December
2003
Grassroots Resolution Movement
For the last few months we have focused on the joy of creating and birthing
a collaborative Bill of Rights repair movement through Grassroots America
Defends the Bill of Rights. You can keep track of some of the forward
motion coming out of that meeting by checking www.grassroots-america.org
from time to time. We’ll be using the site to link all over the
place to resources and activists, and as well, create a listserve for
resolutions activists to share information.
Supremes Will Hear Key Detention Cases
Guantanamo
Several cases are before or likely will come before the Supreme
Court this session or the next, coming out of policy and law changes post
9/11/01. In November, the Supremes granted cert (agreed to hear arguments)
in the Guantanamo cases. Three cases are consolidated and will be heard
– just on the issue of whether the courts have the right to hear
appeals from people held in Guantanamo. They took a pass on hearing whether
the indefinite detentions themselves are constitutional. Whether their
treatment violates the Geneva Conventions is yet another issue not to
be considered at this moment in this venue.
You will remember that the US brought hundreds of people from Afghanistan,
Iraq and elsewhere to a U.S. controlled base in Cuba (which has long been
considered U.S. space). The individuals held in jail there are being held
indefinitely, denied lawyers and not being charged with any crimes, at
least as of yet – two years into detention for many. The Red Cross
has been allowed to see some of the individuals, but no family, friends,
lawyers or press have seen or interviewed the individuals. A handful of
these may be brought before so-called military commissions in coming months,
according to general government announcements.
Yasser Hamdi
In October, lawyers trying to represent Yasser Hamdi have asked the Supreme
Court for cert, in Yaser Esam Hamdi v. Donald Rumsfeld. Hamdi was has
been held as an “enemy combatant”, like Jose Padilla, taken
to Goose Creek, SC military brig, not charged with a crime, denied access
to lawyers. Hamdi and Padilla differ from the Guantanamo detainees in
that they are both US citizens, and so have US legal and constitutional
rights not granted to non-citizens, especially who are not on US ground.
CNSS v. Rumsfeld
Hundreds of people were rounded up secretly and held in lock-ups
in New Jersey and New York immediately following the 9/11 attacks. Family,
friends and activists tried to get information on who was being held and
on what charges. The government has consistently refused to give this
information, though some pieces have been released long after most have
been deported or released.
The Center for National Security Studies has now filed for cert in the
Supreme Court in this case to hear the key questions whether the Freedom
of Information Act and the First Amendment of the Constitution would require
the Dept of Justice to release such basic information as name and charge
of the masses of people held almost entirely for reasons unrelated to
terrorism after the 9/11 attacks. The Court is expected to decide in December
whether to hear the case.
Other Court Challenges
Jose Padilla
Padilla is one of the other “enemy combatants” –
called the “dirty bomber” but never charged with a crime and
caught not on the battlefield but at O’Hare airport – a US
citizen. Before three judges in the 2nd Circuit, the government on November
17 will appeal Chief Judge Michael Mukasey’s decision that Padilla
must have access to Donna Newman, who has tried valiantly to be his lawyer.
The other issue being raised by Padilla’s advocates is whether it’s
legal for Padilla to be jailed except as authorized by Congressional law,
an issue they had lost under Mukasey.
Revised Justice Nat’l Security Guidelines – Domestic
Intelligence Agency by Fiat?
There are two kinds of guidelines issued by the Justice Department (DOJ)
limiting it and the FBI in its activities – general guidelines for
criminal investigations, modified May 30, 2002, and the former “FCI”
or FBI Foreign Intelligence Collection and Foreign Counterintelligence
Investigations guidelines. As a shorthand these were the domestic and
foreign guidelines, with much more stringent rules (and the Bill of Rights)
defining what the FBI could do within the U.S. Now, and again with no
public input and very little fanfare, the DOJ has issued revised guidelines.
This time they replace the FCI guidelines with what are called FBI National
Security Investigations and Foreign Intelligence Collection – now
“NSI” guidelines. The unclassified version of the NSI guidelines
and the Nov. 5 press release are available on the DOJ website: www.usdoj.gov
or through www.fas.org.
There are some disturbing though obvious changes. As Steve Aftergood of
the Federation of American Scientists notes in Secrecy News: “The
good news is that the new guidelines are fully compliant with the law.
The bad news is that the law is the USA Patriot Act!” This means
the guidelines repeatedly and strongly urge FBI sharing of information
with the local, and state law enforcement, the CIA and other federal agencies,
and with foreign agencies. The new bywords are prevention and national
security. These focus attention away from going after crime and toward
information collection or spying.
Information which is collected in quantity with the very broad mandate
of “investigating threats to the national security” is less
likely to be tested for veracity. That’s less a problem if the agency
is the CIA and the information is all about foreigners in other countries.
This was more commonly the language in the old FCI guidelines for activity
abroad. These guidelines are the FBI’s mandate here. These new NSI
guidelines incorporate no foreign boundary – the FBI is to spy everywhere
for much broader purposes than stopping or catching criminals. Even with
the written caveat that First Amendment based activity cannot be the “sole”
purpose for an investigation, the vacuum cleaner approach to intelligence
collection is problematic.
We cannot tell you what the guidelines say about CIA and Defense Department
NSI recommended investigative or other activities at home as that is entirely
blacked out (redacted) from you and me.
This would appear to be a DOJ regulatory substitute for legislation to
create a domestic intelligence agency. A bill – for a “Homeland
Intelligence Agency” see S. 410, a Senate bill introduced last February
by John Edwards (D-NC) still has no co-sponsors and only a few public
supporters. Any proposed domestic CIA has long been critiqued for lacking
a focus on pursuing crime (including terrorist crime), and the new guidelines
would seem to set us clearly in that direction. Under the new guidelines,
the FBI is to conduct investigations to obtain information concerning
threats to national security, and conduct strategic analyses (broader
analytic and intelligence purposes of the old Executive Order 12333) –
much broader than possible criminal activity (p.6, 11)). The FBI may use
even intrusive searches if it believes there is strong information confirming
the existence of what it wants to obtain (p.7).
Of concern to anti-torture activists, the FBI now is told to share its
information with foreign authorities, notwithstanding the possible effects
on US persons, foreigners, visitors or asylum seekers, etc. Peoples’
associations and beliefs are well known to be grounds for murder, torture
and other inhumane treatment in well-documented countries. The international
Convention Against Torture has no exceptions to allow torture by reason
of belief or membership. There is bad history of the US giving names of
returning dissenting activists to foreign governments – with awful
results. Now such behavior is encouraged.
Case in Point
The U.S. has deported probably thousands of people since 9/11/01, with
a clear focus on people from Middle East countries or of Middle East origin
who’ve overstayed visas, or even who are in the midst of legalizing
their status. An example of the inhumanity and bizarreness of such treatment
– and an argument for better and more humane treatment - is the
case of Maher Arar. Arar is a Syrian born legal Canadian citizen.
Arar was traveling from another country with a flight stop in the U.S.
to his destination in Canada. The U.S. stopped him at Kennedy Airport
in New York. It detained him, refused his request for an attorney, chained
and interrogated him for hours, and eventually decided to send him to
Syria. He protested, and told some officials he would be tortured if sent
to Syria. He was nonetheless sent to Syria, brutally tortured for 10 months,
and finally released to return back to his life and family in Canada.
U.S. officials anonymously described this kind of action as a covert CIA
“extraordinary rendition” whereby a suspected low level terror
suspect is given to foreign intelligence services, some of which are known
to torture people. It’s a convenient way to have dirty work done
by a surrogate. U.S. officials said more publicly that Arar was deported
because he was on a terrorist watch list. They did not explain why he
could not have been turned over to Canadian officials, who are known to
have law enforcement and intelligence services and a rule of law.
The Center for Constitutional Rights is protesting the treatment and asking
for an investigation of the procedure. (www.ccr-ny.org).
Congress Unleashing the FBI?
Many measures are typically hidden in larger bills – and this one’s
a doozy. Under intelligence authorization bills, both the Senate and House
have approved language to expand the use of administrative subpoenas by
the FBI. These are demands for records made without going to a judge for
authorization. Banks already are subject to these demands.
Now car dealers, travel agencies, post offices, pawnbrokers and other
businesses that have a cash economy and "a high degree of usefulness
in criminal, tax or regulatory matters" would be subject to the subpoenas,
also known as “national security letters.” The bills will
be amalgamated in a Conference committee but as both bills include the
measure, it’s likely to survive the procedure unless:
YOU CALL YOUR REPRESENTATIVE OR SENATOR NOW!
Ask your Senators to support the Boxer-Feinstein Amendment to import a
stronger California privacy standard nationwide through the Fair and Accurate
Credit Transactions Act. Further, ask them not to permit expanded broad
FBI intrusion into people’s financial privacy under the guise of
fighting terrorism, and without supervision of a judge. For more information
on the amendment, go to Senator Feinstein’s site: http://Feinstein.senate.gov/03Releases/r-affiliateamendment.htm.
The ACLU (www.aclu.org), Center for
Democracy and Technology (www.cdt.org),
EPIC (www.epic.org), and the conservative
National Consumer Coalition’s privacy group (www.nccprivacy.org)
have more information on these matters.
November
2003
Grassroots America Defends the Bill of Rights conference: Amazing!
Lots of us have helped design and prepare and attend national conferences.
I cannot remember a more desired, more appreciated conference in my life
than the Grassroots America conference October 18 & 19. This conference
(readers of this newsletter will remember our urging you to come) brought
together hundreds of people.
Attending were folks working on local bill of rights resolutions, dozens
of representatives from national groups who have taken stands critical
to various government laws and policies related to core rights, and key
national experts on these issues who monitor, evaluate, critique and litigate
the array of Executive Branch changes to law and policy following the
horrible 9/11/2001 attacks.
The hard work of dozens of people and financial and issue support of dozens
of organizations made possible the collection of over 200 people from
more than 25 states and the District to share their work. The resolutions
activists, as requested, took charge of the workshops and made them intensely
interactive and nuts and bolts useful.
Just How Dangerous IS the First Amendment?
If we can measure our effectiveness by the attention we get from the Justice
Department, then we’re off the charts.
You may remember that Attorney General Ashcroft went on a tour of major
cities in the U.S. Was it to promote a) a new policy as is standard or
b) a two year old law? Answer: the embattled two year old USA Patriot
Act.
Throughout Ashcroft’s tour, in every major city, people assembled
in prearranged closed meetings to cheer him. In every one of those same
cities, people outside – up to 2000 – assembled to critique
the promotional tour and the issues. During the tour another 21 cities
and towns passed resolutions in support of the Bill of Rights and critical
of aspects of the USAP act. This probably cannot be counted a Justice
Department promotional success.
