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November-December 2005
Dear NCARL friends,
This is a combined issue (Nov/Dec) and mailing for the end of the year,
and includes both the NCARL letter and the First Amendment Foundation
annual letter. The news is changing like lightning, so some of the following
will have changed when you get this.
CONSTITUTION VS. EXECUTIVE BRANCH
CIA Rendition/ CIA War
We’ve been writing about “rendition,” a word that sounds
accurately like rendering, for several years. Small rumors have abounded
that the U.S., in particular the CIA and similar covert operators, have
taken a small but unknown number of people into existential limbo, to
detain and interrogate and probably torture potentially forever. The reason:
to fight the war on terror. The authorizations for rendition: an August
2002 Justice Dept. memo, creation of a new terms - enemy combatants and
illegal combatants to get around the Geneva Conventions requirements.
Finally November 2 in the Washington Post, Dana Priest broke a story with
the approximate country location and multiple confirmations of such sites,
run by the CIA. The story finally has created a big public hubbub, with
lots of op eds, radio talk shows on topic, etc. Many in Congress are getting
more riled by the lack of accountability to it on these prisons. Among
others, our friend the nationally recognized constitutional authority
and remarkably calm David Cole, and Dana Priest were on the nationally
syndicated Diane Rehm show the next day, and you can download the discussion
on the www.wamu.org website.
A few folks in government, including the usually quiet CIA, are publicly
defending the prisons, and the treatment of individuals without accountability
outside their purview. While they say these individuals don’t merit
the rules of the Geneva Conventions as “stateless combatants,”
at the same time they say humanitarian treatment is required. At issue
may be the meaning of “humanitarian treatment.” But exposure
of conditions at Abu Ghraib and Guantanamo prisons – known prisons
– makes these secret prisons more worrisome. It is not credible
that these secret lockups would treat prisoners consistent with the U.N.
Convention Against Torture when the known prisons do not. As Dana Priest
notes – we should face up to making a list of what interrogations
techniques are allowed under the terms of the Convention, so that humanitarian
treatment has specific meaning.
Others in the Executive Branch, in Congress, human rights groups, at the
United Nations and in the international community are going ballistic.
They are calling for more specifics – where are these prisons, who
authorized them, who controlled them – in the U.S. and abroad?
Perhaps more troubling – I hate when bad gets badder - is the assertion
in the process of this discussion that the CIA is essentially the lead
agency in this open-ended “war on terror.” The CIA. The agency
for which there is no possible public oversight.
We have long evaluated policies on the lowest or highest common denominator
principle. In this case, the lowest – the way the U.S. treats the
people it least respects could come to set the standard for how it treats
the rest of us. And if it can keep the nature of that treatment secret
for them, secrecy will be used later for others. The same arguments can
be made about reasons for going to war and for the process of engaging
in those wars. No oversight equals no accountability.
The McCain Amendment
Future torture would be banned by the simple proposal initiated by Senators
McCain (R-AZ), Graham (R-SC) and others. It passed the Senate with 90
votes in support. The Administration (in particular Mr. Cheney) and House
Republican leaders oppose it. McCain has attached the provision as an
amendment to the Defense Department appropriations bill. The amendment
would: “(1) establish the Army Field Manual as the uniform standard
for the interrogation of Department of Defense detainees and (2) prohibit
cruel, inhuman and degrading treatment of persons in the detention of
the U.S. government.” This includes the CIA despite the efforts
of the Vice President and others to exclude it. TO DO: Ask your
Senators and Representative support this measure.
Senator Levin (D-MI) Seeks Outside Commission to Investigate
Renditions
Several investigations are outstanding including an Intelligence Committee
investigation of its own failures before the war. This was the subject
of the recent Democratic leadership-called closed session of the Senate
demanding the report, resulting in creation of a committee to report on
the report.
Further, Senator Levin and others have called for an investigation of
the standards followed after the war began, at the highest levels of the
government. These include reports on the Justice Department August 2002
memo and CIA standards at these secret detention facilities. Levin wants
another 9/11 commission style report for this war on terror. A vote to
do this failed along almost party lines. TO DO: Ask your Senator
to support this effort on a future vote.
Posse Comitatus – What’s Left?
Hurricane Katrina has made a mess of things in so many ways. But one of
the lesser noticed kinds of fallout may be the demise of what’s
left of posse comitatus. This phrase is used in the U.S. to describe the
limited role of the military within the U.S. Historically the military
has been prohibited from most domestic actions. It was notably violated
during the Native American disputes at Wounded Knee in South Dakota, in
the early 1970s, when the military was deployed against citizens in what
looked like a domestic war.
In recent years the military has been increasingly authorized to help
patrol U.S. borders, and to help fight the “drug war.” After
9/11, the tanks and personnel in the military were deployed on the streets
of DC and elsewhere (to help prevent or do crowd control?) for additional
terrorist attacks that were expected.
Now after the debacle in evacuating and helping people caught up in Hurricane
Katrina, there is strong initial pressure to authorize the military to
help with future similar disasters, to bring aid, to help the police and
National Guard keep the peace – especially with a National Guard
stretched by war duty. What’s the problem? What are the limits?
Maybe military equipment would seem helpful to deal with an expected rowdy
demonstration, for a prison riot, for whatever reason. However, the military’s
not now trained for domestic duty. This is an age of conflation –
do we want the boundaries removed entirely on the military?
National Security Letters Run Amok
In another front page splash, on November 6, Barton Gellman of the Washington
Post exposed the out of control nature of national security letters (NSLs)
increasingly used by the FBI to obtain secretly a wide range of documents
on individuals in the U.S. NSLs are a secret weapon to obtain masses of
detail on peoples’ transactions, just short of eavesdropping –
without seeking a just, a grand jury or even a prosecutor’s permission
and with no specific oversight by Congress. Gelman reports a staggering
30,000 such letters a year. And quietly, the government has begun to put
this information gleaned from these huge data dumps into its general computer
system, rather than destroy them after use as it did earlier.
Instead of the pre-9/11 requirement that NSLs be used against probable
spies or terrorists, now they can be issued if they are “sought
for” or “relevant to” an investigation to protect against
terrorism or spying. And the subject data source must never tell of the
request for information. The loosening of bonds on NSLs combined with
the loosened domestic crime guidelines opened the spillway on use of NSLs.
But George Christian of Library Connection Inc has refused the government’s
order. He has filed suit with the help of the ACLU, challenging the requirements
of the law. The Post was able to identify Christian through a variety
of apparently legal sources.
Some members of Congress have responded to this expose by suggesting that
NSLs now should face sunsets, and they are adding this to the revision
of the USA Patriot Act. TO DO: Support this move if it’s
still timely when you get this letter.
FBI Spies Without Permission
Speaking of removing boundaries, by virtue of the USA Patriot Act, revised
domestic crime guidelines and etc, post 9/11, the FBI agents have been
allowed to engage in investigative activities that were formerly illegal
for it. Even though the FBI has a long history of illegal spying on activists
and dissenters and non-citizens without judicial or legal authority, this
new legitimization is troubling in its latitude and relative lack of judicial
oversight.
But now through a Freedom of Information suit by EPIC,
the Electronic Privacy Information Center, we are learning that in some
cases the FBI is not bothering with even the relatively rubber-stamp authority
it is now required to obtain. In a letter to the Senate Judiciary Committee,
EPIC cites receiving information about 13 cases of a possible 153 reports
of intelligence related misconduct by the FBI between 2002 and 2004. In
releases to the press, EPIC notes that the FBI spied on US people up to
a year and a half without getting authorization or supervision for the
surveillance. One person was a subject of such surveillance for at least
5 years, more than a year without telling the Justice Department as required.
There were some illegally obtained emails, seized bank records and searches.
Obviously, problems with FBI compliance with existing USA Patriot Act
and other requirements give EPIC more weight in urging no expansion of
that authority in the USA Patriot act revision under consideration.
MORE LEGISLATION
USA Patriot Act Conference
Increasingly there is unrest about the extra provisions loaded in the
House version of the USA Patriot Act revision bill. Similar to the Anti-Terrorism
and Anti-Death Penalty Act of 1996, the House chose to add 41 new terrorism
related crimes eligible for the death penalty to the existing 20. Most
egregiously, these include the crime of giving financial aid to a group
some part of which is involved with violence. Further, if a sentencing
jury in a capital case does not decide unanimously to impose the death
penalty, then the person currently gets life in prison. Under this revision,
prosecutors could empanel a new jury, and perhaps a third, to try again
for the death penalty!
These matters are in addition to other problems with the House bill we
have described above. TO DO: At this moment, there is still time
for you to weigh in on this bill before the conference committee finally
decides on a compromise. Tell your Rep and Senators to hold fast to the
Senate version. It’s not great but much better than the House version.
CASES
FBI Told Not to Use Cell Phone Records to Track People
We have heard in recent years that it’s now possible to track people
very closely by their cell phones. People find some solace in this improved
technology if they have a health crisis and need help. That the FBI can
note our every move just because we keep our cell phones on is not so
reassuring. It was obviously just a matter of time before the FBI would
seek to use this capacity. In two rulings in late October in two separate
courts – Texas and New York, judges have denied the requests of
the FBI to give it current information about a suspect’s location.
It may only have that information if it gives a court probable cause that
a crime has occurred or is in process. This is the same standard as for
a search warrant. Stay tuned as this goes up the court chain.
Hamdan Goes to the Supremes
The Supreme Court announced on Nov. 7 that it will hear the appeal of
the Hamdan case, a challenge to the military commission system set up
for the U.S. base in Guantanamo. Salim Ahmed Hamdan, a Yemeni brought
from the battlefield in Afghanistan to Guantanamo, is charged with conspiracy
to commit war crimes, murder and terrorism, as the purported driver of
Osama Bin Laden. The U.S. wants to use the bizarrely constituted commissions
rather than criminal law system that Mr. Moussaoui faced.
Hamdan’s lawyers, Neal Katyal and Lt. Comdr. Charles Swift note
about the case: “The president's unilateral creation of commissions,
his single-handed definition of the offenses and persons subject to their
jurisdiction, and his promulgation of the rules of procedure combine to
violate separation of powers. …The Revolution was fought to ensure
that no man, or branch of government, could be so powerful.”
New Chief Justice John Roberts, who wrote the appeal court decision, recused
himself. It will be fascinating to watch the dynamic in the court in this
case. Argument is expected in the spring of 2006.
