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Dissent Is Patriotic

The Bill of Rights Defense Committee's e-mail newsletter

June 2008, Vol. 7, No. 5

In this issue:

In the spirit of Independence Day, sign your name to a new declaration appearing in the New York Times. Deadline is 6/29/08 at midnight EDT.

Please support our efforts to defend the Bill of Rights! To contribute funds or stock online, click here, or mail a check or money order to:

Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060

The Constitution Rules, but the Need for a People's Campaign Remains

Supreme Court Rebuffs Bush Administration. A slim majority of the Supreme Court rejected President Bush’s assertion that the administration has the right to hold anyone in the world at Guantánamo indefinitely without charges. The court’s ruling in Boumediene v. Bush and Al Odah v. United States is the Bush administration’s third loss at the high court on Guantánamo and the fourth on the rights of terrorism suspects. For more about the cases and the Supreme Court’s decision, see "Supreme Court Rules Detainees Have Habeas Rights" later in this newsletter.

The Supreme Court’s ruling, although welcome, is no substitute for grassroots education and action. In the case of detainee rights alone, Congress has consistently ignored the clear language of the Constitution forbidding them from suspending habeas corpus; for example, it passed the Detainee Treatment Act (DTA) and the Military Commissions Act (MCA) and left it to the courts to determine whether those laws were constitutional. While the new ruling may give the remaining detainees at Guantánamo a glimmer of hope, it will not give the detainees - past and present - the years and in some cases the lives they have lost there.

The People are More Effective. Cases travel slowly to the Supreme Court, and most cases never arrive at all. The constitutionality of the USA PATRIOT Act and changes to the Foreign Intelligence Surveillance Act (FISA), for example, may never reach the high court, yet their use and their lack of court oversight may adversely affect the rights of millions of Americans.

We the people for whom the U.S. Constitution was established must join together in our communities to demand that our elected representatives uphold their oaths to protect and defend the Constitution so that we can be assured that laws are consistent with the Constitution, that executive power is checked, and that Congress oversees the application of the laws they pass and addresses problems and abuses promptly.

Pledge for Independence Day

... to the People’s Campaign. As we approach the annual celebration of Independence Day, take the first step toward joining or forming a People’s Campaign coalition in your area by pledging your support or that of your organization online. Hundreds of people in 38 states have already done so. Find their locations here.

... to a new Declaration for Our Times. In the spirit of 1776, sign our declaration and pledge your sacred honor along with hundreds of others nationwide as we "call upon Congress, the courts, and the press to reassert their constitutional functions vigorously and restore the promise that is America." To sign the declaration and make a contribution to offset the $30,000 cost of the half-page ad, go to http://www.constitutioncampaign.org/ad/. We welcome your help in inviting signatories.

Let this Independence Day be the day we bring back the Constitution - for good!

Supreme Court Rules Detainees Have Habeas Rights

On June 12, the Supreme Court announced its 5-4 ruling in the consolidated cases of Boumediene v. Bush and Al Odah v. United States, yet again dealing a blow to the Bush administration’s treatment of detainees at Guantánamo Bay. Last year, the DC Circuit Court of Appeals sided with the Bush administration, ruling that Guantánamo detainees did not have the right to challenge their imprisonment in federal courts. However, the Supreme Court disagreed. Justice Anthony Kennedy, writing for the majority, stated, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law." He went on to write, "In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands.... While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing." Justices John Paul Stevens, Stephen Breyer, Ruth Bader Ginsburg, and David Souter joined Kennedy in the majority to rule that detainees have habeas corpus rights and can, in fact, challenge their detentions in U.S. federal courts.

The Boumediene/Al Odah ruling invalidates a provision of the Military Commissions Act (MCA) of 2006 denying habeas corpus rights to Guantánamo detainees. The MCA was passed by Congress in response to a previous Supreme Court ruling, Hamdan v. Rumsfeld, which upheld habeas corpus rights for enemy combatants at Guantánamo. Chief Justice John Roberts, along with Justices Antonin Scalia, Samuel Alito, and Clarence Thomas, dissented from the majority opinion in the Boumediene/Al Odah case, with Roberts scolding the majority for striking down what he called "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." Read more about the case from The New York Times.

