December 2002
A Few Big Issues - December 2002 Annual Overview
* Did Civil Libertarians Lose in the recent elections?
* How do we modify our tactics in light of the elections?
* How do we separate the normal but damaging emotional results of terrorism
from effective efforts to combat it?
* Homeland Security?
* Why I love John Poindexter (ok, not exactly)
* Expanded wiretap authority under FISA
*Did Civil Libertarians Lose in the recent elections?
Let me posit this idea: I don't think people who defend the right of political
dissent ever win or lose an election. We are always defending the dissident,
the outsider, the troublemaker. So we don't and won't ever "control"
the Congress or the Presidency.
On the other hand, having both Executive and Legislative branches - and
sort of the Judiciary - at least the Supreme Court - in control of one
party would tend to make our task more difficult. A same party Congress
will more likely agree to a same party President's demands for greater
authority. So in that sense we "lost."
It's a larger issue whether the Democrats any more or ever defended the
poor, the "little guy", working people agitating for change.
These groups never have had an easy communication connection to Congress,
and it isn't easier now.
On the third hand, if the Democrats really understand they are in the
minority and adopt the role of noisy agitator that an out of power party
ought to, it might be more willing to listen to our issues than it has
recently.
* How do we modify our tactics in light of the elections?
Regardless of whether the Democrats find their voices, we must find Members
on both (all three or four) sides who will be more concerned than ever
over Executive Branch over-reaching that they will be more receptive to
our concerns and proposals. Clearly, we have to work on all sides of the
aisle, including several relatively powerful Republicans.
Some of our big supporters - for example on the Secret Evidence Repeal
Act - Democratic House Whip David Bonior and Republican Rep. Bob Barr
are gone from the new Congress. We will miss them greatly. We will need
to convince others to fill their leadership shoes on our particular issues.
It takes more than votes to push or stop a bill - it takes a very few
people in Congress who will take defending political dissent as a primary
project and really work it. They must be approached and sometimes convinced
by real human effects and implications to get fired up and compelled to
work on it. No big monied interests do the convincing.
We will appreciate your work and contacts with your local representatives
to help them evolve into these roles.
* How do we separate the normal but damaging emotional results
of terrorism from effective efforts to combat it?
The recent sniper attacks in our area were instructive. They were by the
usual definition, terrorist acts, even if we didn't know what the exact
"message' was. They were acts intended in part to intimidate a populace
or government. Many people were very frightened. They modified their daily
routines and in both general and many specific ways; they hunkered down.
People, in statistical terms, faced hardly any increased risk of life
or limb, but the fear was palpable. It was real fear, if based perhaps
more on the randomness and deadliness than on actual increased risk.
On the flip side, this was a crime that was being very actively pursued
by law enforcement (and the military!), and so it was likelier to be solved
than auto accidents or domestic altercations which are bigger killers
of people and harder to resolve.
This ongoing fear reminded people of 9/11, but also clarified for some
folks the impact of an overlay of fear. People wanted desperately to DO
something. The police did massive roadblocks because they had to be seen
doing something, even if clearly the information they had led them to
go after what was probably the wrong kind of vehicle. General Ashcroft,
when the suspects were caught, figured out how to put the two defendants
into jurisdictions which most likely would assure a guilty verdict resulting
in a death penalty. They both DID something, even if it was not useful
or preventive.
Emotional reactions often result in wide-ranging tactics and strategies.
This may be understandable, but is unlikely to produce effective and targeted
law or policy. This matters if you want to be effective rather than just
look effective.
* Homeland Security?
It's not irrelevant that this is the next topic. I felt like USAP redux.
(I call the USA Patriot Act this shorter name for reasons of nausea over
several key provisions). With the USAP bill, remember the House Judiciary
Committee amended it, and then was overridden in a close and very bitter
vote. With the Homeland Security bill, the Senate considered an amendment
package, and it failed on a 47-52 vote, with the unamended bill then passing
90-9.
The amendments were not exactly comprehensive, but among other issues,
would have eliminated some pork spending, too broad exemption of information
from the public, closing federal advisory committee meetings from public
accountability in a blanket way.
Senator Robert Byrd again articulately condemned the rush to rearrange
the deck chairs - in a massive government agency restructuring. Covered
federal employees lose many of their protections in hiring, firing and
whistleblowing. The time, energy, and focus needed to accomplish this
change are huge.
While CIA and FBI are not included in the new broad agency, they are supposed
to work together better and with this new behemoth. The Homeland Security
Agency will have similar authority to collect and analyze massive categories
of information. It incorporates border (including immigration) and transportation
security, emergency preparedness, some science and technology issues,
secret service, coast guard, and infrastructure protection.
* Why I love John Poindexter
Well not exactly. His name is like a big bullseye, so what I love is that
the name and face of John Poindexter are associated with a dangerous expanded
surveillance and data-mining program called TIA - Total Information Awareness.
Poindexter is a convicted felon (for lying to Congress). As Reagan National
Security Advisor he was a participant in the Iran-Contra affair, helped
sell arms to Iran and use the funds to arm the Contras - Nicaraguan fighters
whom Congress had prohibited the US to fund. Poindexter's sentence was
overturned because the Congress thoughtlessly gave him prior immunity
for his testimony. He never disavowed his lying. As with Operation TIPS
(snitch), say the name of John Poindexter to over 40s and people get prepared
for the worst. So maybe we'll be able to turn this program around more
quickly because it immediately smells bad.
For the rest of you, I'll summarize the program Poindexter has helped
develop. The retired Navy rear admiral has helped combine the incredible
power of computers to collect and amalgamate huge quantities of information
about where people go, what they buy and groups they support, who they
call or email or websurf, how they bank, and compile and disseminate this
information on people "of interest."
This is not the only agency to collect information on people. Also private
industry for a fee will sell much of this information to whoever will
pay. But here we have John Poindexter doing it. His history helps us make
the case that unregulated, unfettered, secret spying on our habits and
legal activity can be very dangerous.
A letter initiated by the Electronic Privacy Information Center urged
the Senate to stop the TIA program in the form of an amendment to the
Homeland Security bill. We signed on as did more than 30 other quite varied
groups including - Free Congress, Council on American Islamic Relations,
Assn of American Physicians & Surgeons, ACLU, American Library Assn,
Phyllis Schlafly's Eagle Forum, and People for the American Way.
Well, the letter didn't work. So we have to squash TIA and similar harebrained
schemes some other way. Call or write your Senators and Representative
to get them to go after this in the next Congress, right away.
* FISA - FISA Appeals Court Decision Overturns FISA Court, Interpretation
of FISA and More
The FISA Appeals court just upended FISA protections. Why is this a problem?
What's a FISA? The Foreign Intelligence Surveillance Act was passed in
1978 to delineate how the government should do surveillance (and in a
later amendment, searches) of foreign intelligence folks, as opposed to
doing surveillance and searches of folks you suspect of routine criminal
acts. These FI or foreign counterintelligence, FCI types were generally
considered to be spies. So it described how you legally spy on spies in
the US.
There was long understood to be a "wall" between criminal and
spying surveillance. The Congress and courts referred to the wall. The
Justice Department had a procedure to keep the criminal division folks
separate from the foreign counterintelligence types and their respective
surveillance.
As I reported in a recent letter, the FISA court - which almost always
had granted these secret warrants to go after spies and folks connected
to foreign terrorist groups, recently and publicly upbraided the FBI for
lying to it in its applications. It was an unprecedented critique. Then
the FISA court issued a ruling virtually overturning the new USAP rules
on FISA. The government appealed the decision to the FISA review or appeals
court, which had never heard a case to date.
The FISA Review court completely upended FISA as we know it. It overruled
the FISA court. It said the old Justice Department rules are unnecessary,
that Congress misread FISA from the beginning, and so much of the post
1978 procedures are wrong or unneeded. It said the new USAP rules on FISA
are fine.
The Review Court's argument In brief (summarizing 56 pages): the definition
of foreign intelligence folks are people who are connected to a foreign
terrorist group or agents of a foreign power. They are presumed to be
engaged in or will eventually be doing criminal acts. But may not be now.
So because of this there needs to be no "wall." You can use
the looser FISA rules to go after these folks even if you will eventually
bring criminal charges against them -- except if the only reason you want
to spy on them is for un-spy related crime -- child abuse or something
similar.
The appeals court says that the government under the original FISA law
could use information gotten through FISA in a criminal prosecution, even
though the people were not planning or engaged in criminal activity when
the surveillance started. The real implications are beyond the actual
wording of this decision. Attorney General Ashcroft claims a huge victory.
He has told law enforcement to go full bore using secret searches and
surveillance to pursue terrorists. So in all the expansive investigation
of people by ethnicity, religion, and association, the top dog now says
the gloves are off, go after who you need to with no need to connect it
to current indications the people are involved in crime. The searches
can be secret, the warrants secret, the duration per authorization longer.
It will be harder to detect, supervise, complain about excesses, and in
general, protect US people from tremendous law enforcement over-reaching.
Our work's cut out for us.
November 2002
A Time to Strategize
All over the country, people working on civil liberties, privacy,
immigration and civil rights issues have been coming together in the last
weeks in different fora to analyze the array of government policy changes
post 9/11.
They're looking at the cumulative effect, to assess both the worst and
the most easily fixed of the changes. It's not that the policy changes
have stopped, but it is possible and timely now to look at the bigger
picture. People will differ somewhat on their analyses, and best ways
of seeking to redress grievances, but some outlines are similar.
The Jose Padilla case and to a lesser extent that of Yasser Hamdi are
recognized as critical cases as they involve US citizens who have been
denied the rights of either citizens or of the Geneva conventions for
prisoners of war. They are not allowed to consult a lawyer and the government
does not want to allow them the right to some kind of hearing to determine
whether they are called unlawful combatants. The latter is a term not
in the lexicon of international law, and not useful in many of today's
war-type situations. These two cases have broad ramifications for all
citizens. Especially if someone like Jose Padilla can be accused of commiting
a crime and not be able to claim constitutional rights, then all citizens
are at risk. The Hamdi case is further along legally and so may be the
first to raise these issues. The 12 Kuwaitis on the US base of Guantanamo,
Cuba, also raise important concerns in that lawyers representing Kuwait
indicate the 12 are not combatants. How can they raise the issue of their
innocence if the US government refuses to give them a factual hearing?
Action: Write to your newspaper. Talk about the fact
of Mr. Padilla and Mr. Hamdi not being allowed to talk to lawyers or contest
their detention despite their being US citizens. Talk about how the Kuwaiti
government has strongly alleged the innocence of its 12 citizens - where
it the opportunity for this to be considered?