Sami Al Arian Case Goes to Jury
After a months long prosecution case in which defense attorney William
Moffitt closely challenged all the witnesses, Moffitt then chose not to
mount a defense case, noting the prosecution had not made compelling arguments
against Al Arian, and the defense of Al Arian rested on October 28. Moffitt
noted, “the government has not proven that Dr. Al-Arian has done
anything but speak. ... The fact that Dr. Al-Arian is a Palestinian deprives
him of no civil rights." The judge agreed that in instructing the
jury, he will reinforce the right of freedom of association.
The remaining co-defendants, Sameeh Hammoudeh, Hatem Fariz and Ghassan
Ballut, in the joint trial, had brief defenses. The week of Nov. 7 is
being spent with closing arguments.
The four were accused of association with the Palestinian Islamic Jihad
(PIJ), and in Al Arian’s case, as well he was accused of providing
material support for violent activities of the PIJ both in Israel and
the occupied territories prior to 1996. Al Arian was also a nationally
known Palestinian rights advocate, founder of and active with the National
Coalition to Protect Political Freedom, opposing the use of secret evidence
in the U.S.
ACTIVISTS
Frank Wilkinson – Get the Book! First Amendment Felon
You know that the book about Frank Wilkinson and how he helped abolish
the House UnAmerican Activities Committee (HUAC) is in bookstores now.
Frank was a founder and long-time director of NCARL. We have more details
about getting the book in the accompanying year end report letter of the
First Amendment Foundation. Get the book for yourself. Get it for your
friends and family as a holiday gift. Talk about the issues it raises
and which resonate today.
Rosa Parks – Intentional Movement Activist, Not Just a
Tired Seamstress
At the Detroit funeral for Ms. Parks, Reverend Jesse Jackson, Jr., took
the words out of our mouth. Rosa Parks decided not to move to the back
of the bus, knowingly. She could not have known the way she would become
an icon, but she was already a civil rights activist when she said no
to that bus driver. She was volunteering with the respected civil rights
advocate, E. D. Nixon. She was friends with Clifford and Virginia Durr,
who urged and sponsored her to attend the Highlander Center activist training
program.
The connection with the Durrs is interesting to us for the intersection
between the civil rights and civil liberties movements and HUAC. In First
Amendment Felon, the story of Virginia Durr being called before HUAC is
told. Durr famously humiliated HUAC while powdering her nose. She and
her husband were targeted by the government and the powers that be in
the community and accused of being Communists for their temerity as prominent
white citizens to speak out for civil rights. This was in the same time
frame as Rosa Parks’ courageous act, which must have made it even
more clear to Parks that her act might ignite a firestorm.
The power of dissent ebbs and flows, but can be cumulative. Famed historian
John Hope Franklin and many other African Americans who also refused to
move to the back of the bus before and after Rosa Parks, know this. Our
efforts are cumulative and the results fickle. But these times are more
welcoming to dissent than the 4 years previously. More voices and acts
are being heard. Let yours be among them.
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Thanks for all your help and support.
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EMERGENCY NCARL ALERT!
November 10th the Senate passed by 49-42 an amendment to a defense appropriations
bill - a horrible rights busting amendment. Nullifying the June 2004 Supreme
Court decision in Rasul, the bill would prohibit “enemy combatants”
from bringing habeas petitions challenging their detention by the U.S.
military. The bill has not been considered by the House, but that is expected
the next week (for those who receive this by mail – that’s
now!)
About 200 of the 500 people still being held at Guantanamo have filed
habeas petitions, and the U.S. has brought only a handful of charges for
people to face military commissions, so this bill would affect the vast
majority of those held at Guantanamo. “Enemy combatants” is
a made up term that has no definition in domestic or international law.
So to have a bookend amendment that takes away all practical rights from
a category of people you selected out of thin air is appropriate in an
upside down worldview.
The main part of this amendment gives the other provision in the bill
less import – that those few “enemy combatants” who
the U.S. decides must face military commissions (another made up hearing
process) would be permitted by law to challenge the results in the U.S.
court system thru the US Court of Appeals for the D.C., the typical venue.
Call your Representatives immediately to vote and
speak out strongly against this massive abuse of domestic and international
law. This is the Lindsey Graham amendment (R-SC) to the defense authorization
bill.
BACK TO TOP
First Amendment Foundation Annual Letter 2005
Dear Friends of the First Amendment:
We can now hear the stories of Frank Wilkinson without having to visit
him The tale that unfolds slowly with Frank’s early life and coming
of age and ends with the killing of the House UnAmerican Activities Committee
is one that goes beyond much of a life story. It is a saga of not so quiet
valor, a life of speaking out everywhere, and a movement that built and
succeeded. First Amendment Felon*, The Story of Frank Wilkinson,
His 132,000 – page FBI File, and His Epic Fight for Civil Rights
and Liberties, has been written by the amazing Bob Sherrill, and
published by Nation Books. It should be available in your bookstores now
– and if you don’t have a great local bookstore to support,
it can be had through Amazon.com
and the usual venues.
Not only is the Wilkinson book out, but our friends David Cole, and also
board member Jim Dempsey, have significantly updated the book we asked
them to write in 1999, Terrorism and the Constitution, Sacrificing Civil
Liberties in the Name of National Security. This new edition will be available
with the help of the New Press in January. There have been so many changes
to law and policy since the book was last revised in January 2002, that
this revision is very important for anyone who wants or needs to know
about the intersection of the government’s “war on terror”
and on all of our rights. Urge that your 20th Century History or Constitutional
Law class add it to the syllabus, or read either book for your book group.
We also anticipate putting together questions for book groups, which should
be available shortly.
The Wilkinson book is going out in the next weeks to major donors to
the First Amendment Foundation and NCARL. For the rest of you, we have
a great deal! For your mostly tax deductible contribution of $100, we
will send you both books as they arrive from the publisher (Cole and Dempsey
book not til January).
Over the last few years, we have reported on a variety of educational
efforts in which the First Amendment Foundation has engaged. Our biggest
effort now will be promoting both books to our friends, the press, and
the public. Even if we were to get the book just to half the people who
saw and heard Frank in colleges and law schools over the last 50 years,
tens if not hundreds of thousands of people would get the book. And then
they would tell their friends and family to get it, and we’d have
a best seller.
But we want to do more. We want to reach out and bring others to the
podium (as well as the bookstore or community event) as we talk about
the issues of defending the right of association, of dissent. Among those
we seek are people in the civil rights movement, the opposition to the
Vietnam War, people who were opposed to U.S. policies in Central America
and South Africa, and Arab Americans, South Asians and Muslims who faced
intimidation, arrest and worse after 9/11 because of their ethnicity and/or
religion. First Amendment Felon is about Frank and about the House Committee
on UnAmerican Activities (HUAC) and about the FBI, but it contains lessons
applicable beyond the 1940s through the 1970s, and forces us to consider
the current climate in that light.
This is not your normal book tour, but then Frank Wilkinson is not your
typical activist. He has always reached out to people in the civil rights
community, to Asian Americans and others to build movements defending
dissent, due process and other rights. When HUAC was in its heyday, Frank
went around the country rounding up all the people who had been called
before it, to bolster their spirits, to help provide legal support, to
stand up for their rights together. He has been fearless. Frank is now
pretty much confined to Los Angeles, where he and wife Donna live. But
even though he doesn’t travel, he’s hawking the book to anyone
he encounters. It’s a tough act to follow, but we, his national
community, can do it.
Recognition and Thanks: Chauncey Alexander, first and
founding President of the First Amendment Foundation, died recently after
long health battles. A man of foresight, he recognized the need for more
and better organized educational support in defense of the right of association
in the middle 1980s. Even though he had already completed a full career
or two as a social worker and activist, he led the Foundation into being
and kept it on track for 15 years. We miss his clarity and commitment.
Miriam Rothschild was a troublemaker in San Francisco.
She almost single-handedly got people motivated on a local level –
to stop HUAC, and 50 other issues over the years. One letter I received
recently tells of Miriam’s weekly mailing party meetings –
sending updates, dunning people for money, criticizing politicians who
didn’t do the right thing. People came, people sent money, people
did a variety of work in defense of the Constitution, because Miriam poked
them, reminded them it was time and the time was now. She died recently
at 91, on her terms.
Spread the Word: Let us know if you have ideas, and
can help a little in bringing me to your town to talk about Frank and
dissent and the intersection with today’s concerns. We will have
celebration parties in Los Angeles, Washington, D.C. and are planning
book meetings in cities ranging from San Francisco to Boston, Miami and
Atlanta to Chicago. Join the fun. It’s not complicated but it’s
worth it for the diverse local outreach we can help inspire. If you can’t
do any of that, read the books and review them for your local paper or
on Amazon.com. And thanks of course for all your help. You make us the
First Amendment Foundation.
Finally, we have a special request to you, our First Amendment Foundation
and NCARL ‘families.” Many of you have lived through HUAC,
through COINTELPRO, various peoples’ movements and the variety of
government repression. We want you now to tell your stories. Tell the
history you so well understand to your kids, your families, your friends.
And we would like you to ask the next generation – your kids or
younger people you mentor, to make a donation to the First Amendment Foundation
(or to NCARL). If your kids are young, maybe suggest they donate a portion
of their allowance. If they’re older, suggest maybe they give the
cost of a cup of coffee or two foregone to send us. You know the struggle
to defend against government repression of dissent will not end with us.
Get your kids educated and ready today.
And thanks for your work, for speaking out, for your support of the right
to dissent.
* Frank was convicted of a misdemeanor but the U.S. always treated him
as the worst felon.
BACK TO TOP
October 2005
First
Amendment Felon is Out!
Robert Sherrill’s book about Frank Wilkinson and the fight to protect
dissent from the House UnAmerican Activities Committee (HUAC) and the
FBI will be printed by the end of this month and be in book stores by
the middle of November. Whew! Published by Nation
Books, First Amendment Felon, will be available in many bookstores
– and if it’s not in yours, ask for it to be stocked!
We hope to have a party with Frank and friends in Los Angeles early in
the new year, celebrating the publication. As well, as Bob Sherrill and
Frank are not available to travel, I’ll be going to many other cities
to read from the book, talk about the fight to defend protests and political
change movements, and share stories about Frank, the long fight to abolish
HUAC, and the new movement to regain constitutional ground lost after
the 9/11 tragedy.