Brewster Kahle and Internet Archive Successfully Fight NSL

On November 26, 2007, the Federal Bureau of Investigation (FBI) served a National Security Letter (NSL) upon the Internet Archive, a service that maintains an online library and archive of Internet and multimedia resources. The NSL requested the name, address, and activity records of one of the users of the Internet Archive. Because of the gag order on NSL recipients, Brewster Kahle, founder and director of the Internet Archive, was prevented from discussing the information request or even revealing its existence.

Kahle and the Internet Archive refused to cooperate, challenging the NSL based on a stipulation of the reauthorized USA PATRIOT Act that protects libraries from NSL information requests. With the representation of the Electronic Frontier Foundation, of which Kahle is a board member, and the American Civil Liberties Union, the Internet Archive successfully fought the NSL and on May 7, 2008, the FBI rescinded its request in exchange for Kahle and the archive dropping their lawsuit. The gag order was lifted, allowing all parties to discuss the case, although Kahle is still prevented from revealing the name of the user whose personal information the FBI sought.

This case is only the third known instance of an organization successfully challenging an NSL, but according to audits by the Justice Department's Inspector General, the FBI issues about 50,000 of them each year. To learn more about the Internet Archive’s NSL challenge, read these press releases from the EFF and the ACLU.

Legislation

Wiretapping Compromise in Progress: Tell Congress No Deal on the Fourth Amendment

Your calls to Congress have so far prevented the Senate FISA bill (S. 2248), with its blanket immunity for telecommunications companies, from becoming law. But the White House and high-ranking members of Congress are anxious for a compromise between the House bill (H.R. 3773) and the Senate bill that will put the National Security Agency (NSA) wiretapping issue to rest before the Independence Day holiday. Under that sort of pressure, closed-door deal-making can become dangerous for Americans’ civil liberties. Let’s keep up the pressure!

A proposal offered by Senator Kit Bond, for example, would transfer the lawsuits against phone companies for privacy violations from federal district court to the secret FISA court, and it would require the FISA court to dismiss any lawsuits if the telecommunications providers received the President’s assurances that he had authorized the wiretapping. There is no question they did receive such assurances, but what the lawsuits must uncover is whether the phone companies violated the law and the privacy of people’s telephone calls, emails, and Internet activity.

Congress may vote on the still-secret "compromise" as early as this week, with a vote expected in the Senate first, followed by a vote in the House.

Please call both your senators and your representative today, (dial Capitol switchboard at 202-224-3121) and insist on the following:

  • Full Fourth Amendment protection of privacy, which means individual warrants based on individual suspicions.
  • No retroactive immunity for phone companies that violated the law.
  • No dismissal of cases on the basis of the President’s assurances that he authorized the wiretapping. Those assurances don’t make the wiretapping legal. Congress must allow the courts to do their job and determine whether people’s privacy rights were violated.

We’ve come too far to accept retroactive immunity, warrantless surveillance, and a six-year sunset now. Call today to protect your Fourth Amendment right, and stop Congress from legalizing warrantless wiretapping.

Real ID

May 11, 2008, was originally the deadline by which every state was to implement the federal Real ID program. However, over the last seven months, the legislatures of ten different states (Alaska, Arizona, Idaho, Lousiana, Minnesota, Montana, New Hampshire, Oklahoma, South Carolina, and Washington) have passed resolutions directly refusing to meet the requirements of this program. Further, during the same period, a significant number of other states passed resolutions expressing severe dissatisfaction with the program. Many specifically demanded that the federal government either cover the costs of the program or repeal it.

By the time the May deadline arrived, the Department of Homeland Security (DHS) had successfully forced two different states (Montana and Maine) to pass resolutions that would ensure compliance with Real ID. However, a number of other states continued to resist, forcing DHS to extend the deadline by which certain states would have to comply.

Although the battle between states and the federal government over the implementation of Real ID is far from over, the DHS is already beginning to promulgate regulations requiring the presentation of "secure" identification. In particular, new Transportation Security Administration (TSA) regulations stipulate that travelers without "secure" ID (except for those from states that were given deadline extensions) be subjected to an interrogation and search similar to the secondary check given to people whom security screeners deem suspicious.

Grassroots News

State Legislatures Refuse Real ID, Maine Grassroots Mobilize Against It

Augusta, ME - Last January, the Maine State Legislature voted to refuse implementation of the federal Real ID program. However, in April, under intense and unrelenting pressure from DHS, the Legislature reversed its position, passing a law meant to bring the state into compliance with the program. After this law was passed, outraged Maine residents from across the political spectrum began to mobilize in a concerted effort to repeal the Legislature’s decision. By collecting roughly 55,000 signatures before the July 17, 2008, deadline, these activists will place a referendum on the November ballot to give Maine residents an opportunity to vote for or against the implementation of the Real ID program.

