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December 2004
ELECTORAL ASSESSMENT
Collective Groan
NCARL does not take a position on elections. We have consistently complained
about every U.S. administration in power, and their overreaching use of
authority. Especially we have critiqued their attempts to shut down dissent,
and eliminate key due process rights. We expect to complain about any
administration – they all hate criticism, and in some way or other
will demonize, marginalize, and seek to minimize or eliminate dissent.
But as you well know, the current Bush Administration, through a confluence
of events, including the horrible attacks of September 11, 2001, has set
new lows limiting the rights of dissenters and minorities. A rational
person would expect this to continue – partly in the same direction
as the first four years, and partly in some new areas. Our task will be
more difficult because of the increased secrecy of governance that also
has been the Bush administration hallmark. It will be more difficult as
well because of the consolidation of power in the hands of one party in
the House and Senate. But not to spend time wailing and gnashing teeth!
A Bush win can and should further mobilize the civil liberties base. I
heard that the ACLU received a record number of unsolicited memberships
through their website on November 3. That’s the spirit! Let’s
have at it!
Disenfranchisement
Purely on the electoral process, separate from lack of paper trail and
other voter machine concerns, there is a growing and deeper problem. People
who have served time in jail for felonies are in many states unable to
vote for the rest of their lives. This is inconsistent state by state,
but the result is an estimated four million U.S. citizens are unable to
vote, of whom 1.7 million have completed their sentences. Because of the
disproportionate number of black men doing jail time, usually early in
their lives for minor drug offenses, the result is a dramatic minimization
of the possible African American vote. The Sentencing Project and Human
Rights Watch estimate thirteen percent of African American men are prohibited
from voting. While this may not be the moment to push national legislation,
it is definitely the time for our local civil liberties coalitions to
reach out to these communities to build toward enfranchisement of all
citizens. The U.S. Supreme Court recently rejected two cases on point,
but we expect another with a better fact pattern to come before them soon,
as a violation of the Voting Rights Act. For details on the issue and
to join other activists, look to the Sentencing Project in Washington,
DC, reachable at: http://www.sentencingproject.org/issues_03.cfm.
Why does NCARL care about this issue? Think about it – voting is
among the ultimate ways for a populace to express their political opinions
– and obviously prohibitions on voting severely limit critical political
input by a substantial block of the U.S., which in my lifetime finally
got the real right to vote.
Bush Wins – Look Back, Look Forward
We won’t spend too much time looking back in detail. Remember that
all NCARL monthly letters are on our website – www.defendingdissent.org/ncarl/, organized
by year. You can see from 2001 how the issues evolved. It’s a pretty
scary timeline. Some key low points include:
• The use and downplaying of systemic use of torture in Afghanistan,
Iraq, Guantanamo, and in the detention of people in the U.S. – especially
Arabs, Muslims and Arab Americans. The privatization abroad of fighters
– contractors – extends the fear that it will be tougher for
us to regulate, oversee, and punish abusers, and hold the administration
to our mutually agreed upon and signed (!) international standards of
behavior.
• The passage of course of the USA Patriot Act, but also the myriad
other letters of guidance, executive orders, and other standards both
public and more secret are clear low points. They marginalized long upheld
criminal standards for the purported sake of better rooting out terrorists,
and maximized Executive Branch sole authority free from court or Congressional
oversight.
• The key cases of Yaser Hamdi and Jose Padilla, and also the Guantanamo
detainees. These U.S. citizens were detained, possibly forever, denied
access to legal counsel, and not charged with any crime. The government
alleged that as ‘enemy combatants’ they need never get a hearing
or see any evidence against them to confirm whether they were detained
for an acceptable reason. This position stands as a threat to the entire
criminal justice system. The Supreme Court condemned the Administration’s
behavior, and now Hamdi is deported to avoid a true showdown. Padilla
remains. And the fight in court implementing the Supreme Court order over
Guan-tanamo hearings continues.
Ashcroft Out, Gonzales In?
Ashcroft Record – Toss the Bill of Rights
You could almost hear the cheering on email lists around the
country when the expected resignation of Attorney General John Ashcroft
was accepted by the Bush administration. His tenure was such a lightning
rod for activists, experts, normal folks around the country, that on one
level, writers like me will miss him. Ashcroft didn’t pull punches;
he called us names, and said we were abetting terrorism by defending civil
liberties. We will miss that clarity of error.
Gonzales Record – Torture When Convenient?
Alberto Gonzales, who has served as the Counsel to the President, and
is a long time and close friend of Mr. Bush, was immediately nominated
to fill the Ashcroft shoes. Gonzales is not as obviously a bull in the
china shop. But his nomination raised hackles on both Left and Right and
Center, and yet his nomination is expected to sail through.
Before that happens, we should look carefully at his record and help the
Senate do the same thing. Some aspects of his recent record have been
raised and are both pertinent and egregious. An Attorney General is the
overall guide to how the U.S. government, through the Admini-stration,
initiates and enforces the whole body of law, including international
law. For this reason, Mr. Bush’s February 7, 2002 memorandum, for
which Gonzales must take some responsibility, is quite pertinent. In it,
‘unlawful combatants’ were to be placed outside any law or
protection, including the Geneva Conventions, which were explicitly created
to protect people engaged in war. Gonzales reportedly told Mr. Bush that
the Geneva Conventions are “obsolete” and “quaint.”
They were not quaint during the Vietnam War, when combatants also merged
in and out of the civilian population. Why today?
The international scandals regarding treatment of detainees in Afghanistan,
Iraq and Guantanamo derive directly from White House pronouncements that
anything goes in a war against terrorism. The summer 2002 Justice Department
memo that redefined acceptable interrogation techniques to include pain
short of organ failure, and virtual drowning (“water boarding”)
was done at Gonzales’ behest.
In other efforts at the White House, Gonzales was reportedly a key player
in keeping government documents secret from the U.S. public – examples:
the Cheney energy advisory committee meeting minutes, and Miguel Estrada’s
Justice Department memoranda, that the Senate sought as part of Estrada’s
later failed judicial nomination.
Texas Death Tsar?
But we must also look at Gonzales’ longer record. As counsel to
then Texas Governor Bush, one of Mr. Gonzales’ key roles was to
review and recommend action to Bush regarding people about to be executed
by the state. You may remember that Texas has executed a vastly disproportionate
number of people compared to other states. For 57 of Governor Bush’s
executions, Gonzales briefed Bush as to whether there was any issue in
the case which might require a delay in the execution. Alan Berlow has
analyzed these memoranda, and he reports they read like prosecution positions.
Gonzales never saw a case that presented concerns.
For example, he recommended that Terry Washington be executed despite
his IQ of about 60 and history of horrible abuse as a child. He recommended
David Wayne Stoker be executed despite the fact that a key witness recanted
for having been pressured to lie. Another witness got paid and had felony
charges dropped in exchange for testimony, and lying was documented in
the trial, including from the expert medical witness, and those aren’t
all the trial abuses! None of this was in Gonzales’ reports, which
successfully argued for execution. Both were executed.
A June 1997 memo to Governor Bush argued that Texas didn’t have
to follow the Vienna Convention on Consular Relations since the state
of Texas didn’t sign the convention! But the U.S. had. Guess Texas
is above (?) domestic and international law.
For succinct summaries of Gonzales’ record, see the New York Times
11/21/2004, article by Eric Lichtblau and op ed by Alan Berlow.
ACTION: Few expect that Gonzales will face any serious opposition for
the Attorney General position. But he should, and public demands to Republican
and Democratic members of the Senate Judiciary Committee will at least
help make sure all the right questions get asked. Go to http://thomas.loc.gov
to see who is on the Senate Judiciary Committee and get their contact
information
Brainstorming for the Future
We can expect an effort to rush through judges, probably including Supreme
Court justices. Did Senator Arlen Specter agree to allow any judge a vote
by the full Senate in exchange for giving him Chairmanship of the Judiciary
Committee? If so, the effort to raise concerns about nominees’ qualifications
and issues has just become massively more difficult.
We can be assured that Patriot II legislation will be introduced early
in the next Congress, if it doesn’t get through in the next few
days as part of the currently dying intelligence directorate legislation.
Limits on immigrants’ rights will be coming, as will the reauthorization
of the sunset provisions of the USA Patriot Act. These will all be tough
fights, but not impossible. Remember that many Democrats and the more
libertarian Republicans are fed up with Big Brotherism and top down edicts
on all manner of concerns.
Our coalitions must be broad and deep, set up to go the distance. To stay
on top of legislative concerns and informative analyses, one key coalition
website is www.rightsworkinggroup.org, a growing effort that publicizes
the work of a wide array of civil rights, immigrant rights, and civil
liberties groups.
MORE EXECUTIVE BRANCH
NAACP- IRS Retribution?
This almost disappeared in the news crush before the election, but October
8th the IRS notified the NAACP – National Association for the Advancement
of Colored People – that it had initiated an inquiry for possible
violation of rules on partisan activity by a nonprofit organization. Its
example was a speech by board chair Julian Bond at the NAACP annual meeting.
The NAACP is a 501c3 nonprofit – that is, like the First Amendment
Foundation, our sister organization, so donations can be deductible by
folks who itemize their taxes. This kind of organization is prohibited
from doing ‘significant’ lobbying; some is permitted. On the
other hand, NCARL is a 501c4 nonprofit – so it can do significant
lobbying, and your donations are not tax deductible.
What evil partisan thing did Julian Bond say? Bond criticized almost all
administrations of the last 50 years, and called the current Democrats
‘spineless.’ He also said of the Bush administration –
“They preach racial neutrality and practice racial division…
write a new Constitution for Iraq and ignore the Constitution here at
home.” He did not endorse Kerry though he noted the “differences
between the candidates this year are neither incre-mental or inconsequential.”
And he urged people to vote and register others to vote.
The IRS rules make clear that partisan statements in favor of or in opposition
to a candidate for office violate the rules for nonprofits. Bond’s
words could be construed that way. But think about how these rules get
implemented. Think about how many church officials have urged votes against
pro choice candidates, for example. In a comprehensive Washington Post
article 11/21/04, Alan Cooperman also of the Post reported that the Bush/Cheney
campaign sent “instructions to religious volunteers, listing 22
‘duties’” including to acquire “a church membership
directory and sending it to campaign headquarters,” etc.
