Dissent Is Patriotic
The Bill of Rights Defense Committee's e-mail newsletter
December 2008, Vol. 7, No. 11
In this issue:
- The New Normal: Why We Must Act Now!
- PCC News: Take the PCC Issues Survey and Tell Us What's Most Important to You; PCC Developing Nationwide Affinity Groups
- Legislation & Policy: Supreme Court Hears Iqbal v. Ashcroft; Republican National Convention Activists Charged with Terrorism; Court Rules National Security Letter Gag Orders Unconstitutional
- Grassroots News: Standing Up for Civil Liberties in Washington; Commemorating Bill of Rights Day in Idaho
- Book Review: We Dissent: Talking Back to the Rehnquist Court, by Michael Avery
- BORDC News: Our Moment Is Now - And We Need Your Support; Law Student Summer Fellowship Application Deadline is January 16
Please support BORDC's work to defend the Bill of Rights! Contribute funds or stock online, or mail a check or money order to:
Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060
December 15 was Bill of Rights Day, the 217th anniversary of the adoption of the Bill of Rights. This year, we will have our best chance yet at restoring the rights and protections guaranteed in the Bill of Rights that have been undermined over the past seven years. However, reversing the damage done will not be easy - already, many of the policy changes that have robbed us of our fundamental rights and liberties have become a "new normal" for Americans, lulling people into complacency.
As you will read later in this newsletter, activists who protested the Republican National Convention this summer have been charged with terrorism for their actions. Recently, peaceful activist groups in Maryland were infiltrated by police for suspicion of terrorism - in violation of their members' constitutional rights to assemble and to dissent. Groups of Algerian and Uighur prisoners at Guantánamo Bay detention center who have been ordered released and, in the case of the Uighurs, declared innocent by the U.S. military, are still being held at the camp. These stories have been covered by major news outlets, but there has been no strong outcry against them, no public uprising great enough to compel action by our leaders in government.
Why? Because after seven years, Americans are starting to get used to stories like these. The public is no longer shocked and outraged by these violations, and activists have grown weary as their protests have fallen on deaf ears.
However, there is hope. Many of our newly elected representatives have promised to change the policies that have led to these and other violations. Now, as these new representatives take office, we have the opportunity to show them just how critical it is and how strongly their constituents demand that they restore our constitutionally guaranteed rights and protections. We activists must rally our own forces and reach out to awaken the wider public to the critical need to work together, create local coalitions, and expand, strengthen, and reinvigorate our grassroots movement for change. We must act now, in this historic and opportune moment, before any more Americans accept this "new normal."
Take the PCC Issues Survey and Tell Us What's Most Important to You!
On December 15 - Bill of Rights Day - the People's Campaign for the Constitution distributed a survey to our constituents. We're collecting information about which issues PCC grassroots organizers feel are the most critical to organize around and how we can best support these efforts. We want to hear from you! If you haven't already done so, take the survey now. You can also email Emma Roderick, our grassroots campaign coordinator, at email@example.com.
PCC Developing Nationwide Affinity Groups
As part of the strategy of the People's Campaign for the Constitution, we are developing affinity groups. PCC affinity groups will serve as national networks of people who share a similar cause (protecting the Bill of Rights) and a similar profession or interest. The affinity groups will communicate mostly by phone and Internet, and each will organize from its specific point of leverage. If there is an affinity group you'd like to be a part of (teachers, lawyers, writers, students, librarians, or clergy, to name just a few possibilities), email Emma Roderick at firstname.lastname@example.org.