As part of this not-so-successful effort, Mr. Ashcroft’s PR department
alleged that the librarians have been duped by civil libertarians. Parenthetically,
I love it when someone calls the librarians names – you don’t
want to get librarians mad. People know librarians are honestly committed
people and the most principled defenders of the First Amendment, and this
just gets them better organized. Also the namecallers just look out of
step with reality.
Just after the DOJ tour the Justice PR department, in responding to news
of our conference, called us misled and silly. Is it progress that we
are no longer called terrorists for questioning the propriety of passing
that rights damaging bill? It’s likely a measure of our impact on
the reform process that DOJ feels compelled very specifically to debase
our concerns, even to our holding a meeting.
Right Meets Left and Agrees on Significant Dangers
Again let’s use the same measure – the PR machine. At the
Grassroots America Defends the Bill of Rights conference, the Sunday lunch
brought together Alec Baldwin as moderator, Jim Dempsey, Director of the
Center for Democracy and Technology, Ralph Neas, Director of People for
the American Way, Grover Norquist, Director of Americans for Tax Reform,
and David Keene, Director of the American Conservative Union. David and
Grover are well known conservative activists. Two conservative papers
– Washington Times and National Review both ran articles critical
of the fact that Grover and David appeared at the same conference with
noted troublemakers like the National Lawyers Guild and as well various
American Muslim groups. Well that was the point!
Of course David and Grover talked about how little we share in politics
but that we do share core due process and privacy concerns. They, like
we, know that the effort to get back our Bill of Rights will require a
more comprehensive collaborative effort than any of us have ever entertained.
That should really scare the Justice Dept and its policy supporters.
Broadening and Deepening
Wade Henderson, Director of the Leadership Conference on Civil Rights,
Hilary Shelton of the NAACP, Chellie Pingree, Director of Common Cause,
and Karen Narasaki, Director of National Asian American Pacific Legal
Consortium spoke at the conference directly and clearly to expanding our
resolution and movement building well beyond its current space. We are
old friends, and veterans of many efforts, but I sense a remarkable agreement
that today we have a heavy responsibility to build this new movement better
and broader than ever before. We all depend on a vibrant Bill of Rights
for any political change movement, and the Bill of Rights is badly damaged.
To fix it we’ll need a national triage movement.
There were a decent number of people of color at the resolution conference,
but not enough. More importantly, at a local level we need to know better
how to reach out to our neighbors of color, across religions and politics
on their own terms and not ours. These great pacifist warriors gave us
specific guidance to facilitate this process, both in stories and in do’s
and don’ts.
On a personal note – Laura Murphy, ACLU Washington National Office
director, and as part of a moving welcome to the conference, specially
recognized former NCARL director Frank Wilkinson for his critical work
in defending political dissent. Frank, who attended the meeting, proclaimed
the participants and the content were spectacular.
From Here?
To Do’s from Workshops - We’ll share on the website some of
the key points from various breakout sessions for everyone to digest.
Listserve – We will invite everyone who is involved in the resolutions
process to join a listserve – details to come as we figure which
national organization will host it.
Conference Website – the Grassroots conference website – www.grassroots-america.org
will remain up and functional – and we will add more information
to it coming out of the conference. Included will be links to more groups,
where to find various resources – resolutions, expertise, organizations
which focus on particular areas, etc. What will be added will be guided
by the folks doing this work.
Steering Committee continues and broadens – we’ll continue
to help be a conduit and facilitator for the work. We expect over a period
of months that some new organizations will join the committee and we will
diversify the group more.
Regional/National meetings - There was strong support for ongoing meeting
and cooperation on our work. Many people wanted to participate in this
meeting and couldn’t, at least in part because of finances. Regional
meetings should facilitate their participation and allow further broadening.
Another Personal Note
NCARL and the First Amendment Foundation virtually dropped everything
to make this meeting happen. Katie Roberts, my assistant, and Michael
Fowler, who was our summer intern and stayed on, worked tirelessly before
and during the conference to help make it happen. We were “chief
nudge.” Facilitating steering committee calls, hotel arrangements,
nudging committees, putting out logistical and agenda ‘fires,’
and in general trying to keep track of everything was our task. I say
that not by way of bragging, but to let you know the role we played organizationally
in this conference and work. I’m proud to be in a position to aid
such essential work, and honored to be asked to continue the affiliation.
Those working more closely with local resolutions folks – Nancy
Talanian of the Bill of Rights Defense Committee in Mass., and the ACLU
field organizing staff – are doing amazing things along with the
locals themselves – the real engine of the movement.
If you look at the endorsing organizations, and look at the many additional
groups who didn’t endorse but who’ve taken strong stands supporting
this work, there are many, many more resources for local people to go
to and expand this local work exponentially. This difficult task but dramatic
opportunity is what I see as critical to the ultimate success of this
work. If for example we get the librarians, League of Women Voters, reform
Jewish congregations, Common Cause activists, libertarians, NAACP chapters,
union activists, gun rights activists, local mosque congregants and others,
allied with those already involved, we’ll be unbeatable. And that’s
what’s needed.
Patriot Act – Terrorism Just the Excuse
A required Justice Department (DOJ) report to Congress in September on
implementation of the USA Patriot Act (USAP), confirms what was probably
inevitable: the act is used increasingly on a whole array of criminal
investigations unrelated to fighting terrorism.
As the bill was created by amalgamating a shelf-full of previously unapproved
expanded authorities that DOJ had long sought, it cannot be a surprise
that it is being used broadly. Nonetheless, for the DOJ to acknowledge
this fact is important to repealing and sunseting key portions of the
USAP Act.
Among the measures used outside of terrorism investigations were wiretaps,
surveillance and seizure of assets. The DOJ has tracked general fugitives,
people allegedly making false threats, kidnappers, general money launderers
and thieves. The examples given were just samples of hundreds of other
non-terrorism uses of the USAP Act. While Mr. Ashcroft continually emphasizes
the anti-terrorism uses of the act, internal guides at DOJ have emphasized
use of the Act in pursuing general financial and other crimes as well.
Is this wrong? At least “misleading and perhaps dishonest”
according to People for the American Way. The ACLU believes that with
the understanding by US people of this use, “opposition [to the
Act] will gain momentum.”
In a Washington Post 9/28/2003 article about the DOJ report, Senator Patrick
Leahy, ranking Democrat on the Judiciary Committee, said, “’We
did not intend for the government to shed the traditional tools of criminal
investigation, such as grand jury subpoenas governed by well-established
precedent and wiretaps strictly monitored’ by federal judges”
in passing the USAP Act.
Lobby Now!
There are a handful of helpful bills (and some not so) now in Congress
which address privacy, immigration, due process concerns. We spoke of
them last month. We’ll speak of them again specifically. But today
we wanted to mention that you should be checking out several different
groups’ websites to keep more up to date on the status of these
bills, and to be able to go to your representative and talk about the
wide array of groups (and their diverse politics) which are pushing the
bills.
In particular, www.fcnl.org, www.aclu.org,
www.immigrationforum.org,
and www.nilc.org.
With a Republican controlled House and Senate, it’s important to
be able to bring an article from the Rutherford Institute (www.rutherford.org),
David Keene of the American Conservative Union (www.conservative.org),
or from Free Congress Foundation (www.freecongress.org)
that support your position.
We’ll try to add a little more of these diverse resources as links
on the NEW! NCARL website – www.defendingdissent.org/ncarl/ – in coming weeks,
if you want to check that later. And shortly you’ll see a couple
years’ worth of NCARL letters too.
Press Release Grassroots America Defends the Bill
of Rights Conference
As Grassroots Movement Surges, Civil Liberties Activists Convene
to Restore Rights’ Congressional Support Grows Stronger
NORTHAMPTON,MASS. OCTOBER 22, 2003- At the Silver Spring (MD) Hilton last
weekend, more than 200 representatives from Bill of Rights Defense Committees
from 27 states gather to strategize about how to advance the work they
have begun – organizing 199 community and state resolutions and
ordinances defying parts of the Patriot Act and other post 9/11 federal
orders abridging the Bill of Rights. The conference, Grassroots America
Defends the Bill of Rights, enabled many organizers to meet for the first
time face-to-face.
This was a watershed moment for a movement gaining ground at an ever-accelerating
pace, with an average of one resolution passing each day. The resolutions
are strong expressions affirming the importance of the Bill of Rights
and strongly rejecting its weakening. Members of Congress have introduced
more than a dozen pieces of legislation aimed at disarming the Patriot
Act, and Grover Norquist from Americans for Tax Reform told conference-goers,
“You’re responsible for the shift in Congress; they’ve
been influenced by your resolutions.”
On Sunday, Norquist and David Keene, from the American Conservative Union,
joined in a
”strange bedfellows” forum with Jim Dempsey from the Center
for Democracy and Technology, and Ralph Neas of People for the American
Way. They praised conference attendees for their work in passing resolutions
and shining a light on government abuses of the Bill of Rights via the
Patriot Act, and key Executive and Justice Department orders.
Grassroots campaigners were the true stars at the conference. Among them
was Arcata, CA, City Councilor Dave Meserve, who was instrumental in the
passage of an ordinance against the Patriot Act that bans city officials
from cooperating with the Act under penalty of a $57 fine. Meserve told
conferees, with reference to the federal assaults on privacy rights and
due process, “Our message is simple – Not in our town, you
don’t!”
Bill Perkins, a city councilor from New York City, told attendees that
New York City may be the next community to pass a resolution. Perkins
said, “We believe that New York is catalytic in terms of making
this movement move forward because we know that we were symbolically the
target of the terrorist attacks. We’re gonna have a great holiday
season in New York City as we join the rest of you on behalf of our democracy.”
Nancy Talanian, director and cofounder of the Bill of Rights Defense Committee,
which launched the movement, reminded those assembled that they have been
called the New Committees of Correspondence and the Sons and Daughters
of Liberty. But in comparing the Founding Fathers’ tasks to those
before the activists assembled, she said, “Our work should be easier
because we don’t need to draft our Constitution and Bill of Rights.
We just need to win them back!”
The Grassroots America Defends the Bill of Rights was the first national
conference of community groups from across the nation, as well as the
national organizations contributing to the movement. On October 18th &
19th, in Silver Spring, groups from Alaska to Florida joined together
to expand and enhance the effectiveness of a movement that grows stronger
with each resolution passed.
The steering committee that planned the conference represented several
of the 45 endorsing organizations and donors who made the conference possible.