I’ll be traveling first to the San Francisco area after Thanksgiving,
and on to Vancouver. Let me know if you’d like to help schedule
a small or larger event. Chicago, New York, Miami, Atlanta, Boston, DC
are on the list. Add your city to the list, and help us get the word out
about how Frank and others succeeded in abolishing HUAC, how a few peoples’
principled stands – including going to jail rather than give up
First Amendment rights - can move a mountain. And remember, we’re
looking for other local folks who fought HUAC, COINTELPRO, etc., to speak
out with me.
Thank you Miriam and Chauncey
Miriam Rothschild - We’re sad and full of wonder
at the same time. You may remember that last month I wrote a public thank
you to Miriam Rothschild as we had heard she probably was dying. Surrounded
by friends, Miriam faced her last days, instructing everyone on how to
help her die. Some of those friends read her my note, and though I’m
sure she pooh-poohed it, I think she didn’t mind too much. I spoke
with her a few days before she died, which she did peacefully Sept 11
at 98, and in her own way, just as she had lived her life. We should all
be so lucky. We all miss her pluck. A January 14 memorial is planned.
Chauncey Alexander - Chauncey died August 30 in Orange
County at the age of 89. He was the founding president of our sister organization,
the First Amendment Foundation. Creating a new non-profit from the ground
up is a tough task, and it was one of many organizations Chauncey helped
establish or make whole. Called a “Master Builder” of social
work, Chauncey worked for 65 years in public welfare, mental health and
with other social policy, labor and community organizations. While working
and organizing with several unions, he faced Red-baiting, which clearly
helped him focus on the import of First Amendment rights. Among his many
other accomplishments, he directed the National Association of Social
Workers for 13 years.
Chauncey retired from presidency of the Foundation in 2001, but continued
to be supportive and give important guidance. While he had been fighting
off many health problems, Chauncey was looking to write a book in his
last year to help document the issues he cared about. He leaves his wife
Sally, kids, grandkids and a great grandchild. We will miss him greatly.
A service was held Sept 24, with Frank Wilkinson among those praising
and remembering Chauncey.
LITIGATION
Oy, Padilla Again!
You may remember that in the summer of 2004, the US Supreme Court said
in the Hamdi case that he had the right to habeas, that is, to a hearing
once he was in jail, to make the government prove it had a reason to hold
him. The Court sent the similar Padilla case, back to a lower court on
a technicality. But we hoped that the court would take the Hamdi ruling
seriously in hearing the Padilla case.
Alas. In Padilla v. Hanft, a 3 judge panel in the U.S. Court of Appeals
for the Fourth Circuit on September 9 reversed the District Court decision.
Potential US Supreme Court candidate Judge J. Michael Luttig wrote the
opinion and a whole page of remarkable lawyers helped support the issues
raised in Padilla. The decision is horrible. Read it: http://news.findlaw.com/hdocs/docs/padilla/padhnft90905opn4th.pdf.
The District Court had held that the President lacked the authority to
detain Padilla, a U.S. citizen, and that it was a constitutional violation.
It said that like Hamdi, Padilla should be charged with a crime or released.
The Appeals Court ruled as in Hamdi that the President has the right to
call even a U.S. citizen an enemy combatant and detain them. But it diverges
from there and does not require any further proof (or habeas hearing)
to justify continued detention in these cases, and uses the precedent
of the Ex parte Quirin WWII case to say that no criminal prosecution is
needed.
The allegations against Padilla have kept shifting – he was first
held as a material witness and then accused of planning to release a “dirty”
or irradiated bomb. Now he is alleged to have planned to blow up buildings.
Padilla has had no opportunity in hearing or trial to confront any witnesses
much less rebut any allegations. He is a U.S. citizen arrested on U.S.
soil. If he has no trial and is jailed for the duration of the Presidentially
declared “war on terror”, how can any U.S. citizen be assured
of due process? If Moussaoui and Lindh can face criminal charges, why
not Padilla? The case now will be heard by the full Court of Appeals.
For a fairly full compendium of terrorism case arguments and decisions
online, go to: http://news.findlaw.com/legalnews/us/terrorism/cases/
Guantanamo Detainee Rights
A related case was argued September 8th. The same day of the Hamdi decision
in June 2004, the Supreme Court ruled the Guantanamo detainees must have
hearings on their cases. A 3 judge panel of the US Court of Appeals for
DC heard two conflicting lower court cases that tried to apply the Supreme
Court decision and came to different results. The question to be decided
now is whether federal courts may hear the cases of Guantanamo detainees.
The government says the “combatant status review tribunals”
are good enough. Prisoners say no. After the Appeals Court of the District
decides, expect another appeal to the U.S. Supreme Court – at the
very earliest next summer, but likely later.
At the same time, the military is continuing to tweak the military commissions
it created to deal with war crimes suspects – in the face of domestic
and international criticism of the procedures. The latest change would
separate the “judge” from the “jury” so that the
first would decide on questions of law and the latter would now decide
guilt or innocence. Further, the defendant now “shall” rather
than “may” be present at the proceedings.
Despite criticism, the government is still allowed to use evidence that
was obtained through torture. Eugene Fidell, the guru on these issues,
calls the changes “not really significant.”
Gag Rule on Librarian Lifted and Stayed
September 9th, U.S. District Judge Janet Hall lifted the gag order that
precluded anyone from ever disclosing that the FBI has used a “national
security letter” to seek information about phone, financial or internet
use. The judge complained about the lack of content to the government’s
case, particularly in this circumstance when the government is calling
for everyone to trust that it will implement the use of the letter judiciously.
The anonymous librarian who brought the suit, refused to cooperate with
the FBI and wanted to be able to speak out in criticism of the use of
the letter for library records (not to release the name of the target).
He/she hired the ACLU to help, and Judge Hall ruled in their favor that
this was the librarian’s right. Imagine the court argument, where
the client can’t be named or testify, and all the parties have to
tiptoe around, speaking in code almost. The decision was stayed to allow
the government to appeal.
Detainees in NJ Win Settlement
Some 1600 detainees awaiting deportation who had been held pre-9/11 (1994
and 95) won a settlement from the Esmor Correctional Services in New Jersey
for physical and mental abuse and other inhumane conditions. If anyone
doubted, it’s clear that deportees have long faced abuses.
Tinker v. Des Moines School District
Yes, if this rings a bell, it is not an ongoing case. But the Washington
Post took the opportunity of the new (thank Senator Robert C. Byrd (D-WV))
Constitution Day of September 17 to remind us of this 1969 case. Mary
Beth Tinker helped a DC high school celebrate Constitution Day by speaking
about her experiences. In 1969 she wore a black arm band to high school
in Iowa in protest of the Vietnam War. Iowa was not then a liberal or
anti-war state. Mary Beth took her case to the Supreme Court, which upheld
her First Amendment right to protest the war. Time to remember.
Today: Federal Trial of War Protesters
Skip to the present. A federal trial has just finished, brought against
4 activists in Ithaca, New York, who poured their blood onto parts of
a local Army recruiting center on St. Patrick’s Day, 2003 as a protest
of the imminent war against Iraq. After their act of civil disobedience,
they stayed to pray and refused to be moved. They were first tried in
state court on felony mischief charges. The jury deadlocked, and the feds
took over the case, bringing harsher charges with possibly stiffer sentences.
The jury acquitted the St. Patrick’s Day 4 on the worst charge:
impeding a federal officer, but convicted on charges typical for nonviolent
disobedience charges – trespassing and damaging property.
The group, members of the Catholic Worker movement, with a history of
civil disobedience and dissent, were able to discuss their lives and rationale
at the state trial, which undoubtedly helped the case. The federal judge
also allowed their pacifist explanations, but newly charged them with
contempt for going beyond his instructions at trial.
LEGISLATION or POLICY
First Test of DC Demonstrators’ Rights Law – September
24 Anti-War Rally
It is a widely anticipated event in the civil liberties community: how
will the DC police act at the first big demonstration after passage of
the strong and comprehensive demonstrators’ rights law, spearheaded
by Councilmember Kathy Patterson. The first signs were good: DC Police
Chief Ramsey sent out a letter to the community notifying them of a First
Amendment Event, and providing neutral information about march routes
and closures, not sending out warnings about hooligans and violence. It
was distinctly different than his usual scare tactics.
Then the main march itself was large, raucous and peaceful. It included
a fine collection of masks, costumes, banners and a fair diversity of
marchers. The police were dressed down – no gas masks or plastic
face shields, big sticks, or big guns in plain view, except for a few
officers next to a small group of pro-war demonstrators. In the days following,
Cindy Sheehan and 370 protesters were arrested in a planned event after
police said they gave them 3 warning notices to move away from the front
of the White House.
There was some good advance press talking about the First Amendment Rights
and Police Standards Act before the weekend’s demonstrations. This
led to further public discussion of the proper role of the police in facilitating
demonstrations, and certainly played a role in the new “gentle”
DC police presence.
British Show Lack of First Amendment
Not unexpectedly, in the wake of transit system bombings in London, the
British government has enacted a new policy to deport or keep out people
who “foment, justify or glorify terrorist violence.” It mirrors
our old McCarran-Walter act brought up to date.
Noted in the New York Times, Home Secretary Charles Clark included in
“unacceptable behaviors”: the “use of Web sites, writing,
preaching, publishing or distributing materials that ‘seek to provoke
others to terrorist acts’ or ‘foster hatred.’”
Note here: ‘Seek to provoke’ is very attenuated to any criminal
acts. Also, some of the pro-war demonstrators in DC this weekend shouted
to the anti-war demonstrators – “Why do you hate the U.S.?”
That’s often how dissent is seen.
Clark continued: “Individuals who seek to create fear, distrust
and division in order to stir up terrorist activity will not be tolerated
by the government.” ‘Create fear, distrust and division’
sounds like a big anti-war movement, or a huge labor dispute as described
by the opponent. It reminds me of the criminalization by South Korea of
those who “praise and encourage” North Korea. Lots of speech
can in a general way encourage a rowdy movement without shouting ‘fire’
in a crowded theater.
Secret DOJ Memo Justifying Local Law Enforcement of Immigration
Policy Made Public
In 2002 Attorney General Ashcroft announced a changed policy – that
he was now asking state and local police to enforce federal immigration
laws. A classified Office of Legal Council (OLC) memo was noted to contain
justification for the policy. The result was broad criticism from law
enforcement as well as the immigrant rights community. Some were confused
as previous OLC memos argued against the policy. After DOJ refused to
release the memo, the ACLU and other mostly immigrants’ rights groups
sued under the Freedom of Information Act to make the memo public. Three
years after filing suit, the Feds finally acceded to the courts and released
the memo.