Secret Evidence Rears its Ugly Head
Here it is. Despite restricting peoples' rights in an array of ways since
9/11 in the "war against terrorism", the government had not
to date (that we know of) used secret evidence in hearings. Now we have
the first proposed use. In the Padilla case, the government has produced
a classified report, and an unclassified summary. The latter has been
given to lawyers trying to represent Padilla – Donna Newman and
Andrew Patel. Now the government has asked US District Judge Michael Mukasey
to read the unclassified report as he considers the issue of whether his
indefinite detention without charges is legal.
As you may remember, the National Coalition to Protect Political Freedom,
which NCARL helped found, has worked primarily on the issue of secret
evidence. Our core argument is that it is fundamentally unfair to give
only one side – those holding the keys to the jail - the evidence
in a legal process. Unclassified summaries typically lack sufficient specificity
for lawyers or a defendant to be able to rebut the allegations. In this
case the lawyers have offered to try to obtain security clearances, but
the government has rejected this offer as well. In some previous secret
evidence cases, judges have been quite critical both of the quality of
the secret evidence, as well as the fairness of the process. We expect
that in this case Mr. Padilla might not be seeing any of the evidence,
a problem raised above.
The Hamdi case differs here in that the government showed even Judge Doumar
only the unclassified summary, which Doumar blasted as insufficient, in
a ruling now challenged by the government.
Action: Write to your newspaper. Suggest that the government
learned from our earlier campaign that the use of secret evidence is unfair
and unproductive. Don't compound the mistake in this high visibility new
case.
Repeal the USAP Act
We've reported before on the great local organizing going on
from the Bill of Rights Defense Committee. Organized out of Northhampton,
Massachusetts, the website: http://www.BORDC.org
offers a wealth of information and links to the many communities which
have passed or are now considering a range of local resolutions. These
typically both call for upholding constitutional rights by local police
and other authorities, and as well, pushing for repeal of various aspects
of the USA Patriot Act, which I call USAP. For those who like regular
mail, the address is:
Bill of Rights Defense Committee
P.O. Box 60591
Florence, MA 01062
(413) 582-0110
More organizations and individuals are taking up the call - they are calling
for a move to "Repeal the Patriot Act, Defend Democracy, and Fight
Terrorism Effectively." Variations on these themes as well are being
raised. There are local efforts sprouting to carry this out. As well,
the ACLU nationally is spending decent wads of money on its effort to
cut back on the more egregious aspects of the USAP and other non-legislative
measures. Go to their website: http://www.aclu.org/SafeandFree/SafeandFreeMain.cfm
for details on this effort. The confluence of national and local work
- with some mutual respect, flexibility on tactics and strategies and
the energy it represents are welcome signs of significant progress.
Political Dissent and Union Organizing Called Terrorism
UE: A few weeks ago I was fortunate to be invited to address
the United Electrical, Radio and Machine Workers convention (UE). It was
a wonderful experience, full of stories of peoples' strength and perseverence
in seeking basic human rights. One story troubled me in the context of
the new terrorism issues.
In Milwaukee one of the UE locals was walking a picket line. It was nothing
abnormal. There was no suggestion or indication that this would involve
any violence. However, there was a major police presence, and the police
were dressed for serious trouble. One of the union folks asked the police
why they were there in force and outfitted for battle. The answer : this
was the terrorism unit.
ILWU: On the West coast, a huge dockworkers dispute
is simmering. The ILWU - International Longshore and Warehouse Union -
is negotiating with the Pacific Maritime Association - a consortium of
shippers who control the massive ship unloading at West coast harbors.
The ILWU has a long and strong history of seeking safe working conditions
and living wages. Now as this negotiation has become prolonged and unsettled,
terrorism is brought in. Recently, after a PMA lockout, Mr. Bush invoked
an 80 day "cooling off period" back to work order authorized
by the Taft-Hartley Act for the first time in 31 years. He stated: "The
crisis in our Western ports is hurting the economy, it is hurting the
security of our country and our government must act."
Under this order, the government can criminally prosecute any worker who
engages in a work action (hence its title by unions as the ‘Slave
Labor Act'). Mr. Bush had cited not only damage to the economy, but to
the US military, connecting this labor dispute directly to the terrorism
- clearly placing the ILWU in the way of national security. Months earlier
there had been threats to staff the docks with US troops.
Why talk about unions? Unions often blaze the trail of
political dissent. They are both a target of attack by those in power
and at times the most vocal and vigorous defenders of the right to picket
and march, to speak out, to dissent.
Preventive Detention We've been talking about the 1200-1500
people detained post 9/11 (mostly non-citizens) and then mostly deported
on visa violations - cleared by the FBI of any terrorism charges. Padilla,
Hamdi, those in Guantanamo, also are held in essentially preventive detention
- not charged, no bail hearing, etc. But we also should look at the larger
picture today.
Increasingly, the police here in DC and elsewhere are rounding up demonstrators,
legal observers, and bystanders. Their putative reason is that some activists
(not necessarily the rally organizers or even anyone affiliated with the
main organizational sponsors) have threatened to be disruptive.
Most recently, groups gathered in several parts of Washington, DC were
rounded up, not allowed to disperse even in legal gathering places like
Freedom Plaza, and then arrested. Most were charged with "failure
to obey" an order. The two problems with this were there was no order
given by police, and those gathered were precluded by the police from
dispersing. Of several thousand people gathered, over 650 were "preventively"
detained. Many were held in wrist shackles on buses or hand to foot shackles
overnight on a concrete floor.
The concern that law enforcement has a tough time distinguishing between
a real threat of personal violence, serious crime or other risk to life
or limb, and rowdy, loud dissent extends well beyond treatment of immigrants.
I have to mention I have a bias here, however. My older daughter was one
of those - as a legal observer - who was caught up and arrested of the
650. The only thing I can promise you is I know this account is accurate.
We were there. And a number of those arrested are bring civil suits challenging
these practices.
Paul Wellstone
As I type the above words I learn of Senator Wellstone's death. He was
the only senator with a close race who voted against the War Powers resolution
regarding Iraq. He spoke his mind; he recognized the import of defending
dissent.
Detainees
One of the continuing concerns about the detainees is the funny numbers
game. Not only has the FOIA lawsuit been thus far countered by the government,
but the report of numbers of those detained keeps changing. Is it 1182
(November 2001, 835? 718, 1500? Of apparently 752 immigration proceedings
brought against them, 600 involved closed hearings - an awful percentage.
Oral argument on the continuing FOIA suit is scheduled for mid November.
The First Amendment Foundation is a plaintiff.
Thousands Demonstrate in DC and Around the World
It's maybe the most fitting tribute to Paul Wellstone that in the range
of 75-100,000 people demonstrated in Washington, DC to get keep the US
out of war and many thousands in other cities - San Francisco to Augusta
Maine on the day after his death. The marches were diverse - age, race,
religion, but also with frequent marchers, first timers, and old-timers
who had not marched since Vietnam days. This also indicates at least a
significant number of people are not scared off by increased government
authorities from expressing themselves.
Other articles of interest:
* The Washington Post magazine, Sunday October 27, 2002, reported on the
effort to pass (and stop or revise) the USAP Act. It can be obtained at
the following: http://www.washingtonpost.com/wp-dyn/articles/A1999-2002Oct22.html.
* The New York Times Magazine also 10/27/02 featured a long story of Hady
Hassan Omar's 73 day detention, the conditions of his jailing and his
lawsuit for that detention. The detail of the article gives a personal
face to the experience of many hundreds of people, most of whom were caught
up by reason of ethnicity and detained in egregious conditions only because
of minor visa problems.
October 2002
U.S. Finally Starts Evaluating Missteps Before 9/11
We have now seen the first open (following closed) Congressional hearings
reporting on what the US knew about the 9/11 terrorists, and how we could
have improved that intelligence and law enforcement activity. Not surprisingly,
the public information is both complicated and incomplete. While the summary
message seems to be that we probably couldn't exactly have prevented the
attacks, there are particular reports that are haunting. The CIA had issued
intelligence reports in 1998 that terrorists, perhaps allied with Al Qaeda,
might be planning domestic attacks on the US, possibly aerial. The CIA
took this threat seriously but did not put many staff on the case. The
FBI and Federal Aviation Administration took the threat much less seriously,
according to the staff report.
You will remember that jointly the Senate and House Intelligence Committees
have taken on this task. To this point their work has been behind closed
doors, if not without the occasional leak of information.
We've now heard the following:
1) An unidentified FBI agent testified he had unsuccessfully sought to
go after one of the 19 attackers.
2) FBI Headquarters' refusal to authorize a request for a FISA search
of Zacarias Moussaoui as a possible terrorist before the attacks was again
reported. The committee identified that FBI Headquarters lawyers misunderstood
Foreign Intelligence Surveillance Act (FISA) law. FISA did not require
Moussaoui (or other target) to be linked to a "recognized" foreign
power before getting a FISA search.
3) A Phoenix FBI agent – Kenneth Williams - sought a more sweeping
investigation of specific Muslim men who were taking flight training and
related classes. One of these men associated with Hani Hanjour, one of
the 9/11 attackers. New York FBI antiterrorism squad agents refused to
pursue Williams' report.
5) Clinton administration national security advisor Sandy Berger noted
the FBI in general told the White House that the Al Qaeda threat was only
foreign. It also claimed to have undertaken complete surveillance on all
operatives in the US. In contrast, the CIA had identified Al Qaeda as
an urgent threat - as emphasized by Director George Tenet's "war
on Al Qaeda" December 1998. In response, the FBI had added Osama
Bin Laden to its top 10 wanted list.
Now a dog fight has ensued over how many part or full time CIA and FBI
staffers were tasked to tail, assess and/or neutralize Al Qaeda - different
figures are flying. Clearly the answer was not many, perhaps wrongly focused
and not with sufficient urgency. Damage control is being done by both
agencies showing improved communications between FBI and CIA and other
law enforcement and intelligence agencies - largely proven by the stack
of three dozen legislative and administrative orders.
Senate Approves Independent Inquiry
In light of the progress made in the joint Congressional panel
and the recognition of a need for more thorough investigation, the Senate
voted 90-8 on September 23rd to authorize an independent inquiry into
government failures pre 9/11. Prospects are reasonable that this will
be approved before Congress adjourns.
New York Police Seek to Gut Red Squad Agreement
Not surprisingly in the current climate, New York Police have asked a
federal district judge to void the Handschu agreement negotiated in 1985
to resolve a 1971 civil suit brought by a wide range of political and
activist groups. The New York police, working with the FBI had spied on
lawful political activity long after determining there was no evidence
of illegal conduct.