October
2003
Several of the following pieces were written by Robin Metalitz, activist
and student at George Washington University. We appreciate her assistance
as we work overtime to create the Grassroots America Defend the Bill of
Rights Conference, coming October 18-19.
Great Organizing Conference – Y’All Come! October
18-19, 2003
Speaking of which, any of you who are active in local bill of rights resolution
work, or long time civil liberties advocacy should plan to attend this
conference. It’s shaping up to be a remarkable assemblage of activists
from Florida to Alaska, and national experts on critical areas of law
and policy regarding political dissent, civil rights and privacy, Left
and Right and everywhere in between. Rather than the usual ‘we talk
– you listen’ kind of event, this is designed to be a strategy
session. The experts are everyone, and we can all learn from all our work
and expertise.
The bubbling up grassroots movement to save the Bill of Rights is growing
and strengthening every day. Today I hear that 175 resolutions have passed.
By the time you get this Letter, that figure will be out of date. Movement
building is what we’re about. Incursions into Bill of Rights protections
have been massive and expansive – all in the name of fighting an
endless war on terrorism. It is our task to help redirect the nation.
We can help institute measures to help prevent and prosecute terrorism
without smashing the First Amendment, due process rights and our privacy.
But obviously the government needs a little help in figuring how to do
it right.
To register, go to the Grassroots America conference website –
www.grassroots-america.org,
download the registration form and mail it to us, or contact me if you
don’t have a computer and want to come. The number is 202-529-4225.
Ashcroft Disinformation Tour – Report Card
As we discussed in last month’s letter, Attorney General John Ashcroft
has been touring to promote the “Patriot” Act, an unprecedented
move in response to growing concerns about the extent of the powers granted
to the government in the legislation. In addition, the government revealed
its advocacy website for this legislation, at www.lifeandliberty.gov.
Both the tour and the website are, at best, a questionable and arguably
illegal use of government resources, as Rep. John Conyers has noted. Mr.
Ashcroft had a tour of 16 cities formally set between August 19 and September
9, but he’s continued touring beyond this date.
In venues that are generally not open to the public, (but naturally open
to the press,) Ashcroft has engaged in what has been called tongue-in-cheek
a “charm offensive” for Act. In these speeches, Ashcroft sharpened
his criticism of civil liberties groups, calling them “hysterics”.
He issued a veiled warning, saying that those who sought to repeal the
Patriot Act would be “senselessly imperil[ling] American lives.”
In particular, he aimed his criticism at the American Library Association,
saying that they had been “somewhat duped by those who are ideologically
opposed to the Patriot Act.” The ALA responded saying that they
“were deeply concerned that the Attorney General should be so openly
contemptuous of those who seek to defend our Constitution.”
Meanwhile, protests continued outside virtually all of the locations where
Ashcroft spoke, showing that despite the best efforts of Ashcroft and
this administration to convince us that this provision is sensible and
uncontroversial, the public’s reaction has told a different story.
As you know, to date, more than 175 communities have passed resolutions
opposing the vast scope of powers granted to the government through the
Patriot Act.
In Chapel Hill, North Carolina, Barbara Nettlesheim, 69, came out to protest
Ashcroft’s speech in her hometown. In a New York Times interview
9/8/03, she admitted that she had never before attended a political protest,
but that “what the government is doing really scares me.”
Judging from press coverage of the tour, this has been more of an opening
for discussion of government abuses than a convincing civics lesson by
Mr. Ashcroft.
- R. Metalitz
Quick Turnabout on Justice Dept Secrecy Procedures
One focus of the criticism of the “Patriot” Act has centered
around a provision that allows the Justice Department to obtain library
records without notifying the subject of the probe. Once the Justice Department
has obtained this information, the library is prohibited from revealing
these searches.
The Justice Department had, despite demands from the American Library
Association and a lawsuit from the ACLU and the Electronic Privacy Information
Center, refused to reveal even the total number of times that they had
sought information from libraries in connection with a terrorism investigation.
So the extent of use of this provision has remained a mystery.
As controversy increased over this particular provision, Ashcroft did
a complete turnabout – he declassified the number of times that
the Justice Department had used this particular power. So why was this
information classified in the first place? Is this simply political expediency?
And without even cumulative figures and more, how could there be any public
oversight to determine whether or not the Justice Department is abusing
its powers?
- R. Metalitz
Never Used, Never Mind
As it turns out, the Justice Department has never sought information from
a library in connection with a terrorism investigation, according to their
recently declassified report.
This raises a different series of questions – if this part of the
legislation is not being used at all, why does the Justice Department
need it in the first place, and why are they fighting so hard to keep
it? When, if ever, would these powers be used? Mr. Ashcroft is playing
his cards close to the chest, but also engaging in bizarreness: “If
you enjoy swapping recipes for chemical weapons from your ‘Joy of
Jihad’ cookbook ... you might be a terrorist.”
Whether or not this provision has yet been used, and the FBI claims perhaps
separately to have made 80 library inquiries, the power it grants the
government is still troubling. Said ACLU Attorney Anne Beeson, “They
could use it tomorrow and we would never know, and that makes it extremely
dangerous.” - R. Metalitz
Dempsey on Ashcroft
In the recent Ashcroft speech when he called the librarians dupes, he
also described the part of the “Patriot” act at issue in one
sentence: “A federal judge must first determine that there is an
existing investigation of an international terrorist or a spy, or a foreign
intelligence investigation into a non-US citizen, and that the business
records being sought are relevant to that investigation.”
Jim Dempsey, Director of the Center for Democracy and Technology, found
three errors in that one sentence: 1) the judge only must determine that
an FBI official has “specified” in the application that there
is an investigation. 2) The law applies not just to foreigners but to
investigations “to protect against international terrorism or clandestine
intelligence activities.” US citizens can be the target, but more
to the point, anyone’s records can be taken, not just those of the
person under investigation. 3) Materials being sought need not be “relevant”
but just must be “sought for” an authorized investigation
– and remember the judge approving the application just has to hear
the FBI say the materials are sought for an investigation – he or
she is not required to do an independent analysis as to whether the FBI
allegation is accurate.
Does it not give one pause when the Attorney General so mangles and twists
the language of passed legislation? It’s bad enough as written,
but does he not think we can read it for ourselves? Disinformation’s
more convincing when it can’t easily be debunked.
Patriot II, III, IV?
Mr. Bush announced that he wants Congress to quickly pass a new antiterrorism
bill that incorporates three new main provisions. Even as the efficacy
of many portions of Patriot I are coming under question and criticism,
the Administration is seeking to:
1) dramatically expand executive power to seize records, conduct interrogations
and conduct wiretaps through administrative subpoenas,
2) increase death penalty crimes for some terrorism charges, and
3) expand the presumption for pretrial detention in terrorism cases and
require lifetime post release parole.
It’s also interesting that at the same time Mr. Bush is pushing
for new powers, House Judiciary Chair James Sensenbrenner claimed that
he and Senator Hatch stopped the administration from introducing a more
comprehensive “Patriot II” that was leaked as a nearly complete
draft from the Justice Department. There seems no great enthusiasm on
the Hill for these measures.
A new bill, the “Victory Act”, has already been dubbed “Patriot
Act II”, but it is not alone. Three other bills were introduced
just at the time Bush was speaking. The so-called Victory Act would expand
the ability of the government to freeze assets or charge people with aiding
terrorists. According to the Washington Post, the bill “include(s)
many provisions sought by [Justice Department] prosecutors” related
to terrorism, including several measures “similar to proposals made
during the early debate over the Patriot Act.”
One of the most troubling aspects of the H.R. 3037, “Antiterrorism
Tools Enhancement Act of 2003” is that it would expand the ability
of the government to gain records through “administrative subpoenas”
which do not require a judge’s approval. These subpoenas could require
people to talk to the FBI separate from a grand jury proceeding and without
an attorney present. If a person refuses to speak to the FBI under these
conditions, they could risk contempt. It is unclear at this point to what
extent these administrative subpoenas would be used, but eliminating any
judicial oversight would greatly expand a disturbing trend. Compelling
interrogation is straight out Machiavellian.
H.R. 3040 “Pretrial Detention and Lifetime Supervision of Terrorists
Act of 2003” would do as it indicates, requiring a presumption of
pretrial detention rather than consider each case on its merits. Here
again there is more cutting the courts and even prosecutors out of the
court proceedings.
Legislation Protective of Peoples’ Rights
It ain’t all bad though. Senators Murkowski (R-AK) and Wyden (D-OR)
have introduced S 1552, “Protecting Rights of Individuals Act.”
This very bi-partisan bill is a modest yet important bill that would modify
key parts of the “Patriot” Act. It would curtail FBI authority
to conduct secret searches, change the definition of domestic terrorism
to protect First Amendment activity, protect some business records and
increase judicial review of phone and internet monitoring, among other
features. Contact your Senator to co-sponsor the bill – 202-224-3121.
There are three bills relating specifically to library, bookseller and
freedom to read issues:
HR 1157, “Freedom to Read Protection Act”, was initiated by
Rep. Sanders (I-VT). This bill has at least 135 co-sponsors and would
remove libraries and bookstores from section 215 of the Patriot Act.
S 1507, “Library, Bookseller and Personal Data Privacy Act”,
was initiated by Sen. Feingold (D-WI) with 8 other co-sponsors. In it
the FBI could search library and bookstores but with a warrant and “specific
and articulable” facts demonstrating the person whose records are
sought is a “foreign agent”.
S 1158, the “Library and Bookseller Protection Act” was initiated
by Sen. Boxer (D-CA). All of these have positive features limiting some
provisions of the “Patriot” act and increasing reporting and
/or judicial oversight. Contact your Senators and Representatives to support
these measures.
The Kucinich (D-OH) bill “Ben Franklin True Patriot Act” just
introduced is pretty comprehensive – would repeal sneak & peek,
warrantless records searches, detention and deportation of people without
judicial review.
NCARL News
You will note some differences in the letterhead for this NCARL letter.
We have for months been working to restructure NCARL to create a more
functional and effective coordinating body. We have a new steering committee
listed, all of whom have agreed to work with Kit Gage to make NCARL more
responsive to today’s needs. As well we have a new website –
www.defendingdissent.org/ncarl/. Newsletters from the last couple years shortly will be
available on-line, as well as links to other resources. We welcome your
recommendations for ways to improve all of NCARL’s work.
A little background might be useful for those of you who are relatively
new to NCARL. We were founded to oppose the activities of the U.S. government
as highlighted by the House Committee on UnAmerican Activities, commonly
known as HUAC. This committee was a Congressional enforcement arm of comprehensive
US policies which criminalized political dissent activities. Membership
in organizations was a crime. People lost jobs and friends when they were
publicly accused (in the press as well) of being “subversive,”
of being associated with people who were Leftists or Communists or “fellow
travelers.” NCARL traveled the country defending peoples’
right to their beliefs and helping them organize. We were central to abolishing
HUAC.