Here we rely on the ACLU release describing the memo: The memo says state
and local police have “inherent authority” to enforce all
federal laws. It misconstrues the support local police have given on federal
criminal law to include enforcing civil law, and neglects to note that
typically local police are given specific permissions to enforce particular
immigration laws.
More Revelations of Torture in Iraq
When will it end? More members of the U.S. military – this time
the Army 82nd Airborne, have come forward in testimony to Human Rights
Watch and others, to admit widespread beatings, human pyramids and other
abuses of Iraqis held at Camp Mercury in Iraq in 2003 and 2004. This was
before and during Abu Ghraib. The beatings were “for amusement”
and because the army “wanted intel” - “as long as no
PUC’s [persons under control] came up dead.” This won’t
help our foreign relations.
INTERNATIONAL LAW
UN Human Rights Committee to Evaluate U.S. Abuses
The 18 member committee, including independent human rights experts has
agreed to look at “implications of the USA Patriot Act on nationals
and non-nationals, as well as problems relating to the legal status and
treatment of persons detained in Afghanistan, Guantanamo, Iraq and”
U.S. controlled detention in other countries. The committee meets in Geneva
October 17 to November 3. As well as information from the U.S. government,
the committee welcomes reports from NGOs.
ACTION: Point this out to your elected representatives –
we live in a world and must be accountable to it and in it.
<><><><><><><><><><><><><><><><><><>
Let me know if you’re interested in hosting, working with a local
committee or otherwise helping with promotion of the Wilkinson book. We’ll
have a couple big events and a larger number of littler ones. I’ll
be in San Jose and Vancouver in early December. A big celebration is planned
for Los Angeles. And remember, we’re looking for people to join
us at the front table, to talk about their, or others’ experiences
in defending dissent, in facing down government abuses of their First
Amendment rights.
You can order your advance copy of First
Amendment Felon right now at your local bookstore or on-line at Amazon.com.
Thanks for all your help!
BACK TO TOP
September 2005
Miriam Rothschild, Vive!
We heard a couple weeks ago Miriam Rothschild might be near death at about
98. In tracking down the information we learned that hopefully the news
is premature. So rather than this being a memorial, we hope it’s
an appreciation Miriam will read.
Miriam has been an NCARL stalwart. She is a nudge. She won’t take
no for an answer. She is persnickety. And I mean those compliments in
the nicest way.
Miriam was for decades the glue that held the Bay Area NCARL folks together
and connected to the national organization. Not as a public persona like
Dick Criley was in Chicago and then Carmel. Not like Frank as the iconic
“Mr. First Amendment.” Rather, she was a behind the scenes
mover. In the most traditional of ways for women, Miriam would send out
notices to sustainers to make sure they kept up on their pledges. In less
traditional ways, she has nurtured and prodded activists.
A story. I was going to the Bay area almost 10 years ago for Miriam’s
(?!) 90th birthday celebration. Lots of NCARL folks and Miriam’s
friends and mentees were to be there.
A little in advance of the event, the local ACLU and I found out the San
Francisco police were being urged to drop their Red Squad suit agreement
in order to join with the FBI in a JTTF – joint terrorism task force.
This would have required dropping a prohibition on police spying of dissent
activity. It promptly hit the papers, front page.
Next was Miriam’s party. Then S.F. Mayor Willie Brown, who had been
nurtured long ago in his early political years by Miriam, was there, to
speak and declare the day Miriam Rothschild day. I spoke first, and urged
the mayor not to negate First Amendment protections by joining the JTTF
– it should instead cooperate with the FBI without reneging on the
agreement.
The mayor then spoke, saying wonderful things about Miriam, and also promising
not to abandon the anti-spying agreement. Miriam was not content with
the fine public words, and wanted to make sure to clinch the deal. As
the mayor left the room after speaking, Miriam rushed after him as quickly
as she could, and you could see her wagging her finger at him, looking
at him over her glasses, and giving him what for about the JTTF. It was
perfect, and perfectly Miriam. Headlines the next day held the Mayor to
his word.
Since 1985 when I met Miriam, she had been trying to retire from her role
as Bay Area nudge. Frank Wilkinson would not hear of it. She kept trying
to quit despite infirmity. Finally about the time of her 80th birthday,
we imperfectly took over the task. But Miriam didn’t quit. She kept
up with people. She kept up with me. If in one of these letters I didn’t
give people something to do, someone to write to, call or advocate, Miriam
would call and complain. In the nicest way.
Miriam wanted no accolades or awards. She got few. She needed none. In
her role with NCARL and in her mixed race and class community, she carefully
advocated and reinforced and counseled. She was and is secure in her beliefs
and her task as guide, cajoler and nudge in defense of the right to dissent.
I miss her regular prodding, but I think her voice is safely inside my
head and probably many of yours too. A good nudge’ll do that. Thank
you Miriam.
First Amendment Felon is Done!
Speaking of advocates, the book about Frank Wilkinson and the fight against
HUAC and FBI abuses is finished. To be called First Amendment Felon, it
was written by Robert Sherrill. It’s at Nation
Books to be published, and we expect it will be in your bookstore
some time in November. So now’s the time to start thinking about
having a local party celebrating its publication – and bring in
Kit Gage and/or local or regional speakers to talk about Frank and these
issues. Let us know if you’re interested. We already anticipate
coming to several cities – Los Angeles, San Francisco, Chicago and
Milwaukee, Atlanta, New York, and probably somewhere in New England, and
of course DC. We hope that’s only the beginning.
Note to sticklers: Frank was convicted of the misdemeanor of refusing
to answer questions of Congress (he claimed his First Amendment right).
We call him a felon in the book title because it works better than ‘misdemeanant’,
and by any measure he was treated in jail like the worst felon.
The Terrorism & the Constitution update by David Cole and Jim Dempsey
will be out this February – so stay tuned for that as well.
Not Again! U.K. Bombings
When news of the subway and bus bombings in London came through, of course
we worried about peoples’ safety. My niece was in London that day.
But it was more. Civil liberties folks also steeled themselves for more
draconian executive and legislative measures, with a rippling effect throughout
the world.
Sure enough. Prime Minister Tony Blair almost immediately announced measures
that were immediately criticized by British rights groups. Some measures
impose speech crimes – criminalizing speech which is devoid of connection
to violent activity. Among the new crimes are prohibitions on language
condoning or glorifying terrorism – this would include websites
and books. As well the government would deport the foreign born who foster
hatred, advocate violence or verbally justify violence to further political
ends.
The U.K. would even deport people to countries where they could reasonably
expect to be tortured (in violation of international agreements). In the
process, the government would expand the deportation pool by revoking
citizenship from naturalized citizens. Of course the measures include
expanded government authority to detain people without charge from 14
days now to 3 months.
Making Speech A Crime – Let’s Just Nix the First
Amendment
Why are governments so quick to criminalize speech and what’s the
problem with that? Of course we expected Mr. Blair to impose tighter restrictions
after the awful London bombings. It is the common wisdom today that a
leader/legislature must immediately change the law in light of any major
attack. They have to act quickly to convince the populace that the government
is doing its job. Oddly though, prohibiting the most offensive and critical
kinds of speech is the easiest and arguably least restrictive way to limit
people. But you can well argue that it’s both the least effective
and most damaging to the populace in the long run. Check out Geoffrey
Stone’s op ed in the New York Times of August 15.
As Stone reminds us, Supreme Court Justice Felix Frankfurter (himself
not always a friend to free speech) in 1951 pointed out “speech
that extols political violence is often ‘coupled’ with sharp
‘criticism of defects in our society.’” Therefore, if
you prohibit the relatively incendiary speech you often shut down any
significant criticism.
Many of us start any story of government abuses of dissenters with the
Palmer Raids of the early 1920s. The government was responding to real,
violent bombings. But the government action was against dissenters and
not perpetrators, and it was abusive in the extreme. It is reminiscent
of Guantanamo to an extent – as we find out more and more of the
detainees are improperly held as enemy combatants. Dissent is almost never
welcome, especially to a government, but it plays a critical role in redressing
grievances and facilitating the peaceful evolution of a thriving democracy.
LEGISLATION
USA Patriot Sunsets Bill in Conference
At the end of July, the Senate followed the House of Representatives in
passing a reauthorization of the USA Patriot Act. Its version –
passed without debate by unanimous consent – is an improvement over
that of the House. Both houses made permanent or renewed most of the provisions
that would have expired this year. For a comparison of the two bills go
to the CDT website: http://www.cdt.org/security/usapatriot/20050726patriotreauthorization.pdf.
The Senate renewed for 4 years Section 215, the so-called Library provision
and FISA (foreign intelligence surveillance act) searches and Section
206 - (nationwide) roving wiretap provision. Senate changes include greater
reporting to Congress, and requiring a judge to approve library and other
records searches, with the government showing that the records were pertinent
to an investigation and related to a suspect. Another Senate change requires
that the government notify the subject of a secret search within seven
days after the search was conducted.
The bill goes to a conference committee for reconciliation of the differences
between House and Senate versions. Senate bill S. 1389 is the preferred
version. Senate conferees are: Senators Sessions (R-AL), Kyl (R-AZ), Roberts
(R-KS), Kennedy (D-MA), Levin (D-MI), DeWine (R-OH), Specter (R-PA), Hatch
(R-UT), Leahy (-VT) and Rockefeller (D-WV).
TO DO: Call one or more of these Senators and urge they
hold to the Senate version. Call your Senators and have them urge the
conferees to do the same. The Senate bill requires the Executive Branch
to be accountable in some specifics for its actions, and in particular
to judges. The 4 year rather than 10 year (House) sunsets are reasonable
given the level of public concerns. Congress’ main switchboard is
202-224-3121 or for individual Senator’s office phone numbers: http://www.senate.gov/general/contact_information/senators_cfm.cfm.
While NCARL doesn’t see these fixes as a solution, it’s the
best we can possibly get out of the current process.
LITIGATION
Police Aren’t the Migra
In a story reported in the Washington Times, police had stopped 8 undocumented
non-citizens for traffic violations, and then charged them with criminal
trespass as they couldn’t prove they were in the U.S. legally. New
Hampshire Judge L. Phillips Runyon III ruled that police in their normal
functioning can’t enforce federal immigration law, calling the creative
use of criminal trespass law “unconstitutional attempts to regulate
in the area of enforcement of immigration violations.”
