likely face torture abroad. The security certificate system has been abolished and the government must come up with a constitutional program if it chooses to replace the certificate.

At the same time, the Canadian legislature is expected to allow 2 unused antiterrorism measures to expire. The measures authorize 72 hour detentions without charges by police and allow judges to force witnesses to testify in terrorism cases.

LEGISLATION
Detention and Habeas Corpus
So here we are at the legislative branch, dealing with the mess of the Military Commissions Act and detention decision. There are two bills currently in play to fix this. One is purely a habeas bill – it simply but importantly would restore the right to appeal your detention through the federal courts. Originators are Senators Leahy (D-VT) and Specter (R-PA). It is S. 185, the Habeas Corpus Restoration Act.

A more comprehensive bill is S. 576, the Restoring the Constitution Act of 2007. It would restore the writ of habeas corpus for people in U.S. jurisdiction (read: Guantanamo), narrow the definition of unlawful enemy combatant, not allow evidence gained by torture, and make the U.S. to follow the Geneva Conventions. The bill was introduced by Senators Chris Dodd (D-CT) and Pat Leahy.

TO DO: Urge your Senators to co-sponsor both of these bills, especially Republicans. 202.224.3121 is the switchboard number.

ADVOCACY
Charities and National Security
We participated in a recent day-long meeting with OMB Watch about the how the government is now handling charitable donations to conflict areas. It’s an issue we’ve long covered. The issues are complex. Is it ok to give money for purely humanitarian purposes if the some part of the group controlling the aid is involved in violence? Who’s a freedom fighter and who’s a terrorist? How do charities get help to strife-ridden areas if the region’s controlled by ‘bad actors?’ How do you get food to your relatives there without being prosecuted?

The courts have been pretty consistent in closing down Muslim charities over the last years, and seizing and freezing their assets. But other charities are concerned as well about the implications.

A Feb. 25 LA Times article by Greg Krikorian reports on the Holy Land Foundation legal case, revealing the U.S. horribly mistranslated key documents and conversations. At issue in part is that the defendants have not been allowed to see many relevant documents to rebut the evidence.

OMB Watch has taken up the role of helping keep track of the issue and advocating to facilitate consistent and clear charitable giving regulation. For details about this issue, check: http://www.ombwatch.org/article/archive/407.

Anti-War Resolutions Again
Many of you worked on bill of rights resolutions across the country in your communities and states. A significant role of the movement was to get national attention to Executive Branch overreaching. Now we may be heading in the same direction regarding the war. Legislatures in California, Iowa and Vermont have passed resolutions in opposition to Bush Iraq war policies; the Maryland General Assembly urged its national legislators to oppose an increase in troops.

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We’re getting lots of you to read the newsletter listserve, which saves us money and paper. And we welcome you copying or emailing this letter to your friends and co-workers. Remember as well that you can see the letters on our www.defendingdissent.org/ncarl/ website if you lose a copy.

Thank you all for your support and action! Send us news of your local work that we can publicize!

February 2007

NCARL and DEFENDING DISSENT TRANSITION BUSINESS

Donations to NCARL and First Amendment Foundation
We are slowly progressing in formally changing our name. So, while we are beginning to use the new name – on envelopes and etc. – please continue to send any donations payable to NCARL or the First Amendment Foundation. We cannot change our bank account name until the State of California, in which we are incorporated, ratifies the change of name. So checks made out to DDF cannot yet be deposited. Sorry for the delay.

New Address
We are beginning to use our new address now. It appears on the envelopes and on the letterhead. The address is 1718 M Street, NW, #178, Washington, D.C. 20036. Our phone number remains the same. For some months we will still accept mail at the old address so don’t worry if you want to use up an old envelope and don’t remember the new address.

EXECUTIVE BRANCH
Let’s start with some generally good news – there’s progress on several due process fronts with the Executive Branch backing off from some secretive and authoritarian stances:

• Apparently the secret overseas CIA or contractor run prisons have been shut down.
• Reportedly the prisoners in these prisons have been transferred to military control.
• There’s been some negotiation on regulations for hearings and minimal limits on harsh interrogation for Guantanamo detainees.
• Congress is starting with some hearings, and strong language about accountability, but there’s much work yet to do.