The connection to today is people were targeted not for any criminal violent
activity, but for mere membership, for association, for belief. The changed
domestic crime guidelines, authorization to check on what you read, criminalizing
donations of humanitarian goods, interviews based on ethnicity alone are
a few of the many indicators of these abuses today.
Kit Gage, yours truly, took over the mantle of directorship from Frank
Wilkinson in April 2001, along with the First Amendment Foundation. Frank
was founding director of both organizations, and so the shoes have been
pretty big to fill. Frank remains active in Los Angeles.
Then came the horrible attacks of September 11, 2001 and the civil liberties
crisis expanded beyond anyone’s fears. That was not the time to
do a careful assessment of how NCARL should be crafted to respond to the
new century and its requirements. Rather, we just hit the ground running
and tried to make the monthly Letter be a conduit for some of the rapidly
changing government laws and policies and their impact. As well, we have
tried to work collaboratively with an expanding range of national and
regional organizations who share many of our concerns.
The Grassroots Conference has come out of these collaborative efforts,
and we’re the coordinating office for the conference. I am proud
that we were able to offer NCARL’s and the First Amendment Foundation’s
services to make this happen. Many larger and smaller organizations are
part of the effort, but we were able to step up to the plate and be the
chief nudge of it all.
After the conference is over, we will have a little more time to think
about what we do and how we do it. I welcome your input and your continued
participation in the work of NCARL. Your letter writing, your advocacy
at a local and national level helps give us our strength. Your financial
support keeps us alive.
Thank you all.
September
2003
Ashcroft Pays Movement its Highest Compliment –A National
Disinformation Tour
This issue of the NCARL letter will be more focused that the
usual roundup of legislation, government policy changes, litigation, activism
report. Instead we’ll focus on the upcoming Grassroots America Defends
the Bill of Rights – First National Conference, which we’re
helping put together, and of Mr. Ashcroft and the Department of Justice’s
efforts to destroy this movement and the growing successes of people to
challenge the USA Patriot Act’s viler provisions and the cascade
of policy changes that followed, many of which challenged core civil liberties
while only questionably and in limited areas improved our effort to deter
and prosecute terrorist acts.
Grassroots America Defends the Bill of Rights - First National
Conference
October 18-19, 2003, we will hold a national conference to bring together
as many local activists as we can who are working on local and regional
resolutions to defend the bill of rights and limit the damage of federal
policy changes post 9/11/01. As well, the national groups who’ve
taken policy positions expressing concern on these issues, and experts
on the range of issues will be joining us. Together we will spend the
weekend clarifying, educating ourselves about each others’ work,
and strategizing for the future. This is a conference of experts –
local and national, of activists involved in some aspect of this work.
It is not an introductory course. But as many of you who receive this
newsletter are those experts and activists, I wanted to urge you to attend.
This conference will be a remarkable mixture of political persuasions,
ethnic groups, and issues. We are quite clear that to overturn any significant
percentage of the wrongheaded government policies enacted post 9/11/01,
we will need a network or coalition broader and stronger than anything
we’ve done before.
The conference will be held at the Silver Spring, Maryland Hilton Hotel.
It is blocks from Washington DC and the Silver Spring Red line stop. We
are keeping the registration cheap - $125 for the weekend which covers
1 breakfast, 2 lunches, and all the materials. We will offer scholarships
as income permits – particularly focused on defraying conference
expenses for folks from afar.
Go to the http//:www.grassroots-america.org website, specially set up
for the conference. It has details about the agenda, a registration form,
information on organizational endorsements (which will help us give scholarships),
and information on scholarships, tabling, etc. If you have additional
questions, email them to info@grassroots-america.org.
The Highest Compliment
When we saw that Attorney General John Ashcroft was planning a whirlwind
tour of the country to bolster the beleaguered USA Patriot Act, accompanied
by a new website (www.lifeandliberty.gov)
created solely to explain why the USA Patriot Act, and new domestic criminal
guidelines and etc are really not impinging on our civil liberties, we
knew we’d made an impact. Never in my dozens of years of activism
have I seen such a comprehensive and directed government response to a
movement to critique legislative and policy changes. It’s a full-court
lobby effort directed at existing, enacted legislation! Alright, to be
fair, the Justice Department is feeling pressed because over 150 communities
including 3 states have passed local and regional resolutions in a relatively
short period of time which critique DOJ policies, and seek to limit local
participation in targeted federal activities.
Activists all over the country concerned by Justice Department policies
and authorities have quickly organized to creatively greet Mr. Ashcroft
where he visits in his disinformation campaign. We’ve gotten reports
of good crowds and local press of their counter-information efforts thus
far.
Representative John Conyers, ranking minority member of the US House Judiciary
Committee, the ACLU and other organizations have spoken out and threatened
legal action against the DOJ for this lobby effort. Executive branch staff
are prohibited from grassroots lobbying for or against Congressional legislation
– even presumably existing rather than proposed legislation. Mr.
Conyers cited both a violation of Congressional restrictions which restrict
use of federal funds for “publicity or propaganda purposes not authorized
by Congress,” as well as of the Anti-Lobbying Act.
The DOJ website – Life and Liberty - offers a longer term vehicle
for activists concerned about government policies. In its efforts to “correct
the record,” the government exposes its arguments. Below are a couple
of citations which can be deconstructed as inaccurate “clarifications:”
“The [USA Patriot] Act removed the major legal barriers that prevented
the law enforcement, intelligence, and national defense communities from
talking and coordinating their work to protect the American people and
our national security”
“… The Patriot Act limits domestic terrorism to conduct that
breaks criminal laws, endangering human life. “Peaceful groups that
dissent from government policy” without breaking laws cannot be
targeted”
Also its structure is instructive. While most of the site is brief, and
doesn’t do more that occasionally mention language from ACLU information
papers in an effort to debunk it, check out the page called Stories and
Articles for a style altogether different. The page quotes about a paragraph
each from twelve different articles. Then it reprints an entire article
by Heather McDonald, which acts as the name-caller for DOJ.
Victim number 1: Jan O'Rourke, a librarian in Bucks County, Pennsylvania,
who “is preparing for the inevitable post-9/11 assault: She is destroying
all records of her patrons' book and Internet use and is advising other
Bucks County libraries to do the same. The object of her fear? The U.S.
government. … O'Rourke is suffering from Patriot Act hysteria, a
malady approaching epidemic levels…” It characterizes the
ALA as “the ever touchy American Library Association.” Even
the DOJ Inspector General gets castigated in a simultaneous crack at Amnesty:
“[DOJ Inspector General Glenn] Fine's report, however measured its
language, is ultimately as much a misrepresentation of the government's
post-9/11 actions as the shrillest press release from Amnesty International.”
This is all on the DOJ website – presumably representing the DOJ
point of view. It’s a piece of work worthy of a close read. Enjoy
and use it well.
August
2003
CONFLICTING SIGNALS
Attorney General Ashcroft describes the local bill of rights resolution
movement as misguided, and repeatedly says the Department of Justice isn’t
bending the Bill of Rights even a little bit. He calls concerns about
the “so-called” invasion of privacy “falsely reported
and nonexistent”. He criticizes the local bill of rights resolutions
movement, and then travels to Alaska, the majority Republican state. It
also happens to be a state that recently passed a statewide bill of rights
resolution critical of federal policies, calling the USA Patriot Act an
infringement of liberties. We must presume Ashcroft’s meeting with
the Alaska Joint Terrorism Task Force was in part an effort to shore up
flagging support for the Administration’s policies. Mr. Ashcroft
apparently has not been too convincing.
The Office of the Inspector General, also at DOJ, recently has issued
two reports – one a special report on handling of detainees right
after the September 11, 2001 attacks, and the other a regular 6 month
report on the USA Patriot Act. Both reports are remarkably and specifically
critical of government policies and practice in pursuing the “War
on Terrorism” in different ways. They make several comprehensive
recommendations to remedy due process problems. At the same time the Attorney
General recommends additional and more restricting legislative changes,
an overwhelming majority of the House votes to defund a much-criticized
chunk of the first USA Patriot Act that the DOJ wants to expand. These
are internecine (at least partly intra Republican) disputes and don’t
even get to what many of the Democrats and others worry about, as well
as also hundreds of communities across the country.
CASES CHALLENGE TO USA PATRIOT ACT
National groups American Arab Anti-Discrimination National Committee (ADC)
and Council on American Islamic Relations (CAIR) have joined several local
Arab American and Muslim groups around the U.S. to challenge the constitutionality
parts of the USA Patriot Act. The ADC release: “The case focuses
on vastly expanded powers under Section 215 for the government to secretly
obtain records and personal belongings of people in the U.S. including
library, internet and medical records.”
The ACLU will litigate the case with the groups.
MATERIAL SUPPORT FOR TERRORISM
Activist Lawyering Upheld
A judge in the criminal case against activist attorney Lynne Stewart threw
out the two most serious charges in her case. Stewart was charged in April
2002 with conspiring and/or providing material support and resources for
a designated foreign terrorist organization along with 3 others, as well
as other more minor charges. Stewart said the ruling “upheld my
right to speak up for a client.”
Stewart is charged in her role as lawyer for Sheik Omar Abdel Rahman now
in jail for his 1995 seditious conspiracy conviction regarding the plots
to blow up various New York City landmarks. Rahman is alleged to be part
of the Egyptian based Islamic Group, or Gama’a al Islamiyya.
US District Court Judge John Koeltl in New York, called the charges unconstitutionally
broad, adding “the government fails to explain how a lawyer, acting
as an agent of her client…could avoid being subject to criminal
prosecution as a ‘quasi-employee.’” Koeltl added, “The
government’s evolving definition [of material support for terrorism]
reveals a lack of prosecutorial standards that would permit a standardless
sweep that allows policemen, prosecutors and juries to pursue their personal
predilections.”
Stewart faces additional charges of conspiring to defraud the U.S. and
making false statements. As well the government is considering whether
to challenge the judge’s dropping the more serious terrorism charges
against Stewart.
Rabih Haddad and his family Deported
The chairman of the Global Relief Foundation and his wife and children
were deported over the last several weeks. Haddad had been in closed deportation
hearings, which Rep. John Conyers and others had legally challenged, and
which now are moot. Also Global Relief’s assets have been frozen
since December 14, 2001 with the U.S. saying it gave material support
to terrorist groups. Haddad had been in detention a year and a half –
never charged with a crime or anything related to terrorism. He was deported
for overstaying a visa, with the government saying, but not charging,
that he was a national security threat.
