Dissent Is Patriotic
The Bill of Rights Defense Committee's e-mail newsletter
August 2006, Vol. 5, No. 5
In this issue:
- Features: Warrantless Wiretapping and the Alleged London Plot; NSA Telecom Lawsuits; President Bush and the Hamdan Ruling; Restoration of Army Field Manual
- Take Action!: Planning In-District Meetings; Constitution Day/5th Anniversary of September 11; Two August Workshops on Working with Allies in Targeted Communities; Warrantless Wiretapping Button Contest; How Much Time Do You Have for the Bill of Rights?
- New Resources: BORDC Releases Voter Information Guide for 2006; Book Review: "How Would a Patriot Act?"; BORDC Diagrams When FISA Warrants are Needed for Wiretapping
- Grassroots News:
- West Region: Pitkin County, CO – 400th Local Resolution!; Guantánamo Readings in Long Beach, CA; Oregon Group Seeks to Strengthen Bill of Rights Resolution
- East Region: Columbia, SC, Plans October Programs; Mercer County (NJ) Coalition Meets with Senators by Phone; Rochester Coalition Assists Brighton
Please support our efforts to defend the Bill of Rights!
To contribute funds or stock online, go to http://www.bordc.org/donate.php,
or mail a check or money order to:
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Northampton, MA 01060
Warrantless Wiretapping and the Alleged London Plot
"If you like the Patriot Act, you'll love the Specter bill," says Joe Onek, Senior Policy Analyst at the Open Society Institute and Open Society Policy Center. "The USA PATRIOT Act amended the Foreign Intelligence Surveillance Act (FISA) to make it easy for the government to get a court order to read your library and medical records. The Specter bill amends FISA to permit the government to listen to your phone calls and read your e-mail without any court order."
The parallels between the Specter bill (S. 2453) and the PATRIOT Act grew stronger last week, as news of an alleged plot to place bombs on airplanes in London rekindled fears of terrorist attacks in the U.S. Homeland Security Chief Michael Chertoff lost no time in suggesting that the U.S. might benefit from the British authorities' apparently lower standards for surveillance and for holding suspects without charges. Be prepared for the Bush Administration to exploit the alleged plot, and any other plots or arrests between now and election day, to expand its power and influence. The Specter bill, which would solve President Bush's warrantless surveillance problem by making the prevailing law (FISA) optional, is only one example. Senator Specter says he has enough votes on the Senate Judiciary Committee to pass the bill there, opening the door to a full Senate vote in September, unless enough people say No.
Fear has been used to justify many changes that have diminished civil liberties and to prevent meaningful changes to restore them. For example, in October 2001, the Bush Administration used post-9/11 fear of further attacks to rush the PATRIOT Act through Congress, largely unread. In July 2005, House Republican leadership used the London subway bombings to push through the House version of the PATRIOT Act reauthorization bill (HR 3199) and to reject several amendments that would have strengthened civil liberties protections.
But fear is not an effective strategy against an informed public that holds its elected representatives accountable. Readers of our action alerts have already sent nearly 3,000 faxes to their Senators about Senator Specter's bill. And the passage of 400 local resolutions and eight state resolutions upholding the Constitution and Bill of Rights resonates in the halls of Congress.
This election year offers fresh opportunities for us to demonstrate to candidates for office, including incumbents, that we are serious about protecting our civil liberties from attempts such as the Specter bill to take them away. We are equally committed to restoring the Bill of Rights to full power. It is also a critical time for us to educate our neighbors and to bring the debate over civil liberties to new communities.
This newsletter describes new election tools, information resources, action suggestions, and our upcoming workshops to stimulate outreach to Muslim and Arab communities threatened in the wake of the alleged terror plot, and it highlights the work of six grassroots groups nationwide. We invite you to use our resources and suggestions and to share your own suggestions and victories with us. As always, thank you for all you do to defend civil liberties.
NSA Telecom Lawsuits
In a stunning rebuke of the Bush Administration's use of the state secrets privilege, U.S. District Judge Vaughn Walker last month rejected a U.S. government request to dismiss a class action suit filed by the Electronic Frontier Foundation (EFF) against AT&T, ruling that the broad media coverage of the surveillance program had neutralized any danger of disclosing state secrets, and allowed the lawsuit to move forward. The suit alleges that AT&T violated citizens' rights to privacy as well as several federal statutes when it allowed the NSA to use its infrastructure to wiretap U.S. citizens with suspected links to terrorism. The Department of Justice (DOJ) has appealed that decision, and Judge Walker agreed to stay the proceedings pending an appeals court ruling.