If this grassroots effort is successful, Maine will rejoin the long (and growing) list of states that have refused to implement the requirements of the 2005 Real ID Act. More important, however, Maine’s reentry into this list will serve as a powerful signal to the federal government of broad dissatisfaction with this invasive and unnecessary program.

Poems from Guantánamo - A Reading

Northampton, MA - Human rights attorneys Buz Eisenberg and Bill Newman joined acclaimed poet Martín Espada on June 11, which was to become the eve of the Supreme Court's Boumediene/Al Odah ruling, in a powerful reading from Poems from Guantánamo: The Detainees Speak. The event was co-sponsored by the Pioneer Valley Coalition Against Secrecy and Torture, Poets Against War and the Broadside Bookshop, where it took place before a standing-room-only audience.

Poems from Guantánamo, edited by Marc Falkoff with a preface by Flagg Miller and an afterword by Ariel Dorfman, includes the soul-wrenching poems of seventeen Guantánamo detainees that reveal the deeply human identities of their authors to be in stark contrast with the Bush administration's images of them as vicious terrorists. Eisenberg and Newman, both attorneys who represent Guantánamo detainees, framed their readings with stories of their clients' brave endurance but inevitable deterioration of body and spirit over the years of their indefinite detainment. The attorneys also pointedly reminded their listeners that at most 10% of the detainees have had any connection with terrorism at all.

University of Iowa Press, publisher of the volume, offers audio files of some of the poems and other extensive resources on their website.

Torture Ban Gains Support in North Carolina

Raleigh, NC - Since 2005, local grassroots activists have been exposing and protesting a CIA-contracted company based in North Carolina - Aero Contractors - for ferrying detainees to be tortured abroad in secret prisons. Now they are making new headway in the state’s house of representatives. In the most widely endorsed anti-torture legislative measure in North Carolina to date, 27 co-sponsoring legislators introduced HB 2417 on May 21. The bill would outlaw torture, enforced disappearance, and conspiracy to commit these crimes in North Carolina.

While the Constitution already forbids torture, the CIA and its contractors have been able to subvert it because local government agencies have proved ineffective at upholding the rights that federal agencies are now systematically violating. The NC Attorney General has refused calls to investigate Aero Contractors for its role in torture, citing the lack of a state torture statute. On June 17, the ACLU of North Carolina will lead members and allies in meeting with their legislators to advocate for the proposed measure. Find more information here.

Human Rights Defenders Take Detainee Names with Them for Day in Court

Washington, DC - Thirty-four defendants who protested torture and indefinite detention on a day commemorating the sixth anniversary of the Guantánamo Detention Center finally got their day in court on May 27. The defendants were part of the group, Witness Against Torture, which staged a powerful act of protest in front of the Supreme Court on January 11, 2008. Police arrested 80 people, many of whom refused to give their own names at the time of arrest, instead giving the names of Guantánamo prisoners.

As the court’s clerk took attendance, one by one, the defendants stood up, stated their own name, and then stated the name of the Guantánamo prisoner they carried on placards while marching on January 11. Many openly wept as they stood. The action may be the first time that the names of Guantánamo prisoners have been entered into the record of a U.S. court. These prisoners and many others held by the U.S. in secret prisons around the world have no access to normal legal remedies based on the administration’s argument that normal judicial procedures are insufficient for adjudicating their cases.

While the government prosecution tried to make the case into a matter of illegal refusal of police orders, demonstrators sought to put illegal U.S. policies of torture and indefinite detention on trial. Attorney Thomas Wilner, who represents 12 Kuwaitis detained at Guantánamo and who speaks frequently in public about his trips to Guantánamo, was to give testimony on the human rights abuses at the prison, but Judge Wendell P. Gardner Jr. refused to allow his testimony. For more information, visit http://witnesstorture.org/.

In Brief

Guantánamo Judge Dismissed: Political Meddling?

In late May, Judge Col. Peter E. Brownback III, who had been presiding over the case of Omar Ahmed Khadr, was dismissed discretely and without advance warning by the chief military judge at Guantánamo, Col. Ralph H. Kohlmann.