Is it coincidental for the IRS to publicly announce possible prosecution
of political opponents close to a presidential election? Oldies will remember
the Nixon use of the IRS to go after his ‘enemies.’ Given
the very religious tone of this administration, and much closer collaboration
with religious institutions – through charter schools, expansion
of federal funding for religious charities -- it is contradictory to see
a prosecution for partisanship. But given the NAACP tradition, work and
constituency, that tend to be heavily Democratic, IRS persecution is more
than suspicious.
ACTION: Write your Representative and Senators to request an inquiry into
IRS fairness in interpretation of its regulations.
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CALLING ALL HUAC, post 9/11 and COINTELPRO Veterans
A reminder: As we head toward completion and publication of the biography
of Frank Wilkinson and his times, we seek to enlist folks who experienced
our government’s abuses of dissenters, to help us publicize and
do readings of the book, and help build a bigger movement to resist further
abuses. Write, call or email us with your info.
Please help NCARL continue to publish our monthly letter – subsidized
to hundreds of activists. You will get this newsletter with the annual
First Amend-ment Foundation letter. Both groups exist with your support.
Thanks for another year!
November 2004
Election Protection, and Vote!
While this is being written, millions of nails are being bitten, anxieties
are heightened, tens of thousands of volunteers are working feverishly
to get out the vote, and ensure the voting is fair. Other folks are planning
for legal challenges to potential irregularities. Still others are working
to help this campaign be the meanest, and most outrageous in the recent
memory of many. We can’t here report on winners (and hopefully next
month will be able to provide some analysis of any expected changes of
policy regarding First Amendment issues coming as a result of electoral
results). Regardless of your predilection, go vote! It’s arguably
the ultimate expression of our right to express our political will. Also
if you can, and as we are doing, go to a precinct where there is a history
of voting concerns, and be an observer. Be prepared to help get fair results,
and demonstrate, or speak out, if there is some ongoing concern about
voting irregularities.
ACTIVISTS and DISSENT
Demonizing Demonstrators - Again
We’ve used that headline before – to refer to police and city
officials scaring their communities about prospective demonstrations.
They talk about how many zillion people are expected, that they will be
rowdy, break windows, and generally be violent and should be avoided.
The officials often recommend that employers give their folks the day
off and shut down to avoid the dangerous people. I’ve seen the memos
sent in DC for the IMF/World Bank demonstrations. City officials talk
to the press and widely spread the information from their secret sources
who report the violent tactics that are expected. Rarely do their predictions
come true, except for some pretty violent police arrests.
Republican Convention Charges Resolved – 2000 RNC!
Difficult as it may be to believe, the last 4 people (anti-death penalty
activists) charged and initially convicted by a judge of various crimes
dating from August 1, 2000 during the Republican Convention in Philadelphia,
just were acquitted by a jury. They had been charged with conspiracy to
commit disorderly conduct, conspiracy to obstruct the highway and possession
of instruments of crime (connecting devices to make it harder to arrest
the 4) – conspiracy because they never even got to the demonstration
and were arrested because a state trooper infiltrator drove their van.
Wheels of justice grind slowly?
SOA Watch: No Metal Detectors or Automatic Searches
The 11th Circuit Court of Appeals has ruled that protesters at the School
of the Americas in Ft. Benning, GA are not required to go through metal
detectors to get to the rally site. This annual peaceful rally has won
a big First and Fourth Amendment victory. As Judge Gerald Tjoflat wrote:
“Sept. 11, 2001, already a day of immeasurable tragedy, cannot be
the day liberty perished in this country.” He was referring to the
increased civil liberties restrictions following the attacks.
Bibleman vs. Wacky Protesters
Ok, as our core organizing principle, we recognize the absolute right
of a private party to call people names, to parody and even demonize them.
That said, we learned recently of the website www.bibleman.com, where
you can see active promotion of a DVD, video games, etc., that pit the
‘good’ Christian crusader, Bibleman, Biblegirl, Cypher and
others against a variety of ‘evil’ characters. Among other
horrors, is the evil ‘Wacky Protester’, who “plans to
transmit a cloud of darkness that will break down all Christians’
faith in God and cause them to dispute and bicker among themselves!"
Further, this Wacky Protestor seeks to create a “world where there
are no rules, no faith, no hope and no future.”
Given the civil rights struggle that was grounded in faith in a Christian
god, the long history of often religious-based pacifism, anti-war activism,
and opposition to abortion, partly expressed in protests and marches,
this Wacky Protester is ahistoric. Of course there is nothing inherently
faith-based about demonstrations, and many are unrelated to religious
belief or lack thereof. But this kind of depiction reflects the non-government
parallel to government demonization of demonstrators.
Think of the basic rules of public relations and advertising – the
more you characterize something in a particular way, the more it gets
glued into the public psyche. Think of the use of African American men,
and then Arab-looking men as today’s standard ‘bad guy”
of TV, video games and film. Now joining them – protesters.
The New Movement: GIs and their Families
Grizzled activists will remember that the opposition to the Vietnam War
became dramatically more effective when returning vets began to speak
out against the war. They and sometimes their families joined with other
anti-war activists – already a pretty diverse lot of PTA and peace
mothers, college students, civil rights groups, etc., to form an unbeatable
coalition. But we should also remember that the government did try to
stop us. The U.S. government – particularly the FBI but also the
CIA and other agencies massively infiltrated the anti-war movement, and
tried to neutralize, discredit and destroy it. Today will be no different.
There is an increasingly vocal and rapidly growing movement – headlined
by Military Families Speak Out – www.mfso.org. These folks are demonstrating,
speaking to their elected representatives, writing letters, meeting and
speaking out in their communities and around the country. Their bravery,
in speaking out often while a family member is serving in the Guard or
military, is remarkable. Some are survivors of those killed in the wars
– dealing with their grief at the same time they protest the wars.
Their effectiveness makes them problematic for the government, whose policies
they oppose, and makes them prime targets for surveillance and intimidation.
The legal support movement for those serving in Iraq and Afghanistan is
burgeoning – grounded by some of the same folks who were active
in the Vietnam War GI support movement. They are doing conscientious objector,
post traumatic stress and other counseling, going to court to oppose the
“stop loss” orders, and considering other legal avenues to
help active duty folks and vets with their needs. GI Rights Hotline contact
info: girights@objector.org or 800-394-9544. Military counselors also
need to be careful about government intimidation, surveillance and harassment,
this time around.
McCarran-Walter Revived– Another Scary Arab Barred
Tariq Ramadan was to have been the Henry Luce (!) professor of religion
at Notre Dame until the U.S. decided to bar him from the U.S., and revoke
his visa for national security reasons unnamed this fall. Ramadan, a Swiss
theologian of Egyptian descent, is internationally known for his moderate
Islamic interpretations and advocacy for peace. He has been to the U.S.
about 30 times in the last 5 years. The rejection is being challenged,
though there’s no formal process to do so, and the evidence to revoke
the visa remains secret. McCarran-Walter was the old Cold War law used
to bar people from the U.S. for being ‘subversive.’ It was
overturned, and then reinstated with the Patriot Act.
Calling All Victims of HUAC, Loyalty Oaths, COINTELPRO: Tell Your
Stories
From time to time we update the progress on the book about Frank Wilkinson,
Kit’s predecessor and a founder of NCARL. The First Amendment Foundation,
our sister non-profit, has commissioned Robert Sherrill to write a biography
of Frank that is simultaneously a trip through the Cold War, the Loyalty
Oaths, HUAC, and FBI neutralization of dissent. It’s coming along
well in the writing.
Now we are starting to plan the book promotion process. We want to do
it a little differently from the normal author reading. Rather, we would
like people who know HUAC, the Loyalty Oaths, COINTELPRO from personal
experience of themselves or friends or relatives to share those experiences
as part of the book promotion. As well, we want to bring in people who
more recently were arrested wrongly at a demonstration, stopped at an
airport because they look “Arab,” were interviewed by the
FBI about their politics, etc. While we will also plan to read parts of
the book, we want this to be a book promotion which recognizes that lots
of people have had their right to dissent violated, both decades ago and
yesterday. And that we survived by opposing those abuses together.
Our NCARL mailing list is pretty impressive. It includes a remarkable
array of people who resisted these kinds of repression, both decades ago
and since 9/11/2001. We’d like to start getting lists of people
with stories to tell, who are willing to help us with a local book promotion
– in your town only or in your general area. Closer to publication
– a number of months away still – we’ll start planning
the book events in earnest. Some have told us this is too ambitious. Maybe
it is. But Frank Wilkinson and his friends around the country stopped
HUAC.
NCARL Website – New Summary
If you have previously visited our website, you know that we
put up each monthly letter – so if you lose yours or don’t
want to keep them archived – you can rely on our website to check
on earlier information.
This month Kit has had her 5 or so minutes of fame. The Muslim American
Society Freedom Foundation, along with Congressman Conyers, held a citizens
hearing on Capitol Hill. Kit was one of about 10 folks who testified about
post 9/11 concerns. It was remarkably compelling for a hearing –
and CSPAN taped and broadcast it at least 3 times. Many folks saw it.
My 2 page testimony from the event is
now on our website. It’s useful for its brevity but broad coverage,
we think.
Video Resource: The Cost of Freedom
Some of you may also have seen on PBS the documentary “The Cost
of Freedom,” much of which was taped at last October’s Grassroots
America Defends the Bill of Rights meeting – which we facilitated.
Kit got another 2 minutes of fame in that – and many of our friends
did as well. It’s a balanced (actually balanced) 1 hr documentary,
which is produced by the Duncan Group, and available for $20 purchase
– www.DuncanEntertainment.com.
It would be a useful 1 ½ hour program for a community group meeting.
CASES
Military Tribunals Collapsing from Inside
Those who read this letter regularly know we have been highly critical
of the military commissions since their inception. The U.S. created what
we’ve described as a third kind of legal system – neither
U.S. military nor civilian law, and certainly not consistent with international
treaties or covenants. A 2 day major New York Times series, October 24
& 25, described their creation and lack of implementation. Formally
called military commissions, they are known popularly as tribunals. The
bizarre trial procedure was also part of a now remarkably discredited
process of interrogation and information collection to try to stop terrorism
planning. We now know that included torture at Abu Ghraib, probably in
Afghanistan and Guantanamo, as well as unknown outside countries where
the “ghost detainees” remain.
The commissions were created three years ago. When lots of folks yelled
at the first draft of the commission, implementing language slightly improving
the due process provisions of the military commissions resulted. Then
the provisions went unused until now.