Five days later, U.S. District Judge Matthew F. Kennelly supported the use of the state secrets law to prevent AT&T from revealing whether it has provided large quantities of telephone records to the government. Judge Kennelly rejected an ACLU lawsuit that would have blocked AT&T from giving its customers’ telephone records to the federal government without warrants. He agreed with the DOJ that doing so would tip off the terrorists to the government’s strategy of using telephone records for intelligence purposes. Read Associated Press 7/26/06 article.
On August 10, the Judicial Panel on Multidistrict Litigation consolidated 17 class action suits that had been filed in 13 district courts into one federal court before Judge Vaughn Walker in San Francisco. Read Reuters 8/10/06 article. The government and the telephone companies had sought to move the cases to a Washington, DC, court.
Finally, in separate litigation, government attorneys have asked that twenty cases brought by the ACLU requesting investigations into the legality of information sharing between phone companies and the NSA be consolidated into one court so that the government can invoke the state secrets privilege and have all the cases dismissed. Plaintiffs have requested that Judge Walker handle the cases.
President Bush and the Hamdan Ruling
The Supreme Court ruled on June 29 that military commissions as established by President Bush’s Military Order of 2001 are illegal. (Read David Cole’s article, Why the Court Said No.) The ruling sent the Bush Administration scurrying to Congress for what it hoped would be quick fig leaf legislation to cover its excesses. Initially, Bush administration lawyers such as top DOJ legal adviser Steven Bradbury asked Congress for a blank check – testifying before Senate and House Armed Services Committee hearings that Congress should simply legalize the military tribunals Bush created in 2001. But Bradbury met resistance from some Republican lawmakers who insisted on involving military Judge Advocate Generals (JAGs) in the legislation-making process.
The JAGs testified that rooting legislation in the Uniform Code of Military Justice (UCMJ) will give it a firm foundation. Navy Rear Admiral John D. Hutson (Ret. USN), Former Judge Advocate General, testified that a process similar to the courts martial that U.S. servicewomen and men receive is a good model. In the exchange that followed, some Republican Congress members referred to all detainees as “terrorists” and “beheaders,” apparently forgetting that the tribunals' purpose is to determine the detainees' guilt or innocence and ignoring the fact that hundreds of innocents have already been released from Guantánamo, and that none of the detainees were afforded due process when they were named as "enemy combatants." (Read Center for Constitutional Rights' 58-page Report on Torture and Cruel, Inhuman and Degrading Treatment of Prisoners at Guantánamo Bay, Cuba--PDF.)
In a slight concession, a leaked copy (32-page PDF) of proposed legislation from the White House concedes to the JAGs by including copious references to the UCMJ as its source. Yet, the Administration’s wish list for creating detainee trials still includes blatant violations of basic rights protections such as: hearsay evidence, exclusion of the defendant from some proceedings, and a death sentence imposed by a two-thirds vote of the court.
Hutson told the House Armed Services Committee that relying on hearsay evidence creates this scenario: “We know you’re guilty. We can’t tell you why. But there’s somebody that says you’re guilty. We can’t tell you who. But we know they’re reliable. We can’t tell you how we know that. But you’re guilty.”
Protection from War Crimes
Ultimately, the Bush Administration wants to use the trajectory of Hamdan to carve for itself exemptions from war crimes – trials that now appear to be looming in an uncomfortably near future. Senator Lindsey Graham and others are poised to pave the way for “protecting our servicemen and women,” much as Graham did in the Detainee Treatment Act of 2005, which some legal experts say applies the German theory of kriegsraison, the concept that the necessities of war justify “whatever it takes.”
Hold Detainees Indefinitely
Congress appears to be preparing the American people to accept the idea that the U.S. may not rely on trials for detainees -- it may be easier politically to hold them indefinitely. Senator Hillary Clinton (D-NY) floated this idea during a recent Senate Armed Services Committee hearing. It was picked up by several other senators during their questioning.
Geneva Conventions for Viet Cong?
In some cogent questioning of Attorney General Alberto Gonzales, Senator Hillary Clinton (D-NY) compared al-Qaeda terrorists to the North Vietnamese and Viet Cong, asking if there was any question during the Vietnam War whether to give benefit of the Geneva Conventions to those enemies. Senator McCain agreed that neither the Viet Cong nor the North Vietnamese were denied Geneva Conventions, even if they, like al-Qaeda were not parties to the Conventions, and did not wear regular uniforms.