Lackawanna Material Support Case – The Prosecution’s
Big Stick
Six Yemeni men pled guilty to lesser charges to avoid long prison sentences
for material support for terrorism. Their attorneys and other legal experts
interviewed for a July 29 Washington Post article, are looking at this
case as an example of the increased pressure the prosecution can bring
to bear in such a case. Not only do terrorism-related charges (even with
no allegations of violent activity) carry much stiffer penalties. But
also, the government, through the Moussaoui, Padilla and Hamdi cases,
can threaten to pull people out of the judicial process and into the unknown
quagmire of military tribunals or indefinite detention. Given those risks,
the pressure to take a plea is overwhelming regardless of guilt or innocence.
MILITARY TRIBUNALS AND INDEFINITE DETENTION
Hamdi Indefinitely Detained
Despite a “full court” press – more than 100 law professors
and legal organizations asking for a rehearing - the full US Court of
Appeals for the 4th Circuit by a 8 to 4 vote they demurred. They let stand
a 3 judge ruling allowing an “enemy combatant”, in this case
Yaser Hamdi, to be held indefinitely and ceding broad power to the Executive
Branch to determine when and how to handle this and perhaps similar cases.
Tug of War on Military Tribunals
The U.S. has announced that six people of the 680 or so held in Guantanamo
may face the untested military tribunals. Following this announcement
came several flies in the ointment. The National Association of Criminal
Defense Lawyers announced that the group “cannot advise any of our
members to act as civilian counsel at Guantanamo. NACDL president Lawrence
Goldman told the Washington Post on July 13 that he worried lawyers might
be “lending their legitimacy to what would otherwise be a sham proceeding.”
Mr. Bush met in Washington with Prime Minister Blair. The very public
meeting increased the pressure on the U.S. to give basic due process rights
to the two Britons at Guantanamo facing military tribunals. First to go
was the death penalty (“not as a special favor”), then adding
British lawyers as consultants with confidential communication with attorneys
added, and perhaps trials or at least having possible sentences of the
two take place in the UK are back on the table. Family of Feroz Abbasi
and Moazzam Begg remain frustrated with what they term minimal progress
to due processOn the Australian front, the possible military tribunal
for Aussie David Hicks (who’s also in Guantanamo) has been negotiated
in a manner similar to that of the Brits. Terry Hicks, David’s father,
is pushing for more. Working with Michael Ratner of the Center for Constitutional
Rights, Terry Hicks is seeking to visit David, help him see a lawyer,
and have him tried in civilian court.
REALLY OLD CASES RESOLVING?
Judi Bari and Darryl Cherney Win!
As part of a civil suit brought by Judy and Darryl in 1990, for wrongful
arrest, false accusation, failure to investigate, and general abuse, Bari
(now deceased) and Cherney have won a $2 million settlement to their case
from the City of Oakland. The city already spent $4 million in legal fees
fighting the case and the City Council decided not to appeal. Bari’s
car with Judy and Darryl in it exploded after they received threats from
their environmental activism. The explosion remains unsolved with Bari
and Cherney the only ones ever charged with the crime (and then on flimsy
“evidence”).
LA 8 – Judge to US: Deport or Drop the Case
This 16 year case must rate as among the most complex deportation case
ever brought. For that reason, we won’t here even summarize its
trail. After a government win at the Supreme Court in 1999 on a disappointing
but relatively narrow decision, 2 of the LA 8, Michel Shehadeh and Khader
Hamide still faced possible deportation for their First Amendment activity
advocating for Palestinian rights. Federal Immigration Judge Bruce Einhorn
on July 11 told the U.S. to deport the two or drop its long threatened
deportation. Einhorn has since extended the deadline to September. Stay
tuned.
LEGISLATION
US House Slams “Sneak and Peek” Searches By an overwhelming
vote, the House of Representatives voted 309-118 on July 2 to eliminate
funding for section 213 of the USA Patriot Act that authorizes increased
secret search authority by the government as part of FISA, the Foreign
Intelligence Surveillance Act. Republican Rep CL “Butch” Otter
of Idaho, joined by Dennis Kucinich (D-OH), introduced the amendment that
apparently surprised the Justice Department. The amendment was part of
the Commerce, Justice, State and Judiciary appropriations bill. Amendments
like this to appropriations are sometimes relatively symbolic, as they
don’t delete a particular provision of law, but rather, defund it
for the year. (We used this tactic on the use of secret evidence a few
years back.) On the other hand, this tactic is a great shot across the
bow, and the vote was overwhelming with little lobbying. While various
Senators have discussed FISA concerns, a similar measure has not yet come
up in the Senate.
To read the debate: www.fas.org/irp/congress/2003_cr/h072203.html
TO DO: Congratulate your Rep if he/she voted for the
amendment. Call your Senator and ask them to support this process.
US Senate Not So Tough, but Raising Concerns
On July 16, the Senate rejected an amendment to the Defense appropriations
bill on a largely party line 52-42 vote that would have required the Pentagon
to submit a report on the “enemy combatants.” The report would
have required name, nationality, whether the person is to be tried in
court/by tribunal/returned to country of origin, etc., and if no decision
on disposition of the person – what the US will do to decide how
to proceed with the detained person. Senator Jeff Bingaman (D-MN) initiated
this amendment, which was co-sponsored by many Senators in the Democratic
leadership. The debate and vote can be read at: www.fas.org/irp/congress/2003_cr/s071603.html
Former Admiral John Poindexter, We’ll Miss His Harebrained
Schemes
Let me leave it at that.
CONGRESSIONAL REPORT on 9/11 ERRORS
On July 24 the bipartisan bicameral Congressional Commission investigating
9/11 released the unclassified version of its 900 page report. The report
took 9 months to produce and then 6 months to get releases for the unclassified
version. Much of the initial commentary by the 4 co-chairs - in addition
to very strong bipartisan statements on the continued nature of terrorist
threats in the U.S. – involved the crucial need to declassify more
material for the U.S. people.
Senators Graham and Shelby, and Representatives Goss and Pelosi were remarkably
congruent in their remarks in releasing the report. They agreed that with
better communication especially between the FBI and CIA, stronger commitment
to follow-thru, and some luck, the 9/11 attacks might well have been prevented.
One of the specific recommendations is for the creation of a domestic
intelligence agency like U.K.’s MI6 – a proposal of considerable
concern to civil libertarians.
INTERNATI0NAL AND LOCAL POLICIES STARTING TO DIVERGE FROM U.S.?
California - New State Guidelines
State attorney general Bill Lockyer, under pressure from activists, bad
press for current practice, and to stave off greater criticism, has announced
new guidelines purportedly limiting intelligence gathering and surveillance
to people suspected of criminal activity.
Kenya Rejects Antiterrorism Bill
A key Kenyan Parliament committee rejected a US recommended bill that
would have allowed terrorism suspects to be interrogated without counsel.
July
2003
DETENTIONS Ashcroft's Remarkable Chutzpah - OIG and House Hearing
In recent weeks, two events collided, providing an illuminating view of
the Justice Department. One was an internal Justice Department (DOJ) report.
The other was the testimony of Attorney General Ashcroft before the House
Judiciary Committee regarding the array of post 9/11/01 changes to DOJ
policy and practice. First the Office of Inspector General (OIG) released
a long awaited report that looked at the way in which over 700 people
were detained in the New York and New Jersey areas following the 9/11/01
terrorist attacks. The OIG, an office within the Justice Department, looked
not at whether the detentions were legal or proper, but rather whether
procedurally the detentions were acceptable. It largely reported that
they were not. People were denied bond for no specific reason, held for
months even after agreeing to be deported, and held essentially secretly
– allowed no access to anyone. They were not allowed to contact
lawyers sometimes for weeks. At one of the two main lockups – the
Metropolitan Correctional Center in New York – people were treated
severely, much more so than in the New Jersey facility. None of these
people ever was charged with terrorist related crimes. Almost all ended
up facing only immigration charges of overstaying a visa, violating visa
requirements or other deportable offenses. The report made an array of
suggestions to fix these kinds of problems – largely by suggesting
that the government distinguish early between people for whom there is
some suspicion they may be connected to terrorism and those just pulled
in with the crowd, segregating only the possibly dangerous from the mere
visa violators, and treating most people as normal visa violators.
Then just following the report, General Ashcroft appeared before the House
Judiciary Committee to elaborate on answers to written questions posed
to DOJ by the Committee. Members, including Republican Chair James Sensenbrenner,
expressed concerns about the civil liberties impact of counterterrorism
measures. Initially, Mr. Ashcroft said we "make no apologies"
when asked to respond to the critique by the OIG of detainee treatment.
His response came straight from theatre of the absurd. He acted as if
the OIG report ratified DOJ actions. He complimented DOJ procedures to
fight terrorism. He turned the tables and noted three new antiterrorist
provisions he wants the Congress to enact to increase DOJ authority and
increase some death penalty provisions. These will be discussed later.
Further, DOJ spokeswoman Barbara Comstock claimed the OIG report "fully
consistent with what courts have ruled over and over – that our
actions are fully within the law and necessary to protect the American
people." She should attend the following event. June 27th, the Inspector
General will testify before the Senate Judiciary Committee, presumably
with a different tone.
Despite Mr. Ashcroft's defiant tone to Congress, DOJ and immigration officials
announced on June 12 that they will revise the manner in which they would
handle future detentions of non-citizens. Of 12 changes listed, giving
greater responsibility to immigration authorities rather than the FBI,
addressing better ways to distinguish between terror suspects and mere
visa violators, improving detention conditions and making overall policies
public would significantly address OIG and some civil liberties advocates'
concerns.
Guantanamo Despair/ Upcoming Military Tribunal?
35 Afghans and Pakistanis who had been detained in Guantanamo for well
over a year and now finally released without charge, apparently as innocents,
have told their stories to New York Times reporters. While none described
physical abuse, the threat of permanent detention was waved before them,
the uncertainty of their legal status and lack of ability to contest their
detention left most in deep despair. Reportedly, about 680 people are
detained in this US camp on the edge of Cuba.
Military sources claim about 10 eventually will be tried before a brand
new military tribunal, as a chief prosecutor and chief defense counsel
have been named. Unless the person tried can find a civilian lawyer who
will accept stringent limits on their representation, all other personnel
on all sides of the case will be military. A civilian lawyer would need
a security clearance, still not be allowed to see secret evidence, not
research the case off site, and not talk to anyone else about the case.
Any takers?