Similar agreements have been threatened or broken in recent years. A federal
appeals court in Chicago invalidated that local agreement in January 2001.
While the police argue they need expansive new authority to combat an
increased terrorist threat, civil rights and civil liberties activists
counter not just with historical problems but recent abuses coming out
of the new expanded powers - especially focused on Muslims or people of
Arab or South Asian origin.
Bush Rule: Psychic Authorized to Declare War
Ok, well that's not what he did exactly, but the new strategy document
the Bush Administration published shifts US military action to being pre-emptive.
This means that in the case of Iraq, U.S. classified information that
Iraq poses an undated future threat to attack the US is sufficient for
us to declare war. This isn't official war as the War Powers Act will
not have been invoked. Further, the draft authorization the president
seeks is as open-ended as the Vietnam War era Tonkin Gulf Resolution –
calling to "use all means that [Bush] determines to be appropriate,
including force" to enforce UN Security Council resolutions, presumably
unilaterally, to "restore international peace and security in the
region." In the whole Middle East?? While this is not a typical NCARL
issue, the unilateral Executive Branch authority invoked by this novel
position is relevant. It is also of a piece with other laws and policy
changes that cut the courts and the Congress out of meaningful advice
and consent functions.
Fortunately, the Congress and the UN now are actively engaged in the issue
of how to deal with Iraq, even if the effort to push enforcement of UN
inspections has a small chance of derailing or postponing the road to
war. The longer it takes, however, the more people can push for decision-making
on the basis of international law, established policy, and acknowledging
the role of Congress to declare war.
Criminal Law Not Enough to Punish Terrorists?
The pundits are at work justifying the creation of new types of antiterrorism
prosecution. Yasser Hamdi and Oscar Padilla are U.S. citizens in military
brigs, not charged with crimes despite being publicly accused of being,
respectively, a battlefield soldier for Al Qaeda, and "the dirty
bomber." Rather than treat Hamdi as a captured soldier with Geneva
Convention rights, or Padilla as an accused criminal with constitutional
rights, the U.S. is calling them "enemy combatants" and giving
them no rights.
In Victoria Toensing's op ed, she opines, "Criminal law cannot be
the sole legal vehicle for dealing with those who would destroy us."
The argument goes: a) neither the US constitution nor international laws
and agreements regarding the rules of war or containment are sufficient
and b) we private citizens just are insufficiently knowledgeable to be
able to correctly judge government actions. This tack seeks to disable
both domestic dissent and the legal system.
On the other side, the ACLU is suing in New York to challenge the Padilla
detention without charge or trial.
.
Chief Justice Rehnquist's All the Laws But One: Civil Liberties
in Wartime
Here's a scary thing – our Supreme Court Chief Justice
wrote the most recent and well known book on the cutbacks in civil liberties.
His easy justification of the need for sacrificing rights in time of war
should be cautionary to anyone looking ahead.
Shared Wiretap and Grand Jury Data Guidelines
The USA Patriot Act, USAP, ordered greatly increased information sharing
across typical boundaries – CIA, FBI, local law enforcement, grand
juries, secret wiretaps, and foreign intelligence agencies. This great
stew of information now is becoming available across the board, meaning
that unverified material, personal information, First Amendment based
information such as on beliefs, associations, and political activism,
will become shared across boundaries. The Justice Department issued half
the guidelines for this new process – those only for criminal investigations,
on September 23rd. Intelligence guidelines are yet to come.
One small privacy measure in the criminal guidelines would require a US
citizen's name to be removed from wiretap or grand jury information that
is then shared broadly from CIA to local law enforcement. Exceptions to
this privacy provision would include if the person is deemed part of a
terrorist group or essential to the understanding of the information.
The intelligence guidelines are stalled by litigation at the FISA, Foreign
Intelligence Surveillance Act, Appeals Court. The appeals court is hearing
a first time challenge by the FISA Court judges on the way the government
(read FBI) has abused existing authority to seek secret searches. It objects
to expansion of abused authority. Activists who consider the USAP FISA
change a constitutional problem, welcome attention to the issue.
There is no exact science to tracking down terrorist or other criminal
activity. Of course information should be shared across various borders
in an effort to prosecute and where possible prevent such action. But
there are precedents such as the prosecution of the Mafia to emulate without
wide-scale change of law and policy.
Action: While the FISA court acts in secret, activists
should encourage their Senators and Representatives to consider the damage
of unfettered sharing, especially of intelligence information at home
and abroad, which traditionally is unvetted for accuracy and can be used
abroad by dictatorial regimes to jail or murder political opponents. Ask
your member to support FISA amendments to the USA Patriot Act.
Domestically there is much risk to widespread sharing of grand jury information
as it is inherently one-sided and as such should not be relied upon as
fact.
Contact your Members at 202-244-3121 which is the main switchboard, or
write them at House of Representatives, Washington, DC 20515 or US Senate,
Wash. DC 20510.
Mazen Al Najjar Proves a Stateless Palestinian
Mazen Al Najjar, internationally known as a victim of the use of secret
evidence in the US, had lost his immigration case and was in jail awaiting
deportation. His family has long tried to find a country which would accept
Mazen, as his four year initial detention was hard in so many ways, and
his latest seemingly endless detention was wearing even further. While
lawyers continued to try to get him out of jail from this Catch 22, Al
Najjar's family thought they had found a country to take him.
The US government jumped at the chance and chartered a plane to get rid
of him. Trouble was, that initial country changed its mind. The plane
sat on the tarmac in Italy until Lebanon agreed to give him a 6 month
tourist visa. This was hardly sufficient, but the US virtually threw him
off the plane with that agreement. Within 2 weeks Lebanon turned around
and deported him. Now after some days of insecurity, his family has learned
his location, but is not revealing it except to say that he is safe. Who
can blame them.
Mazen Al Najjar was never charged with a crime, only visa violation, yet
he endured ongoing public allegations of being in the vicinity of terrorists.
His is a remarkable story of a strong family, a united and diverse community,
and how one man's situation can virtually turn around the government on
a critical issue. Secret evidence remains unused in deportation proceedings
as far as we can ascertain even after September 11.
Mass Deportations Reported
Others rounded up and detained post 9/11 on visa violations are being
deported in large groups. They include people for whom hearings or appeals
should have been granted, and in other circumstances routinely would have
been granted residency or asylum.
Rabih Hadad Hearing Victory
Rabih Hadad will have a new open hearing. September 17th a federal
judge ruled that Hadad should be freed from detention in 10 days or alternately
that he should have an open immigration hearing with a new immigration
judge to consider his continued detention. The first judge had ruled an
earlier hearing closed not on any specifics of Hadad's case, but on general
post 9/11 authority. The 6th Circuit Court of Appeals had ruled in August
that his generically closed hearing was improper.
In a similar case, the 3rd Circuit Court of Appeals in New Jersey heard
arguments by the government to overturn a closed hearing decision in New
Jersey.
September 2002
Gathering of the Battle: Executive vs Congress and the Courts
Look at the last month's record as reported in several headlines: Justice
Dept. Balks at Effort to Study Antiterror Powers, Curt Responses to Congressional
Inquiries - NYTimes; Ashcroft Rebuffed, FBI Rebuked in Secret Court Ruling
- WPost; Conyers Says Justice May Have Misled Congress on FISA Wiretaps
- Wash. Internet Daily. This is layered on top of an August 26 decision
by the 6th Circuit Court of Appeals upholding a district court decision
holding that "blanket closure of deportation hearings in ‘special
interest' cases [is] unconstitutional."
FISA Court Shuts Down Expanded Powers
A May 17 opinion just made public (only the second public decision) by
the secret Foreign Intelligence Surveillance Court said the Justice Department
misled the court in more than 75 applications for secret warrants and
wiretaps. As well, prior to increased authorization from the USAP Act
(also known as the USA Patriot Act) and in new March Ashcroft procedures,
the Justice Department was sharing this spy/intelligence information with
prosecutors in criminal cases. Because of this duplicity, the FISA court
has shut down these expanded powers. Ashcroft had wanted criminal prosecutors
to get routine access to intelligence information, and even to direct
both spy and criminal investigations. The standards for granting wiretaps
for spies is so much more lenient than for criminal investigations, that
overuse or abuse of spy standards can potentially destroy the requirement
for probable cause in criminal investigations. While civil libertarians
would suggest that this duplicity has been a hallmark of Justice and FBI
practice especially in politically based investigations, it is remarkable
to see the concurrence of the secret court.
Congressman Conyers criticized DOJ for incorrectly informing the Judiciary
Committee earlier that this FISA court decision authorized continued expansion
of the Foreign Intelligence Surveillance Act for criminal law activity,
when it did the opposite.
The Justice Department is appealing the decision to the never-convened
three judge secret intelligence appeals court. Their decision could go
to the Supreme Court.
Congress' Oversight Efforts Stymied
In a rare concurrence of views, conservative House Judiciary Chair James
Sensenbrenner and liberal ranking Judiciary Democrat, John Conyers have
both sought to obtain reports from Justice over a range of new powers
post 9/11, and been frustrated by a Justice Department unwilling to comply.
Instead of responding to the committee with oversight authority, Justice
said that instead it would send some information to the Intelligence Committees,
which had not requested it. A New York Times article 8/18/02 documents
complaints by Sensenbrenner, Conyers, the General Accounting Office Comptroller
- "the administration was less forthcoming than any he could recall."
The Senate Judiciary Committee awaits answers to 27 letters seeking information
similar to that of the House, with the Chair, Patrick Leahy echoing the
GAO and House assessments. There is increasing Judiciary Committee sentiment
critical of this "forum shopping" and leaning toward issuing
subpoenas to the Justice Department to compel disclosure already required
by law.
ACLU, EPIC and booksellers File FOIA on Domestic Spying
Not only Congress is interested in how the government is following
its new guidelines and USAP Act. The ACLU made the Freedom of Information
Act request jointly with the Electronic Privacy Information Center and
the American Booksellers Foundation for Free Expression. "Attorney
General Ashcroft bullied a panicked Congress into an overnight revision
of the nation's surveillance laws just six weeks after the September 11
attacks," Barry Steinhardt of the ACLU added. "The nation needs
to know if these powers are truly making us any safer -- or just less
free."