Restoration of Army Field Manual Delayed
Senator John McCain learned recently that his anti-torture amendment, which was to uphold language in the Army Field Manual to prevent "cruel, inhumane or degrading treatment or punishment" of detainees, has not been implemented eight months after the amendment's passage. (President Bush signed the act to which it was attached but issued a signing statement regarding the McCain amendment.) Deputy Secretary of Defense Gordon England testified before the Senate Armed Services Committee on August 2 that the amendment would be implemented at the same time as any changes resulting from the Hamdan case. McCain said to England, “It’s not right to not comply with the law for eight months,” and insisted that his amendment that was passed by Congress in December 2005 be implemented immediately.
Planning In-District Meetings
We can all rest assured that the Bush Administration will use the alleged Heathrow terrorist plot to expand its power by reducing our Bill of Rights protections. But we must not rest! During Congress's recess (until September 5), make sure your elected representative hears from you. Call the district office nearest you to find out whether your representative is holding any town hall meetings, or join your fellow community members in organizing, scheduling, and holding a meeting with your elected representative. Tips for planning a meeting are at http://www.bordc.org/resources/workshop4.php. And please let us know about your meeting. Contact Linda Stone if you live east of the Mississippi or Hope Marston if you live to the west.
Constitution Day/5th Anniversary of September 11
Constitution Day and September 11th fall within the same week, offering a great opportunity to fill that week with actions and events that raise public awareness about the Bill of Rights protections we have lost in the last five years. BORDC met with grassroots volunteers by teleconference in late July to discuss strategies for “reclaiming the message” during the week Sept. 11 – 18. If you would like to join in this nationwide effort please go to http://www.bordc.org/involved/constitutionday.php, where you’ll find a wealth of information about ways to get involved.
Since last year, publicly funded schools are subject to a federal mandate to observe Constitution Day (this year, the week before or after Sept. 17). You can help your local school fulfill its requirement by offering to read to students from the Bill of Rights or Constitution. Or consider many other ways to help educate students in your neighborhood school: http://www.bordc.org/involved/cdayschools.php.
If events are being planned in your community to observe the anniversary of 9/11/01 or to celebrate Constitution Day, please go to BORDC's calendar form at http://www.bordc.org/involved/event_userform.php to list your local events that raise consciousness about the damage to our Constitution and Bill of Rights since Sept. 11, 2001.
Two August Workshops on Working with Allies in Targeted Communities
Are you hesitant to join a family gathering because you think a government agency may be watching based on your style of dress and the food being served? Are you afraid to attend religious events because your faith community may be targeted by law enforcement? Are you keeping your teenagers close to home because even a small infraction like a “fender-bender” could land them in jail? Are you unwilling to attend a political event because you feel threatened by those who are employed by the government to protect all of us?
Since 9/11/01, Muslim and Arab people who live in the U.S. have been asking themselves these questions with increasing frequency. When the alleged London terrorist plot was uncovered last week, a new wave of suspicion swept the western world.
On Tuesday, August 22, and Thursday, August 24, the BORDC is hosting teleconference workshops with experts on this topic to explore how some community groups have reached out to threatened communities and made a difference. On Aug. 22, we’ll speak with Samina Faheem Sundas, director of American Muslim Voice, and Kayse Jama, founder of the Center for Intercultural Organizing. On Aug. 24, our guests will be BORDC board member Pramila Jayapal, who founded Hate Free Zone Washington, and Rashida Tlaib, Immigration Advocacy Coordinator for the Arab Community Center for Economic and Social Services (ACCESS). The calls begin at 4:30 p.m. PDT, 5:30 p.m. MDT, 6:30 CDT, 7:30 p.m. EDT and last for 90 minutes. We will record the calls for those who aren’t able to join us on those dates and post the streaming audio on the BORDC website.
Please join us to discuss ways to build partnerships with people who live in threatened communities. Let’s help alleviate the burden for people who live under a cloud of suspicion. Contact Hope Marston: email@example.com if you live in the west orLinda Stone firstname.lastname@example.org in the east.
Warrantless Wiretapping Button Contest
Write the slogan for our new button and win $100 worth of BORDC merchandise! The contest theme is warrantless wiretapping. As with our "Dissent is Patriotic" button, we'd like our new button to make a statement, this time about the government's illegal spying. For inspiration, visit our spying resources page. What would you like to say (and wear) to express your thoughts about this threat to our civil liberties? The winning slogan will be used on our new button! Click here for details and to enter the contest.
How Much Time Do You Have for the Bill of Rights?