In the last months the government announced it would prosecute 4 people
in Guantanamo under the rules of the new commissions. Preliminary hearings
have begun, but not before the military counsel for the four have begun
remarkably aggressive challenges to the procedures. This will further
slow a process the military may well wish would just go away.
At the same time, despite a strong Supreme Court decision this summer,
the U.S. is still stalling on allowing lawyers to have access to other
detainees at Guantanamo – who have yet to be charged with crimes.
For half of the detainees who have lawyers, the U.S. failed to follow
a court ordered September 30 deadline to tell the detainees why they’re
being held. For detainees without lawyers, the Center for Constitutional
Rights, National Association of Criminal Defense Lawyers and others are
ratcheting up the pressure on the government to give these folks access
to attorneys, and a clue as to the specific rationale for their detention
– now 3 years and counting for most.
New DOJ Memo – Forget Rights in Iraq
The CIA asked the Justice Department to help it justify taking detainees
secretly out of Iraq to interrogate. On March 19, 2004, Justice apparently
did – in secret. The memo from the Office of Legal Counsel violates
Article 49 of the Geneva Conventions, protecting the occupied in wartime.
Reportedly, up to a dozen people (the ghost detainees) have been removed
from Iraq in the last 6 months, their identities and whereabouts kept
secret from all including the International Red Cross. Seems a good match
for the August 1, 2002 memo that was used to justify torture – and
then abandoned upon being made public this summer.
Third Anniversary of USA Patriot Act: Nat’l Security Letters
Unconstitutional
It’s some sweet little justice that as we approached the 3rd year
of the Patriot Act, a judge for the first time overturned a key, newly
expanded provision. September 29, U.S. District Judge Victor Marreo of
New York agreed with the ACLU that national security letters are unconstitutional.
He held they violate free speech and unreasonable search guarantees. The
letters allow the government to obtain peoples’ financial and personal
records from a wide array of institutions without court approval. The
institutions range from banks to casinos to internet service providers
(like the unnamed plaintiff). Further, the institutions were mandated
not to disclose the letters, possibly even to an attorney to challenge
the letter. The government of course has immediately challenged the decision,
which has been stayed (so the national security letters continue).
LEGISLATION
H.R. 10 – National Intelligence Director
When we last reported, the bill was on the cusp of passing House and Senate.
It passed both houses, but now we’re in train wreck mode. The Senate
Bill roughly parallels the 9/11 Commission recommendations for a national
intelligence director with budget authority. The House Bill, as we reported,
would not give overall budget authority to the director, and adds a pile
of highly problematic immigration related provisions. The Senate and 9/11
Commission, and generally civil liberties and immigration advocates, prefer
the Senate version. The White House released a statement supporting the
Senate version of the intelligence portion, along with most of the House
immigration provisions. The Pentagon has weighed in separately through
the Joint Chiefs – and unusually but not surprisingly – publicly
diverges from the White House in supporting the House version of the intelligence
provisions.
At this moment it looks as though the differences will not be resolved
before the election, leaving resolution for a lame duck session if not
the next Congress. Given the possibilities, this might not be a bad thing.
Action: Pay attention to H.R. 10, and if a compromise appears that has
House immigration provisions, ask your Representative and Senators to
oppose it.
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As we start to plan promotion of the Frank Wilkinson book, please let
us know if you or others you know might be willing to share your experience
with the Red Scare, COINTELPRO, or post 9/11 First Amendment or due process
issues. And as always, your contributions, to NCARL or, tax deductible,
to the First Amendment Foundation, are welcome.
October 2004
Alice in Wonderland Redux
Forgive us if we start with some Alice in Wonderland summaries of recent
events. They are too bizarre not to note and collect together to highlight
the concern. But we put up the list and describe some of the issues in
more detail for a more serious reason. As you read this month’s
letter, think about part of what makes the U.S. institutionally different
from other nations – the Bill of Rights. When the government ignores
the First Amendment, due process rights, and punishes people before they’re
proven guilty, we damage our reputation at home and abroad. And when we
no longer believe that with oversight and vigilance, our government will
follow that Bill of Rights, citizen fear and paralysis result. Then the
living Bill of Rights goes moribund.
Wrapping up this newsletter are some thoughts on lessons learned from
the Cold War, which the U.S. seems to be ignoring again.
Hamdi: U.S. Gov’t takes his citizenship and simultaneously
gives him the rights he lost while a citizen “enemy combatant.”
Detroit “terrorists”: Never mind those bad
names the government called you and horrible charges made, and hiding
of contrary evidence, just drop the charges and go on with your lives.
Cheney, Hastert, Hatch, etc re: Kerry: Variations on
a theme: the terrorists will do better under Kerry, the terrorists will
“try and elect Kerry” (see NYTimes editorial Sept 25). Yup,
so will the space aliens.
FBI anti-terrorism “October Plan”: includes
renewed mosque visits and interviews, and a plan to counter expected civil
liberties and Arab American protests against invasive surveillance.
Mazen Al Najjar: Jailed him for years using secret evidence
while trying deport him, and now that he’s deported, indict him
in the U.S.
9/11 Commission Report: Yields bills that include discredited
Patriot II provisions, massive overreaching of the recommendations except
for national intelligence director – don’t give him/her budget
authority in House bill.
LEGISLATION
Before we get to specifics of what we’ll call loosely the national
intelligence director bills (to the extent they are known, but change
day to day), a few general comments are in order. The process of legislating
from the 9/11 Commission recommen-dations mimics the introduction of the
USA Patriot Act. Large and complex bills dealing with critical government
capabilities to combat terrorism and involving major restructuring are
being pushed through quickly, with no possibility of significant public
input. Amendments may be added with lots of irrelevant and possibly dangerous
provisions.
How can you help stop or fix them? It’s pretty tough. At this writing
it is likely that some bills will pass the House and/or Senate, but the
major differences in the bills will require a House /Senate conference
to come up with a common version. The conference process is even more
difficult for average folks to modify than current consideration –
as it’s fewer people meeting behind closed doors to hammer out agreements.
And this will be during a lame duck session.
The day to day shenanigans on bill content will go on out of the public
eye. Only a few lobby-ists will be privy to the changing details and able
to negotiate the exact language. They need the outside general pressure
of constituents to bolster (or even overwhelm) their individual and more
detailed arguments. So you need to call now with general recommendations.
Best Grassroots Lobby Efforts:
Telephone or fax your Senators and Representative with a personal message,
and tell them you want the 9/11 Commission recommen-dations followed closely.
You don’t want any Patriot II type additions to increase surveillance,
involve local law enforcement in many more federal tasks, and etc. In
particular, we want a civil liberties board as recommended by the Commission
to be independent from the office of the President, to have policy, hearing
and subpoena power.
The Bills
There are myriad existing and potential bills to fix problems identified
by post 9/11 investi-gations and findings. There are several main bipartisan
bills in the Senate: McCain/Lieberman and Collins/Lieberman. The Republican
House bill is H. 10 “9/11 Recommendations Implemen-tation Act”
(542 pp), introduced Sept. 24th. The House bill is huge, more partisan,
more recent and contains some extraneous and some dangerous additions,
including Patriot II, immigration and privacy problems. Conversely, in
the bill, the intelligence director would have less authority than in
the Senate version and there is no civil liberties board.
Here’s the House text as of 9/28: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_bills&docid=f:h10ih.txt.pdf.
One Senate bill, S. 2845, the “National Intelligence Reform Act”,
the bipartisan Collins and Lieberman bill is more focused on 9/11 Commission
recommendations, and can be found at http://thomas.loc.gov.
A couple specific critiques:
Kate Martin of the Center for National Security Studies (www.cnss.org)
raises the following concerns: Intelligence reform proposals threaten
civil liberties through the creation of a domestic spy agency –
moving FBI counterintelligence functions to the new intelligence director
control. Also, the proposed Shared Information Network likely will result
in creation of a massive surveil-lance and data-mining system with no
safeguards.
Prof. Peter Swire of the Ohio State Law School notes problems with the
Hastert bill: There is no government-wide watchdog on privacy and civil
liberties – the Senate version is better. FISA (Foreign Intelligence
Surveillance Act) wiretap orders have skyrocketed – so don’t
further expand FISA in the bill to allow “lone wolf” wiretaps.
An AP story by Jesse Holland reports that among the Patriot II provisions
that might appear in the House bill are those requiring “pretrial
detention for terrorism suspects” and deporting non-citizens “who
become members of or help terrorist groups.” Groups get listed as
terorist with little due process, so mere membership or non-violently
aiding a listed group is a low standard for deportation.
Useful Bills which could be incorporated:
S. 1709 – Security and Freedom Ensured Act (SAFE) – (Sens.
Craig (R-ID) and Durban (D-IL) cosponsors. It had a hearing last week
in the Senate – but no indication the bill will be taken up for
a vote. It contains helpful FISA and privacy provisions.
S. 2536 – Homeland Security Civil Rights and Civil Liberties Protection
Act – (Collins/Wyden) to be introduced in the House at last –
number not yet assigned. The bill would greatly strengthen the Office
of Civil Rights and Civil Liberties and make it separate from the President.
The Senate hearing and markup in Senate Government Affairs Committee resulted
in a unanimous affirmative vote. It’s now on the Senate calendar
for possible consideration before adjournment.
To Do: Urge your Senators to support these!
LEGAL CASES
Yasser Hamdi – Free At Last
Why did it take 3 years, and more than a U.S. Supreme Court challenge
for the government to decide that it had no case against Yasser Hamdi?
How could a U.S. citizen, called an “enemy combatant”, and
deemed so dangerous he could not have a hearing to determine if he was
as horrible a character as the U.S. thought, be released almost scott
free? Condemned to solitary confinement for years, denied access to counsel,
and no charges or evidence why he was so evil. Hamdi, with the help of
his lawyer, now has been released back to Saudi Arabia, his home. He will
not face charges there, apparently, but must renounce his apparently useless
U.S. citizenship. In a statement, he claims never to have had any al Qaeda
connection.
The Supreme Court, remember, said he must have a hearing or be released,
but it was more months until this was resolved with his negotiated release.
Lower courts have largely been yelling at the government to give Hamdi
due process required for all people in the U.S., citizen or not.
Guantanamo Tribunals Falling Apart
Despite the fact that their bosses are from the same military which decided
to hold and interrogate the hundreds of people in Guanta-namo, the defense
lawyers and counselors have been making a big row about the bankrupt legal
process of these military commissions. Most recently, Lt. Col. Sharon
Shaffer, in defending a Guantanamo prisoner, called for the commissions
to be scrapped in favor of the well used and legally established military
courts martial procedures.