Secret Evidence, Old and New
Mazen Al Najjar Free
Mazen Al Najjar, arguably the most famous victim of the use of secret
evidence in the US, was deported and last Saturday finally set foot in
Lebanon, at least temporarily. The odyssey is years long. Al Najjar spent
almost 4 years in jail, in deportation proceedings on the basis of evidence
he and his lawyers could not see or rebut. During that time his family
sought to find a country that would accept him. Granada at one point granted
him a visa, but that was overturned after the US government learned of
the action, making a lie of the formal stance that the US just sought
his departure. Al Najjar was never charged with a crime and a judge finally
ordered him released. After losing his deportation bid, and receiving
a final deportation order, Al Najjar fell victim to 9/11 overreaching,
and was again jailed (significantly more than the 6 month indefinite detention
limit the Supreme Court prescribed in last summer's decision) while his
family sought a refuge. Bahrain gave that visa then withdrew it while
Al Najjar was in the air. Lebanon has granted him a six month tourist
visa. He hopes to move to South Africa where a job awaits. Mazen Al Najjar
is unshackled at last, and hopes his wife and daughters can soon join
him.
Yaser Hamdi - Is Secret Evidence better than No Proceedings?
The government is holding Yaser Hamdi indefinitely, with no charge, without
access to a lawyer, and called "enemy combatant" - title with
no legal definition. He was born in the US and raised in Saudi Arabia,
seized on the battlefield in Afghanistan, brought to Guantanamo and then
Virginia and held in a military brig. Federal District Judge Robert Doumar
held a frustrated hearing August 13, characterized by lack of answers
to questions: "So, the Constitution doesn't apply to Mr. Hamdi?"
and "Why am I here?" This hearing focused on a two page Justice
Department memo, which is all the detail the judge was given as to Hamdi's
situation. The judge is demanding more detail, but with no lawyer representing
Hamdi's interest to see any documentation and try to rebut it, of what
value is more detail? While the conservative Court of Appeals also has
stymied this judge, in fact what is called for by the Constitution is
a hearing and a chance for Mr. Hamdi and counsel to see and rebut the
evidence.
Hearings Denied for Charities Accused of Terrorism
In June a federal judge held that assets of the Global Relief Foundation
were properly seized and frozen. August 7 in Washington, Federal Judge
Gladys Kessler, a Clinton Administration appointee, ruled the Treasury
Department also acted legally in seizing and freezing Holy Land Foundation
(HLF) assets and declaring it a terrorist organization. She turned down
HLF attorneys' requests to expand the record beyond just what the government
had assembled, and to a proper hearing. The government claims HLF is a
front for Hamas, and Judge Kessler further agreed that HLF funding of
Hamas connected clinics and schools is just as illegal as funding suicide
bombings. She wrote: the "charitable component is an effective way
for Hamas to maintain its influence with the public, indoctrinate children,
recruit suicide bombers... permit the transfer of funds to its terrorist
activities." Both the 1996 Antiterrorism law and the USAP law of
2001 make humanitarian aid illegal if it is connected to a foreign terrorist
organization. Lawyers for HLF note the contradiction whereby the UN, Red
Cross and other organizations are not destroyed by the US Treasury Department
for their donations to the same charities. They plan to appeal the ruling
on constitutional grounds.
Blanket Secret Hearings Overturned
On the other hand, the case of Rabih Hadad, director of Global Relief
Foundation, has served as the vehicle for a Sixth Circuit Court of Appeals
decision which roundly criticizes the use of hearings closed under generic
rubric of terrorism rather than justifying closure on a case by case basis.
On the basis of the First Amendment, the court held public right of access
to deportation hearings as the default position unless the government
can specifically show a strong rationale otherwise. This decision overturns
the Chief Immigration Judge "Creppy memo" ordering all "special
interest" cases to be closed to the press and public, including family
and friends, and requiring the record to remain secret except to the government,
attorney and client - and this was for unclassified information. Mr. Hadad
faces deportation, while his organization has its assets seized and frozen
though not charged with the crime of funding terrorist organizations or
charities to date.
Sami Al Arian "Firing" a National Case
The University of South Florida has suspended Sami Al Arian for alleged
terrorist ties and now seeks an advanced state court decision - "declaratory
relief" - a ruling that if it fires the tenured professor, it will
not be violating the First Amendment. In response, Al Arian and his lawyer
Robert McKee have vowed to move the lawsuit to federal court as the issues
are constitutional ones. The case - nationally known - essentially pits
the State of Florida (the University, Governor Jeb Bush) against the American
Association of University Professors, the national, state and local unions,
many civil liberties and civil rights organizations and individuals across
the country.
Al Arian, served as president of the National Coalition to Protect Political
Freedom and now is Secretary. He has for 5 years tirelessly advocated
for due process rights - for his brother-in-law Mazen Al Najjar and for
all similarly situated. After September 11, he was one of a relative few
people of Arab origin in the US who spoke out about the import of constitutional
rights even in a time of horrible terrorist attacks. For that outspokenness
he received death threats and other abuses.
Al Arian has repeatedly been under investigation - reportedly several
grand juries have met and not issued an indictment against him over the
last 10 years. USF accusations initially were that the death threats against
Al Arian made the campus unsafe for students (but refused Al Arian's offer
to teach remotely or off campus). Then it added concerns that Al Arian
years ago made inflammatory statements concerning the Middle East.
Bombing Plot against Florida mosques and Islamic Centers Foiled
Dr. Robert J. Goldstein was arrested and charged in Seminole, Florida
with possession of destructive devices and attempting to destroy buildings.
After being turned in to authorities by his wife, Goldstein was found
to possess 15 bombs and components for many more, the explosive C-4, hand
grenades, mines, weapons, plans to attack an Islamic education center,
and a list of 50 Islamic centers in Florida. The "mission template"
plan found with the explosives had as an objective to "Kill all ‘rags'"
at this Islamic Education Center..."
Arab American, Muslim and other civil liberties and ethnic rights groups
fear this kind of collateral response from the generic anti-Arab sentiment
widely expressed and especially rampant following the catastrophic attacks
of September 11, 2001. There is also concern that this potential attack,
which was so narrowly and fortunately averted, may signal the likelihood
of similar plans motivated by hate and ignorance. The discovery of this
apparently obvious mass criminal attack plan and materiel reinforces the
need for the government to pursue and try to prevent crimes rather than
association and speech.
Terrorism & the Constitution
The Jim Dempsey and David Cole book, initiated by the First Amendment
Foundation, our sister non-profit, is now being printed by the New Press.
Go to www.thenewpress.com/books/terrorsm.htm.
It is available now on sale from Amazon at www.amazon.com.
Also your local bookstore can order it from Norton, and you can obtain
it directly from them at
http://www.wwnorton.com/orders/np/084782.htm or call 800-233-4830.
Because of bulk printing, it now retails for $16.95.
We appreciate your support - verbal and financial. If you wish to add
people to this list, get the newsletter electronically, change your address,
or remove your name from the NCARL list, please let us know. You can email
us at info@ncarl.org.
August 2002
Operation SNITCH - Everyone Gets It
Many of the contested laws, executive orders, regulations and even government
letters changing government anti-terrorism activity since September 11
have been focused on non-citizens, Arab Americans and/or Muslims. It has
been those communities which have been most outspoken in their concerns
about the over-reaching. Now there's a program which potentially adversely
affects many other folks, and the results are clear. The opposition has
been quick, broad and vocal. The new plan is Operation TIPS - Terrorist
Information and Prevention System.
The premise of TIPS is to have private industry workers sign up to keep
watch for "unusual and non-emergency issues" and report them
to a single law enforcement phone number. The Department of Justice is
starting with a pilot 10 city program enlisting about a million people.
Some educational and training materials will be prepared, though the pilot
program is set to start in August. Truck drivers, bus drivers, letter
carriers, utility readers and port personnel are among those identified
as "ideally suited" to help with this plan.
What's the problem? We're all supposed to help identify actual terrorist
criminal activity - not just a few sectors of the workforce. Look at the
folks who reportedly stopped Richard Reid from lighting his shoe bomb
on an airplane. This plan is looking more in advance for terrorist planning.
But what does planning look like? Withdrawing money from an ATM? Talking
in a foreign language on a cell phone? Walking while Arab American or
with a hijab (head scarf)? A 1992 Harvard University Project Justice study
on informants identified accuracy of information as a problem - with embellishment
and fabrication an issue. But look at the FBI - even with substantial
training in distinguishing between First Amendment based activity (political
beliefs and associations) and criminal activity. What happens with less
guidance when you essentially deputize huge numbers of people to help
fight terrorism?
This proposed program has hit a political buzz saw. Fox News brought
me in to talk about it. Lots of mainstream TV and radio are reporting
it critically. My sense is that this program has people in general concerned
about excess intrusiveness well beyond the Arab American and Muslim community.
House Majority Leader Dick Armey introduced an amendment to the Homeland
Security bill to defund the program. The US Postal Service indicated possible
unwillingness to participate. The libertarian Cato Institute, conservative
Rutherford Institute, and ACLU have come out in opposition, among others.
Coming out of the J. Edgar Hoover/McCarthy era, NCARL can easily talk
about how people get targeted because of their beliefs and associations.
Not only East Germany urged its citizens to turn in subversives - so did
the U.S., and with a straight face it conflated peoples' membership in
organizations with them being dangerous. My favorite summary comes from
the New York Times editorial July 22: "If TIPS is ever put into effect,
the first people who should be turned in as a threat to our way of life
are the Justice Department officials who thought up this most un-American
of programs.
Ashcroft in Trouble with Base
The New York Times on July 24 reported on an increasing trend - that many
conservatives who most strongly supported Mr. Ashcroft's Presidential
race, his later Senate race, and then his divisive confirmation process
for Attorney General, now find his policies problematic. Paul Weyrich,
president of the Free Congress Foundation, is emblematic of this, criticizing
the post 9/11 policies as "things that had little to do with catching
terrorists but a lot to do with increasing the strength of government
to infiltrate and spy on conservative organizations." We'd add -
spying on any number of different kinds of groups.
Statement of Principles
Attached is a statement of rights and responsibilities which in some ways
parallels our first civil liberties response to the horrible September
11 attacks - the In Defense of Liberties statement that tried to head
the government away from sweeping and inappropriate responses to the attacks.
Now almost a year later, a number of us have drafted a new document that
reiterates a broader and more constitutionally focused set of rights.
While it doesn't directly criticize particular government programs, it
does as you will see reflect concerns raised by many of them. The Statement,
now signed by 67 groups, was first used for the July 25th Judiciary Committee
hearing at which AG Ashcroft testified. We want to obtain many more signatures
from diverse groups and individuals, to provide an overarching guide to
widely accepted constitutional and generally recognized rights.
Please particularly reach out to your local organizations and seek their
endorsement. The Center for National Security Studies is collecting signatures.