If you have only 5 minutes to spend this week for the Bill of Rights, you can:
- Read one article about NSA spying and other post 9/11 excesses of the federal government.
- Talk to someone at work or to a friend about the effect of Presidential signing statements on governmental checks and balances.
- Ask one person to sign your petition to oppose post-911 laws and orders that violate the Bill of Rights.
- Make a phone call to invite a friend or ally come to a meeting to join in resisting these laws, or to a meeting to plan a public forum or reading of the Guantánamo play.
- Volunteer to collect emails on Bill of Rights issues in the news, and mail them to a Bill of Rights Defense Committee member who doesn’t have email.
- Call your elected representative (city councilor, county commissioner, state legislator, or congressional representative) to urge action re-establishing our fundamental rights of free speech, privacy, and due process.
- Check out How Much Time Do You Have for the Bill of Rights? (PDF) and plan for longer excursions into local work you can do to protect and defend the Bill of Rights.
BORDC Releases Voter Information Guide for 2006
We are pleased to announce the release of our 2006 Voter Information Guide, designed to help voters pin down where candidates for election this November stand on important civil liberties issues. Use the guide and our extensive library of sample questions to develop questionnaires for candidates and publicize the results or to pose at candidates' town hall meetings, meet-the-candidate functions, or in-district meetings. You can also research the voting records of incumbents on our website to see where your lawmakers have come down on bills that affect our civil liberties. Consider using the guide in your community to organize and help others become well-informed voters this fall.
BORDC Diagram Helps the Public Understand FISA
The Bush Administration has done its best to convince Congress and the public that its warrantless surveillance program is a necessary response to the overly burdensome Foreign Intelligence Surveillance Act (FISA). A glance at BORDC's flowchart, which shows when the government needs to get a FISA warrant and when it does not, quickly dispenses with Administration claims that FISA as written would prevent the federal government from eavesdropping on phone calls between Al-Qaeda and people in the United States, and that the Administration would not be doing its job of protecting the public were it to comply with the law.
Bills now before the House and Senate attempt to "modernize" FISA, which the Bush Administration claims is currently too cumbersome. But as our chart shows, the current FISA laws already permit warrantless surveillance under many circumstances. Furthermore, FISA has been updated several times since it was passed by Congress in 1978. The changes to FISA that the Bush Administration now seeks would give the executive branch additional freedom to spy on Americans for any reason, and in complete secrecy.
Acknowledgments: Thank you to Roger Dodds and Kevin Cross of Fort Collins, Colorado, for inquiring into the workings of FISA and initiating the development of additional resources. Thank you also to Kate Martin and Brittany Benowitz of the Center for National Security Studies for their assistance with the design and content and their valuable feedback. Special thanks to BORDC intern Chelsea Gauci, who created the chart.
Book Review: How Would a Patriot Act? by Glenn Greenwald
Constitutional law attorney Glenn Greenwald discusses the myriad abuses of power by the Bush administration and the underhanded diversion tactics used to advance its dishonest political agenda in his new book, How Would a Patriot Act?. He describes his transformation into a more politically conscious and active citizen by learning the facts. Greenwald raises the red flag, advising his readers that if they’re not concerned yet, they should be. Working Assets Publishing, 2006.
For other recommended books and documentaries, visit http://www.bordc.org/resources/recom-resources.php.
Pitkin County, CO -- 400th Local Resolution!
A unique method for organizing a resolution campaign resulted in Pitkin County officials passing the 400th local resolution nationwide. At an August 2 public hearing in Aspen, city and county officials consented to re-take their oaths of office, and the sheriff made the first known “Bill of Rights Policy Statement,” affirming Bill of Rights protections for local residents.
The hearing detailed post-9/11 federal and local government abuses, and residents asked public officials to heed the Colorado Legislature’s 2005 resolution, urging state agencies and local governments not to participate in federal PATRIOT Act activities that violate the Bill of Rights. The Board of County Commissioners of Pitkin County passed a resolution stating that no agency in the county can assist federal officials in investigations, surveillance, detentions or records collections unless there is reasonable suspicion of criminal activity, even if authorized by the USA PATRIOT Act. Commissioners also promised that no Pitkin County employees can collect information about religious or political groups without direct relation to criminal activities, nor are they permitted to use race, religion, ethnicity or national origin to select individuals to investigate. City councilors from Aspen also recommitted to the resolution they passed in their community in June 2004.