Shaffer, who will become a high ranking Air Force judge after this proceeding,
argued that the commissions are using archaic procedures long dropped
as the Geneva Conventions and other standards have come into general acceptance.
This challenge comes after an array of other complaints have tainted the
proceedings, even coming from within the military. Conflict of interest,
unconscionable delays, and disastrously bad translations of evidence,
have added to the main complaint that the structure has the accuser (the
military) act as judge, prosecutor, defender, jury and essentially executioner.
Renewed Prosecutions:
Mohammad Salah, Mazen al Najjar
In recent years, we’ve seen the U.S. label folks they want to prosecute
– a person of interest, a material witness. Also it called people
to testify before grand juries, and then jailed some of these folks as
material witnesses, etc. But with Salah and al Najjar we have a different
scenario that virtually defies all efforts to explain them as fair prosecution.
Mohammad Salah, you may remember, was in 1997 the only U.S. citizen placed
by the Clinton era Executive Order 12947, on the Treasury Dept’s
Office of Foreign Assets Control list of “Specially Designated Terrorists”
list. Salah, a Palestinian American, went to Israel, was arrested, tried
and convicted of non-violent activity related to Hamas (membership and
fundraising), and jailed and apparently tortured for 5 years. On serving
his 5 year sentence in 1997 he went back to find that the U.S government
blocked and seized his assets - he faced a situation that made it impossible
for him to buy food, have a job, a bank account, or a lawyer. Then for
years, Matt Piers and Mary Rowland, his Chicago lawyers, helped make it
possible for him to live – drive a taxi, open a bank account, buy
diapers, etc., all the while trying to challenge the legal basis for the
designation. The burden of proof was on Salah to prove he was not a terrorist.
That burden proved too much and too expensive. He just obtained enough
dispensation to continue to try to scratch a living as a pariah. Salah
must be one of the most government-watched people in the country.
Now he’s finally under criminal charges, along with Abdelhaleem
Ashkar, Mousa Abu Marzook and Ismail Elbarassee. Attorney General Ashcroft
calls them part of a “terrorist recruiting and financing cell”
for Hamas though the information apparently is all pre-1993. Long since,
the government deported Mr. Marzook, and hasn’t been able to find
him to bring him back. Now Mr. Salah, who probably hasn’t taken
a step or bought a pencil without government knowledge, is facing new
charges for the same things that made him an unproved specially designated
terrorist. At least now the burden’s on the government to prove
his guilt. But how many punishments will it take before Salah will have
served his sentence? At least he was allowed to be out of jail on major
bond until the trial is resolved.
Mazen al Najjar, like Abu Marzook, was deported by the U.S., but more
recently. You may remember, he is one of the most famous of the people
denied bond and jailed as a result of secret evidence pursuant to a deportation
proceeding. After more than 3 years in jail, al Najjar accepted the inevitable
and finally found a country which would allow him and his family to stay.
Now, also apparently on the same evidence the U.S. used to try to deport
him, the U.S. wants to try him on criminal charges. Sami al Arian, his
brother in law, is in jail awaiting trial on similar charges.
Al Arian’s pre-trial detention – in solitary, with almost
no visits from family, and egregious and humiliating conditions –
is more strict than that for most convicted felons. It also makes a complicated
trial preparation much more difficult; it’s now scheduled to start
January 5.
Bill Moffitt, Al Arian’s lawyer, condemned the timing of the revised
indictment so close to the Al Arian trial as being “to put the defense
in the worst possible position.” The new Al Najjar indictment removes
some of the allegations from the earlier Al Arian indictment, which the
defense had exposed as errors or just wrong. Further, Moffitt speculated
to the St. Petersburg Times that this indictment was delayed so the grand
jury could keep being used to investigate Al Arian and other defendants
– which would have been pro-hibited had Al Najjar been indicted
with Al Arian.
Detroit Prosecution Collapses
The Justice Department has asked a judge to overturn because of prosecutorial
misconduct the convictions of the only two members of the “Detroit
terror cell” who were convicted by a jury of anything barely related
to terrorism. The misconduct? The prosecutor neglected to mention to judge
or defense that its main witness had lied on the stand. US District Court
Judge Gerald Rosen will consider a new trial on unrelated document fraud
for the men. How did Mr. Ashcroft announce the collapse of the only jury
convictions for terrorism charges post 9/11 (you will remember he is the
man quickest to call a press conference East of the Pecos)? Not a peep.
Speaking of which, Rep John Conyers couldn’t help himself but to
ask for an investigation of the $200,000 Ashcroft USA Patriot Act promotional
tour and website, suspecting Ashcroft exceeded lobbying expenditure limits.
You may remember this is the tour in which the DOJ strongly critiqued
all those pesky activists who were passing Bill of Rights Resolutions.
Inspector General Investigates Mayfield Wrongful Arrest
Glenn Fine, the Inspector General of DOJ has announced that he will investigate
the wrongful identification and arrest of Brandon Mayfield, an Oregon
based lawyer who is Muslim. The U.S. thought his fingerprints were found
at material related to the Madrid train bombings of this year. As usual,
it loudly proclaimed Mayfield a heinous terrorist at the time of his indictment
and arrest.
DEMONSTRATIONS
Justice Grinds Slowly- Pepper Spray 8 Case with the Jury
Maya Portugal and other environmentalists trying to stop old growth forest
logging in Humboldt County, California, were shocked when police using
cotton swabs daubed their eyes with pepper spray after they were already
handcuffed. They are probably differently shocked that the legal machinations
have been so complicated. But their (hopefully) final trial against the
Eureka and Humboldt county officials has gone to the jury – probably
decided by the time you get this.
The 8 activists arrested brought suit in 1997. Since that time, various
lawsuits, a trial and then mistrial, appeals court rulings, new judge,
Supreme Court ruling that the 9th Circuit Court of Appeals decide who
could be sued, have all been part of the proceedings.
NYC Republican Convention Protesters – Most Released without
Charges After Long Detention
Following the pattern of pre-emptive detentions, NYC police released most
of the thousands of people arrested – demonstrators and others just
passing by – without bringing any charges. Now the legal maneuvering
begins. Many were held for several days in lockup despite having been
processed. When State Supreme Court Judge Cataldo held city officials
in contempt of court then 500 were released. If this follows previous
models, the cases will go on for years before settlement in favor of demonstrators.
Read Jonathan Schell’s Organizing Amnesia – the Nation,
Oct 4
The question Schell asks is why we don’t understand popular uprisings.
The U.S., as part of the Cold War Loyalty Oath mass firings, got rid of
most all their China experts at the State Department. One rationale was
that these folks told us the truth – that the Chinese revolution
would succeed – which we didn’t want to believe. Instead we
called these experts “soft on Communism.” That had terrible
results lasting through the Vietnam War and beyond; we had no reliable
government expertise to understand people overthrowing entrenched power
and colonials. As Schell says – once again the U.S. in Iraq is “destroying
cities in order to save them.” Also lots of folks in power are badmouthing
people who have more complex analyses of Iraq, of the uprising going on
now there and elsewhere. The Democrats’ typical response to attacks
– as did Lyndon Johnson before them – was to try to outgun
and out bully the Republicans. That didn’t work then, and won’t
now.
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Thanks for all your help. Please support NCARL and/or the 501(c)(3) First
Amendment Foundation.
September 2004
TARGETING INDIVIDUALS
Preempting Demonstrations?
As we go to press (just before the Republican Convention), it remains
unclear if a permit for various protests including one for 250,000 demonstrators
will be granted for Central Park in New York City – something that
has been allowed for triple that number of mass concert goers at the Park.
The National Lawyers Guild, United for Peace and Justice, and others are
negotiating hard with New York City and its police, and have gone to court
for the right to a central and more human friendly massing area than West
Side Highway which was granted. To date the courts continue to urge a
negotiated settlement.
FBI Interviews – Preempting Assembly?
At the same time, news started seeping out about an FBI list of potential
“troublemakers” and recent interviews of various activists
around the country – with the FBI seeking to know if the people
were going to the demonstrations or had heard of any plans for violence
at the Republican convention and etc. Responding to criticism, Attorney
General Ashcroft felt he had to hold a news conference defending the interviews
– saying (quoted in the New York Times) “that only protesters
they believed were plotting to firebomb media vehicles at the Democratic
convention or might know of such plots” were interviewed, and that
it was preposterous to assert the FBI would try to stifle protest. [Editor’s
note: really, this latter was not a laugh line.]
The nature of the interviews was not amusing – in Denver, 4 FBI
agents and 2 local police officers visited a local Quaker group asking
these questions. Suspecting Quakers of violence is akin to staking out
7th Day Adventists to see if they smoke – considerably more remote
than just about any other group. Denver police and FBI just got through
getting in trouble for collecting information on 3000 people and 200 peace
groups in the Denver area, and signed an agreement limiting this activity.
Of about 25 people we believe were interviewed nationally, three men in
Missouri were followed and then subpoenaed to appear before a grand jury
about their protest activity the day they were scheduled to travel to
Boston to protest. That successfully limited their protest activity in
Boston.
Civil disobedience is not uncommon at demonstrations. It by definition
violates the law. Also people sometimes end up holding impromptu rallies,
or get shunted off into unpermitted areas. These too can violate laws.
Federal agents seem to be using these kinds of pretexts to investigate
activists, which then preemptively can limit protest.
Watch List Dangers: Senator Edward Kennedy, Rep. John Lewis,
Anthony Romero
They’re lucky. Not for long can the Transportation Security Agency
(TSA) argue with a straight face that Mr. Kennedy and Mr. Lewis are national
security risks because their names were on the Watch List. Yet they both
faced intense questioning, and Mr. Lewis reports he was stopped at least
35 times at airports because his name was on the list. Anthony Romero,
Director of the ACLU, wrote an op-ed about his name being on the list.
If the TSA wanted to have 3 more inopportune names on the list, it would
have been tougher to have done so. Despite Director Hutchinson’s
promise that it’s easy to be removed from the list, even high profile
folks have a tough time correcting the record.
Right now, the FBI and other intelligence agencies collect suspicious
names and give them in secret to the TSA, which delivers them to the airlines.
Airlines can then stop people from flying on their planes. People can
fill out a form with the TSA, and supply various forms of identification
to try to get off the list. But it may not work; it may work with one
airline and not another. A civil rights hero in his own right, Rep. Lewis
notes that carrying around a right to travel document feels suspicious
like the old apartheid South Africa system of passes for blacks to travel.