DEPORTATIONS
13,000 Middle East Interviewees in Deportation Proceedings
For those who think the selective interviewing of non-citizens from particular
countries has no impact, the government has announced it has put 13,000
of those people into the hopper for possible deportation. Many thousands
of other Arabs and Muslims have already left the country, convinced that
efforts to clarify their legal status are hopeless.
WHAT IS NATIONAL SECURITY?
Insiders Speak Out
Gordon Beers, counterterrorism adviser for years at the White House National
Security Council, quit in disgust recently and promptly went to work for
John Kerry's presidential bid as national security adviser. His gripe
with Bush: "They're making us less secure, not more.." He critiques
the war in Iraq in specific and in general acting unilaterally, aggressively,
and without addressing root causes of terrorism. Just that.
Greg Thielmann, who just retired from decades at the State Department,
also went public documenting on the key issues of Iraq and Al Qaeda connections,
and nuclear weapons issues, that the administration "was grossly
distorting the intelligence on both things." A war of words has promptly
erupted. A little late, but about time, we say.
James Ziglar, former INS commissioner, spoke at the first ACLU membership
convention, on June 14, decrying overly aggressive Administration anti-terrorism
tactics – that in this new era the DOJ "will no longer focus
on whether an action is safely within the bounds of the Constitution and
laws, but how close they can get to the line, or how much they can get
away with." He urged that the FBI be separated from the DOJ.
FBI Special Agent Robert Wright of Chicago publicly criticized the FBI
June 2 for "pathetic anti-terrorism efforts" and was promptly
investigated by the FBI. Referencing this case, Senator Grassley (R-IA)
said the FBI "can't tolerate dissent." We knew that.
LEGAL CASES
WHY FOIA IS CRITICAL: Court Ratifies "Disappearing" Detainees
As those 700 or so people were being detained, a group of us in DC and
New York tried desperately to help find out who was being disappeared,
and assure that their rights were being protected as required by the Constitution.
Among the things we did was to file a FOIA – Freedom of Information
Act – request that the government make public who was being arrested
and put in jail.
It is these same people who the OIG now reports were mistreated –
denied access to lawyers, harassed and intimidated, delayed in being charged
with immigration violations, and essentially forced out of the country
as these people gave up hope of being given a fair shot at contesting
their supposed visa violations.
A three judge panel of the US Court of Appeals for the DC Circuit now
has upheld the government's right to keep secret the names, attorneys
and other details of those over 700 detainees rounded up and held for
months in New York and New Jersey. This overturned Judge Kessler's earlier
decision that ordered the US to release the names. You may read the decision
at http://pacer.cadc.uscourts.gov/docs/common/opinions/200306/02-5254a.pdf.
The Freedom of Information Act case, brought by many public interest groups
including our First Amendment Foundation, and argued by Kate Martin of
the Center for National Security Studies, EPIC and the ACLU, brought out
key due process and First Amendment questions. An amicus was filed by
the Washington Post. Its oped, not surprisingly, said, FOIA "becomes
meaningless if the government can keep secret the names of hundreds of
people it has rounded up without giving a detailed and specific explanation
of the harm that a bit of sunshine would cause."
While the OIG report (above) complained about the conditions under which
the detainees were held, two of the three judges said it was, "not
within the role of the courts to second-guess executive judgments made
in furtherance of that branch's proper role." In his dissent, Judge
Tatel issued a stinging rebuke to the majority, asking why bother having
a FOIA Act at all if the courts must not second-guess government actions
"..by accepting the government's vague, poorly explained allegations,
and by filling in the gaps in the government's case with its own assumptions
about facts absent from the record, this court has converted deference
into acquiescence." He says the decision "eviscerates both the
FOIA itself and the principles of openness in government that FOIA embodies."
We will consider an appeal of this decision to the full DC Court of Appeals
or to the Supreme Court.
TO DO: Frequent readers of this letter may remember how
much solace we take from blistering dissents. Over time they build a case
for stronger backbone. That's the case we must build. Let your Representative
and Senators know that the OIG report must be taken seriously and its
recommendations implemented for any such future detentions. If we the
people had been able to do better oversight of these "disappeared"
people immediately, this rotten treatment might have been minimized. As
it was, our pressure helped make the OIG assessment necessary.
Moussaoui – Right to Call Witnesses in Criminal Trial
This remains the big issue in the Zacarias Moussaoui case. After Judge
Brinkema of Federal District Court in Virginia twice ordered the government
to let Mr. Moussaoui's lawyers get a deposition from (in other words,
ask questions of) Ramzi Binalshibh and twice the government stonewalled.
Now it is being argued in the 4th Circuit US Court of Appeals. Mr. Binalshibh
is in US custody and therefore accessible to be brought forward. This
is a difficult and critical test case for the use of criminal courts for
terrorism cases.
Detroit Material Support Terrorism Case – Split Decision
A jury on June 3 convicted two, convicted one on lesser charges and freed
one person in a case in Detroit in which the government charged material
support for terrorism.
Holy Land Foundation – U.S. Freezing Assets Upheld
The DC Circuit Court of Appeals on June 20 upheld the lower court ruling
that the US could legally seize and freeze the assets of the Holy Land
Foundation. HLF, which claims to have been the largest Muslim charity
in the US, and was based in Texas, was accused by the US of being an "arm
of Hamas" – a listed foreign terrorist group.
LEGISLATION
Pared Down Patriot II
At that June 5th House Judiciary Committee hearing, Attorney General Ashcroft
stepped back from recommending the full complement of outrages included
in the DOJ draft "Patriot II" legislation leaked a few months
ago. Instead, he listed three new measures he says the Congress needs
to address in order to fix "several weaknesses" of the USA Patriot
("Patriot I") act. These are: 1) expand some non-murder terrorist
offenses to include the death penalty as a possible penalty, 2) make a
law out of the current DOJ policy of denying bond (and therefore detaining)
groups of people without having to show individually why any one must
be denied bond, and 3) overturn our small court win in the 9th Circuit
(HLP v. Reno) that said the 1996 antiterrorism act was vaguely over-broad
as it described training, and clarify that any people who act to assist
any aspect (including humanitarian activity) of a listed foreign terrorist
group is committing an illegal terrorist act.
Release the Report!
Senator Bob Graham, co-chair of the special Congressional committee to
evaluate what the U.S. could have/should have done to prevent the September
11 attack, is in a fairly public fight with the CIA and others over making
most of the 900 page report public. The difference between them is apparently
vast.
TO DO: Call Senator Graham and your Senators and tell
them to keep at it!
FISA Oversight Bill Introduced, H.R.
Reps. Joseph Hoeffel (D-PA) and John Conyers (D-MI) have introduced a
companion bill to a bi-partisan bill introduced in the Senate in February.
The bill "Surveillance Oversight & Disclosure Act" largely
requires accounting – making public the number of Americans being
surveilled under the Foreign Intelligence Surveillance Act (FISA), number
of times FISA was used for criminal law purposes. It has 19 cosponsors
already. The Senate bill is the "Domestic Surveillance Oversight
Act, " with 6 co-sponsors. The DOJ objects to the measure under the
cloak of national security.
TO DO: Get your Reps and Senators to co-sponsor H.R.
2429 and S. 436.
ACTIVISM
LOCAL RESOLUTIONS CONFERENCE – DC - Oct 18 & 19
Grassroots America Defends the Bill of Rights – First National Conference
If you are working on local resolutions to uphold the Bill of Rights,
plan to attend this conference October 18-19 at the Silver Spring Hilton
in Maryland, just outside Washington, DC. NCARL and the First Amendment
Foundation are both initiating and sponsoring organizations, and we will
gladly provide details as they evolve.
NOT ALL ARE CHILLED – VIRGINIA MUSLIM PAC
Despite residual concerns from a rash of home and office searches and
seizures by federal agents last year, Muslim activists in Northern Virginia
have formed a new political action committee and are exhorting their friends
and neighbors to become more active in the political process. In fact,
Mukit Hossain was quoted in the Washington Post as saying that the increased
activism came because of the raids. This new or renewed activism is reflected
in other areas of the country as well.
We thought you'd like to read about Frank Wilkinson's expanding fan
club:
Los Angeles Times - exerpted
SOCIAL CLIMES
Divided, then united, by a ravine
By Ann Conway
Times Staff Writer
June 8 2003
As Richard Montoya moved among them with dancing eyes and a giddy smile,
party guests celebrating the opening night of "Chavez Ravine"
couldn't have guessed that only minutes before, the actor had been weeping.
But Frank Wilkinson, the blacklisted urban planner Montoya plays in the
true '50s tale about the razing of a poor Mexican American neighborhood
for what eventually became a major-league ballpark, had received a standing
ovation upon being introduced in the Mark Taper Forum. And for Montoya
— who wrote the urban saga with fellow Culture Clash members Ric
Salinas and Herbert Siguenza — the moment had a historical resonance
that moved him to tears. "For me, that was as powerful as the play
itself," Montoya said as he stood under a canopy of trees trimmed
with twinkle lights on the Los Angeles Music Center plaza. "Frank
has been waiting for years for this little bit of justice. He was never
a bad guy. So I lost it, went up to my dressing room and sobbed."
The 88-year-old Wilkinson, a proponent of integrated public housing for
Chavez Ravine who was caught up in the paranoia of the McCarthy era, said
he thought Culture Clash "deserved enormous credit" for shedding
light on a controversial piece of history. It all may have turned out
for the best, he added. After being fired from his job with the L.A. Housing
Authority for refusing to answer questions about his political affiliations,
Wilkinson turned to civil liberties work, "and I ended up helping
abolish the committee that tripped me up" — the House Un-American
Activities Committee.
...
The Taper's artistic director, Gordon Davidson, said the play's biggest
challenge was getting the story right. "There are people who think
the Dodgers kicked all of those people out of Chavez Ravine," he
said. "They didn't. A very controversial housing project was at the
center of it, which, had it been built, might have transformed L.A. in
another way. But, as it turned out, another benefit happened. A major
league team came in, and 40% of its spectators are Chicano."
Said Siguenza: "I didn't know about the housing project or Frank
Wilkinson when we started out. And now, he's one of my heroes."
June
2003
LEGAL CASES
An increasing number of terrorism-related cases are reaching the Supreme
Court. The divide between the rights of citizens and non-citizens is expanding
in both terrorism and regular immigration cases. As is typical historically,
the rights of immigrants are the first to go. Both terrorism and immigration
cases increasingly are resulting in the loss of key constitutional rights
at the highest court level. It's not consistent but the trend is bad.