Really R.I.P Posse Comitatus – Military Obtaining Financial Records in the U.S.
There used to be a pretty bright line in law and policy: the military has no jurisdiction beyond its soldiers and related issues on domestic soil. As many of you know, even just from reading the NCARL letter over the years, this policy has eroded significantly. But it was still surprising to read in the New York Times on Jan. 14 that the Pentagon (and CIA) have been collecting financial records within the U.S. of people suspected of terrorism or espionage.

Apparently military intelligence has sought financial information via national security letters as part of about 500 investigations in the last 5 years – amounting to thousands of letters (compared with perhaps a few dozen by the CIA over the same period).

These letters are easy to seek – court permission is not required to obtain them, a supervisor (not director) can seek them, the requested documents can be merely thought to be “relevant” and not central to an investigation, and the person whose records are being sought can be peripheral rather than a target of an investigation.

Domestic law enforcement – local, state, federal, sometimes through the FBI – is the standard source of criminal inquiries for financial information. If it is for terrorism investigations, then the FBI is the standard. So why is the military involved as well as the CIA? According to VP Dick Cheney interviewed on Fox News, the military is using national security letters in part to protect military bases in the U.S., and this practice is essential to investigate terrorism cases. He did not address why FBI or Justice Department authority are insufficient.

Fortunately, new House Intelligence Committee chair Rep. Silvestre Reyes (D-TX) issued a statement indicating his plan to investigate the revelations.

TO DO: Contact the Intelligence Committee (Toll Free: 877-858-9040) and urge them to find out if this activity violates the law and if so, demand accountability.

Illegal Warrantless Mail-Openings?
Just after we went to press last month came revelations that Mr. Bush added one of his trademark “signing statements” to the postal reform bill, signed into law December 20th. The statement said that Bush “shall construe” language allowing mail to be opened by law enforcement without first obtaining a court order in more than emergency situations (i.e. suspected bomb or anthrax), which is the current practice. While the White House says this is not new authority, Kate Martin, one of our board members, asks, “If they are not claiming new powers, then why did they need to issue a signing statement?” The Senate Intelligence Committee is said to be looking into these possibly expanded powers.

Illegal Domestic Wiretaps Modified
You know it as warrantless wiretapping, but that doesn’t really say it. Another one of the shibboleths is starting to fall. The Bush administration has strongly defended, from the moment of public exposure, its secret end-run around the FISA (Foreign Intelligence Surveillance Act) courts in obtaining intelligence related wiretaps even in the U.S. But now as the specter of embarrassing and more serious Congressional hearings looms, and the Administration’s anti-terrorism policies face building criticism, the Bush team has begun to back down.

Of course it’s not clear exactly how much they’re backing down; judging from an administration letter, Attorney General Gonzales’ testimony to the Senate Judiciary committee, and press coverage, the administration browbeat one FISA judge into approving in general the wiretap plan. Not such a big change, perhaps, but it’s a start down the road. The Administration is now acknowledging, finally, the authority of the FISA court for intelligence/terrorism wiretaps. At last. And there are continuing court challenges (U.S. Court of Appeals, 6th Circuit and others seeking damages for past actions) which should survive this small change. The Senate Judiciary Committee has pledged to get to the bottom of this issue, and legislation is available to reinstate or strengthen FISA as the only standard for intelligence wiretaps with a judge’s approval.

TO DO: Contact the Senate Judiciary Committee (202-224-7703) and encourage them to hold the government to the real FISA standard of individualized wiretaps. Or call your Senators and urge the same thing. In the House, call Rep. Jerrold Nadler’s (D-NY) Constitution, Civil Rights and Civil Liberties Subcommittee of Judiciary. (202-225-5635 – Nadler’s main office).

Investigating Anti-War Activists
Part 39,648 of our reporting on U.S. investigations of peace activists: 2 peace activists and a journalist have been subpoenaed to testify in the case now ongoing against Lt. Ehren Watada. Watada is opposed to the war in Iraq and refused to go back to fight on moral and legal grounds, and is in courts martial proceedings.