Send your endorsement and address/contact details to: cnss@gwu.edu
or fax to 202-530-0128
National Coalition to Protect Political Freedom Meets and Assesses
About 40 national and regional groups and individual attorneys met together
in late July to share our legal and organizing experience especially post
9/11. NCPPF was formed to defend the constitutional rights of association,
speech and due process of immigrants and citizens. It almost succeeded
in eliminating the use of secret evidence, through the work of numerous
brave victims, their tireless lawyers, and national and regional organizations.
In the last year the challenges have increased exponentially for many
of us. At this meeting we looked at old and new issues, shared updates
and strategized on how to address the expanded concerns.
NCARL's Kit Gage was elected to be president from secretary and was able
to pass on the coordinator torch after 4 years. Kate Martin's Center for
National Security Studies agreed and was selected to function as coordinator.
I and NCPPF appreciate NCARL and the First Amendment Foundation's enormous
generosity for the donation of my time.
Thank you all for your work, your support, your critical donations.
Statement of Principles:
ORGANIZATIONS AND INDIVIDUALS: PLEASE SIGN ON TO THIS STATEMENT
- - August 2002
This Statement is drafted as an outline of constitutional principles,
which we believe should govern law enforcement efforts, not only for the
sake of our liberties, but also because law enforcement efforts against
terrorism will only be effective when targeted against wrong-doers, rather
than whole communities. It is not a statement of opposition to specific
measures by the Justice Department, about which groups may differ, but
rather of overall principles on which we believe there is wide agreement.
TO SIGN ON: If you or your organization would like to sign, please email
or fax your approval, affiliation and contact information to the Center
for National Security Studies at cnss@gwu.edu or
202-530-0128 - fax.
STATEMENT OF PRINCIPLES
1. On September 11, 2001 thousands of people lost their lives in a brutal
assault on the United States. We mourn the loss of these innocent lives.
Those responsible for these heinous acts must be held accountable.
2. We recognize the importance of the government's responsibility to prevent
future attacks. We believe that law enforcement can be most effective
when it acts in a manner consistent with the principles of a democratic
society and the Bill of Rights to the U.S. Constitution.
3. We welcome the statements by U.S. government officials condemning intolerance
and bigotry and promising to bring the full force of law against those
who commit hate crimes.
4. However, we have become increasingly concerned about a series of measures
by the government affecting the Arab American, Muslim and immigrant communities.
We are very concerned about a strategy of "prevention" of terrorism
that instead of targeting terrorists casts suspicion on entire religious
and ethnic communities. For example, we are concerned about statements
by Administration officials suggesting without any evidence that hundreds
of individuals arrested for unrelated visa violations are involved in
terrorist activity. Such statements feed negative attitudes towards immigrant
Arabs, Arab Americans, and Muslim Americans.
5. We call upon the government and especially the Department of Justice
to act in accordance with the Constitution.
6. Individuals should not be targeted for investigation or detention because
of their race, religion, ethnic background or appearance, including Arab
Americans, Muslims, or immigrants in general.
7. Immigration and other laws should not be selectively enforced based
on race, religion, or ethnic background.
8. Secret arrests and secret detentions are unconstitutional and undemocratic.
9. Individuals seized in the United States should not be detained unless
they are charged with either criminal or immigration violations.
10. Individuals charged with crimes or immigration violations should not
be arbitrarily detained before trial on such charges.
11. Individuals should not be confined under abusive or unnecessarily
restrictive conditions.
12. All persons have a right to effective assistance of counsel. There
should be no interference with the attorney-client privilege.
13. Secret evidence should not be used to deprive individuals of their
liberty or to try them for violations of criminal or immigration laws.
14. Military commissions should not be used to try civilians arrested
in the United States.
15. The First Amendment protects the rights of peaceful dissent, free
exercise of religion, and freedom of association. The government should
not use its law enforcement powers to disrupt lawful political or religious
activities, nor should it conduct investigations on individuals or groups
based on their lawful religious or political speech or associations.
16. Secret searches and seizures, as well as secret wiretaps without necessary
safeguards, are unconstitutional.
17. Governmental compilation of databases on individuals can pose severe
dangers to freedoms of association, religion, and speech and the right
to privacy. The government should not compile databases on individuals
without procedures to protect against labeling them as suspected terrorists
on the basis of their lawful religious or political activities, associations,
or race, religion or ethnic background.
18. Due process protections must apply to any closure or wholesale seizure
of the assets of charitable or religious organizations.
19. We express our deep concern regarding the assumption of new powers
by the executive branch that pose risks to human rights and civil liberties,
particularly when such powers have not been authorized by the Congress
and there has been no public debate concerning them.
20. We call upon the Department of Justice and all law enforcement agencies
to act consistently with the above principles.
21. We call upon all Americans, our political leaders, and the U.S. Congress
to speak out and act to protect our cherished constitutional rights and
democratic values.
July 2002
This month I want to share a chilling paragraph, update on a range of
issues, share some helpful local activism and then thank you generally
and some folks specifically.
Abducting Justice?
In a relatively small story in the Washington Post June 12th, Peter Finn
reported on a German man, Mohammed Haydar Zammar, reported missing by
his family. He is suspected of recruiting some of the Al Qaeda hijackers
in Hamburg. The Germans suspect he is in US custody or control in a third
country. US officials confirm he is "not walking the streets."
Finn then adds:
"During the past nine months, the U.S. government has secretly transported
dozens of terrorism suspects to countries other than the United States,
bypassing extradition procedures, according to Western diplomats and intelligence
sources. U.S. intelligence officials are closely involved in the interrogation
of many of these suspects, who are distinct from the al Qaeda and Taliban
prisoners held at Guantanamo Bay in Cuba, the sources said."
Think about this. The US confirms it is grabbing people, taking them out
of their countries and interrogating them in other countries. What laws
are controlling in this process? What's to prevent the US from torturing
these folks? If the US can do this with no judicial (domestic, foreign
or international law) process, then presumably anyone can. Folks I know
in a torture survivors group find this possibility chilling. The move
to weaken international laws and conventions, and wink at our own behavior
and that of other countries who bend these covenants is a chilling and
overt change justifying covert unregulated behavior. The domestic effect:
if the US can even go around the lesser Guantanamo limits in pursuing
suspects, then the US constitution becomes irrelevant.
Judi Bari, Darryl Cherney WIN!
Judi and Darryl just won a $4.4 million jury award against 3 Oakland police
and 4 FBI agents for violating their constitutional rights related to
their 1990 bombing. Judi and Darryl were Earth First! activists, and law
enforcement arrest, intimidation and smear campaign against the two who
had just suffered a car bombing was reminiscent of the worst of COINTELPRO.
Judi has since died of breast cancer, and Darryl and many hardworking
National Lawyers Guild attorneys carried on with the case over the years.
An appeal would be expected. More on the case from www.judibari.org. Congratulations,
all.
Mixed Legal Decisions and Government Actions
* Hearings Open: The Third Circuit federal Court of Appeals refused
June 18 to grant the government's request to keep immigration court deportation
hearings secret while the government appeals the issue to higher courts.
Immigration Judge Michael Creppy had issued a Sept. 21 memo ordering such
hearings to be closed generically - without proof any specific hearing
needed to be closed. US District Court Judge Bissell on May 29 ordered
the "special-interest" hearings to be open nationwide, not just
in New Jersey.
* Names Secret? A three judge New Jersey Appeals Court overturned
a lower court decision ordering two county jails to turn over the names
of detainees held in deportation proceedings for the INS. It was the first
decision allowing secret detentions or hearings.
* A county judge in Florida dismissed a private suit against Sami Al Arian
that had alleged connections to terrorist funding.
* Freed When? Attorneys are seeking the release of Mazen Al-Najjar
after his six month detention awaiting deportation to nowhere - no country
has said it would take him. A US Supreme Court decision last summer limited
such detentions to 6 months. In previous decisions , while being held
without bond on secret evidence, he has been ruled not a threat, not a
flight risk, not a danger to self or others.
* The DC Circuit Court ruled June 14th that 32 County Sovereignty Movement
and the Irish Republican Prisoners Welfare Association are correctly designated
as foreign terrorist organizations, by denying a petition for judicial
review by attorneys for the groups.
* Citizens rightless? Abdullah al-Muhajir, born Jose Padilla,
a US citizen, was arrested at O'Hare airport, coming into the US, taken
to the Navy brig in Goose Creek, South Carolina and held as an "enemy
combatant." He is publicly accused (tho not formally) of planning
to use a "dirty bomb." So much for the government's initial
language saying such constitutional suspensions as military tribunals
would not apply to citizens (virtually the only safeguard in the original
military order) Yaser Hamdi, also born in the US, was captured on an Afghanistan
battlefield. The government says it wants only to interrogate al-Muhajir
and Hamdi, and so it's fine to deprive them of lawyer, legal proceedings,
and freedom, because it says so. Where are we?
DOJ Domestic Terrorism and Crime Guidelines
National groups have begun to organize reflecting our concerns on increased
FBI surveillance powers. The domestic guidelines now allow generalized
monitoring in the U.S. of groups, websites, religious organizations without
any indication or even hunch of criminal activity. Oversight of this and
more intrusive surveillance is relegated to field offices, reducing a
significant if not always sufficient safeguard. Contact the Center for
National Security Studies to be added to the list of organizations joining
this effort: cnss@gwu.edu or 202-721-5650.
The Senate Judiciary Committee held a hearing on the guidelines, with
some members expressing concerns about the new guidelines. In the House
Judiciary Committee, normally sympathetic Chair James Sensenbrenner (R-WI)
has been outspoken in his criticism both over lack of consultation and
over the content of the changes. Hearings are now scheduled the last week
of June (as I write this).
Bills of Concern:
S. 2586 The Schumer-Kyl FISA Amendment - to "fix" the Moussaoui
debacle, would allow Foreign Intelligence Surveillance Act eavesdropping
on any non-citizen without their being an "agent of a foreign power."
S. 2506, Section 313 of Intelligence Authorization Act of 2003 - Would
require the Director of Central Intelligence to keep a list of suspected
terrorists, including Americans, without any criteria for who gets included.
HR 4598, the less careful HR 3285, and S. 1615 - various Homeland Security
Information Sharing bills to establish procedures for sharing info with
state and local officials.
Terrorism & the Constitution
This key text traces anti-communism thru anti-terrorism by the government
and gives a critical history of political dissent and how the government
has sought to quash it. It's available in quantities for fall courses.
Particularly useful for American History and Twentieth Century History,
Constitutional Law classes, our book will now be published by The New
Press, with distribution handled by Norton. We will be happy to forward
requests for orders. Amazon works as well. Speakers and authors David
Cole, James X. Dempsey, and a number of other civil liberties experts,
are available to speak to classes and community groups. Let me know your
needs. I've been doing significant touring and speaking in recent months
as well.