The ruling goes in the opposite direction of some federal legislators
who want to deputize all police to allow them to detain the undocumented
and facilitate their deportation.
Upholding the Right to March
The American-Arab Anti-Discrimination
Committee (ADC) won the right to demonstrate – overturning a
Dearborn, Michigan ordinance that required a 30 day in advance permit.
The U.S. Court of Appeals for the 6th Circuit overturned the District
Court decision stemming from the January 2003 case. The ACLU of Michigan
represented ADC in court.
It would seem that this clear First Amendment victory sends a particularly
important message to this largely Arab American area. Arab Americans,
South Asians, and Muslims have suffered under a prolonged period of ethnic
and religious targeting. Reaffirming their right to protest is particularly
sweet.
Challenging NY Police Subway Searches
As expected, the NY ACLU has sued the NYC police department over the random
searches of subway riders’ bags as violating the constitutional
rights of due process and prohibition against illegal searches. The searches
began after the July bombings in London, and are roughly random - 1 in
5 to 10 - people rather than being based on any suspicion of wrongdoing.
While the U.S. Supreme Court has upheld limited use of checkpoints, and
people entering stadiums and airports face both consistent and random
screening, regular mass transit searches are new.
Roberts’ Ethical Lapse in Hamdan Case?
NCARL doesn’t get in the middle of judicial nominations, including
for the Supreme Court. So we are raising this issue as a concern and not
as advice to oppose Roberts’ nomination – that’s your
choice.
On April 1, Attorney General Gonzales interviewed Judge John G. Roberts
for the position of a U.S. Supreme Court Justice. Gonzales, aka the Justice
Department, was on the defense side of a very important case being heard
by a panel of the U.S. Court of Appeals on which Roberts sits. Then May
3, Roberts met with more government muckymucks including the Vice President,
Karl Rove, etc.
In the case of Salim Hamdan (Hamdan v. Rumsfeld), Hamdan challenged the
military commissions, and sought instead to be subject to the UCMJ –
military courts. The District Court had upheld Hamdan. On July 15 the
Appeals Court ruled for the government with Mr. Roberts supplying the
deciding vote, and then July 19 Roberts was nominated to the U.S. Supreme
Court. Lawyers representing Mr. Hamdan, a man detained in Guantanamo,
did not hear of the interviews until documents were released recently
as part of the upcoming hearing process.
It looks bad even if no one has any evidence that the interest shown in
Judge Roberts affected his decision. It looks particularly bad as the
Hamdan case goes directly to the limits of Executive power.
If Judge Roberts knew he was being considered for Supreme Court justice,
why did he not recuse himself in the Hamdan case?
Beyond Guantanamo – Abuses
The reports keep coming in of prisoner abuses in Iraq, Pakistan, Afghanistan
and elsewhere by U.S. soldiers, and by U.S. surrogates. In November 2003,
Iraqi Maj. Gen. Abed Hamed Mowhoush was beaten, stuffed into a sleeping
bag and killed in Qaim, Iraq. Two army soldiers face murder charges in
his case. As part of the case, a series of memos are surfacing, urging
stronger and more violent interrogation techniques. At the same time,
following a series of raids, another 350 people were detained and then
serially interrogated by the Army, Special Forces and CIA folks. Finally
the detainees faced Iraqi interrogators or were threatened with homegrown
interrogators. The men now charged with murder claim that their techniques
were approved at the top of the command.
Guantanamo “Trials” Criticized by Prosecution!
We have earlier noted that the military commissions – slated to
be brought against 4 detainees at Guantanamo – were criticized by
JAG defense attorneys as being unfair. But now, in a New York Times article
August 1, we learn that 2 prosecution attorneys for the government complained
internally that the trial setup was unbalanced in favor of the government.
They specifically criticized withholding of evidence from the detainees
that might help their cases.
The prosecutors’ superior disagreed with their allegations, and
a military review also disagreed and upheld the proposed process. Fascinating,
though.
Guantanamo Go Away!
By this time, the U.S. Government would probably prefer that Guantanamo
just sink into the Caribbean. Failing that, the U.S. has expedited the
transformation of Camp Delta. It is shipping out about 70% of the detainees
from Gitmo and Bagram Air Force Base (in Afghanistan) to Afghanistan into
Afghan custody, and to two other countries. 200 have already been released
from Guantanamo.
Amnesty International expressed concerns that the Afghan government might
well treat the incoming prisoners inhumanely – and it is incumbent
upon the U.S. not to deport them until it’s clear they will be safe.
The relatively few people who will remain in Guantanamo will be the “hard
core” people the U.S. plans to hold roughly forever.
The new facility that will be built for these prisoners will have “more
compliance with the Geneva Conventions,” according to Cmdr Anne
Reese in a NYTimes interview. Good plan.
<><><><><><><><><><><><><><><><><><>
Let me know if you’re interested in hosting, working with a local
committee or otherwise helping with promotion of the Wilkinson book. We’ll
have a couple big events and a larger number of littler ones. Distribution
will be through Nation Books so you will be able to get First Amendment
Felon at your local bookstore or on-line. Thanks for all your help!
BACK TO TOP
August 2005
WARS OF WORDS
EXECUTIVE BRANCH POLICIES
No Longer Infinite Global War on Terror- Global Struggle Against
Violent Extremism
Did the Bush Administration listen to me last Friday at Rep. Cynthia McKinney’s
(D-GA) hearing on the Hill on post 9/11 policies? (It was an unofficial
hearing because Dem’s can’t hold hearings). How long have
we been complaining that if the U.S. calls the effort to stop terrorist
attacks an indefinite “War,” then a range of abuses, including
those against due process and the right to dissent will be inevitable.
So now Defense Secretary Rumsfeld has changed the phrase – it’s
about time. It takes some of the pressure off the military to fix everything.
Words. It’s critical that we think about dealing with terrorism
in a broader and more creative context than that of a war. The collateral
damage of serial attacks on countries and the mindset that being at war
brings, may both cause more damage than is necessary in fighting terrorism
and be less effective than more targeted efforts.
Import of Plame Scandal
No one will accuse us of endorsing the writings of Judith Miller, NYTimes
reporter now jailed for not talking to the feds about what she knew regarding
the ‘outing’ of CIA agent Valerie Plame. No one will suggest
we are big supporters of U.S. covert operations. We were, however, concerned
that Plame’s husband Joseph Wilson, on publicizing assessments contrary
to the official view, was punished through the outing of his wife.
It’s a big stink now at least in Washington (waylaid perhaps momentarily
by the Supreme Court nomination). As Alexander Cockburn of the Nation
notes, Democratic Rep. Henry Waxman, and LA Times’ Robert Sheer
call the outing an act of treason. And Cockburn notes these critics should
be careful about the words they use. Mr. Ashcroft called us dissenters
“treasonous” right after 9/11. Obviously whistleblowers often
get smacked as Mr Wilson did, by those in authority unhappy with their
messages.
There is now a move to further criminalize the outing of classified information.
But the role of Miller and other targeted press in this – refusing
to talk to the government and/or exposing classified information or the
identity of an agent- sometimes has been very important historically and
arguably more today in these times of greater government secrecy. The
history of CIA abuses and the attempt to rein them in is replete with
exposure of critical secret activity. The press can be a government dupe,
or it can be heroic, by the same action. Let’s not jump to call
it all treason. Thanks to Cockburn for his point.
Wordsmith Rove
Karl Rove is quite a piece of work. E.J. Dionne, Jr. in the Washington
Post calls his behavior “The New McCarthyism.” Not only is
Rove on the spotlight about the Plame and Wilson business, but seemingly
he can’t help himself from throwing kerosene on any effort at discourse.
Senator Dick Durban (D-IL) spoke accurately about an FBI report on conditions
in Guantanamo. Rove and other conservatives shot back that Durban’s
comments and in general the recommendations of other liberals post 9/11
were to “prepare indictments and offer therapy and understanding
for our attackers.” He added that post 9/11 liberals said “it
was time to submit a petition” presumably to protect terrorists.
He cited MoveOn.org as head of an effort to get a petition out post 9/11.
It wasn’t MoveOn, it was a bigger and broader emergency and one
time alliance, indefenseoffreedom.org (IDOF). 150 groups (including MoveOn)
– look at them still on the website – included lots of conservatives
as well as liberals, who urged the government to act judiciously in response
to the horrible attacks. We know, we were there from the drafting to the
huge press conference.
Rove finally added with contempt that post 9/11, liberals said “we
must understand our enemies.” He is correct – we don’t
apologize and we are right. Ask any general.
Secrecy Reigns
Setting another record, 15.6 million documents were marked classified
in 2004. That’s double the amount in 2001. Conversely, the number
of older documents that were declassified by ISOO, the Information Security
Oversight Office plummeted from 204 million pages in 1997 to 28 million
pages in 2004. Good luck getting anything.
Fortunately, more than information wonks are complaining. Thomas Kean,
chair of the 9/11 Commission, notes these increased barriers inhibit sharing
– a key problem in the effort to stop terrorist activity. Senators
Pat Leahy (D-VT) and John Cornyn (R-TX are working on strengthening measures
to the Freedom of Information Act.
ACT: Let them and your senators know how important these efforts
are. 202-224-3121.
Govt: We Don’t Spy on Peaceful Groups
NCARL folks will know this heading is a joke. But every once in a while,
we want to remind people that it’s still no joke.
The ACLU, Greenpeace and other groups filed a Freedom of Information suit
(see above for difficulty) to see if the government was spying on them.
It’s starting to yield documents. The current number of pages collected
on the ACLU is 1170, and Greenpeace, 2380, give or take. ACLU Director
Anthony Romero, hopefully feigning surprise, says “I’m still
somewhat shocked by the size of the file on us…What justification
could there be, other than political surveillance of lawful First Amendment
activity.” Well stay tuned.
Or Potential Soldiers
The NYTimes reports the Defense Dept and BeNOW,a private contractor helping
it, are accruing a massive database on 30 million 16-25 year olds. The
data include name, Social Security #, grade point, e-mail and other personal
and contact info. Why? To weed out ineligible recruits, reportedly.
This has reportedly been going on for 3 years, tho the government just
now got around to filing the notice required under the Privacy Act. Remember
all those forms you get from your bank, sign at your doctor’s? Guess
the government thinks it gets a pass. Marc Rotenberg of the Electronic
Privacy Information Center is concerned that the database may be “end-running
the [Privacy] act by putting it into private hands and subverting the
act by creating a public database without public notice.