More Names on a List - Employment
The ACLU Foundation and some 2000 (most of the well known and many smaller)
non-profit groups get substantial funding from the Combined Federal Campaign.
Groups apply to be accepted, and must file various forms documenting how
they raise and spend money. More recently they were asked to sign a more
ominous form – one that certified they had not hired anyone on one
of three sets of lists the government keeps. There are thousands of names
on the list – many are aliases. One doesn’t need to be indicted
or convicted of a crime to get on the list, and currently there’s
no way to get off any of the 3 lists. While often there are some identifying
features (birth date, nationality, affiliation) with the names, sometimes
they are few or not distinguishing and like the no fly list, some of the
names and aliases are fairly common. You can find the lists on the internet
by going to: http://www.opm.gov/cfc/opmmemos/2003/list.asp.
The ACLU had agreed to abide by the agreement, though apparently had not
compared its employee list to the government list, and argued it did not
intend affirmatively to do so. Director Anthony Romero said he believe
the agreement did not require an employer to compare the lists to employees.
After some internal board dissention, the ACLU’s agreement became
public, and the ACLU promptly decided both to step back from getting funds
from the CFC (most recently about $½ million of a $102 million
budget) and sue to get the CFC to drop the requirement. In light of the
exposure of this requirement, other CFC donee groups are feeling pretty
queasy about the problem and unlike the ACLU, can’t easily recoup
a major drop in donations caused by quitting the CFC.
The implications of these kinds of agreements (in addition to problems
with the lists themselves) include that other funders and agencies use
CFC standards – including many local United Way organizations, large
foundations and even academic institutions. The historical parallels are
obvious and huge to NCARL readers – the old subversive organizations
list and blacklists of individuals who then could find employment almost
nowhere.
Litigation:
Secrecy – Major Policy Change on the Fly
We’ve talked about how the government has used secret evidence very
rarely domestically since 9/11. That may begin to change now. The ACLU
has filed a legal challenge to the parts of the USA Patriot Act that involve
the FBI’s authority to seize medical, library and business records
without a regular judge approved search warrant. Typically in such suits,
the government and plaintiff would exchange reams of documents before
the case goes to trial. All parties would see all the filings. In this
case, the government is sending its arguments just to the judge. Historically,
if the government or other parties want to keep information under wraps,
they do so under protective orders so all the parties can see the data,
but cannot make it public. Obviously the ACLU is yelling about this change
of practice. Any rational person would assume that keeping the plaintiff
from seeing any of the opposition’s evidence or arguments will be
a liability to winning the case. What is the government thinking? This
hardly complies with the 9/11 Commission’s recommendation that government
secrecy be reduced.
Hamdi to be Released?
The notorious and heinous enemy combatant Yasser Hamdi may soon be released
from jail, having been indicted and convicted of nothing. This is the
rumor rumbling around. Why and why now? The feds went all the way to the
Supreme Court to keep him indefinitely detained. It sort of lost the argument
that it didn’t have to give him a hearing. But now, before such
a formal hearing, the government is negotiating the conditions of his
release. It looks pretty embarrassing to the government, not that Mr.
Hamdi would complain about being released. Guess he was just cannon fodder
for the war on terrorism – unimportant as an individual, but symbolic
in the Executive Branch power grab.
Tribunals Begin
About the same time the Hamdi decision came down, so did the Guantanamo
Supreme Court decision, calling for hearings for the detainees. The U.S.
made up a new kind of legal system (neither civilian nor military, and
without several constitutional safeguards) that allows witnesses to testify
anonymously for the government and allows something like hearsay evidence
among other travesties of justice. Thus far, the process has been highly
problematic – translators have been inferior and substitutes slow
to be provided. One of the military attorneys who took on a case and vigorously
spoke out on behalf of his client, has failed to be promoted (essentially
being forced out of the military). Amnesty International, the ACLU and
other groups, and many of the media, will watch some of the proceedings.
Regardless of the outcome of these particular first 4 proceedings, U.S.
and international groups will ratchet up their concerns about the methodologies,
and expect to see this issue before the Supreme Court as well down the
line.
9/11 Commission Recommendations Status
The 9/11 Commission’s recommendations that civil liberties and civil
rights groups have focused on include:
1) Improved Congressional Oversight of Intelligence Agencies
2) Decreased Secrecy Overall – partly to permit oversight
3) Designation of a Civil Liberties Office
4) National Intelligence Directorate
Eliminating some government secrecy and improving Congressional oversight
are key and laudable goals. But how do they overcome the virtual rule
that U.S. covert operations violate international and often domestic law,
and function at odds with U.S. overt foreign policy?
In oversight, Congress relies on agencies to give it information which
it then oversees. As military and covert actions have increasingly been
outsourced to private actors, how is it possible to ensure all contracts
and actions are accurately and thoroughly reported? While Congress is
a large body, only a very few people in it are responsible for oversight
of a gargantuan set of agencies and actions and financing. Is it realistic
to believe that they can possibly have the power, authority, political
will (to fight large corporate contractors and their political contributions)
or even capacity to carry out these tasks?
Of course we encourage the first two points, though they are hardly new.
Implementing them is both extraordinarily difficult to structure, and
regardless of what systems are set up, they involve thousands of individual
decisions, made one person at a time – how do you mandate and oversee
the nature of those decisions?
Civil Liberties Office. The Commission’s recommendations –
which Tim Edgar of the ACLU calls a Rorschach test – are not very
specific on details. So as we look at what a civil liberties office would
be, the details are of course crucial. To be effective, the office would
necessarily be a policy as well as an enforcement organ. Many current
government anti-terrorism programs are problematic and require elimination
or substantial change rather than correct enforcement. So a civil liberties
office necessarily would have a role in fixing those programs. As well
it should have subpoena and hearing authority, and of course be separate
from the office of the President and be an independent and protected body.
ACTION: We recommend that people talk to their representatives as they’re
home for Labor Day to build support for a strong civil liberties office
to oversee an effective government-wide anti-terrorism program.
National Intelligence Directorate: Here we go – the Republicans
have proposed a bill for the national intelligence director’s (NID)
office. It is apparently a partisan bill – no Democrats are listed
as sponsors. The Democrats are expected to drop their own bill shortly.
And the dueling begins in earnest. Right out of the box, the bill is reported
as creating a national intelligence directorate with hiring, firing and
budget authority; eliminating the CIA, putting its three parts under this
new office; and taking intelligence functions (including the National
Security Agency) out of the Pentagon’s hands and putting them also
into an intelligence directorate. Even FBI counterintelligence and counterterrorism
units would be under control of the NID but still be administered by the
FBI and subject to Attorney General guidelines. (Just imagine that process
alone!) Stand back now as the Pentagon, CIA, and uncounted players start
shooting down this bill!
9/11 Restructuring – What to Do?
We’re at a pivotal point (arguably one of many in the last 3 years),
but critical nonetheless. The 9/11 Commission has submitted its report
and there is strong political and probably real pressure to take advantage
of the variety of lessons thus far exposed or claimed. As well, this being
an election fall, the pressure to use any legislative or regulatory fixes
as campaign fodder is unavoidable. So here we go, suggesting that not
only should legislators try to avoid the latter, they should also remember
some historical lessons, herewith:
Both the FBI and CIA have engaged in remarkably broad and long-standing
violations of U.S. and international law. Many argue that by definition,
CIA covert actions are hidden and therefore deniable illegal actions that
are opposite US public positions (e.g. seeking to overthrow or at least
destabilize governments with whom we have diplomatic relations). So how
do you make these accountable to the public and reviewable? For the FBI,
its first 60 years’ existence was spent with a hidden main priority
to go after “subversives” who had not broken any criminal
laws except those designed to ensnare people for mere association. Its
power was maintained by blackmailing and providing blackmail material
to powerful politicians. The FBI is a domestic agency ruled by U.S. law.
It has expanded its reach abroad at dozens of embassies. It is controlled
by federal law, regulations and guidelines.
The fur will be flying and pressure nearly unbearable to try to pass some
bill that can be called a 9/11 Commission response. It could rearrange
deck chairs, but may well contain provisions that really are not responsive
to the 9/11 Commission, and radically decrease peoples’ privacy,
due process and First Amendment protections. We’ll need to work
hard to stay connected to the process, to get information out to activists
to weigh in on key measures, all at the time people are focused on the
elections. Pick your favorite website if you can – Rights Working
Group – a network of organizations (www.rightsworkinggroup.org)
is legislatively oriented, and of course the ACLU (www.aclu.org) and Bill
of Rights Defense Committee (www.bordc.org) will contain information on
relevant legislation. Please help us.
Film Stars!
Several documentarians came to last October’s Grassroots America
Defends the Bill of Rights conference. They interviewed some of the myriad
local and national constitutional rights stars. One of them has produced:
The Cost of Freedom, Civil Liberties, Security and the USA Patriot
Act. It should be airing this September or October on public television
stations. Greg Nojeim, Nancy Talanian, Grover Norquist, Peter Erlinder,
many others, and I think yours truly, (and some government policy apologists
of course) are in it. Check it out and host a party to cheer and boo and
otherwise to have it function as an educational tool.
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You all are my heroes and heroines. Many of you have done so much for
so long. I was reading a book called Red Scare, that had testimonials
from NCARL leadership, of course Frank and Jean Wilkinson, and Dick Criley.
But it also included many others who suffered fools lightly during HUAC
days, and who are part of the larger NCARL family. Some like Criley have
passed on and are making trouble elsewhere. Others, like Lee Lorch, are
still out there, supporting NCARL and standing as shining lights of the
power of regular wonderful folks to take important stands. Reading the
history both scares me at its continuities, and invigorates me through
the human stories who populate it.
I rarely raise this, but some of you who will leave a financial legacy,
should remember that we at NCARL can continue to benefit from your work.
We have received bequests from time to time, and because we are mostly
funded by small individual contributions, even small bequests can make
a huge difference. If you want to know how to write us into your will,
contact your attorney or drop us a line.
Thank you so much for all your help – now and in the future.
August 2004
That Proud Tradition: Demonstrating at Political
Conventions
Demonstrators: Meet the Cages
Lots of people remember or know of the horrific example of demonstrations
at conventions – Chicago in 1968. Mayor Richard J. Daley effectively
masqueraded as a fascist and ordered Chicago police to attack demonstrators,
which they did quite overtly. The bloody televised result horrified millions.