Thanks for Everything
I wanted to share some sad news. Elizabeth Rottger died May 21 at 91.
Betty long had been the anchor to the Los Angeles office with Frank Wilkinson.
It is only fair that a strong and committed man like Frank should share
an office with an equally strong Betty, running things while he went off
gallivanting, er, organizing around the country. In other matters of her
life, Betty also showed her strong heart, defending gay rights, civil
rights, world peace - no small agenda. We will miss her and her support.
A memorial service will be held July 14 at the First Unitarian Church
in Los Angeles.
Barbara Ayre was a long-time support of NCARL as a sustainer. We learned
that she passed this February. As well we recently learned that she left
us a gift through her estate. Her last gift, like all of her and your
donations, is warmly welcomed. We rarely mention this, but we have an
incredible, strong, long-time and committed group of supporters, and we
want to help you give to NCARL as you most prefer. If you don't know of
the additional option of making a bequest, you may give a gift to NCARL
and/or the First Amendment Foundation (or of course to other groups) from
your estate. The process is usually a simple matter of adding those names
to your will - but there are several options - ask your attorney if you
have any questions.
Similarly, Lathrope Voorspuy, another long-time supporter, passed recently.
Friends of hers are giving donations to NCARL in her name. As well, we
welcome her last effort at increasing the range of NCARL's support.
Act Locally
Recently a woman noted that having a one time meeting in her community
with interfaith groups is not a sufficient reaction or action to deal
with the huge civil liberties concerns, hate crimes, lack of community
communication among groups. Rather, she suggested ongoing political action
and projects. Attached is a press release from Northampton Massachusetts
City Council. They unanimously passed a Resolution to Defend the Bill
of Rights. A fine project. One of many around the country. Send me yours.
June 2002
What Did They Know and Why Do We Need to Know
It
This month the news has been full of revelations of who knew what, when,
regarding the September 11 attacks, about what kind of investigative commissions
best untangle webs of evidence, and how we learn from all this. What is
the best way to figure out how this tragedy could have happened, how it
might have been prevented, how to best try to prevent future dissimilar
attacks? How do we thoroughly and without taking sides look at the strengths
and weaknesses of antiterrorism efforts and seek to change them effectively?
If done carefully and correctly, the result could yield critical lessons
about the quality of FBI, CIA and other intelligence and law enforcement
information, analysis and decision-making. Yet there is an overwhelming
tendency to finger-pointing and vituperation. Similarly, there are great
risks that this effort will lead only to requests for more money, yet
greater unfettered authority to do intelligence collection, investigation
and law enforcement, without careful ongoing evaluation and analysis.
The direction of legislation right after September 11 was toward greater
government authority and secrecy, cutting the courts out of their oversight
function in significant ways, increased criminalization of associational
activity, and breaking down the barriers between law enforcement evidence
collection and the more vacuum-cleaner style of intelligence collection.
Since that time, many additional guidelines, memoranda and executive orders
have exacerbated these problems and challenged core constitutional rights,
including the right of due process, right to counsel, detention without
charge, among other issues.
Update on Pre-9/11 Intelligence Assessment
FBI Agent Kenneth Williams of Phoenix wrote a memo to FBI headquarters
July 10, 2001 that warned of the possibility of men connected to Osama
bin Laden trained at US flight schools to fly jets, and then hijacking
jets. He recommend to headquarters that the FBI initiate an investigation
of flight schools across the country. Headquarters decided the request
had insufficient merit to pursue, and affirmatively decided not to act
on it a few weeks after the memo was received.
August 6 Intelligence Daily Briefing, a CIA officer warned Mr. Bush
that Al-Qaeda might consider hijacking a US airplane. While the CIA was
discussing the risk of domestically-occurring terrorism - where was the
FBI, which is tasked with overall coordination of antiterrorism efforts?
FBI Minneapolis office legal counsel, agent and spokeswoman Coleen Rowley,
wrote a detailed May 21 memo to FBI Director Mueller, critiquing FBI headquarters
in particular, and asking Mueller not to falsely claim that the FBI could
not have prevented the September 11 attacks. Her specific criticism of
the way headquarters stopped the Minneapolis office from asking for a
search warrant before September 11 is detailed and strong, arguing that
the French intelligence information on which it was partly based was quite
explicit and focused. Further, she notes that FBI headquarters stopped
the search despite it having the reinforcing Phoenix memo, which was not
shared with Minneapolis. She strongly recommends against the FBI plan
to consolidate antiterrorism efforts at DC headquarters. See Time Magazine's
website for the full text of the letter.
The Opportunities: Prevention and Restructuring
No one now can prevent September 11. The role of any assessment authority
is to learn its lessons. By virtue of split party rule, a joint House
Senate Intelligence Committee effort to evaluate the September 11 attacks
is under bipartisan control, which increased its credibility. However,
strong CIA ties to the Committees belie the facade. Mostly closed committee
hearings now are set for early June. Following the news of the Williams
memo and Rowley letter, pressure for a more comprehensive and independent
"commission" has been increasing, gaining ground with strong
support from Senate Democratic leadership and other prominent folks.
The larger point of course is how to prevent future attacks. While on
the surface, the fixes are obvious - better communication at home and
abroad in terms of accurate intelligence, and excellent communications,
collaboration, and again accurate and targeted law enforcement work domestically
from local to national - this bogs down in the details. How much do we
share information and trust intelligence from other countries' agencies
- especially those with a history of torture and other abuses, or political
axes to grind, all of which tend to yield inaccurate information? Who
should be in charge of the anti-terrorism effort - FBI as titularly now,
or CIA or another body? How do we avoid massive constitutional violations
in the typical response to bad attacks - an effort to shut down all suspicious
associations and those messy demonstrations? How do you best try to prevent
a future attack that will likely be very different than any previous?
How do you avoid "solving" the problems by throwing money at
them rather than first understanding the issues and then carefully applying
lessons learned? How do you get two very different kinds of endeavors
- law enforcement and spy agencies to work together given a history of
distrust and jockeying for position, very different tasks and information
collection requirements? It's a huge challenge, but one that raises and
seeks to address critical questions. It's a great opportunity to clean
house entirely and rethink what really will work. Will we do it? Will
it even be attempted?
The Pitfalls: Red Squads Redux and Restructuring
Lots of money is pouring into all law enforcement and intelligence agencies.
As former Director Louis Freeh once told the Senate Judiciary Committee
(in the author's earshot and not widely reported), the FBI was pretty
overwhelmed from too much growth too quickly; asking in vain for the Senate
not to yield to the temptation to throw more money at it. On a statewide
level, the there are huge amounts of cash available to cities and states
for antiterrorism spending. Under a Reno era Justice Department program,
jurisdictions get paid to come up with a list of potential threat elements
(PTE's) in their area. The PTE's are identified as possibly "political,
religious, racial, environmental..". And states are complying now
with their lists of PTE's, on a fast track after September 11. The pressure
is on to come up with a list, any list, and get the money.
Increased cross agency cooperation, information sharing, massive increase
in new staff, and difficulty of the task of preventing terrorist violent
attacks raise risks. Robert Dreyfuss' June 3 Nation article, "The
Cops Are Watching You," focuses in part on Maryland to understand
the huge increase in federal, state and local cooperation. Mike Clemens
of the new Maryland Joint Terrorism Task Force, is former FBI. He describes
the fine line between investigations that look at First Amendment or terrorist
activity. "There has to be a reasonable indication that they are
involved in violent activity or subversive activity.." he said, then
retracted, "Well, not subversive but violent." But they look
at all sorts of groups, collecting as Dreyfuss says, "a significant
amount of information on groups that end up having no proclivity toward
violence." Baltimore county tracks the Ku Klux Klan as well as people
for equitable globalization.
Some of you long active with NCARL may remember our campaign to pass the
FBI First Amendment Protection Act. The bill, HR 50, was introduced by
House Judiciary Subcommittee on Civil and Constitution Rights Chair Don
Edwards. It would have banned the investigation of First Amendment activity
lacking a criminal nexus. A short version of the bill was incorporated
into the 1994 Crime bill. Just a couple months after its passage, the
Clinton Administration introduced what became the Antiterrorism &
Effective Death Penalty Act. In it, the just passed provision was excised,
but with a page explanation by the FBI, saying it could not do antiterrorism
investigations with this prohibition. The change was included in the ‘96
act. So despite assurances of care, FBI clarification of its plans, identified
years ago may well come to haunt us.
FBI headquarters is seeking a huge centralized "super squad"
to fight terrorism around the world. This both takes the reins from the
New York US Attorney's office which had coordinated many of the terrorism
prosecutions, and would centralize a burgeoning international effort.
To put this into play, the FBI is seeking to hire over 1600 new employees,
mostly over the next year and a half, and mostly tasked to antiterrorism.
When PARADE speaks, Middle America presumably is not shocked. So when
the May 19 lead story places Attorney General Ashcroft on the cover with
the headline: "Has America's Top Cop Gone Too Far?," you know
the concern over civil liberties excesses has nationalized and become
acceptable table conversation. The pressure that this change of view can
bring may help to counter-balance the money and initial impetus to do
any and everything possible to fight terrorism.
More Strong Court Decisions
Attorney Randall Hamud was delighted when the jailing of one of his clients
on material witness charges was overturned April 30 as being unconstitutional.
An appeal may happen, but this decision tells the government that its
play to change the procedures for cooperating material witnesses - who
are almost never jailed - won't go unanswered.
Update on Berkeley Students
You may remember that last month University of California Berkeley threatened
to suspend some activist students for demonstrating peacefully about Palestinian
rights. After some quick organizing locally and nationally, the school
as mostly backed down. While it still is proposing to put the students
on probation, it no longer is talking about immediate suspensions. Thanks
for your calls and letters. The home of the Free Speech Movement still
has some spunk.
* To order Terrorism & the Constitution, by Jim Dempsey
& David Cole click here.
May 2002
Those Dangerous Courts - Or Why the Justice Dept Hates the Courts
You may remember that the USA PATRIOT Act (following in the steps of the
1996 antiterrorism act) in many ways cuts back on the authority of courts.
In some antiterrorism, immigration and even unrelated areas the courts
now have much decreased or even no jurisdiction to second-guess laws and
Executive Branch activities. This change makes doubly bad some provisions
of concern. Those who find some of the government's antiterrorist activity
to be problematic are in these areas unable easily to use the courts to
challenge them. Instead they are forced either to go directly to the Executive
Branch and by their overwhelming logic convince them to change their policy,
or go to Congress to override its just passed provisions. You may wonder
why cutbacks in court authority have been such a dominant tactic. Well
here are a couple of recent examples.