The Military Doesn’t Spy on Americans
With the revelations of COINTELPRO in the mid 1970s came a furor over
military spying on Americans. Now the San Jose Mercury News reports the
California National Guard has set up an intelligence unit to “monitor,
analyze and distribute information on potential terrorist threats…”
With no good acronym, it is called the Information Synchronization, Knowledge
Management and Intelligence Fusion program – and intended to facilitate
shared information across all boundaries in the fight against terrorism.
A recent target? “Tracking at least one recent Mother’s Day
anti-war rally organized by families of slain American soldiers…”
Not a good start.
We Don’t Tell People How to Vote!
Oh, well maybe we do. The U.S. government has a history of paying consultants
or other “helpers” to help affect the results of other countries’
elections. But Iraq? Is it not enough that we’re fighting a war
there?
Sy Hersh reported in the New Yorker that the Bush administration went
ahead with a secret effort to influence January Iraqi elections despite
Congressional opposition. The National Security Council issued a denial
that “we” helped individuals, leaving open the possibility
that “we” helped favored parties – or are lying about
it all together.
Guantanamo Detainees
Lots of news concerning detainees this month. We’ll just summarize
it:
• Hamdan v. Rumsfeld – In this case challenging the use of
military commissions in Guantanamo against “enemy combatants”,
US Dist. Judge Robertson agreed in 11/04 that Hamdan had prisoner of war
status and couldn’t be tried by the commissions. July 15, a 3 judge
panel including Supreme Court nominee John Roberts, disagreed. So the
military commissions now proceed. Hamdan may appeal.
• The decision further argued that the Geneva Conventions cannot
be enforced in U.S. courts. Just opposite the intent of international
laws.
• Four people, of 520 still being held in Guantanamo, will get the
half-baked trials of the commissions (see previous issues) – Hamdan
of Yemen, David Hicks of Australia and two others. 12 more also are in
line for the commissions.
• Maj. Gen. Geoffrey Miller was in charge of Guantanamo 2002-03.
Though Miller was recommended for a reprimand, his superior decided against
any punishment of him.
• Techniques used at Abu Ghraib, approved by Defense Sec. Rumsfeld,
were first used at Guantanamo Bay in late 2002. This was partly at the
behest of Maj. Gen Miller (above). This, from court testimony, reinforces
the evidence that the abuses at Abu Ghraib were not just a few rogue soldiers
violating orders.
LEGISLATION
USA Patriot Act (USAP) Sunsets
House and Senate are quickly heading toward resolution of the 16 sunset
provisions of the USAP Act. July 21 the House voted 257-171 to endorse
the sunset solution provided by H.R. 3199. It would make 14 of the 16
pieces permanent, with some amendments. As with the original bill, there
was much dissention, even if much of that didn’t appear on the floor.
House Rules committee vetoed consideration of almost half the proposed
amendments, including the bill that had passed in June as a stand-alone
– Rep. Bernie Sanders’ “Freedom to Read” bill.
The Senate Judiciary Committee, in considering S. 1389 (the intelligence
reauthorization bill), didn’t incorporate the much criticized “administrative
subpoenas” provision that the Intelligence Committee previously
approved. Next to full Senate for a vote – not till after August
recess.
This time around, the USAP bill has been given more attention. The votes
haven’t been so lopsided. Even though several of the sunset provisions
that passed the House are problematic, there is still time for some fixes
in the Senate. In the House version that passed, there are some improvements
in language. These include reporting and other requirements, and new sunsets
on a couple measures.
Clearly the work of activists around the country and BORDC, the American
Library Assn, the ACLU and other groups have made a difference. ACT:
Check the BORDC.org website for more
details, give your Representative feedback either way about their vote,
and contact your Senators now to oppose extending the most problematic
provisions, and as well, administrative subpoenas.
Legislating Interrogation Policies?
Three JAG Army lawyers told a Senate hearing that they objected to the
Pentagon’s proposal for interrogation at Guantanamo in the Spring
of 2003. They indicated the too harsh methods would cause a public ruckus
– and a few of their concerns were addressed. They had joined the
State Department legal adviser and other internal critics, whose concerns
were insufficiently addressed.
Senators John McCain (R-AZ), Lindsay Graham (R-SC) and others are pushing
legislation to reinforce international law standards regarding prisoner
treatment. The Bush Administration is not happy.
LITIGATION
Padilla
Finally, as the Supreme Court ruled, U.S. citizen Jose Padilla is having
his day in court, to determine whether he is appropriately in jail. Detained
in 2002 as a material witness, then called an enemy combatant without
charge or access to a lawyer, he now has lawyers and access to the courts.
Material Witness
Human Rights Watch and the ACLU looked at 70 people the U.S. jailed as
material witnesses post 9/11. It found ¼ of them were jailed without
charge, and only 7 eventually faced some variety of support for terrorism
charges. All but one were Muslim men, and ¼ were U.S. citizens.
LA 8
Like a repeating nightmare, the LA 8 deportation case is having another
hearing, now back into immigration court. This one started July 13. Of
the 8, Michel Shehadeh and Khader Hamide are still being prosecuted for
what the government long has agreed was First Amendment activity, dating
from 1987. Yes 1987. They are both lawful permanent residents, now for
a really long time.
This case started as an anti-communism case and then transmogrified into
an anti-terrorism case, despite the lack of any terrorist activity. Now
it is a Patriot act prosecution – material support for terrorism.
The crime: distribution of a magazine.
Rafts of legal folks and activists have worked on the case, and David
Cole and Marc Van Der Hout are still doing legal defense. To stay up to
date on the case, donate to the legal defense, etc.: www.committee4justice.com,
or International Humanity Ctr, PO Box 923, Malibu,CA 90265.
Lynne Stewart New Pamphlet
The National Lawyers Guild has just published an informative and clear
and detailed pamphlet describing the government’s prosecution of
attorney Lynne Stewart for helping her client Sheik Rahman improperly,
and its implications beyond the case. It’s available for $5 from
www.lynnestewart.org .
Sami Al Arian
The government’s trial against Sami Al Arian has passed its 7th
week, reportedly with no direct evidence of Al Arian having anything to
do with terrorist acts or inciting such acts. For more information from
the Al Arian perspective, go to www.freesamialarian.com.
Demonstrators’ trials
* July 7, the New York Court of Appeals ruled 7-0 that in general, records
of peoples’ previous brushes with the courts or police (not convictions)
should remain sealed and not considered in current actions. The case came
in the sentencing portion against 4 people convicted of blocking traffic
in New York City during a 2003 demonstration. Saying the record would
show “old, unproven accusations” Steven Edwards, one of the
attorneys, declared victory.
* June Brashares was found innocent of all charges in a jury trial. She
had unfurled a banner criticizing Mr. Bush during his acceptance speech
at the Republican Convention in New York.
* Three activists were kept out of a publicly financed Bush Social Security
event in Denver by someone purporting to be a Secret Service agent. They
are seeking to find out who the person worked for. Oddly, the Secret Service
apologized for the action, but said the man was not their employee.
Now the Denver Three, Alex Young, Leslie Weise and Karen Bauer are trying
to find who saw their “No More Blood For Oil” bumper sticker,
and then told them to leave the event. Two representatives from Colorado
and the Secret Service are now pursuing what could be a criminal case.
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This was an intense collection of issues this month. But there it is.
Thanks for getting involved however you can, and for continuing to keep
NCARL alive and kicking.
BACK TO TOP
July 2005
LEGISLATION
DC Demonstration Rights Law
Last month we described the wonderful new law in the District of Columbia
which puts the onus on the District to let demonstrators protest, and
only stop people when there’s good information that the specific
people are directly connected to criminal activity. We urged that you
all look at the language and consider introducing similar legislation
in your jurisdiction.
Unfortunately, we gave you a route in the DC website that now doesn’t
get you to the language. The name of the law is the “First Amendment
Rights and Police Standards Act of 2004, 15-968.” We try: http://www.dccouncil.washington.dc.us
Click on Legislation, then on Text of Bill or Resolution. Then type in
B15-0968, and you can choose the bill or the act. It’s now working
for me. If you have trouble retrieving it, let me know.
I’d also like to know if you’re considering taking this bill
up in your community. We can provide ideas of experts in your vicinity
if you need witnesses.
One Place to Start: Ft. Lauderdale
During the June 4-5 OAS meeting, Ft. Lauderdale and other police violated
agreements with demonstrators made before the event, and cordoned demonstrators,
and otherwise impeded their protests.
After Secret Debate, Senate Intel Comt Votes Patriot Act Expansion
First, the Senate Intelligence Committee held an open hearing to expand
the Patriot Act and then a closed door session to discuss - well we don’t
know what they discussed. But then on June 7th the committee voted to
make permanent about half of the Patriot Act measures that would otherwise
end this year. As well, they approved an expansion of FBI authority to
collect information - which would allow it, without a judge’s approval,
to obtain a whole variety of information about people and companies if
they have some connection to terrorism. This mechanism is called an administrative
subpoena. Another provision would allow so-called FISA wiretaps and searches
(with a lower than usual level of suspicion) of foreign-based terrorist
suspects when the government is planning to bring criminal charges. Back
in the day there was something called ‘probable cause,’ really
a hard and fast standard, which limited fishing expeditions by the feds
and other law enforcement in criminal investigations. This change would
smash the probable cause standard. These aggressive moves come after significant
public criticism of the Patriot act and Executive Branch activities, and
so further polarize the debate on either side.
The Senate Judiciary Committee still has to weigh in on this and other
Patriot Act related measures before the resultant bill goes before the
full House.
ACTION: You should weigh in yourselves – call your Senators,
especially if they’re in the Judiciary Committee, and tell them
not to extend the existing Patriot Act provisions, and certainly not expand
them as the Senate Intell Committee has done. And complain about the use
of closed hearings regarding critical legislative matters!
Patriot Act No Vote in the House – A Chink in the Armor
In contrast, the full House of Representatives voted on June 15 to repeal
section 215 of the Patriot Act – the so called library provision,
by a resounding 238-187. Rep. Bernie Sanders (I-VT) got the vote on his
Freedom to Read bill, as an amendment to the Commerce, Justice, State
Departments authorization bill. The bill had an extraordinary 120 co-sponsors
and received significant bi-partisan support.