The activists, including Phan Nguyen, a moderator of the June 5 press conference by Watada, were questioned by the prosecutor about planning for the press conference (an obviously First Amendment and public activity). The other activist, Gerri Haynes, chaired the Veterans for Peace conference at which Watada also spoke out, and journalist Sarah Olson interviewed Watada. According to Georgetown Law professor Gary Solis, it’s rare and chilling to involve civilians in a military proceeding. Solis also opines that it may backfire on the prosecution to have witnesses who could speak to Watada’s position on the war, which the judge and military are trying to preclude.

CASES
Gitmo “Trial” Rules Released
The U.S. is planning to bring military commission proceedings against about 14 defendants, including Khalid Shaikh Mohammed. The Military Commissions Act broadly describes the proceedings; the Defense Department has now released detailed rules for the commissions. These rules were never open to review outside the military as are most others, including the first rules issued a few years ago.

In the current regs, the detainees can’t challenge their detention (no habeas corpus), and the prosecutors may use both hearsay and coerced evidence if the judge permits it. The commissions can be used for folks held in Guantanamo as well as people called “enemy combatants” who are not U.S. citizens but are in the U.S.

On the other side, the Pentagon claims that the presumption of innocence is maintained, defendants can see evidence against them, and the rules prohibit evidence obtained by torture. There is a conflict of language – is “coerced testimony” not the same as evidence obtained by torture?

Senators Chris Dodd (D-CT), Russ Feingold (D-WI), and Pat Leahy (D-VT) are drafting a bill to fix “limits on the independence of military judges”, coerced testimony and problems with defense access to evidence and witnesses. S. 185, the Habeas Corpus Restoration Act, by Specter and Leahy, would only reinstate habeas. So stay tuned, and contact these folks to encourage their efforts – especially that for a more comprehensive fix.

‘Kill All The Lawyers’
It’s perhaps a matched set that the half-baked military rules for the Guantanamo commission proceedings came at the same time as Deputy Asst. Secretary of Defense Charles (Cully) Stimson’s bullying interview on Federal News Radio. If you missed this, he criticized big law firms for representing people in Guantanamo:

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms…

It’s obviously ‘bad’ enough for the government when groups like the nonprofit Center for Constitutional Rights do their utmost to get people decent representation, but when the ‘big gun’ firms start to help with the effort, it makes the point more firmly to the public that people – any people – should have legal representation, and the right to contest their detention.

Stimson’s comments backfired badly. Many of the national legal organizations protested his remarks and asked for his firing. Commentators and legislators of many stripes were outraged. Stimson backpedaled and said he didn’t believe what he said. Is this worse?

TO DO: This is one of many current teachable moments. Contact your local legal services and public defender. Suggest they do a local program (get good press) to talk about the import of and legal support for providing lawyers to everyone, especially those facing the worst of charges. While you’re add it, talk about the importance of habeas corpus – requiring that people who are detained have the right to be told why and contest it.

Material Support for Terrorism Designation Upheld – U.S. Supreme Court Denies Cert
From even before the 1996 Anti-Terrorism Act was passed, we have objected to the over-broad definition of terrorist groups, and for criminalizing charitable support of groups, some portion of which have ever engaged in violent acts (think African National Congress, Iran Contras, American Revolution). The People’s Mojahedin of Iran (PMOI) was one of the groups that challenged the law – particularly the fact that once the U.S. has designated a group as “terrorist,” there is no way to challenge the designation.

The case to the Supreme Court was brought by some members of U.S. Congress who argued that the PMOI is legitimate. Not coincidentally, it happens that the U.S. government is currently vilifying the Iranian government for some of the same reasons as is PMOI. So, after some back and forth at lower court levels, the Supreme Court has refused to weigh in on this at the moment, and the criminal prosecution of 7 Iranian Americans proceeds.