That example has not been repeated the same way.
Every four years there’s a fight by demonstrators and their advocates
seeking permits and city process for marching and assembling. Every time
the cities and police seek to limit, corral, and distance people from
the limelight, from the delegates, from the public and from the television.
This year’s effort and results have mirrors from years previous.
When I think of demonstrators at political conventions, an awful sight
comes to mind: I see an 80 year old man standing inside a small chain
link fence – smaller than a dog run – about 4’ x 12’.
He is standing; there are no chairs. He is holding up a sign and calling
out at a distance to people walking to enter a political convention. He
is asking simply for people to support an effort to prohibit FBI investigations
based purely on First Amendment activity. He’s in Chicago and it’s
1996. And he was ‘lucky’ – he and 20 other people went
to the library and drew lots to be able to stand in this dog pen at that
moment. They had to be accompanied by a guard and were not to leave except
when allowed, by a guard – no bathroom breaks, or time to sit or
drink a glass of water.
This man was Frank Wilkinson, my predecessor. He was doing what he’d
done for 40 years – defend the right of political dissent of the
First Amendment. He’d done harder time – a year in jail for
refusing to tell the House UnAmerican Activities Committee what groups
he belonged to, in a case that went all the way to the Supreme Court.
Bob Sherrill is writing a book about Frank’s life in the context
of these times. We anticipate it will be out in 2005.
Frank knows that the First Amendment requires active defending to keep
it strong; all Administrations treat demonstrators and critics as a threat
rather than a strengthener of the country. His history provides a critical
lesson for political dissenters today – we only succeed when we
work together and speak out (and not always even then).
This year, the memory of 9/11/01, and a raft of new anti-terrorism laws
and policies add to the mix. City officials argue that possible terrorist
attacks require that demonstrators be caged, removed, and limited. In
Boston and in New York, demonstrators have had a heck of a time getting
permits to demonstrate. The results look like this:
Boston
The irony’s palpable: there’s a designated “Free Speech
Zone.” It looks a lot like Frank’s cage in Chicago. Federal
judge Douglas Woodlock had doubted NLG and ACLU litigation language calling
it an “internment camp,” and then he looked at it. “I
now believe that it’s an understatement,” said Woodlock, adding,
“.one cannot conceive of what other elements you would put in place
to make a space more of an affront to the idea of free expression..”.
Nonetheless, he cited safety of convention delegates in upholding the
cage, and the lack of alternative sites. The decision has been appealed
as we go to press. Another suit appeals Boston Transit’s right to
search bags randomly without suspicion of criminal activity on the subways.
Just heard the cage is being ignored – Yahoo!
New York
After lots of negotiation and visits to the courthouse, Judge Sweet of
the Federal District Court in Manhattan barred general searches of protesters’
bags (without evidence to believe they were a specific threat to public
safety) at the convention and use of chained pens like Frank Wilkinson
was relegated to in Chicago. The city has appealed the decision. It was
a significant victory.
Also at issue was the site of the main demonstration. Protesters sought
to use Central Park, and were firmly rebuffed. Finally as a result of
ACLU negotiation, they have been relegated to use of the West Side Highway
– off on the edge of the island and not as amenable to a rally due
to the narrow shape. Many remain disgruntled by the rally location result.
Violent Attacks in Miami a Trend?
Lawsuits have sprouted like swamp grasses in Miami following the extraordinarily
violent police attacks on almost entirely peaceful demonstrators at the
FTAA meetings there in November. Other violent responses – in Oakland
last year, in the Savannah area recently – are giving activists
renewed concerns about the repression of dissent. Former Philly police
Chief (greatly criticized over the earlier Republican Convention violence),
now Miami Chief Timoney, has advised the Democrats about how to handle
Boston. Predictable results. Obviously some folks have got the wrong impression
of what the First Amendment requires.
Lessons?
Demonstrators will demonstrate and march anyway – in Boston all
over the city but only in the Cage near the convention. In New York a
decision outlawing a Cage and random searches will be important for the
future. Yet cities and police and national parties will continue to try
to limit the free expression of dissent at and near conventions. We might
try to include in any negotiation for a city as site of future conventions
an acknowledged close and large site for rallies during the convention.
Cities get black eyes for their efforts to limit such debate. Making this
year’s results quite visible and shameful could help future negotiations.
Write to your national public officials and to the Democratic and Republican
National Committees and complain right now while the experience is fresh.
Demonstrations at conventions may not be the largest, but they hold great
symbolic value concerning the (lack of) enfranchisement of all the people,
so pursuit of full demonstration rights at conventions could have great
import and impact.
DC Model for Demonstrations
DC Council member Kathy Patterson has taken the lead in investigating
police abuses of demonstrators in the District of Columbia, including
preemptive arrests. She has held hearings which clearly documented outrageous
behavior by the police and now is introducing a comprehensive bill to
address some of the concerns raised based on prior abuses. Called the
First Amendment Rights and Police Standards Act, it would mandate regulations
on police permitting and control of demonstrations, largely prohibiting
such things as mass or pre-emptive arrests, requiring quick charging or
releasing of detainees, documentation of any arrests, use of restraints,
etc. I have copies – email me and I’ll email to you. Stay
tuned for progress.
Executive Branch
DOJ Ode to the Patriot Act
t was predictable. The Justice Department was to report to Congress on
the status of the USA Patriot Act. The result was not an even-handed analysis,
but rather a cheerleading document. It manipulated and overstated the
successful prosecutions and omitted the critiques. An excellent comprehensive
analysis can be found at the Bill of Rights Defense Committee website,
both in the letter and in the side by side analysis: www.bordc.org/BORDCnews3-6.htm.
One snapshot: the report contained no mention of such sections as those
dealing with the definition of domestic terrorism, and sneak and peek,
that have come under criticism; it reports on prosecutions unrelated to
terrorism with pride; it takes credit for plea agreements that came more
from long sentence threats or use of enemy combatant status (not in the
Patriot act) than new prosecution authorities.
Congress: Not So Supportive of The Patriot Act
The House voted July 8 on a bill proposed by Rep. Bernie Sanders (I-VT)
to fix a small portion of the Patriot Act. While the bill ultimately failed
thru a 210-210 tie vote, the initial count started at 219-201 and the
House Republican Leadership had to hold open the vote, and twist Republican
arms to switch their votes to ultimately defeat the measure. The bill
would have barred the Justice Department from searching bookstore and
library records – the Freedom to Read Protection Act. Conservative
Butch Otter’s (R-ID) comment on the shenanigans, “You win
some, and some get stolen.”
Material Support Crimes – Why is this a First Amendment
issue?
From time to time we revisit seminal issues that are not well understood,
or for which there is little popular support. One is material support
for terrorism provisions – which under the Patriot Act was expanded
some. DOJ crowed in its review of the Act, how useful the material support
provisions have been to their prosecutions. David Cole gave wonderful
testimony to the Senate Judiciary Committee last May 5th. In the testimony,
he clarifies all the rules and their First Amendment and due process issues.
While his remarks are not currently on the Senate Judiciary website, they
can be found at www.bordc.org/cole-materialsupport.htm.
One of the key problems with the various rules and laws surrounding the
issue are that they criminalize First Amendment activity – you don’t
need to plan, cooperate or commit a violent act to be criminalized. We
believe this should be unconstitutional, and some courts have ruled in
that direction.
So we were gratified July 27 to see in the New York Times that the U.S.
is backing off of prosecuting Iranians in Iraq who are members of the
Peoples Mujahedeen Org. of Iran, a listed foreign terrorist organization.
A “senior American official” is quoted as saying, “A
member of a terrorist organization is not necessarily a terrorist. To
take action against somebody, you have to demonstrate that they have done
something.” Exactly, we say. So go fix the rules!
CAPPS II postponed...or not?
The new airline passenger screening program – acronym CAPPS II –
has been delayed and down-sized, the Bush administration announced July
15. Criticism from airlines, members of Congress, privacy advocates, etc.,
were obvious reasons for the slowdown. The Homeland Security Department
is implementing some of the system and continuing to test it, for possible
rollout after the elections.
More FBI interviews – Now What?
We’re hearing reports again of lots of FBI interviews of Arab Americans
and Muslims in various parts of the country, and indeed the FBI has acknowledged
it has begun a new set of interviews. It claims however, that this set
is not random, mass interviews of any Arab Americans it can find to talk
to. Rather it is people “identified by intelligence or investigative
information” according to an unidentified FBI official interviewed
by the Washington Post.
The FBI and other agencies have announced that we face a significantly
increased risk of terrorist attack in the next period. However, the color
coded terror threat has not been raised. But the increased threat is being
used to justify the interviews.
According to various reports in the press and elsewhere, some people are
being asked very broad questions – like what do you think about
the U.S. invasion of Iraq and do you know of any troubling activity among
your community, networks or contacts. Others are being asked more specific
questions reflecting some particular information or concerns. The history
of blanket interviews post 9/11 then being used to initiate deportation
proceedings, or to intimidate people gives these communities pause and
concern today, particularly with open-ended questioning.
While people recognize that the FBI needs to help identify possible terrorist
threats before they are implemented, at the same time they question the
process as wrongheaded. Rather than ask wide-ranging questions and scaring
communities already sensitive to being broadly identified as terrorist
supporters, the FBI could be working more subtly, and developing more
reliable sources of information, and agents familiar with language and
cultures on point.
Our recommendation is always in such situations: You need not and are
not required to talk to the FBI if they want to question you (and may
be at risk if you do); Don’t ever lie to the FBI; If you choose
to talk to the FBI, talk to your lawyer first and bring them with you
to the interview. We also certainly suggest that people call the authorities
if they see potentially dangerous items or behavior to try to diffuse
the possibility of a terrorist attack.
Legislative Branch
Commission Report on 9/11 – Can Congress Really Do Oversight?
The release of the independent 9/11 commission’s report has resulted
in a flurry of analyses and promises. It’s clear the report is quite
critical of both Clinton and Bush administrations, as well as of the Congress
for lack of effective oversight of agencies tasked with evaluating and
fighting terrorism. The huge report has something for everyone: civil
libertarians are heartened by the commission’s recognition that
civil liberties must not be destroyed in the fight against terrorism,
and that the Patriot act might effectively be amended.
While people will spend years throwing blame back and forth, and the Administration
and the Congress will fall over each other claiming to be acting on the
commission’s recommendations, a clear understanding of how best
to learn from our mistakes will come more slowly.