Supreme Court Hears Iqbal v. Ashcroft
On December 10, the Supreme Court heard arguments in Iqbal v. Ashcroft to determine whether, and to what extent, a high-ranking official who helped to orchestrate an unconstitutional policy is responsible for the resulting unconstitutional actions of a lower-ranking official. Iqbal's case is based on the precedent set in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The Court held in Bivens that a plaintiff whose constitutional rights had been violated by federal agents could sue under the Constitution itself rather than under a specific law. Iqbal argued that his classification as a "person of interest," his arbitrary detention and the subsequent First, Fourth and Fifth Amendment rights violations he endured after September 11 were orchestrated by former Attorney General John Ashcroft. Though Ashcroft did not directly engage in any actions against Iqbal, those agents who did were acting under a policy that he directed. Ashcroft's attorneys maintained that his high position in government grants him "qualified immunity" and that Iqbal did not provide enough direct evidence to deprive him of that privilege. The outcome of this case will impact how high-ranking defendants are to plead and will test the limits of qualified immunity. It will also affect the status of civil rights of detainees and either reinforce or challenge Bush administration tactics in the so-called "war on terror." The Supreme Court has promised a decision in June 2009. Read more about the arguments in Iqbal v. Ashcroft.
Court Rules National Security Letter Gag Orders Unconstitutional
On December 15, the Second Circuit Court of Appeals upheld an earlier decision striking down provisions of the USA PATRIOT Act that impose permanent gag orders on recipients of national security letters. National security letters (NSLs) are administrative subpoenas not subject to judicial review, and the number of NSLs issued has risen dramatically since the passage of the PATRIOT Act in 2001, which eased restrictions on their use. Moreover, an internal report released last year confirmed extensive abuse of NSLs, including "one instance [in which] the FBI issued NSLs to obtain information after the FISC [Foreign Intelligence Surveillance Court, the secret court that reviews surveillance requests related to national security] twice refused its requests on First Amendment grounds."
The case in question, Doe v. Mukasey, was brought by the American Civil Liberties Union (ACLU) and New York Civil Liberties Union on behalf of an Internet service provider (ISP) that received an NSL four years ago and is still under gag order. To this date, despite the fact that the FBI is no longer pursuing the information it requested from the ISP, the ACLU cannot reveal the identity of its client and the client cannot acknowledge that it received the NSL. "We are gratified that the appeals court found that the FBI cannot silence people with complete disregard for the First Amendment simply by saying the words 'national security,'" said Melissa Goodman, staff attorney with the ACLU National Security Project. Read more about the ruling in Doe v. Mukasey.
Republican National Convention Activists Charged with Terrorism
On August 30, 2008, Minnesota used its state's own PATRIOT Act for the first time. Its targets? Eight organizers of protests against the Republican National Convention.
Five of the activists were arrested in their homes. Another was arrested leaving a public meeting at a park. All eight were arrested preemptively, and all eight were charged with "conspiracy to riot in the second degree in furtherance of terrorism," a charge which can carry more than twenty years in prison. The cases, which have been consolidated, now include four counts in total:
- Count 1 - conspiracy to riot in the second degree in furtherance of terrorism (original charge)
- Count 2 - conspiracy to riot in the second degree (without terrorism enhancement)
- Count 3 - conspiracy to damage property in furtherance of terrorism
- Count 4 - conspiracy to damage property (without terrorism enhancement)
The "RNC 8," as they are now known, were organizers of the "RNC Welcoming Committee," a group formed in late 2006 after its members learned that the 2008 Republican National Convention would be held in their city. "We spent more than a year and a half doing outreach, facilitating meetings throughout the country, and networking folks of all political persuasions who shared a common interest in voicing dissent in the streets of St. Paul," reads a statement from the RNC 8.
The statement continues: "Conspiracy charges serve a very particular purpose - to criminalize dissent....Our case may be precedent-setting. Minnesota's terrorism statutes have never been enacted in this way before....We view our case as an opportunity to…establish a precedent of successful resistance to the government's attempts to destroy our movements."
Standing up for Civil Liberties in Washington
On the Olympic Peninsula of Washington State, activists are fighting back against the Border Patrol stepping up its illegal harassment of people driving or riding public transportation and parking their vehicles near a major church that conducts services in Spanish. The head of the Border Patrol for the region recently stated in public that his interpretation of the USA PATRIOT Act allows his officers to stop anyone at any time for any reason (i.e., no need for probable cause) within 100 miles of the Canadian Border. Never mind that such actions violate numerous constitutional rights, as well as the Border Patrol's own field manual.