Dwight Shellman, a local attorney and organizer of the public hearing said, “We are adding our juice to similar resolutions already passed by more than 400 other local elected government bodies in the U.S. Isn’t that how authentic grassroots movements arise, like when citizens made the power brokers add the Bill of Rights to the Constitution in the first place?”
Guantánamo Readings in Long Beach, CA
Six readings of the play Guantánamo: Honor Bound to Defend Freedom were performed in Long Beach, CA, in mid-July, with nearly full houses at each night’s performance. The Long Beach Civil Liberties Defense Coalition raised close to $3000 to cover costs of the dramatic readings –- with $900 left to start the group’s next project. Professional director Allen Sewell staged and directed the play, using three professional performers and four community members with no acting experience. Though the Long Beach group is small, it leveraged its size by making alliances with other local groups to help organize and publicize the readings.
Oregon Group Seeks to Strengthen Bill of Rights Resolution
The Center for Intercultural Organizing is working with the mayor’s office in Portland to draft a civil liberties resolution that prohibits city police from cooperating with the federal government in enforcing immigration laws. Even though Oregon law prohibits local police from doing immigration work, police often find ways to harass non-citizens. In response, the Center for Intercultural Organizing is working with local groups to raise awareness through a series of public hearings called “Bridgetown Voices,” empowering immigrants and refugees to advocate for their rights. Portland’s City Council passed its original Bill of Rights resolution in October 2003. In an unprecedented move, the Council pulled out of the Joint Terrorism Task Force (JTTF) in 2005 – the only community to end its JTTF contract. This new resolution, if passed, would continue that legacy of rights protection in Portland.
Columbia, SC, Plans October Programs
BORDC organizers in Columbia, SC, are planning a series of events in October, co-sponsored by the Carolina Peace Resource Center and the ACLU of SC, to promote public dialogue on the erosion of civil liberties in the U.S. and grassroots efforts to halt these threats. Among the activities planned are a reading of Guantánamo: Honor Bound to Defend Freedom, several showings of the film The Road to Guantánamo, and panels discussing related political and legal issues at the USC School of Journalism and the Law School. Finally, there will be a "Constitutional Coffee Hour" in town to bring more people into the discussion. For details of planned events, visit http://www.carolinapeace.org/ or http://www.aclusc.org/ and select "Events."
Mercer County (NJ) Coalition Meets with Senators by Phone
During the first week of August, the Mercer County (NJ) Coalition for Civil Liberties (MCCCL) organized conference calls with staff from the offices of Senators Menendez and Lautenberg to discuss concerns about the Specter bill (S. 2453). The calls were a creative and successful solution to the challenge of arranging district meetings with U.S. Senators. In addition to their other activities, MCCCL has drafted a resolution for the capital city of Trenton, where a community forum co-sponsored by the ACLU-NJ will take place August 24 at the Trenton Public Library. Also, in the past few months, MCCCL members met with Representatives Scott Garrett (R-3) and Rush Holt (D-15), organized a public forum in Camden in cooperation with ACLU-NJ, and prepared a Congressional voting chart.
MCCCL was organized to express public concern over the civil liberties infringements of the USA PATRIOT Act. Its membership includes an active planning group of eleven Mercer County residents and organization representatives (Adele Vexler, Kip Cherry, Firoozeh Vali, Marc Tolo, Michelle Sternfeld, Scott Nielsen, Larry Kane, Irene Goldman, John Bing, Jon Abolins and Allan Willinger), with general goal-based support from several other organizations, including ACLU-NJ, the Lawrence League of Women Voters, the Princeton-based Coalition for Peace Action, and CWA Local 1034. Over 100 persons are on MCCCL's email lists. The group's website is at www.protectyourrightsnj.org.
Rochester Coalition Assists Brighton
As the Rochester Coalition for Civil Liberties works to pass a resolution in the town of Brighton, NY, coalition members are using local media effectively to promote their efforts. The Rochester Democrat & Chronicle reported on an Independence Day town hall rally that demonstrated strong support for the initiative. And on August 7, the same news outlet published an op-ed written by RCCL organizer Nancy Braiman. Eric Massa, challenger to Brighton’s incumbent representative in Congress, has publicly expressed support for the resolution.
Editor: Nancy Talanian, Director
Managing Editor: Meredith Gray, Administrator
Hope Marston, West Region Organizer
Linda Stone, East Region Organizer
Sherri Brown, Intern
Chelsea Gauci, Intern
Kelsey Montgomery, Intern
Bill of Rights Defense Committee, Inc.
8 Bridge St., Suite A
Northampton, MA 01060
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