One of the key recommendations of the commission is for the Congress to
more closely scrutinize agencies who handle intelligence. Specifically,
they recommend creating permanent committees on domestic intelligence,
and that the existing intelligence committees take a tighter hand at oversight
of policy and budget issues. We think they have their work cut out for
them, but strongly encourage better oversight as a start. Express your
concern to your Members not to create a separate domestic intelligence
agency.
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July 2004
Guantanamo, Hamdi, and Padilla Supreme Ct Decisions: Complex,
Mixed, but Critical Rights Affirmed
You can take a breath now. The U.S. Supreme Court has affirmed the core
rights to challenge detention in court and the right to an attorney. The
rest, as they say, is commentary. Ok, so the commentary: First here we’ll
evaluate the less complicated decisions – Padilla and Guantanamo,
and then on to Hamdi, which is very complicated, but fascinating. You
too can read the full text of the decisions and dissents by going online
to www.supremecourtus.gov,
and click on “Recent Decisions.”
Rumsfeld v. Padilla The court said the case was brought
in the wrong jurisdiction – despite the fact that Padilla was initially
held on material witness charges in New York, the correct jurisdiction
in which to sue is South Carolina, where he has been held as an enemy
combatant. Padilla’s lawyers will promptly file in South Carolina.
The Court didn’t rule on the substance – whether Padilla is
being held improperly. This ruling will delay things a little, but not
change the Supreme Court’s likely hearing of the case eventually.
Rasul v. Bush and Al Odah et al v. U.S. et al. These
are the Guantanamo cases. The ruling: “U.S. courts have jurisdiction
to consider challenges to the legality of the detention of foreign nationals
captured abroad in connection with hostilities and incarcerated at Guantanamo
Bay.” This hinged on the fact that Guantanamo is under total control
of the U.S.
The court held that these folks have the right to habeas corpus –
to have a hearing to challenge their detention in U.S. courts. The Court
said that citizen or no, a person in the U.S. has a right to habeas relief.
(Interestingly the Supremes used the Carl Braden v. 30th Cir. Ct of Ky
case on this issue. Carl later served time in jail with Frank Wilkinson,
taking the First Amendment in front of HUAC). The Court distinguished
this case from the World War II Eisentrager case, on which the government
hung its hat, as saying that the Guantanamo folks were essentially on
U.S. soil, had contested the government’s accusations and had not
been tried and convicted in military court, all the case of the defendants
in Eisentrager.
Problematic now are both the procedure for hearings and Judge Scalia’s
call for legislation. The court is mum on procedures and standards for
the hearings, which presumably would offer the detainees no more protections
than for the Hamdi case, see below. No details as well on right to counsel,
though lawyers finally now have some access to the Guantanamo detainees.
Judge Scalia’s dissent in the case, joined by Rehnquist and Thomas,
essentially calls on Congress to legislate away Guantanamo or other U.S.
military bases as not being “U.S. soil” and so take away the
right to habeas for non-citizen detainees.
Hamdi v. Rumsfeld
The Hamdi case is more complicated but still crucial at its core. Justice
O’Connor wrote the main decision for herself, Rehnquist, Kennedy
and Breyer. To make a majority, Justice Souter for himself and Ginsberg
wrote a part agree and part disagree opinion. Then Justice Scalia dissented
along with (gasp) Stevens saying the plurality’s ruling (the 6)
wasn’t strong enough for Hamdi’s case. And Justice Thomas
dissented saying the government can do whatever it pleases to Hamdi or
other citizens. This means 8 justices strongly repudiate the Bush Administration
policy.
The main O’Connor decision opposes the Bush administration, saying
a jailed U.S. citizen in the U.S. must have a due process right “to
contest the factual basis for that detention before a neutral decisionmaker.”
It allows detention of enemy combatants in narrow circumstances (as alleged
in this case), and it cuts the middle ground on evidence, saying the mere
“some evidence” standard the government would like to use
is inappropriate for jailing (the “Mobbs declaration”), but
that the government may use hearsay (third party) evidence at the hearing.
The hearing venue is also unclear – perhaps a military tribunal
or regular court would be ok, though the new as yet unused military commissions
are not explicitly approved. It makes pretty clear that Hamdi must have
unsupervised access to his lawyers for the hearing. On the issue of detention
during war, O’Connor is both concerned and clear. The only purpose,
she says, for keeping captured enemy soldiers in jail is to keep them
from returning to the battlefield, not to interrogate them (note current
events regarding torture). She also is worried that an endless war on
terror could make for endless detentions.
The Souter and Scalia dissents contend the detention is entirely “unauthorized”
but Souter, citing the need to make a majority decision, swallows that
concern and says that at least Hamdi must have a hearing. Souter relies
in major part on the 1971 Non Detention Act for authority although he
also refers to the tradition of the 800 year old Magna Carta, limiting
executive authority to a body of laws. Also Souter notes that by holding
Hamdi incommunicado the government is not treating him as a prisoner of
war and is violating the Geneva Conventions which first requires a hearing
to determine status and special treatment. He and Scalia seem to agree
that in order for the Executive to detain a citizen, Congress first must
specifically authorize the detention and suspend the Writ of Habeas Corpus,
as it might have but didn’t in the context of its Authorization
for Use of Military Force Resolution regarding the Taliban and Afghanistan.
In fact, Souter (and Scalia) also cites the USA Patriot Act, passed 38
days after the Force Resolution, with its limit of 7 days’ detention
without charge, as arguing that Congress explicitly did not intend to
authorize a detention such as Hamdi’s.
You all should read the Scalia dissent. It’s a fascinating history
lesson, deriving its weight from the Federalist papers, the Constitution,
Blackstone’s commentaries of 1765, etc. He says simply: the US may
not detain a citizen without charge and if the U.S. believes a citizen
has committed treason, it must bring him to trial in a court of law. No
ifs, ands or buts. Scalia notes the 1679 Writ of Habeas Corpus specifically
says it must be suspended if a person is to be indefinitely imprisoned
even if accused of aiding the enemy. Scalia blasts the O’Connor
decision for its “Mr. Fix-it Mentality,” with the Court providing
specific guidance where the Congress should have passed a law. He notes
the problem of this role is it “encourages their [Congress’]
lassitude and saps the vitality of government by the people.”
A full reading of the decisions and opinions yields something more profound
and indeed stronger than the specific requirements of the rulings. The
Court understood that the issues raised by Hamdi and Rasul were seminal
and among the most important they will ever consider. The issues treat
the core responsibilities and limits of the 3 branches of government.
All but Thomas understand that, as O’Connor stated, “..a state
of war is not a blank check for the President when it comes to the rights
of the Nation’s citizens.” And “Even the war power does
not remove constitutional limitations safeguarding essential liberties”
– taken from Home Building & Loan Assn. v. Blaisdell.
In advance of such a move, we joined several dozen organizations opposing
any bill that would authorize indefinite detentions or suspension of the
writ of habeas corpus.
Lynne Stewart Trial Opens
At the end of June, the trial began in the case of attorney Lynne Stewart,
her translator, Mohamed Yousry, and Abdel Ahmed Sattar. They face somewhat
different charges, but all related to Stewart’s continuing legal
representation of Sheik Omar Abdel Rahman, who was convicted and jailed
for conspiracy to engage in terrorism against the U.S. Michael Tigar,
who for decades has represented high profile defendants and activists
in criminal cases, is representing Ms. Stewart. While the toughest charges
against Stewart were tossed before the trial, she still faces charges
of material support for terrorism and perjury. Mr. Sattar faces more serious
charges of conspiracy to commit terrorist murder and kidnapping. Remember
that use of the term ‘conspiracy’ by definition means the
government has no evidence the person engaged in the actual acts.
Legislative Wins and Tries and Problems
HR 3179 Anti-Terrorism Intelligence Tools Improvement Act was kept out
of the intelligence authorization bill, where some Senators had been trying
to add it as an amendment. The bill would expand use of FISA secret evidence
in immigration proceedings. It may still be marked up (amended) as a stand
alone bill in the House Judiciary Committee or the Intelligence Committee
(it was introduced by the chairs of each - Sensenbrenner and Goss - and
referred to both committees). Urge your Representatives either not to
bring it up to the committee for a mark up or vote against it at the committee
or (worst scenario) if it goes to the floor. NCARL and the First Amendment
Foundation signed on to a coalition letter to both Senate and House Judiciary
chairmen opposing the bill (and distributed the letter to help get others
signed on). We’ll take this as an important if partial victory.
H.R. 4414 - the Strengthening Homeland Innovation by Emphasizing Liberty,
Democracy & Privacy Act – introduced by Rep Kendrick Meek (D-FL)
and now with 33 co-sponsors in the House, would strengthen privacy through
many government agencies, and create a Commission on Privacy, Freedom
and Homeland Security. It’s been referred to the House Committee
on Government Reform. Push for co-sponsors – as we need both stronger
privacy provisions and more oversight of government programs impacting
privacy.
HR 2476, introduced by Senator Jon Kyl (R-AZ) with 9 cosponsors, would
remove the sunset provisions that occur in parts of the USA Patriot Act.
Obviously, call your Senator to oppose this bill. We need not only to
sunset those provisions, but some more of the act as well.
The Civil Liberties Restoration Act – S. 2528 and H.R. 4591 - was
introduced by ranking Democrats in House and Senate. In the Senate it’s
sent to the Judiciary Committee, in the House, both Judiciary and Intelligence.
Push for co-sponsors in both houses.
Torture – Not Isolated, Not Low Level
What International Convention Against Torture? – Have They No Shame?
We discussed last month the horror and failures of torture by U.S. military
and contractors. Now the question moves to who’s responsible? First,
on February 7, 2002 in an executive order, Mr. Bush declared that he could
suspend the Geneva Conventions, which prescribe and limit treatment of
detainees. On August 1, 2002, then Assistant Attorney General and now
federal court Judge Jay Bybee advised US counsel Alberto Gonzales on how
to circumvent laws prohibiting torture and get away with it by stretching
the language to absurdity. The memo remained in force for two years, before
surfacing and being repudiated. Defense Sec. Rumsfeld’s April 16,
2003 memo authorized the use of aggressive interrogation methods specifically
on Guantanamo. Did Bush know the details of how torture would be handled?
In his February memo, he states he had extensive briefings with his staff
on these questions. So who’s responsible for the torture at Abu
Ghraib, and Guantanamo and CIA holding areas and …?