Not long after, a spokesman at the Pentagon told the press that the dismissal of Judge Brownback had been the result of a "mutual decision" between Brownback and the Army. Days later, however, Judge Kohlmann disavowed the earlier press release, claiming instead that the decision to retire Judge Brownback had been made before the start of the Khadr case due to "manpower management considerations unrelated to the Military Commissions process."

As Judge Brownback had made a number of recent decisions in the Khadr case that ran directly contrary to the interests of the prosecution, his sudden and mysterious dismissal from the court has led human rights groups and the defense to raise accusations of political meddling. In mid-2007, Judge Brownback dismissed the Khadr case due to lack of jurisdiction; however, his decision was quickly overturned by the Court of Military Commission Review. More recently, Brownback, frustrated with the prosecution’s obstinate refusal to turn over medical and interrogation records relevant to the case, threatened to stop court proceedings. The prosecution subsequently complied with the demand.

In spite of the suspicious timing of and mysterious circumstances surrounding Brownback’s dismissal, Judge Kohlmann continues to maintain that political decisions did not influence the Army’s decision in any way.

Report Concludes Federal Courts Are Capable of Handling Terrorism Cases

On May 28, the non-profit organization Human Rights First released a report entitled "In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Court." This groundbreaking report, written by former federal prosecutors Richard B. Zabel and James J. Benjamin Jr., proves wrong the Bush administration’s claim that military commissions are the only viable option for prosecuting terrorism cases. According to the report, our existing criminal justice system is well suited to the challenge of processing complex terrorism cases in a manner that protects national security interests while ensuring that defendants receive a fair trial.

In the report, prosecutors Zabel and Benjamin analyze over 120 international terrorism cases prosecuted in the American court system over the last fifteen years. Using this analysis, they address practical and legal challenges facing the courts that include, among others, issues relating to the detention of suspected terrorists, the handling of classified information, and sentencing.

The report is commendable in that it seeks to disprove two important, and highly controversial, arguments made by those in favor of using the military justice system to prosecute terrorism cases. First, the authors argue that our existing criminal justice system is perfectly capable of handling terrorism cases as the challenges these cases present are, for the most part, not unique. Second, they argue that this court system is sufficiently flexible to adapt to the new challenges that terrorism cases do occasionally present.

Although it remains to be seen whether this report will help to bring an end to the practice of using unjust military commissions to prosecute suspected terrorists, or the speculation that a brand-new system is needed, the debate over which justice system is better suited to the task should now be settled.

BORDC News

BORDC Welcomes New Staff Members

Be sure to check out our new staff photo introducing three wonderful new colleagues:

Amy Ferrer, Web and Publications Coordinator, develops online and print communication and outreach materials for the Bill of Rights Defense Committee. She also manages BORDC's Human Rights Abuse Database. Prior to working with BORDC, Amy earned her master’s degree in public policy and administration from the University of Massachusetts Amherst. She also has previous experience in reproductive rights advocacy, social justice work, and community health education.

Jim McNamara, Campaign Coordinator, covers the west region for the People’s Campaign for the Constitution and works on program development. Before joining BORDC, Jim was the director of Lead Safe, a lead poisoning prevention, education, and outreach program in Vermont. Jim provided trainings, consultations, and advocacy, and worked on legislation in the Vermont and New Hampshire state legislatures. Jim has also worked as a housing advocate in Portland, Oregon, and provided case management, outreach, and advocacy for homeless, chronically mentally ill adults. Jim has worked in the private sector as well, and serves on boards and commissions in Vermont, New Hampshire, and Massachusetts.

Matthew Fairman, Summer Intern, researches articles for the daily news feed on BORDC’s website, writes stories for the monthly newsletter, and assists with a variety of other projects. He is also responsible for adding stories to BORDC’s Human Rights Abuse Database and responding to questions from users. Matthew comes to BORDC from Connecticut College in New London, Connecticut, where he is currently pursuing a major in government and a minor in economics.

Editor: Nancy Talanian, Director
Managing Editor: Barbara Haugen, Administrator
Contributing Writers:
Ben Grosscup, Campaign Coordinator
Jim McNamara, Campaign Coordinator
Amy Ferrer, Web and Publications Coordinator
Matthew Fairman, Summer Intern

Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060

Web: www.bordc.org/
Email: [info (at) bordc.org]
Telephone: 413-582-0110
Fax: 413-582-0116