ACTIVISM
Who’s a Terrorist?
Conservatives often help on the hardest issues. The Hudson Institute, Southern Baptist Convention Ethics and Religious Liberty Commission, and Gary Bauer’s American Values group are headliners for the conservative movement. So when Bauer says of the U.S.A. Patriot Act and the Real ID Act that “enforcement of it has lapsed into ludicrousy,” it’s a big help to all of us. The issue is “material support for terrorism.” And it’s now even clear to these folks that the definition is so broad that people who were tortured by groups in their midst, perhaps fought alongside U.S. troops, or were essentially blackmailed to give funds to groups on the list, are precluded from coming to the U.S. And of course, even people who were not engaged in any violent activity but were merely associated generally with listed groups are denied entry.

The Conservatives are complaining as well about the opacity of the process – people are forced to guess what the problems are as there is not a hearing process, no evidence given as to peoples’ denials. They also now join many immigrants’ rights and human rights groups who have longer been seeking rationality and clarity in the process.

TO DO: Fortunately, Senate Judiciary Chair Patrick Leahy (D-VT) has stated his concern about the issue. Ask him to hold hearings and tighten up the language of the material support for terrorism provisions of law, since the legal case is not proceeding well. Call: 202-224-7703 to encourage the Senate Judiciary Committee.

Surges – Anti-War Efforts Expanding
Marking the 5th anniversary of the opening of Guantanamo, 300 activists protested outside a federal courthouse in D.C., then 80 of them went inside. As a measure of the times, U.S. District Court Judge Thomas Hogan allowed the group to stay inside if they didn’t wave signs or obviously protest. But of course protest is what they were there to do, and so they were eventually arrested.

And protests continue and expand in D.C. and elsewhere with the Administration announcement of the planned “surge” in troops in Iraq. It’s a far different feel to protests now than in October 2001.

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January 2007

Defending Dissent Foundation

Transition Thoughts
Just like the Congress and really, the fight to regain some of our civil liberties, NCARL and the First Amendment Foundation are in a transition – hopefully for all, a good one. Please hang on a bit longer before we’re there. Efforts are in the works to coalesce NCARL into the First Amendment Foundation, and have California (where the First Amendment Foundation is incorporated) authorize a name change from First Amendment Foundation into Defending Dissent Foundation. For the present, the groups are still formally NCARL and the First Amendment Foundation – so your checks still should be made out to these entities until the State of California approves the changed bylaws of the Foundation. Send checks to NCARL, or to the First Amendment Foundation if you wish it to be tax deductible. Thanks for your patience and help.

E-Mail to a Listserve
The number of you who are receiving the letter electronically (a good thing to save us money on postage) is large enough now so that we will be switching from a manual bcc (blind copy) bulk email to a listserve. With this listserve, none of your multi address blockers will activate as they do now. For the time being, this will be a non-discussion e-mail. So you will be able to email back to us if you wish, but not to the whole list. And of course we can add people and change e-mail addresses, and remove yours if you request. We will assume that you are fine being added to the listserve as you will continue to receive the same material as currently, just in a more convenient style.

Lobbying Experts
NCARL folks are very well trained. You write and call your members of Congress and Senators, and tell them what to do and how to do it. You have been opining on issues from S.1, the Criminal Code revision, to eliminating vestiges of the McCarran Walter Act, supporting the FBI First Amendment Protection Act, and as well the Secret Evidence Repeal Act (and many hundreds of other bills through the years). We are sure that NCARL has not been your only source of information for some of these issues, though NCARL has spearheaded work on several of the above among others.

You also let me know how to do my job better. One of you ripped us up recently because we did not supply a bill number for your use in opposing a measure. But while we do sometimes forget these important details, this time it was different. Sometimes at the end of a legislative session, or when there are many competing and changing bills and numbers, we think that Members and staffers find it more helpful just to refer to a name of a bill or topic – and perhaps your support for a certain Member’s version, or amendment.

Fast breaking legislative work is always tough to follow, but as we’re still primarily a print newsletter, we try to recommend issues for lobbying that will be in play for a period of weeks rather than a few days.