Demore v. Kim - Preventive Detention Upheld
In April the US Supreme Court cut back on what many consider to be the
core constitutional rights of immigrants. With its earlier Zadvydas decision
in 2001, the Court upheld that immigrants and citizens both have constitutional
due process rights. The Kim case distinguishes their rights in critical
ways. As David Cole, writing in the Nation, put it, "For the first
time ever outside the war setting, the Court upheld categorical preventive
detention without any individualized assessment of the need for detention."
This was not a terrorism case. It involved an immigrant here legally.
The government did not argue that Mr. Kim himself needed to be detained
as a danger to himself or others. Now at the highest level, courts have
upheld Congress' view that preventive detention for immigrants awaiting
deportation proceedings is legal if they have committed one of a variety
of crimes, regardless of their having served their sentence.
Guantanamo - Indefinite Detention is Fine
Guantanamo is a US military base, leased from Cuba, that has served as
one of the holding places for people who would traditionally have been
called prisoners of war. There have been several cases brought on behalf
of people who have been detained there without hearings or access to lawyers.
Labeled Taliban and Al Qaeda generally, these people apparently come from
the battleground of Afghanistan - and perhaps now will include some people
captured in Iraq and elsewhere. Gradually the US has been releasing some
of the longer held captives (36 now released), and bringing in new ones
(30 new people). The US no longer alleges that any of these people are
terrorist ringleaders. Amnesty International just released a report, calling
the detentions a "human rights scandal" and for the US to charge
or release these detainees.
You may remember that last month we heard that some of the detainees are
juveniles. Others are very old - one of the released is perhaps even 100.
The US is not treating these people as prisoners of war. The US is saying
they don't qualify for that most basic right because those taken to Guantanamo
were not regular soldiers or else they committed war crimes. Yet they
have not charged them with any crimes or held hearings to confirm their
suspicions.
Legal activists have long sought to have international laws, including
the Geneva Conventions, or alternately, US law, apply to these prisoners.
Concrete needs include: obtaining access to lawyers, receiving formal
prisoner of war status, or for the rest, having criminal charges filed.
The Supreme Court on May19 refused a hearing on the case brought in California
to challenge the Guantanamo detentions. Other legal challenges are not
finished, but face an uphill struggle given the Kim decision above and
others.
There is talk of the US government beginning to hold military tribunals
for some of these individuals and perhaps others in the U.S. An Australian
paper reports plans to set up an execution facility. But there is no public
action yet.
People still are being detained in Afghanistan, in Iraq, and reportedly
in other countries as part of the war on terrorism. The US is holding
2000 of the 9000 combatants it had jailed in Iraq. No clue yet how many
will be held for trial or detained indefinitely.
Closed Hearings? Supremes Let Conflict Stand for Now
Remember the Creppy memo? It was one of those Justice Department memo/edicts
from Immigration Judge Michael Creppy. He wrote after the September 11,
2001 attacks that government specified "special interest" deportation
hearings could be generically closed. No press, no family, no community,
nobody but the individual and his/her lawyer could attend any hearings.
Neither the facts of the individual case, nor the risk to the community
could be used to challenge the government's determination. Opponents to
the generic closure policy point to existing authority where on a case-by-case
basis any hearing could be closed.
The 6th Circuit Court of Appeals (Cincinnati) ruled against the government
policy - saying it was a freedom of press issue. In the 3rd Circuit, first
a federal court judge ruled against the government policy, and then the
3rd Circuit Court of Appeals (Philadelphia) overturned the challenge by
some New Jersey newspapers. So there was a split decision between the
circuits. (Author note to Attorney General Ashcroft: When the circuits
split it doesn't mean Justice Department policies are ratified as you
publicly alleged).
The ACLU petitioned the Supreme Court for the Media Group that the 3rd
Circuit Appeals Court decision should be overturned. The Justice Department
argued that almost all the cases are finished so the Supreme Court should
take a pass on hearing this case. The Justice Department as well implied
that it is looking at a whole range of policies and so urged the Court
not to rule at this stage. The Supremes went along with the Justice Department,
declined to hear the case, and let the conflicting decisions stand.
Secret Evidence Cases - Harpal Singh Cheema and Rajwinder Kaur
Harpal Singh and his wife Rajwinder Kaur have been detained in California
since the late 1990s. This is a case in which Harpal Singh was tortured
by Indian authorities when he last returned to India. They are in deportation
proceedings – called Sikh terrorists by the U.S. - with the US keeping
them jailed and denying bond using secret evidence. This may be the last
pre 9/11 secret evidence case still being litigated. Their request for
asylum was denied and they appealed, citing the international Convention
Against Torture. A May 16 decision by the 9th Circuit Court of Appeals
required that the Board of Immigration Appeals give it the classified
(secret) information on which the immigration court decided the original
case, noting that (as we already know), the Court cannot make a rational
decision without all the evidence. We hope this court will recognize that
neither can the case be decided without the detainees also having access
to the record. Clearly this also is not the time to ignore the requirements
of the Convention Against Torture.
Material Support for Terrorism Cases:
Four groups of people were rounded up and called terrorist cells in the
US - for activities loosely related to Al Qaeda or the Taliban.
One group in Evansville, Indiana was released, with the FBI formally apologizing
to them for a mistake that hinged upon a snitch with a vendetta.
In Detroit, Michigan, a trial for 4 Arabs charged with material support
for terrorism and other charges has finished and the jury at this moment
is on the fourth day of deliberation. The case hinges on the testimony
of Youssel Hmimssa who pled to a lighter than normal sentence in exchange
for his testimony. A man incarcerated next door to Mr. Hmimssa testified
that he heard Hmimssa say that he was just trying to get revenge on the
four for scamming him, and that he didn't know if they were a terror cell.
Six men in Lackawanna, NY have pled guilty to material support charges
for attending a training camp in Afghanistan in 2001. Seven men in Portland,
Oregon have a material support for terrorism trial set for January.
Philip B. Heymann was quoted in the Boston Globe 5/27 regarding these
cases. A professor at Harvard Law School who was deputy attorney general
in the Clinton administration, Heymann said: ''I keep looking for evidence
that these men have really planned a terrorist operation in the United
States or are sleeper cells waiting to be activated from abroad, but generally
I don't see any.''
Not Cases
A New Jersey Law Journal 5/20 article quotes a footnote in the North Jersey
Media Group case brief as saying that in "many cases" after
September 11, people were deported to home countries even though the government
believed they were a "danger to national security" and could
have been prosecuted. In a December 2002 report, DOJ reported it could
have charged 766 detained Muslims with some terrorism charges, but didn't.
EXECUTIVE BRANCH
Dept of Justice (DOJ) Report to House Judiciary: 9/11 Enforcement Powers
House Judiciary Chair Sensenbrenner and Ranking member Rep. Conyers had
pushed for DOJ reporting on the use of new powers granted under the USA
Patriot Act (USAP) and other authorities. The result was a 60 page report.
It documents, among other things, the detention of almost 50 people as
material witnesses, a number of whom were later charged with crimes. In
the first 23 years of the Foreign Intelligence Surveillance Act (FISA),
the Attorney General issued 47 emergency requests for FISA surveillance
and/or searches. In the one year following 9/11/01 there were 113 similar
authorizations. The new powers also have been used to pursue drug, credit
card fraud, theft and kidnaping cases as well as terrorism cases. "Fewer
than 10" mosques probably were visited under the new domestic crime
guidelines - and the record keeping on such visits is minimal. That's
good in general, but makes oversight more difficult.
The Sami Al Arian criminal case (based on a huge quantity of pre-1995
wiretaps and searches) is prominently used as an example of an important
terrorism prosecution to show why the new powers were needed. But in the
same document, the opposite is acknowledged. Question #12 asks if new
FISA surveillance information was "previously largely unavailable"
and now under USAP or the FISA Review Court decision can be used to bring
criminal prosecutions. The DOJ answer is that prior to that case, "there
was no legal impediment to the use of evidence obtained pursuant to FISA
in a criminal prosecution." Later in the response, the government
says that people weren't sharing information as a practical matter, but
they were legally allowed. So now the law has been vastly expanded apparently
unnecessarily.
FBI Using FISA Authority to Investigate Hamas and Hezbollah
A Washington Post May 8 article cites unnamed government officials to
describe a massive increase in investigation of people all over the country
who are active with Hamas, Hezbollah and other Middle East based designated
"foreign terrorist organizations." These groups are large and
diverse and different parts are involved in violent civil unrest, political
activity and non-violent community services. The article reports the "prosecutors'
goal is to shut down Hamas and Hezbollah support networks through a variety
of tactics, from filing criminal charges or lawsuits to deporting individuals."
No distinction in the article is made between people who support the general
politics or humanitarian activities of these groups and those involved
in the violent activities.
Poindexter Redux - Let's Call it Terrorist Information Awareness
The Total Information Awareness program, which the Congress wouldn't swallow
- especially when it was headed up by convicted liar-to-Congress John
Poindexter, is now being retooled and resold by the Pentagon as the Terrorist
Information Awareness program, with "kinder and gentler" language,
and much reassurance that civil liberties were central to its creation.
Interestingly, the report the Pentagon was required to give Congress when
it banned TIA deployment notes that only foreign intelligence information
legally obtained will be part of the startup test program. Our understanding
is that there are virtually no legal limitations on what foreign intelligence
information can be shared with the Pentagon. It does not need to be checked
for validity, danger to the individual if the information is shared, etc.
Critical to the program would be widespread sharing of information across
agency lines.
Interviews Faulted
A Government Accounting Office congressional study analyzing the DOJ interview
program for foreign visitors challenged its utility. Only half of those
targeted were interviewed. Many people felt coerced to go to the "voluntary"
interviews. Senator Feingold and Rep Conyers, who sought the report, noted
that no apparently useful information was yielded from the 3500 or so
interviews, though the Justice Department claimed a number of leads were
developed and relationships built. Many groups and many in law enforcement
doing the interviews were deeply critical of the program, of interviewing
people separate from any connection to law enforcement leads, and targeting
of people solely by ethnicity and religion.
LEGISLATION
"Moussaoui Fix" - Individual Terrorists Secret Searches
The Senate passed a bill which eliminated the requirement that a person
be connected to a foreign terrorist organization before a FISA secret
search could be authorized. A plan by Senator Hatch to permanently authorize
the USA Patriot Act changes to FISA (instead of allowing them to sunset
in 2005), was not included in the bill after clear signals by members
of both parties that this was unacceptable. House action is unclear.
ACTION: Congratulate Senators on keeping the Hatch provision
off the bill.