The text of many of these memoranda is now public so we all can judge
the language for ourselves. We know that several folks at the State Department
(W. H. Taft IV and others) early on strongly objected to the approach,
as did some in the military who had access to the opinions. Now even UN
Sec. Gen. Kofi Anan has had to speak out in protest, and the U.S. lost
its bid to get immunity from war crimes at the International Criminal
Court. Among other press, see NY Times 6/9/04 for description and timeline
of the memoranda.
Who should investigate these abuses? How can we make sure they’re
independent? How in the future can we mandate that the U.S. recognize
and enforce international standards and laws and other international bodies?
Who will be held responsible for the abuses? How about the people who
authorized the abuses? For a start, the Center for Constitutional Rights
has filed suit against military contractors for torture in Iran. See www.ccr-ny.org
for details. Contact your representatives to make sure we properly address
these issues.
Intelligence Update:
George Tenet, long time CIA director, is resigning effective July. He
has been described as a ‘teflon’ director – receiving
warm welcome on Capitol Hill even thru all the post 9/11 exposure of intelligence
lapses. While Tenet states that his departure is unrelated to the upcoming
Senate report, his departure leaves a gap in leadership and blame target,
and an opportunity to restructure intelligence collection without a visible
and well-known CIA advocate in place.
The Senate Report on 9/11 Intelligence due out any day is expected to
blister all the intelligence agencies over their intelligence collections
failures. It was submitted to the CIA last month to be ‘cleaned’
– classified material removed so the remainder can be made public.
There is strong pressure to scramble the intelligence agencies –
especially FBI and CIA, create an “intelligence czar” and
a domestic spy agency. Let’s help the government fix this by helping
them do better, not more. Do better translation, more focused data collection,
and stronger infrastructure.
Last Pre 9/11 Secret Evidence Case – A Vindication - Harpal
Singh Cheema and his wife, Rajwinder Kaur have been trying to stay in
the US for years, Cheema having been horribly tortured in India. June
24 the 9th Circuit U.S. Court of Appeals ruled that Kaur may stay and
that the Board of Immigration Appeals should look positively on granting
Cheema asylum. It declined to consider the government’s secret evidence
in the case. It upheld the right of people to be involved in political
struggles in their home country. The case is Cheema v. Ashcroft, No. 02-71311.
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Donations to: NCARL or to the First Amendment Foundation for our educational
work.
June 2004
This month’s letter will include proposed bills to use as advocacy
mechanisms, some status and updates of cases and other issues, and some
thoughts on the detainee abuses and their wider implications and occurrences.
As we continue on into the heart of election season, these issues can
be guideposts as to where your representatives, candidates and communities
stand on critical issues. Hold their feet to the fire! Make sure they
know you care about critical due process, privacy and First Amendment
rights. You can call the Congressional switchboard at 202-224-3121 and
ask for your representative or senator by name.
Pending Legislation
The newly introduced H.R. 4414, the Shield Privacy Act (Strengthening
Homeland Innovation by Emphasizing Liberty, Democracy and Privacy Act)
would seek to protect individuals’ rights in the U.S., create a
‘privacy czar’ in the Office of Management and Budget to coordinate
federal policies, and mandate creation of a 2 yr commission to look at
homeland security technologies. At introduction, there were 25 Democratic
co-sponsors, with Rep. Kendrick Meek, D-FL, carrying the water. It’s
in the House Committee on Government Reform.
Civil Liberties Restoration Act – This bill, long
expected and now about to be introduced, aims at reinstating several kinds
of rights. An incomplete summary, the bill would: provide minimum due
process safeguards to individuals who are jailed on suspicion of immigration
violations, prohibit blanket orders closing all deportation hearings to
the public and to family members of detainees, provide for an independent
immigration court within the Dept of Justice, end the National Security
Entry-Exit Registration System, and the House version would amend the
USA PATRIOT Act to limit the secret seizure of private databases and individual
records to cases where the government has shown there is a reasonable
connection to a suspected terrorist or terrorist group. Leading Democrats
in the House and Senate have signed on to introduce the bill.
Legal Cases
Greenpeace Case Dismissed
US District Judge Adalberto Jordan in Miami on May 19 dismissed a highly
charged and bizarre case against the environmental group Greenpeace for
some of its members’ peaceful civil disobedience boarding of a ship.
The U.S. brought charges from an 1872 law (last used in 1890) prohibiting
“sailor mongering” – in which prostitutes were sent
to board ships to lure sailors to visit brothels at port. Greenpeace had
argued that their activists boarding a ship (that carried illegally felled
mahogany) and planning to unfurl a banner protesting the transport, was
not subject to U.S. law as it occurred in international waters. If it
had been, then it would have been protected First Amendment activity.
The individual perpetrators had earlier pled guilty to minor charges.
This prosecution had all the marks of an expanded RICO type conspiracy
prosecution – aimed at disabling organizations engaged in unpopular
political activity.
Oregon Lawyer Released and Exonerated -
Attorney Brandon Mayfield probably thought some of the following might
lead the government to spy on him (even if without justification): he
is a lawyer who had converted to Islam some years ago, married an Egyptian
woman, and more recently had represented in a custody dispute a Muslim
man who faced federal terrorism charges. The evidence of surreptitious
break-ins was not entirely shocking in a post 9/11 age. But then May 6,
Mr. Mayfield was arrested and held as a “material witness”
apparently related to the recent awful Madrid train bombings. The government
later announced that his fingerprint matched one found in Spain on a plastic
bag containing detonators found near the blasts.
A local uproar in Oregon ensued, and Mayfield’s wife and family
and friends all stood up for him, and certified that he had not been even
out of the U.S. for years. Things started to fall apart for the government.
Despite the fact that FBI analysts and an outside analyst had certified
that digital images of the print forwarded to the U.S. from Spain were
Mayfield’s, Spanish officials early on had disagreed. Then Spanish
officials claimed the print was that of an Algerian man. When that was
publicly announced, the U.S. backed off and released Mayfield, after he
had spent two weeks in jail.
Briefly, the government kept the charade that they still wanted to treat
him as a material witness, and then May 24, it exonerated him and issued
an apology, saying it was all a mistake, and they were returning all the
household items, kids’ workbooks and computer files they had seized
from the Mayfields. Were we betting people, we’d bet on some lawsuits
in the government’s future. This is just the latest in a long line
of mistaken, forged or fudged fingerprint issues the FBI has faced even
in recent years.
When in Doubt, Just Use Material Support
We’ve complained about the use of “material support”
as a Go Directly to Jail card for government use. The government doesn’t
talk to a judge or a grand jury – doesn’t need an indictment,
a charge, evidence, or a bond hearing. Remember, Jose Padilla was first
held as a material witness – transported to New York from Chicago’s
O’Hare airport. When his lawyer filed a habeas petition –
seeking to get Padilla a hearing so he could be released from detention
- the government derailed the process. It created that new ‘enemy
combatant’ title – trying to remove any remaining constitutional
rights from Padilla’s reach.
Now Brandon Mayfield was the unfortunate guinea pig. Fortunately for Mayfield,
the Spanish helped toss the evidence in his case relatively quickly. That
was luck, not due process. End runs around the criminal justice system
do nothing to improve our ability to fight terrorists. Rather, it may
well divert us from more productive and critical paths. Enough with this
surrogate for a criminal justice system – we encourage Mr. Mayfield
to challenge the system. He’s got a great case.
Georgia Freaking Out Over G-8 Demos, and Mass., and NYC
The ACLU has sued the City of Brunswick and Glynn County, Georgia over
local ordinances passed in expectation of the G-8 summit in June on Sea
Island with the intent of restricting speech, according to the filing.
Among the ordinances’ requirements are permits for gatherings for
as few as 6 people (dinner anyone?), and demonstrators paying for government
cost of demo duty.
Also the governor of Georgia – has declared a state of emergency
for the entire state purportedly on account of expected demonstrations
around the G-8 meeting. This prompted the National Lawyers Guild to object
to the “exaggerated threat of disruption in order to demonize and
discourage legitimate political protest.” Further, the NLG criticized
Massachusetts for similar egregious policies, including planning to close
40 miles of roads for the Democratic convention in Boston this July. Activists
in New York are having similar difficulties getting demonstration permits
for the Republican Convention to be held there in August.
Guantanamo Military Commissions
Military lawyers tasked with defending military personnel, are at some
disadvantage as they are in a closed system. Judges, both sides of lawyers,
and defendant are military in the military court system. Many defense
lawyers in the military nonetheless do an admirable job of defending their
clients. However it is extraordinary to see such an aggressive challenge
as that being done by the military legal defense team assigned to represent
the Guantanamo detainees whom the U.S. has announced soon will face charges
at the military commissions.
Active duty military attorneys for the detainees have been quoted at meetings
and a news conference as saying the military commission process as set
up by the government is “fundamentally flawed” and that “the
system is not set up to provide even the appearance of a fair trial.”
Among the aspects most criticized are having only a 2/3 majority convict
a defendant, and allowing no appeals to a civilian court (including the
Supreme Court). Lt. Cmdr Charles Swift has filed a lawsuit directly challenging
the system as unconstitutional (and a violation of the Geneva Conventions)
on behalf of one of the Guantanamo detainees facing charges.
Lynne Stewart – Jury being picked
Just so you don’t forget, a jury now is being picked in the case
of Attorney Lynne Stewart, Ahmed Sattar and Mohammed Yousry. They are
charged, among other issues, with helping Sheik Omar Abdel Rahman communicate
messages from jail to his supporters abroad via public press conferences.
Stewart is challenging the charges as violating her right to represent
clients including those charged with terrorism. The trial should begin
the end of June.
(Shhh!, A Legal Challenge to USA Patriot Act!)
The ACLU, usually found on the front pages when a new big suit is filed,
instead had to put up with extraordinary secrecy in bringing its own suit
against a public law. The by now renowned and oft reviled USA Patriot
Act, subject of over 300 city and state ordinances critiquing some core
measures, is now being challenged in court on the issue of national security
letters by the ACLU. But when it filed the case April 6, it had to do
so under seal. Only April 28 did a judge allow a limited public announcement
of the suit. The national security letters are a government demand to
companies to secretly provide the U.S. information including addresses
and calling records of customers regardless of whether the customers are
suspected to have been involved in terrorist activity.
Executive Branch Activities
More Justice Department Plans
Attorney General John Ashcroft reinforced DOJ’s touted improved
intelligence sharing by rolling out the new National Criminal Intellige
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