Some people outside of Washington talk about the completely corrupt process of lobbying. While we would never disagree that money talks to legislators – especially when it comes to special grants to companies, pork projects to localities, etc., this not the whole picture. It is our experience that particularly on civil liberties issues, we find that real people opining to their members makes a difference. It matters to Senator Feingold, who holds up the huge volume of local bill of rights resolutions. It matters to both Republicans and Democrats when they are daring to stand up and support the right of habeas corpus (to demand accountability for being held in jail) or an end to the use of torture by the U.S. government. Perhaps it’s because these aren’t matters that can be bought or sold so easily. We can only speculate. But we have been told repeatedly by staffers and Members that constituents’ opinions matter to them, help them advocate for change. Typically they talk about phone calls and personalized letters as being key. And obviously personal meetings are most helpful when they are possible -- either with the staffer in charge of the issues (usually Judiciary Committee for our matters) or the member themselves.

Here are some of the key early civil liberties fixes we are advocating. It’s a quicker summary than last month:

The Fix List
1. Restore Habeas Corpus
Senators Leahy and Specter will reintroduce a bill which will be called probably the Habeas Corpus Restoration Act.

2. Immigration Reform
There are rumblings of a reintroduction of improved immigration reform bill – taking away money for a Southern fence with Mexico, and facilitating citizenship for current non-citizens. It’s a slippery slope, but with some small potential to help at least a few folks seeking to regularize their status. But it must be closely monitored.

3. End Torture
Hard to believe we really need to justify this, but there are several parts to this point – investigation to make sure we know all of what the US has done and is doing. Then amend the Detainee Treatment Act and Military Commissions Act to follow – oh, say the U.S. Constitution, the Geneva Conventions and the Magna Carta.

4. Restore the right to demonstrate
We really do need local, state and national legislation to clarify our First Amendment right to hold the government accountable to us, through demonstrations, speaking out, and in general being obstreperous.

5. Oversight, oversight, oversight!
Hold the government accountable for its actions; demand that the Congress uphold a core task and assess and pursue government abuses. Hold hearings, use the subpoena power, speak out and demand accountability.

EXECUTIVE BRANCH
BREAKING NEWS: Prez Takes Right to Warrantless Mail Opening
Though the White House is downplaying it, in signing the Dec. 20 postal reform bill, Mr. Bush issued a signing statement claiming authority as Kate Martin (a board member) says “to open domestic mail without a warrant.” The exception language is “which provides for opening of an item of a class of mail otherwise sealed against inspection in a manner consistent..with the need to conduct searches in exigent circumstances.” Let’s help with the furor!

Here Come the Red Squads!
In a December 31 Washington Post story, a chilling tale is told. While activists have been working to try to help regulate, limit and define any federal network of information collection related to terrorism in particular and law breaking in general, law enforcement has been creating regional networks. These networks, or “fusion centers” as described in the article, pool data among local and state police, private security guards and others. One such network, in Maryland, overseen in part by an assistant U.S. attorney, staffs the Capital Beltway hotline – 800.492.TIPS. And who said Operation Tips was dead?
Obviously it is important for law enforcement to share information – to facilitate anti-terrorism investigations, to help with federal law enforcement, to help across state lines with crime that crosses state lines. But these fusion centers are claimed to be cropping up because the feds have not successfully addressed information sharing and cross-jurisdictional issues. But to the extent these centers may be filling a void, they also are less controlled, less well funded and perhaps staffed. Also, lack of consistent training and leadership can exacerbate a trend toward overzealousness. These are huge information gathering machines – aiming at the whole of crime fighting, beyond the realm of international terrorism or even domestic terrorism.

Here are some of the questions: What do they gather? What are the standards for the quality of the information they collect? Who keeps it? With whom and why can it be shared? How long is it kept? Is there a mechanism to correct inaccurate information? Where’s the accountability?

We always have problems of local demonstrators being targeted as troublemakers and criminals. These fusion centers easily could magnify the problem. Information collection in a time before computers was tempting to local police as well as to the FBI. Today the problem is many degrees of magnitude bigger. Information is easier to collect, store and share. It’s no longer in card catalogs or file cabinets. It’s the internet and therefore, everywhere.

For those of you too young to remember Red Squads, here is a thumbnail history: From its inception in about the 1920s, the FBI went after political activists as well as criminals. While it collected information nationally and locally on activists, it also was working with special police squads to have them collect information on criminals and activists – largely spying on activists, breaking into their homes and offices illegally, and trying to disrupt their activities. It was done to NCARL (then the National Committee to Abolish HUAC). It was done to all civil rights, civil liberties and political activists especially on the Left.