In response, activists have held a number of well-attended community meetings (400 people in a high school auditorium), and rallies, and are planning to challenge the Border Patrol where it stops buses. They have also been preparing a formal non-cooperation resolution for the counties and cities in the area. For more information, email Jim.
Commemorating Bill of Rights Day in Idaho
At 12:00 noon on Bill of Rights Day (December 15), Benjamin Franklin and Patrick Henry made a comeback. Two activist-impersonators, members of Friends of the Liberty Tree, appeared on the steps of the Idaho Capitol and, dressed in full Ben and Patrick garb, read a Proclamation from the Governor of Idaho proclaiming December 15 to be Bill of Rights Day. The event received local press coverage.
Want your group's actions included in our next newsletter? Send information about your actions and events to Emma, our grassroots campaign organizer!
We Dissent: Talking Back to the Rehnquist Court
We Dissent, edited by Suffolk University Law Professor and former National Lawyers Guild President Michael Avery, is a collection of eight "dissents" from critical Supreme Court decisions that subverted civil liberties. The dissents, written not by Supreme Court Justices but by preeminent figures in constitutional law, shed light on the significant damage done to fundamental rights and liberties during Chief Justice William Rehnquist's tenure on the Supreme Court.
In her dissent to Chavez v. Martinez, Professor Marjorie Cohn, current president of the National Lawyers Guild, challenges the Court's ruling that coercive interrogation does not violate one's Fifth Amendment right against self-incrimination nor one's Fourteenth Amendment right to due process unless the evidence obtained is presented in a criminal proceeding. Cohn contends that coercive interrogation does, in and of itself, violate a person's constitutional rights. Further, she argues that international treaties signed by the United States, including the Convention Against Torture and the International Covenant on Civil and Political Rights, constitute the "supreme law of the land" as stated in Article VI of the Constitution and must be applied in domestic courts as well as international ones - an assertion the Court itself did not make in its decision. As the introduction to Cohn's dissent points out, "[t]his omission was particularly grievous given the significance of torture issues in connection with the so-called War on Terror."
Each of the essays in We Dissent provides critical insight into what must be done to restore the full rights guaranteed in the Constitution. There is, sadly, much work ahead. New York University Press, 2008.
Our Moment is Now—And We Need Your Support
The damage done to our civil liberties and constitutional protections in the name of the so-called "war on terror" over the last seven years affects all of us. These anti-terror policies have permitted the government to illegally invade the privacy and security of innocent people, groups, and organizations and have undermined our nation's reputation in the world - yet have not made us safer.
By supporting BORDC with a contribution this holiday season, you will help us empower a broader movement to demand that the new administration and new Congress live up to their campaign promises and the oaths they will take to protect and defend the Constitution. You will help us expand and reinvigorate our nonpartisan, nationwide, grassroots movement for change, the People's Campaign for the Constitution. You will help us improve and publicize our Human Rights Abuse Database and increase our use of new wiki, social networking, and other technologies to help build the most sustainable movement possible.
Even better, you can make your money go twice as far. Because BORDC has a matching grant for new and increased donations, qualifying contributions will go twice as far towards these important efforts.
This new year presents an unparalleled opportunity to effect real change and undo the damage of "war on terror" policies. The new president and new Congress offer new hope, but history is clear: power likes its privileges, and leaders will not make the changes we seek unless there is a strong grassroots movement insistently calling for action. This will be a long battle, and we need your help. Please do your part and make a generous contribution to BORDC today by visiting www.bordc.org/donate.
Law Student Summer Fellowship Application Deadline is January 16
BORDC invites second-year law students who are concerned about civil liberties to convert their concerns into action. Those interested are invited to apply for a ten-week summer fellowship in BORDC's Northampton, MA, office through the National Lawyers Guild (NLG) Haywood Burns Memorial Fellowship for Social and Economic Justice. The application deadline is January 16. You may download the NLG Haywood Burns packet containing an application form and instructions here (PDF).
Editor: Amy Ferrer,
Web and Publications Coordinator
Managing Editor: Barbara Haugen, Administrator
Contributing Writers: Emma Roderick, Grassroots Campaign Coordinator; Bethany Singer-Baefsky, Smith College Intern
Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060