RESOURCES:
ACLU - Check out the new ACLU 28 pp report on Dissent
at: www.aclu.org
ADC - The American Arab Anti-Discrimination Committee
has produced: "Report on Hate Crimes & Discrimination Against
Arab Americans: The Post-September 11 Backlash". www.adc.org
LCHR - Lawyers Committee for Human Rts: "A Year
of Loss, Reexamining Civil Liberties since September 11th. www.lchr.org
May 2003
Frustration is a common theme among activists these days. Whether you
have been trying to avoid war with Iraq, or are standing in solidarity
with Arabs required to register with the government, facing unknown likelihood
of detention or deportation. But to go on, you have to put the times in
perspective. It may well be as some survivors of the government's war
against so called Reds tell me, that today is worse than those times.
But the closer it feels to the 1950s (and COINTELPRO - US counterintelligence
program of the 60s and 70s), the more urgently necessary to organize and
educate. And it's again a good time to speak to community groups, to organize
strong and clear local resolutions objecting to government policies. The
massive mobilization around Iraq can move in part into domestic civil
liberties concerns. We must not lose this momentum and this moment.
Bills and Laws
"Patriot II"
Every day that the Patriot Act II is not introduced into law, we have
an additional day to organize, to expose bizarre and disturbing components
of the draft and of other potential or existing laws and policies that
unnecessarily take away civil liberties in the name of national security.
There's not a moment to lose. Continued rumblings indicate the draft leaked
bill, called "Domestic Security Enhancement Act", while perhaps
modified to take into account some of the most glaring constitutional
problems, is still slated to be introduced at an opportune time. An "opportune
time" is defined as one which will tend to nullify activists' efforts
to derail it.
TO DO: So call your Senators and Representative and remind
them that the US doesn't need this bill to pursue terrorists. It has more
than sufficient authority thus far.
"Patriot I"
Speaking of more than sufficient authority, don't forget the USA Patriot
Act ("Patriot I") - Public Law 107-56. There are several avenues
to express your concern. Representatives and Senators of varied politics
have been furious at the lack of Executive Branch compliance with Congressional
oversight responsibilities. Congressman James Sensenbrenner, conservative
Republican Chair of the House Judiciary Committee, complained to AP that
he can't tell how well the law is functioning because "the Justice
Department has classified as top-secret most of what it's doing under
the Patriot Act."
His and other Representatives' frustrations matter as parts of the bill
are revoked or sunset at the end of 3 years. Primarily these provisions
relate to the Foreign Intelligence Surveillance Act (FISA), that has been
the subject of groundbreaking litigation in the last year or so. As a
result, the allowed uses of government secret surveillance have greatly
expanded. So the Justice Department will go back to Congress to reauthorize
these provisions. Some members - notably Senator Orrin Hatch -have indicated
their support for permanent extension of all parts of the Patriot act.
Hatch is introducing a bill to this effect. Mr. Sensenbrenner replied,
"That [Hatch bill passage] will be done over my dead body."
TO DO: 1) Support the House Judiciary Committee's efforts
to oversee Patriot I. Sensenbrenner's Judiciary staff can be reached at
202-225-3951. Thank them for their efforts. 2) Oppose Mr. Hatch's bill
for permanent expansion of FISA surveillance authority.
Freedom to Read bill (H.R. 1157)
Representative Bernie Sanders has introduced this bill March
6 and as of the end of April it has 70 co-sponsors, and has been referred
to both House Judiciary and Intelligence Committees. The bill is described:
"To amend the Foreign Intelligence Surveillance Act to exempt bookstores
and libraries from orders requiring the production of any tangible things
for certain foreign intelligence investigations." These "things"
include identifying readers and patrons and the books they read.
TO DO: Contact your Representative (202-224-3121) to
co-sponsor this bill, and ask that the House Judiciary Committee hold
hearings on it (202-225-3951).
Domestic Surveillance Oversight bill (S. 436)
Senator Patrick Leahy (D-VT) introduced this bill with Republican Senators
Grassley and Specter. Now Senators Edwards, Feingold and Inouye are co-sponsors.
The bill would require public reporting of the number of searches, wiretaps
and other intrusive activities under the Foreign Intelligence Surveillance
Act (FISA), and also the number of criminal cases brought using FISA searches.
TO DO: Urge your Senators to co-sponsor the bill and
push for hearings and progress.
Government Policies
US Detaining People Entering US Seeking Asylum
Just as the US began the war in Iraq, March 17, it announced Operation
"Liberty Shield" by which it will jail people entering the US
and seeking asylum if they are from one of apparently 33 countries where
Al Qaeda or other terrorist groups are active. The Torture Abolition Survivors
and Supporters Coalition and American Immigration Lawyers Association
strongly object to this policy as the worst possible treatment for people
who have fled abusive governments (including a number of these 33). The
US government decrees there be no recourse to a judge to overturn this
policy in individual cases, resulting likely in years of jail in the U.S.
Guantanamo - Holding Children
Major General Geoffrey Mill on April 22 admitted that the US military
is holding a few children on Guantanamo who were captured in Afghanistan,
removed to the US base in Cuba, jailed and interrogated by the US for
months. Now the military claims it is trying to locate the parents of
the juveniles for their return. And by the way, when will all the Guantanamo
detainees be released? Is the Afghan war over yet?
FBI to Enforce Immigration Laws Immigration attorneys discovered
that Attorney General Ashcroft secretly decreed 12/18/02 that
the FBI now will have immigration enforcement functions such as investigating,
locating and detaining immigrants it believes are out of status. One of
several problems with this change is that no immigrant with any doubt
about their status will feel free to report even serious crimes perpetrated
against them. The ACLU has sued on behalf of several groups to release
the text of this order to the public.
Cases
Handschu Police Spying Case Still Alive
Shortly after the government obtained broader authority to spy against
demonstrators, activists' lawyers who litigated the old Handschu Red Squad
case went back to the judge in the case arguing that the police have violated
even the new looser standards, and demand that the violations stop. The
police admitted that for the last 8 weeks they have questioned arrested
protesters about their political activity and collected the data into
a central databank. The lawyers have asked Judge Haight to tighten up
the rules so the police will have clear guidelines whose violation is
contempt of court, and punishable.
Denver Spying Case settled
In Denver, a more recent suit contesting the three year old police practice
of keeping secret files on activists has been settled. The police have
agreed they erred, and will limit their spying on activists, while admitting
no wrongdoing. Both sides claim victory, but ACLU attorney Lino Lipinsky
is claiming they got everything that a trial would have yielded.
How Long Can You Hold Material Witnesses?
Maher Hawash Example
It helps that Maher Hawash has worked for Intel and so has some noisy
and brash friends who are yelling about his month-long detention. Hawash
is supposedly being held as a material witness so he can testify against
people he knew from his mosque whom the government has accused of collaboration
with the Taliban and Al Qaeda.
Typically before 9/11, material witnesses would not be jailed, and so
critics today worry that he is being jailed until authorities can charge
him with a crime. The Ujaama, Awadallah and al-Marri cases tend to bear
this out. Zaha Hassan, a Palestinian-American lawyer with the National
Lawyers Guild, says this treatment scares all Arab Americans and that
the US should indict Hawash if it believes he has commited a crime. Kate
Martin of the Center for National Security Studies told the New York Times
that this kind of treatment is "the hallmark of an authoritarian
regime."
Upholding Zadvydas - Immigrants Have Constitutional Rights
Lawyers for immigrants who were held in jail too long and with "inadequate
hearing procedures" may continue to sue for them, ruled US District
Judge James Zagel April 16. The case is Jalal Hmaidan et al v. Ashcroft.
This was filed consistent with the Supreme Court decision in the Zadvydas
case in which the court upheld that US resident non-citizens do have constitutional
rights in the US.
Jose Padilla - US Citizen
It's so irritating - the government keeps says it's winning all terrorism
cases including the critical Padilla case - then you hear the judge in
the Padilla case virtually screaming (in a careful and repeated judicial
way) to let Mr. Padilla see a lawyer. The government has appealed the
decision and Judge Michael Mukasey in New York upheld the right to an
attorney.
Mr Padilla is a US citizen who landed in Chicago's O'Hare Airport and
was promptly detained in June 2002, called "The Dirty Bomber"
and taken to a military brig in Goose Creek, South Carolina. He has not
seen a lawyer and not been charged with a crime.
Lawyers arguing the Padilla case (without meeting with him), are raising
a range of issues in court, including: a) can a US citizen not caught
on the battlefield or engaging in terrorist acts be called an enemy combatant
b) what appeals process should be made available to someone labeled an
enemy combatant, and c) what rights does he have to contest charges and
evidence against him?
Sami Al Arian
Mr. Al Arian was arrested 2/20/2003, detained, and has been criminally
charged (43 counts) with being a leader of a foreign terrorist organization
and other crimes, along with 3 other men. Al Arian is also nationally
known as a strong civil liberties advocate. He is being held in solitary
in a maximum security federal prison - 80 miles from his home and attorneys.
He now is being represented by attorneys from the public defender service.
A new National Liberty Fund issued a press release 4/10/2003, announcing
the creation of a national legal defense and education fund. The first
focus of its attention is the case of Sami Al Arian and the co-defendants,
in part because of the "highly charged atmosphere surrounding the
case" and the intimidation people have felt regarding it. The address
is PO Box 22580, Alexandria, VA 22304, info@nationallibertyfund.org,
for more information.
Local Action: Resolutions
Arcata, California has passed a resolution that would fine local officials
for enforcement of provisions of Patriot I. This is just one of many versions
of increasingly strong resolutions being passed in large and small cities
across the country that critique provisions of that first bill, other
non-legislative government policies, and now the expected Patriot II.
According to the Bill of Rights Defense Committee, as of today, 92 resolutions
have been passed. Baltimore, Maryland is due to consider its own strong
provision shortly. You too can do this work. Contact info@bordc.org or
the ACLU Washington National Office:
202-675-2307.
A national conference may be in the offing, so stay tuned to this space.
Strange Bedfellows
The ACLU and several staunchly conservative groups held a public forum
in April to criticize both lack of openness on effectiveness of Patriot
I, and to express concerns over the leaked draft of "Patriot II".
At the same time, dozens of organizations from widely varying politics
have called on the Congress to give any bill sent to the Hill that resembles
a comprehensive anti-terrorism law, slow and thorough consideration, and
not be bullied into passage. A separate letter by a similarly large and
disparate group is more critical of the leaked draft "Patriot II",
opposing the approach taken in the draft as "unconnected to fighting
terrorism" and "detract[ing] from this crucial mission".
April 2003
WAR RULES
The long anticipated, but much demonstrated against, US war against Iraq
has begun. As this is written, casualties are occurring on both sides
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