It was only stopped when it was exposed and ridiculed. Congressional hearings were critical to the exposure. Let’s learn this lesson before these centers predominate without regulation and control.

CASES
Material Support for Terrorism 2001 List Ruled Unconstitutional
In a case we helped initiate contesting parts of a 1996 Antiterrorism law (and then expanding to related laws and orders), the Humanitarian Law Project (HLP) and others challenged the lawfulness of the process of designation of terrorist groups and prohibitions on donation of charitable good abroad. In the long running case, Federal Dist. Court Judge Audrey Collins in Los Angeles now has ruled the executive order-based designation program unconstitutional as the order “provides no explanation of the basis upon which these 27 groups and individuals were designated” as terrorist and therefore prohibiting any financial connections to them. David Cole, one of the HLP’s lawyers, calls a judge’s recent ruling in the case “the first decision to challenge the constitutionality of what is clearly the broadest power to blacklist individuals and groups on the statute books.” It is a split decision: the judge stopped the government from calling the plaintiffs terrorists purely because of their association with the listed groups as banned in Executive Order 13224, but it kept in place a ban on providing services to the groups.

Court Permits FBI Cell Phone Bugging
In another case against the Mob that has repercussions well beyond, U.S. District Court Judge Lewis Kaplan has ruled the FBI may listen to you via your cell phone, even when it is off. In a Genovese crime family case, the judge denied motions to suppress evidence – conversations called “roving bugs” in which the FBI listened to conversations caught by the microphones on cell phones, even those turned off. Speculation by some experts is that the phone can be programmed remotely to act as a bug. The only way to temporarily turn off that microphone is to take out the phone battery. At least in this case, the FBI sought a court order permitting it to bug the targeted individuals to build a criminal case – the factor which convinced the judge to permit the extraordinary bugging.

Salim Ahmed Hamdan
Judge James Robertson of the DC Federal District Court ruled that the courts no longer have jurisdiction to hear challenges from detainees in Guantanamo as a result of the Military Commissions Act signed into law in October. The specific case, that of Salim Ahmed Hamdan, has been one of the key challenges to the detention system. This should put more pressure on Congress to address this issue.

Maher Arar
The Royal Canadian Mounted Police (RCMP), is feeling repercussions over its handing Maher Arar to the CIA for torture in Syria. Members of the Canadian Parliament are calling for investigations and prosecutions.

Majid Khan
Khan was in a CIA then-secret prison and likely tortured for information. Now transferred to Guantanamo, his lawyers want access to his records and treatment. The U.S. in a brief is arguing that neither Khan nor the government is permitted to describe his treatment, as it’s by definition “top secret” because he is one of the ‘high value’ detainees. So therefore we are to forget even a remotely meaningful hearing in his case or those similarly situated. Further, even top secret cleared lawyers are not allowed to meet with him. Lawyers (trying to) represent him through the Center for Constitutional Rights (ccr-ny.org) are of course appealing.

Brandon Mayfield
The government will pay $2 million to Mayfield for his wrongful arrest in a botched FBI investigation of the 2004 Madrid train bombing.

Detainees’ Plight
We’ve been hearing awful snippets of information about how detainees have been treated in both the U.S. proper and in Guantanamo. In the U.S. Jose Padilla sounds to be a virtual zombie from his almost complete isolation and other harsh treatment since his designation as an emeny combatant. Ali al-Marri may be is close to as bad shape. Lawyers for both continue to appeal their detention and conditions. Padilla faces a criminal trial in the coming month. Al Marri awaits a federal appeals court decision on his access to the courts. In Guantanamo, patterns of harsh behavior are being documented. Stay tuned.

RESOURCES
Check out the Free Expression Policy Project’s Fact Sheet on Political Dissent and Censorship on its website. www.fepproject.org/factsheets/ It's a project of the Brennan Center for Justice at the NYU School of Law. It’s a great pocket history.
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More than ever, it’s time to push the Congress to do its job. Your support to rebalance the balance of power can have the greatest impact now. Thanks for all you do.
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