The American Library Association just published a study which, contrary
to Atty General Gonzales, says its librarians report at least 200 inquiries
by law enforcement about library use.
ACTION: Thank your Representatives if they voted for
the amendment, and ask them to monitor it from being cut later on by the
Republican leadership.
NATIONAL WEEK OF ACTION July 2-8
The Bill of Rights Defense Committee movement is calling for major activism
July 2-8 to demand that our government respect our constitution as it
considers changes to the USA Patriot Act. Check the website: www.bordc.org/involved/weekofaction.php
to find out what’s going on in your area!
EXECUTIVE BRANCH
Deep Throat Revealed, Sort of
Mark Felt was Deep Throat. Then second in command at the FBI, Felt was
both the intellectual stand in for Hoover after he died, and the guy who
validated to the Washington Post the outing and subsequent destruction
of the Nixon administration.
That complicated equation is only reasonable for those remarkable times.
We won’t recap the 500,000 words written about this in the last
month. But our own particular perspective lends credence to the theory
that Felt thought the Nixon administration was trying to take control
of the FBI more effectively than any other since the FBI began. To stop
that, Felt decided to facilitate its demise. Perhaps it’s more appropriate
to recognize that Deep Throat was not just some altruistic, good government
guy.
It is ironic that the downfall also helped bring down COINTELPRO and the
imperial FBI. The American people were motivated to demand accountability.
The Church and Pike Committee hearings – which demanded and got
truckloads of files from the FBI and CIA – and didn’t take
no for an answer, bloomed after Nixon fell. Government opened up as never
before through passage and enforcement of the Freedom of Information Act.
Watergate didn’t make this happen, but public pressure and activism,
which arguably began as the House UnAmerican Activities Committee was
falling apart, accelerated and deepened the process.
It certainly must be reiterated that Mark Felt was convicted in 1980 of
illegally authorizing the wiretapping and burglary of homes of people
in even remote connection with radical Weather Underground activities
(and later pardoned by Reagan). He, with agent Ed Miller, was the highest
ranking agent to face criminal charges. Even after Hoover died, the FBI
was subverting criminal prosecutions (and the constitution) by spying
on activists without getting a search warrant from a judge. A very fallible
hero.
Whitewash Guantanamo
At least some of the debate about Guantanamo is in the open. That’s
an improvement in accountability. High level folks are debating whether
to close, reform or keep ‘Gitmo’ open.
But it galls to see Mr. Cheney say that prisoners at Gitmo were/are treated
better than “by virtually any other government.” People were
chained for 24 hours with no food water or toilet, threatened with dogs,
humiliated and degraded. This is in explicit violation of the Geneva Conventions
and the UN Convention against Torture. We signed those documents and now
say we can ignore them.
There is a darker side to this bickering. A very few advocates of “stronger
measures” still say that people will give up real, useful information
if tortured. But that is belied by much experience, and many more experts.
More the problem is that torture is designed to humiliate and degrade
a whole populace – those in the same cohort as those tortured. And
in that it is effective. But you don’t hear Mr. Cheney say that’s
a good thing. But it’s the real poisonous reason to keep on doing
it.
And that’s why we must demand that Guantanamo, and renditions stop.
Call your support to Senators Biden, Durbin and others. Call your support
to Amnesty International for its strong condemnation of conditions at
Guantanamo.
The House has just created an Intelligence oversight subcommittee. Rep.
Jane Harman (D-CA) describes its tasks as oversight of abuses at Guantanamo
and elsewhere controlled by intelligence folks. Let’s try to make
that really happen. They could start by critiquing an expected promotion
of General Sanchez, who had oversight of Abu Ghraib. What is Mr. Rumsfeld
thinking?
Are You on the List?
I have an old T shirt that asks ‘Are you on Senator Denton’s
list?” It was a list of so- called dangerous people Denton was collecting
in the 70s. At that point in history, it was a joke. It wasn’t a
joke in the HUAC heyday. It isn’t today.
There is a new central database “one stop shop” combining
a dozen government terror watch lists. As with all lists, it misses people
who are dangerous, and if your name is the same as that other evil John
Smith, you’re in trouble. And if you’re on there in error,
good luck trying to fly on an airplane, or get your name off the list.
Justice Department Inspector General Glenn Fine has reviewed the list
and came up with those criticisms. He praises the progress in combining
all the relevant databases, but asks for better procedures to fix the
gaps, improve the information and make it easier for people to get false
positives off the list.
CASES
US Fails to Convict People of Terrorism
Mr. Bush claims to have brought charges against 400 terrorism suspects,
convicting half. David Cole claimed a few months ago that juries have
convicted no one of terrorist acts. Who’s right?
A June 12 Washington Post study gives a detailed answer. Using Justice
Department figures, it says 330 suspects were charged with any crime resulting
from terrorism investigations. 180 of them were found to have no connection
to terrorism. 142 were claimed to have a terrorism connection (only a
few to Al Queda or the Taliban). Of these, only 39 were convicted or terrorism
or national security crimes.
And these numbers include what Juliette Kayyem, now a terrorism expert
at Harvard, says are “mission creep: Cases that would not be terrorism
cases before Sept 11 are swept into the terrorism docket.” A considerable
number were caught “looking Muslim or Arab” and then found
to be engaged in some small crime, and usually deported.
Some, like the highly touted Abdurahman Alamoudi case, confirm that he
had nothing to do with terrorism in or against the U.S.
John Walker Lindh
Frank Lindh, John’s father, writes a fascinating piece in the Washington
Lawyer of May 2005. He describes Lindh’s treatment and interrogation
– clear violations of the Geneva Conventions. Yet his conviction
is one of the “high” points of U.S. terrorism convictions.
Denied a lawyer, not treated for an infected gunshot wound, suffering
frostbite, hypothermia, dehydration, and yet Lindh was repeatedly interrogated.
Lindh is and was known to be a U.S. citizen.
Sami Al Arian Trial Begins
The public circus continues in Tampa with the start of the trial of Sami
Al Arian. During the last political campaign, his name was a football,
kicked threateningly between U.S. Senate candidates. Despite research
showing that Tampa citizens almost all know of Mr. Al Arian, and a majority
believe he’s guilty before trial, Judge James Moody refused defense
requests to move the trial elsewhere.
20,000 hours of phone tapes, and mountains of files, are among the evidence
that will be argued over by William Moffitt for Al Arian, and others,
for co-defendants Sameeh Taha Hammoudeh, Ghassan Zayed Ballut and Hatem
Najo Fariz. They are accused of working with the Palestinian Islamic Jihad
(PIJ), and Al Arian, of being a leader. The trial is expected to take
6 months. Information on how the trial is progressing from the defense
perspective can be found by going to the website: www.freesamialarian.com.
Among other major issues posed by the trial is the use of FISA evidence
first collected in the intelligence case and now being used in the criminal
case. To wiretap and search Al Arian’s home and office, the government
had only to say he was connected to the PIJ, not that they had evidence
of a crime. Now this case is being used by the government to tout the
effectiveness of this transition. Another example of the loss of the probable
cause standard.
.
Jose Padilla Trial to Begin July 19
After the Supreme Court turned down his petition to go straight to it,
Mr. Padilla and his lawyers will instead face the 4th Circuit Court of
Appeals in Richmond. The court last summer ruled that his case had been
heard in the wrong circuit. The 4th circuit will hear his argument that
U.S. citizens cannot be denied their legal rights to a lawyer and to be
charged with a crime rather than be called enemy combatants and held indefinitely.
FBI Helped Stop Klan Killing – NOT!
As Klan activist Edgar Ray Killen just was convicted of manslaughter in
the 1964 killing of James Chaney, Michael Schwerner and Andrew Goodman,
young folks may remember the movie Mississippi Burning. But let us recall
that in real life, the FBI refused to intercede to help stop the murders,
and in other cases, facilitated them. Justice delayed but not denied,
and truth demanded.
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We should take heart at the House vote on the Patriot Act and push the
advantage. A recent dust-up in the Nation between David Cole, Anthony
Romero and Kate Martin focuses attention on how we do coalition work.
We have to do this work right!
We love you activists – our national network – old and young,
and stalwart defenders of the right to dissent. You have a historical
perspective on these issues and can take the long view. It’s essential
today in this marathon race to take back our rights.
Thanks for keepin’ on and for supporting us. We recently received
a welcome bequest from the estate of Robert Blum. We are deeply grateful.
Let us know if this is something you would like to consider. All donations
of all sizes are welcome and helpful.
We print name and address below in case there are folks you’d like
to receive the letter (for free) or if you’d like to get it electronically,
or have an address change.
Thanks as always.
BACK TO TOP
June 2005
Using the Courts to Obtain Recourse
LITIGATION:
Obtaining Surveillance and Infiltration Documents
The ACLU, ADC (American-Arab Anti Discrimination Committee), Greenpeace,
PETA (People for the Ethical Treatment of Animals), United for Peace and
Justice, the Muslim Public Affairs Council and Code Pink have brought
suit under the Freedom of Information Act to obtain a raft of government
documents from the FBI and Joint Terrorism Task Forces (JTTFs) relating
to their surveillance, infiltration and monitoring of political activities.
JTTFs have been set up all over the country to facilitate FBI/federal
level and local police communication, cooperation, and collaboration.
The requested documents include all those related to the creation and
implementation of the JTTFs, their relationships nationally, between states
and localities, their funding, policies, procedures and practices. In
particular, the suit also seeks to know how these task forces decide to
investigate people and groups, especially with regard to their beliefs,
protests, ethnicity, national origin and race.
The government has not responded at all to the initial December 2004 request,
and so the ACLU is challenging the court to require the government’s
compliance with this core legal right to information regarding constitutionally
protected activity. More at the ACLU website: www.aclu.org.
Red Squad Suit Enforcement: Chicago
A similar kind of lawsuit has been brought by the American Friends Service
Committee (AFSC) and ACLU of Illinois to get the Chicago police to release
files regarding infiltration of the AFSC, which was planning demonstrations
at a November 2002 business conference. The AFSC and ACLU want the documents
to see how the government justified the infiltration, and whether it was
fulfilling reporting requirements of a decades-old agreement – in
one of a dozen or so Red Squad suits across the country.
These suits, which our sister organization, the Chicago Committee to Defend
the Bill of Rights, helped bring and broker, mostly limited city police
at big cities around the country from violating the First Amendment as
part of their COINTELPRO -related efforts to spy on and seek to neutralize
political activists. In 2001, Chicago succeeded in greatly watering down
the original requirements of the settlement. The currently required (and
not very comprehensive) annual audit released February 2004 nonetheless
made public this police spying – and criticized it as unjustified.