Holy Land Foundation
You may remember that the government has seized and frozen the assets
of the large U.S. charity, the Holy Land Foundation (HLF), and several
other groups, and put HLF on the list of terrorist organizations, allegedly
for supporting Hamas, a Palestinian group. The group has been put out
of business without a hearing, its offices shut, all possessions and files
seized, bank accounts frozen. HLF in a civil suit is seeking to be made
whole, obviously working at a disadvantage. April 22 in a hearing on HLF's
civil suit, US District Judge Gladys Kessler made it clear that she is
quite concerned about the government's actions. She called HLF's allegations
"significant and distressing" and the seizure a matter of "great
significance."
On the government's request to use classified - secret - evidence in the
case, which only the government and the judge would see, Judge Kessler
told the government it has a "very heavy burden" to justify
its use. "In a case with as many serious ramifications as this one,
unless the law is crystal clear...everything should be in public and on
the record." Further, she criticized the government's arguments as
"simplistic."
HLF is seeking that Kessler issue a temporary restraining order against
the government and mandate release of the group's funds. Attorney John
Cline blasted the government's actions against his client, saying they
violate the Religious Freedom Restoration Act, the International Emergency
Economic Powers Act, the First, Fourth and Fifth Amendments of the Bill
of Rights.
Rabih Hadad Hearings to be Open
Rabih Hadad, director of another charity, Global Relief Foundation, has
been jailed since December 14, and denied bond in a deportation proceeding.
He is accused of overstaying a visa, not of terrorism charges. The government
has sought in this and other cases to close the proceeding to the public,
including the accused's family and the press. In Hadad's case the government
also kept Ranking Minority House Judiciary Committee member John Conyers
out of the hearing. This is not a secret hearing precisely, nor can the
government argue that it deals with national security issues which can
only be shared with people with security clearances, as Mr. Hadad and
his lawyers are attending. So this is a hybridized style closure. Mr.
Conyers, the press and various groups and individuals brought suit with
the help of the Center for Constitutional rights and ACLU to open the
hearing. April 3rd Federal Judge Nancy Edmunds issued a ruling requiring
that the hearing be open. Then April 9th she denied the government's request
for reconsideration. The appeal is now at the Sixth Circuit Court of Appeals.
Judge Edmunds wrote, "It is important for the public, particularly
individuals who feel that they are being targeted by the government as
a result of the terrorist attacks of September 11, to know that even during
these sensitive times the government is adhering to immigration procedures
and respecting individuals' rights."
ACLU attorney Lee Gelernt said he hoped this decision would affect other
cases likely to be closed.
On April 19 the government announced it would no longer block release
of transcripts of the three hearings held already in the Hadad case, and
released at least most of them on the 21st. Jay Stevens, Associate US
Attorney, noted the government had decided this release would not cause
irreparable harm to the national security.
Global Relief Foundation and Benevolence International
Well not all courts have rejected government plans. April 5th, U.S. District
Judge Wayne Anderson ruled that it is appropriate for the judge to look
at secret evidence in the civil asset forfeiture case against Global Relief
Foundation (GRF).
GRF and Benevolence International (BI) are some other U.S. charities whose
assets were seized and frozen in December by the U.S. for suspected terrorist
links -even though as yet they have not been named to the list of terrorist
supports (as has Holy Land). It is still legal for people to give funds
to GRF and BI, even though all three charities had all their records and
more seized.
The Global Relief Foundation filed a lawsuit to recover its assets, claiming
the government violated the Constitution in freezing the assets. BI has
as well. GRF is seeking a preliminary injunction in the case to unfreeze
its funds and have the government return all the seized material, and
has objected to all meetings to which its lawyers have been precluded.
The Department of Justice announced in March that it would use secret
evidence in the case - the first time apparently under a new provision
of the USA PATRIOT Act. The government will show the evidence it presented
to the Treasury Department's Office of Foreign Assets Control (OFAC) only
to the judge. The government asserts it must use secret evidence under
the current "extraordinary circumstances" in which it must assert
"state secrets privilege" when "acute national security
concerns" are involved. "State secrets" is bludgeon language
- almost impossible for a judge to challenge. Comparatively, "national
security" is a couple notches down in temperature.
As noted here previously, the case against these two charities is particularly
bizarre and tenuous, as the government took this gargantuan step of closing
them down without itself first certifying the groups' strong connection
to terrorism. And now GRF and BI, forced to request their own files from
the government to use in the case, also face secret evidence to overturn
the seizing and freezing orders.
Dangerous Attorney?
The U.S. focus on Sheik Omar Abdel Rahman clearly has not waned despite
his solitary confinement. Four people who have had contact with the Sheik
as he spends a life sentence in jail, have now been charged with various
charges including material support for terrorism and conspiracy. Ahmed
Sattar, Lynne Stewart, Mohammed Yousri and Yassir Al-Sirri were indicted.
Sattar also was charged with soliciting violent crimes and conspiracy
to defraud, and he was denied bond. Lynne Stewart, one of the Sheik's
lawyers, and Mohammed Yousry, a recent translator, were released on bond.
Al-Sirri is in jail in Britain.
Attorneys around the country found Stewart's charges particularly chilling.
The National Lawyers Guild (NLG) issued a statement condemning her indictment
and the impact on attorney-client privilege. Stewart faces decades in
jail and yet is not accused of facilitating any violent crime. The Sixth
Amendment protects attorney-client private communication, which is critical
to representation. There's a new rule allowing the government to tell
an attorney and defendant that their communication is being monitored,
which the NLG has formally opposed. The Sheik is now one of the first
to be so affected. At the same time, the government admitted that it has
been secretly monitoring all communication with the Sheik for years. The
NLG is particularly concerned that these kinds of action will limit the
number of attorneys willing to represent unpopular clients, and especially
those with controversial politics.
Speaking All Over
As Director of NCARL and the First Amendment Foundation, and also Coordinator
of the National Coalition to Protect Political Freedom (NCPPF), I've been
in an unique position to speak about concerns with post 9/11 government
actions. NCARL's decades long experience from the Cold War and COINTELPRO,
and NCPPF's 5 year experience with secret evidence are absolutely essential
to analyze and critique today's new laws and policies.
Among other places, I've spoken to community and national groups, NLG
regionals, and students in Taos, Tucson, Pittsburgh, Philadelphia, Oberlin,
OH, Farmington, Maine, Burlington, VT, a bunch of times of course in DC
and Virginia. April 24 I testified (along with a number of key experts)
before the US Commission on Civil Rights Eastern Regional Office. Generally
I speak about the range of wrongly focused government anti-terrorism measures,
the way it makes going after terrorists more difficult for law enforcement,
the impacts especially on Arab American and Muslim communities, not to
mention on dissenters, on criminal suspects, on potentially everyone.
Let me know if you need me or others to speak in your community.
Arab Americans are Not Afraid
One of the finest things about the demonstrations over the weekend of
April 20, was the huge numbers of peaceful political protesters. In particular
a large percent of the body hailed from Arab American, Muslim, South Asian
communities from all over the U.S. This sent a clear message to the government
that people from these targeted communities are not afraid to speak out
and in large numbers. This is both heartening and crucial now.
Thanks for all your help.
* To order Terrorism & the Constitution, by Jim Dempsey
& David Cole click here.
April 2002
More Wrongheaded Government Actions
I’m going to have to eat some more of my words, and I really prefer
sushi to paper. It seemed that government tactics were slowing which generically
target the Arab American and/or Muslim community as a way to search out
terrorists. But the last week or two has disabused us of this sense.
* All the Arabs and Muslims (to the extent anyone can tell either of
these categories by name on entry forms) who have recently entered the
country will be interviewed. This comes despite the government’s
admission that other interviewees had yielded no useful information about
terrorist acts.
* The government has stepped up searches of organizations, targeting
many in the suburbs of Washington, and some in other areas.
* The regulations governing military commissions have been issued. They
still contain troubling provisions that will limit the ability to assure
both fair and accurate trials.
* The Justice Department announced it is using secret evidence to go
after one of the major Muslim charities whose assets were frozen and office
contents seized.
* Sami Al-Arian, a nationally known advocate for civil rights and civil
liberties, faces a civil suit and likely federal prosecution, apparently
for alleged financial activity dating from a decade or more.
Does It Work? Is It Counterproductive?
Seems to me and others that the first questions law enforcement should
ask about its efforts both to pursue those who were involved in the September
11 terrorist attacks and to try to prevent future attacks, are whether
they are likely to meet those objectives, and whether they are focused,
and therefore don’t make it harder to target the culpable. The various
roundups the government has carried out so far - trying to interview 4800
people who seem to be young Arab or Muslim male immigrants, have had little
success as measured by the government. It only found half of the men.
None of the information gleaned from the interviews at least thus far
has led to arrest except for immigration violations and other minor non-terrorism
violations - a total of 20 arrests.
Then the government said it was going after people who are supposed to
be deported - following final deportation orders - but just the Arabs
and Muslims. Now a new batch of U.S. visitors is being targeted just by
country of origin and no specific information they have any connection
to terrorist groups or individuals.
Fighting terrorism and trying to prevent terrorist acts is a tremendously
difficult task - an impossible task really to stop entirely. The raw number
of people that law enforcement is increasingly required to interview,
surveil, monitor, incarcerate, deport, etc is huge. Traditional law enforcement
methodology involves following leads to where they end. The latter activity
is rendered extraordinarily more difficult by expanding the pool of suspects
dramatically and taking staff time to look at them all.
Searches Create Outrage
March 20, the US Customs Service went to Muslim organizations and individuals
mostly in Northern Virginia, searching and seizing materials, saying that
some gave funds which went to the Palestinian Islamic Jihad and Hamas.
Among those targeted were the Leesburg Graduate School of Islamic and
Social Services (which trains Muslim clerics including those in the US
military), the International Institute for Islamic Thought (which coordinates
efforts with the State Department). Over 300 community members, including
Muslims and others, came out to a town hall meeting March 25 in Sterling,
Virginia to express their shock, and commitment to call attention to what
they identify as misguided tactics. In particular they expressed concerns
that this isolates and intimidates Muslims, but vowed to organize in the
community.
National Coalition Calls for Cooperation
In a March 21 meeting, the National Coalition to Protect Political Freedom
attendees called for meetings within the Arab American and Muslim communities
to cooperate on efforts defending civil liberties. Also it will aid in
outreach to other civil rights organizations to apply lessons they have
learned in addressing abuses.
Seizing and Freezing
Attorneys from Global Relief and Benevolence International Foundations
made presentations to the NCPPF meeting. They recounted the experience
of Treasury Department agents seizing every stick of furniture, files
and supplies of the groups. These groups are not on any government list
of groups having assets seized and frozen, or listed as a terrorist group.
Yet the entire organization is in government custody, and it is forced
to seek permission to hire lawyers and open a legal defense fund. The
sum was that the government acts first then seeks to determine its authorization
later.
At the same time, the government has announced it will use secret evidence
in its defense in the seizure of Global Relief’s assets. So here
we have the government seizing all the evidence, all your files, and only
with difficulty sells you some of it back. The group is assumed guilty
until it proves its innocence. Then the government uses secret evidence
in its defense, adding substantially to the degree of difficulty in proving
innocence. Good luck needed - and considerable attention to the unfairness
of using this tactic as a general matter rather than criminal law.
Detentions Continue
Protesters regularly march in Brooklyn at the Metropolitan Detention Center,
which still holds about 40 Arab and South Asian immigrants. These detainees
and hundreds of others, many in New Jersey, have been held almost since
September 11. The protesters seek their names, confirmation of their locations,
as does the ACLU, Amnesty International, the National Lawyers Guild, and
the Association of Legal Aid Attorneys (UAW 2325). Labor activists are
beginning to organize around these conditions, especially in New York,
with its large immigrant population. See the attached article.
Military Commission Regs Reflect Pressure
You can read at www.cdt.org the original Military order which Mr. Bush
released and the new regulations. March 20 the regulations were released,
characterized as merely elaborating on the special military courts to
be used to prosecute terrorism suspects. A close comparison of the original
order reveals remarkable contradictions. The original would have allowed
2/3 vote by military judges for the death penalty, allowed a low level
of proof for conviction, did not mention a civilian lawyer, explicitly
allowed no appeal, did not call for an open proceeding. The regs require
unanimous ruling for death penalty (tho 2/3 for other convictions), require
proof beyond a reasonable doubt, allow a civilian lawyer to help, allow
an oddly structured military appeal, and require open proceedings (though
they permit the use of secret evidence and heresay public evidence).
These changes, though not sufficient, are not accidental. A firestorm
of criticism from all directions caught the White House and Justice Department
by surprise, seemingly. The fact that much of the criticism was from military
folks added weight to the critique. Clearly the US military wants its
own, if captured abroad, treated according to the Geneva Conventions,
treated as combatants and not criminals, and given all possible due process
rights. To support that effort it saw the US was going to have to set
up a similar system in this case.
We made a difference here. The regs still stink but are a vast improvement.
What’s To Do?
Lots of folks around the country can describe these issues, and are available
to speak. Before we can effectively change the legislation, get the government
to act more rationally, and turn around the civil liberties damage, we
have to get the details out and get the stories out. I can give you some
speaker and organization names. The National Lawyers Guild, ACLU, Lawyers
Committee for Human Rights, Center for Democracy and Technology, Center
for National Security Studies, American Arab Anti-Discrimination Committee,
Council on American Islamic Relations, etc., can be helpful and have lots
of resources. Support the efforts of Rep. John Conyers to amend the USA
Patriot Act.
Thanks for all your work and assistance.
March 2002
LOOSENED LIMITS ON GOVERNMENT SPYING?
Much of the advocacy work we've done in the last months has the sensation
of feeling around in the dark. Secrecy, or at least lack of information
on new government plans, has been the order of the day. Among the issues
that falls into that category is changing of Justice Department guidelines
regarding initiating domestic spying investigations.
December 1, 2001, the New York Times reported that the government was
considering relaxing the standards that limit investigations of political
or religious groups. This news raised major concerns in those who know
the history of such investigations, though no further public reports confirming
this plan have surfaced.
There is a long history of abuse in which the FBI and other agencies
have trampled First Amendment rights of individuals and organizations,
collecting information on purely lawful activity, and also engaging in
intimidation and neutralization efforts. Following revelations of massive
violations during the COINTELPRO years of the 1960s, the Justice Department
was forced to enact relatively strict Attorney General guidelines in the
1970s. Over the years, these limits have gradually been loosened, but
still retain a general limit on First Amendment investigations. Now, following
the attacks on September 11, these guidelines may be significantly stripped
of such protection.
Current guidelines encourage the FBI to open investigations to help prevent
criminal activity, if there is a "reasonable indication" of
a crime, and allow for preliminary investigations even with lesser indication
of a possible crime. While advocacy of violence is protected First Amendment
activity, where there are indications a crime may be committed, it may
form grounds for FBI investigation. This current limit would hardly seem
to tie law enforcement hands, though that is the argument.
Now a sizable group of national civil liberties and civil rights organizations
are calling formally on the Department of Justice not to further weaken
the guidelines. Damage to First Amendment activity has been sizable over
the last months, so we seek to hold the line in this arena. A copy of
the final letter is available from NCARL, email us at
info@ncarl.org.
OFFICE OF COORDINATED LYING
The US government as part of its covert programs, long has issued lies
abroad integral to its strategies. (And I'm not here getting into the
issue of government lies and cover-ups domestically, which are never formal
public policy but obviously occur.) While the government rarely if ever
acknowledges this activity occurs even abroad, we've just encountered
a short story of an unusually overt case. First, reports by Federal Times
surfaced of the creation of a new Office of Strategic Influence. The Department
of Defense on November 2001 created the special office reportedly to help
coordinate a variety of communications, including disinformation and "spin"
abroad. The history of such disinformation campaigns carried out abroad
is they quickly tend to "blowback" to the US, making a lie of
any effort not to mislead the US people. Once a story is published in
a foreign press, it becomes "fact" subject to reporting domestically.
Sunday February 24, on "Meet the Press," Secretary Rumsfeld
(and in a separate earlier press briefing) emphatically denied that the
US lies in its statements except to protect US lives such as those of
"Special Forces" presumably operating covertly abroad. He noted
that unnamed sources spoke of its lying purposes, and agreed that perhaps
the information was leaked to try to halt such plans. He indicated the
office might be closed given its credibility problems. Rumsfeld did not
deny that a public relations firm had been hired to help in the DOD PR
campaign. February 25th President Bush expressed "alarm" (New
York Times) over the office, urging its disbanding or reconfiguration.
By the 26th, Rumsfeld announced its formal death, noting for those who
doubt, "We'll just have to do it with the offices that existed previously"
or as others predicted, private contractors. Again as we feel around in
the dark, it's clear there are strong forces advocating for an enhancement
of traditional disinformation campaigns, within DOD and presumably without.
Secrecy News in its 2/22 edition tells the story of some earlier US Navy
disinformation. The source was Tom Clancy's 1984 novel (turned movie)
"The Hunt for Red October." The book "Blind Man's Bluff"
by Sherry Sontag and Christopher Drew, tells the story. Clancy had submitted
his book for clearance by the Navy. The Navy found about 2/3 of the technical
information to be accurate and 1/3 inaccurate. Rather than block or correct
the errors, the Navy allowed the book to go forward, for obvious later
reading by the Soviets. Admiral Watkins told Sontag and Drew regarding
the Clancy book, that it formed "a significant part of the noncostly
deterrence of submarines."
UPDATE on Sami Al Arian
Sami Al-Arian, President of the National Coalition to Protect Political
Freedom, has been among the most effective advocates for due process in
the country. He has argued against the use of secret evidence in the case
of his brother in law, Mazen Al Najjar, or any person in the U.S. In part
because of Sami's outspokenness on a range of issues, he has long been
a target of attack. He received death threats after speaking on a notorious
O'Reilly Factor national TV talk show. Supposedly because of the threats,
the University of South Florida (USF) has begun the process of firing
Al-Arian. This is called the "heckler's veto" -- when the victim
of an attack receives punishment that should go to the attackers. The
American Association of University Professors has issued a strong letter
on Al Arian's case, which is highly critical of USF. Just in the last
week or so, the Foundation for Individual Rights in Education issued a
comprehensive policy statement detailing its concerns over intended firing
of Al-Arian. In sum: "If USF's justification for firing Dr. Al-Arian
is deemed legitimate, both free speech and academic freedom on college
campuses will be devastated."
Now in a rare move, the Department of Justice publicly announced that
it has reopened its long-running investigation of Sami Al-Arian. A DOJ
release by US Attorney Mac Cauley stated that investigations are made
public in cases "such as when the community needs to be reassured
that the appropriate law enforcement agency is investigating a matter."
USF President Genshaft has spoken privately with Cauley, and with Senator
Bob Graham.
Al Arian's response is that he has been under intensive investigation
since 1995 with no evidence found even for an indictment. "I'm not
afraid because this is nothing new. The [DOJ] statement appears to be
a political move devoid of any facts." Others speculate the public
announcement was timed to be supportive of the USF firing.
WHAT FREEDOM OF INFORMATION?
The introduction of the USA PATRIOT bill was public, and the text marginally
public before passage. Many other changes made by the government following
the terrorist attacks of September 11 were not so easy to obtain, and
never were subject to advance public input. One of the quietest changes
is the reversal of priorities in releasing government information. The
1966 Freedom of Information Act (FOIA) has been a strong legal tool for
activists and journalists since1974, when it was strengthened after Watergate.
Each new President tends to issue implementing guidelines. Under Attorney
General Reno the government was to withhold documents only if "disclosure
would be harmful."
This October, Attorney General Ashcroft quietly issued strikingly different
guidelines. It virtually tips the standard on its head. This administration
may withhold documents of there is a "sound legal basis" for
doing so. There are a number of exemptions available to the government
to justify withholding, giving plenty of ammunition to those who find
secrecy easier.
The 136,000 pages of government files compiled as part of the government's
decades long neutralization effort against NCARL were obtained through
an eight year strenuous FOIA suit carried out for us by Paul Hoffman and
Doug Mirell of Loeb & Loeb. Imagine the results today.
THOSE PESKY DETAINEES AND THEIR RIGHTS
It's really a tough issue: when there's not official war, how does the
victor handle prisoners of war including those who might have committed
violations against internationally recognized human rights. When do you
release those who are just soldiers? When is the war over if it's not
a formal war and the enemy is terrorism and not a particular country?
Do you use international legal structures, your own criminal courts or
make something up?
Now I'm talking not about the hundreds of immigrants still held in jails
in the U.S. Rather, I'm talking about those folks the U.S. is bringing
to Guantanamo, the essentially U.S. territory in Cuba. As of today, the
US has brought about 300 men there, and holds another 200 in Afghanistan.
The group includes just fighters, and those who the US claims may have
committed atrocities, Taliban and Al Qaeda.
Initially President Bush issued a military order that was striking in
its abrogation of domestic or international standards for due process
and other key rights. I've described it previously, and many websites
are useful in helping clarify the issues: www.lchr.org,
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