Unlike in most cities, Chicago secretly changed its requirement that there
be some evidence of a crime before an investigation can be initiated.
Even the Department of Justice, which watered down its domestic crime
guidelines in 2001, requires such a connection before formal investigations
can be brought.
The AFSC is claiming that it was damaged because the City publicly identified
it as a target of investigation, and further that the city destroyed documents
pertaining to the investigation before they could be independently audited.
More information on this suit at the ACLU: www.aclu.org.
Proactive Right to Demonstrate Lawsuit
A different kind of suit is that which asks the courts to prohibit local
governments from engaging in future behavior that would limit First Amendment
activity. One such suit just brought by the National Lawyers Guild (NLG),
Southern Law Center and ACLU of Florida on behalf of Broward County civic
groups, would help protesters demonstrating at the June 2005 Organization
of American States meetings in Fort Lauderdale, Florida.
The suit challenges perimeter barriers limiting demonstrations anywhere
near the meetings, a new ordinance which would prohibit carrying certain
objects in public, except by those from “bona fide religious sects,”
and other antiquated laws limiting public and First Amendment use of public
spaces. Among the groups challenging these laws and procedures are the
Florida Alliance for Retired Americans, Broward Anti-War Coalition, several
Green parties, Haiti Solidarity, etc. For more information on the suit,
go to the NLG website at www.nlg.org.
Defense Sec. Rumsfeld Sued For Renditions and Torture
Another type of suit is being brought by Human Rights First (HRF) –
to hold an individual accountable for a class of illegal behavior engaged
in by the government. In this case, HRF is seeking to hold Defense Secretary
Donald Rumsfeld responsible for his acts in authorizing and/or ordering
abusive and inhumane treatment of detainees at regular intervals beginning
after the Afghan invasion and continuing. The May 2005 Rights Reporter
of HRF puts forward an excellent summary of the suit, its legal basis,
and the timeline of Rumsfeld’s approval of actions in Afghanistan,
Iraq and Guantanamo. In the Report, retired Brigadier General James Cullen,
JAGC, who has joined the HRF suit, of counsel, argues persuasively of
the devastating impact on the armed services of Rumsfeld’s “shortsighted
and arrogant leadership” in particular for our prisoners of war
and civilians in war zones.
See more on the suit and details cited above at www.humanrightsfirst.org.
And stay tuned as to how high up responsibility can reach for egregious
government behavior in time of war. One of the most interesting things
to watch in this effort is the breadth of allies in the effort to hold
the government accountable for its behaviors.
Pepper Spray Eight Win –
April 28th, a federal jury found California’s Humboldt County and
city of Eureka guilty of a 4th Amendment violation for use of excessive
force. This 1997 case had been courageously fought – through this
third trial and many appeals including to the Supreme Court. While the
victims won no damages, it is expected their attorneys will get a major
fees award (NLG lawyer Dennis Cunningham claims $2 million in costs),
given the complexity and duration of the case. The demonstrators hailed
the guilty verdict as a success because of its resounding condemnation
of this use of pepper spray. They are now expected to ask the judge in
the case for an injunction on future use of pepper spray on demonstrators
in Humboldt County.
The case was originally brought when city and county police had directly
applied pepper spray on Q tips and with direct spray to the eyes of non-violent
arms-locked protesters at a demonstration against tree-cutting.
Sami Al Arian – Jury Selection
A 500 person jury pool was collected and questionnaires handed out as
the trial of Sami Al Arian is set to begin. Many of the potential jurors
showed remarkable bias against Al Arian. Then a jury of 12 and 10 alternates
was chosen. Defense attorneys repeatedly have sought to move the trial
away from Tampa, where publicity of the case has been pervasive. Judge
James Moody is still considering the petition to move the trial. If he
denies it, the trial will begin June 6.
Throughout the state, Al Arian’s purported heinousness was continual
grist for the last Senate race, with each candidate calling Al Arian names.
An unprecedented 95% of people polled in Tampa before the trial has even
begun, have heard of Al Arian, and 60% think he’s definitely or
probably guilty.
Secret Evidence Case Goes Away
UPDATE: Two 16 year old Muslim girls from Harlem, accused
suicide bombers, have been released from jail, and one deported with her
family. After using a closed hearing and secret FBI files, never mind,
says the government. We say, open the process and avoid the embarrassment.
Luis Posada Carriles
It’s a miracle. Mr. Posada, who is strongly implicated by CIA documents,
and CIA and FBI counterterrorism agents, of assassination plots and a
civilian airliner bombing, and sought for extradition by Venezuela, has
been detained by the U.S. after loudly announcing his presence here.
Long a compatriot of and collaborator with anti-Castro Cubans, Posada’s
detention for illegal entry into the U.S. could help bring up long tamped
down questions as the U.S. decides what to do with him. These questions
include the nature of the relationship between U.S. intelligence agencies
and anti-Castro Cubans: Did the U.S. know in advance that the airliner
would be destroyed or cooperate in the plan? If not, did it turn a blind
eye to such plans, knowing they were likely? For more information and
some of the government files on this, go to the National Security archive
site: www.nsarchive.org.
Ahmed Omar Ali Lawyers Allege Torture
UPDATE: This young U.S. man was jailed in Saudi Arabia
allegedly with FBI supervision, before being returned to the U.S. Now
his lawyers have filed papers indicating that doctors have documented
his torture at Saudi hands. More to come as the case develops.
Detroit Federal Prosecutor Quits – in Detroit Terrorism
Case Dismissal Fallout
FINALE? In what may be the final act, Richard Convertino
has quit the DOJ as the fall guy for a failed high visibility terrorism
prosecution of 3 Moroccan men.
LEGISLATION:
Real ID Passes
May 11, Mr. Bush signed the Real ID bill into law as part of the huge
Emergency Supplemental Appropriations Act for Defense, the Global War
on Terror, and Tsunami Relief, 2005, H.R. 1268. Try to stop a bill with
that title! The Rights Working Group website: www.rightsworkinggroup.org,
and Natl Immigration Forum: www.nationalimmigrationforum.org,
with others, have details on the content. Immigrant advocates put a major
effort into blocking provisions of the bill, and largely failed. Among
the new provisions are tighter I.D. requirements for drivers’ licenses,
greater difficulty in proving an asylum claim, easier deportation procedures,
and waiving of environmental and other laws at the border to stop migration.
Slippery Slope - Immigrants Losing Rights
Among the amendments to other bills coming quickly down the
pipeline in the House – in a “gang bill”, people in
violation of some immigration laws will have their names put into the
nationally accessible NCIC database. The CLEAR act has been chopped into
pieces and parts of it put in fast moving bills. In the Homeland Security
Dept authorization bill, H.R. 1817, are two bad amendments that passed
the House– the Norwood amendment, passed 242-185, cites the “inherent
authority” of police to enforce immigration laws. While there may
be some training and limited funding provided for this authority, it is
a major step to begin to authorize local police to enforce immigration
laws whenever and wherever they are. Abused women and children, victims
of crime and those reporting crime are most likely first to be affected
– but this provision could end up affecting many more of us than
out of status immigrants. And it’s the most slippery slope.
In one small but perhaps important win, language was inserted and passed
that would prohibit “cruel, inhuman and degrading treatment”
of detainees while in U.S. custody. International covenants which the
U.S. Congress ratifies have the power of U.S. law (though some legislators
rankle at this). Putting the same language into this bill will simply
reinforce the message.
TO DO: Contact your Senators to block the anti-immigrant
provisions.
Secret Patriot Act Revisions
The Senate Intelligence Committee decided to hold a secret markup, of
a secret revision, of the USA Patriot Act on May 26. You will remember
that small parts of the original law would expire at the end of this year.
While civil liberties advocates (Right and Left) are using this time to
help other provisions expire at the same time, the Senate Leadership is
piling on more.
Of course some have a copy of the secret revision, and the New York Times
and Washington Post report that one change would allow the FBI much expanded
authority to do mail covers (record what’s on the outside of envelopes)
without going thru the Postal Commissioner as a check on its authority.
In a second change, the government would have greater authority –
through non judge approved administrative subpoenas - to obtain the wide
range of business records of anyone who has a connection to a foreign
intelligence investigation. Third, it would be easier for prosecutors
to take the material gained from FISA Court approved warrants for secret
wiretaps and searches in foreign intelligence cases and then to use it
in criminal cases.
People often think that these records searches are only of people who
have a direct connection to terrorist activity. However, foreign intelligence
investigations need not involve any criminal or violent activity, and
may only pertain to a foreign national, or a person who has a connection
to any foreign-based organization. Hardly terrorism.
But then the information gleaned in such records searches will now be
more easily flipped in ways that will result in destroyed lives and reputations
– cases that would never have come to light except for this enhanced
capacity to snoop.
Next the Senate Judiciary Committee will take up these Patriot Act proposals.
TO DO: Contact your Senators, especially those in the
Judiciary Committee. Ask them to consider these proposals in the open
for all to see, and seek a full and fair set of hearings so that constitutionally
suspect proposals don’t become law.
OVERSIGHT:
Commission on Intelligence Capacities of the U.S. Regarding Weapons
of Mass Destruction
This 14 month long, $10 million dollar, 600 plus page report noted there
was no threat that justified going to war in Iraq. Ok. We knew that. The
question the report didn’t answer is how we got snookered into going
to war. Perhaps it’s also appropriate that the report got swallowed
by other news, including the death of Terry Schiavo.
In an excellent article in the Nation, April 25, titled “Case Closed”
by Eric Alterman, www.thenation.com, he asks why the press didn’t
fight harder to get the sources and “evidence” relied on by
the Executive Branch. Alterman notes a particularly hard-hitting report
by Gilbert Cranberg in the Des Moines Register on press reaction swallowing
all the allegations of then Secretary Powell’s now famous speech
at the UN.
Why is this an issue for us – defending the right of dissent? When
the press won’t do the job of unearthing and double-checking what
the government says, it leaves the general populace in a quandary. Our
ability to marshall the facts to our side is limited and marginalized
by the lack of coverage of these issues in the mainstream media.
.
More Koran Abuses – DOJ and ICRC
Glenn Fine, Inspector General (IG) at the Department of Justice, has reported
several kinds of |
