Dissent Is Patriotic
The Bill of Rights Defense Committee's email newsletter
July 2009, Vol. 8, No. 7
In this issue:
- Americans Across the Political Spectrum Unite in Opposition to Preventive Detention
- BORDC News: Naomi Wolf Joins BORDC Advisory Board; Executive Director Writes on Torture and the Rule of Law; 4,000 Sign Letters Sent to Holder, Intelligence and Judiciary Committees; Buttar Speaks at Press Conference Calling for Disbarment of Torture Lawyers
- Law & Policy: Congress Considers Military Commission Legislation; CIA Admits to Deceiving Congress and Obama Threatens Veto of Intelligence Funding Bill Expanding CIA Briefings; Holder Said to Be Leaning Towards Torture Investigation
- Get Involved in the People's Campaign for the Constitution!
- Grassroots News: Events Across Country Bring Attention to Torture; Brattleboro, VT—PCC in Southern VT!; New York, NY—Free Fahad Campaign
- New Resources: Book Review: Getting Away with Torture by Christopher Pyle
- In Brief: Inspector General’s Torture Report Delayed—Again; Senate Reinstates Flawed “No-Match” Immigration Policy; NSA and ATT&T to Monitor Traffic on Government Websites
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Americans Across the Political Spectrum Unite in Opposition to Preventive Detention
Late last month, the Obama administration made a disheartening announcement: the President is in the process of drafting an executive order that would assert executive authority to imprison suspected terrorists indefinitely, without charge or legal recourse. This approach cuts Congress out of the policymaking process by singlehandedly claiming presidential authority not given by the Constitution. Last week, Pentagon General Counsel Jeh Johnson told the Senate Armed Services Committee that the President wields the power to indefinitely incarcerate even those detainees who are tried and acquitted if the administration deems them to be a threat to national security. These assertions are outrageous: indefinite and preventive detention fly in the face of the U.S. Constitution and Bill of Rights and explicitly violate many of our most basic American values, including the presumption of innocence and the right of habeas corpus.
Many on the political left have been outspoken in their opposition to preventive and indefinite detention schemes, but they are not alone. Bruce Fein, BORDC advisory board member and prominent conservative who served as associate deputy attorney general under President Reagan, told Inter Press Service, “Indefinite detention without accusation or trial is a terrible idea.” A prominent group of military and criminal defense lawyers echoed this sentiment in a letter to President Obama, “urging him not to create a new system of long-term preventive detention, but to rely on the systems we already have—with modifications, if necessary.”
In his latest commentary, “Preventive Detention, At What Cost?”, BORDC Executive Director Shahid Buttar shares why indefinite and preventive detention are so antithetical to American values:
A family vacation over Independence Day offered a poignant reminder of why, over 30 years ago, my parents sought refuge in the U.S. Fleeing the racial hostility they encountered in Britain after escaping the brutality of the Indian Subcontinent’s Partition, they found in rural Missouri economic opportunity, political freedom, and small town Midwestern hospitality. Today, the specter of preventive detention calls into question whether my parents’ grandchildren will enjoy the same freedom.
Warrantless domestic spying, detention without trial, torture, and excessive secrecy raised concerns across the political spectrum and fueled recent change in the White House. These policies, however, remain equally noxious under the new administration, which currently entertains proposals beyond even its predecessors’ wildest plans.
We should begin by removing the beltway spin. Whether called “preventive,” “indefinite,” or simply “prolonged,” prevention detention schemes are essentially lawless, unconstitutional, and un-American. And whether established through an executive order or an act of Congress, they would undermine—not enhance—our national security.
Read the rest of Shahid’s commentary.
BORDC News
Naomi Wolf Joins BORDC Advisory Board
BORDC welcomes activist and author, Naomi Wolf, to our advisory board. She is the author of seven books, including The End of America and Give Me Liberty, and is a cofounder of both the Woodhull Institute for Ethical Leadership and the American Freedom Campaign. BORDC is excited and honored that she has joined our advisory board.
Executive Director Writes on Torture and the Rule of Law
In commentary published on the Huffington Post and the Augusta Free Press, Bill of Rights Defense Committee Executive Director Shahid Buttar argues that the failure to investigate and prosecute those government officials who sanctioned (and in some cases still champion) acts of torture undermine and threaten the very rule of law on which our country is founded. He writes:
Sixty years ago, U.S. Supreme Court Justice Robert Jackson left Washington to pursue what he later called “the most important, enduring, and constructive work of [his] life”: prosecuting international war crimes committed during WWII. Justice Jackson helped usher in a new international regime that promised to help deter human rights abuses.
Unfortunately, Jackson’s achievements have proven less enduring than he hoped. Our nation continues to undermine international law by sweeping torture under the rug, with serious implications going forward.
The Nuremberg Trials established a timeless principle: individuals are criminally liable for violating fundamental human rights, even if their governments authorized those violations. Some laws, Nuremberg held, transcend those of any nation.
We have fallen a long way in such a short time.
4,000 Sign Letters Sent to Holder, Intelligence and Judiciary Committees
BORDC thanks all of you—educators, health professionals, people of faith, attorneys, and everyday Americans from all walks of life—who signed BORDC’s torture accountability letters in support of the appointment of a special prosecutor to investigate potential crimes by former officials involved in torturing detainees. Hard copies of these letters were sent to the Attorney General and the Senate Intelligence and Judiciary Committees on June 23, 2009.
Since then, in recent reports that AG Holder is now considering the appointment of a special prosecutor, he is quoted as saying, "I hope that whatever decision I make would not have a negative impact on the President's agenda. But that can't be a part of my decision." Though that sounds encouraging, Justice Department spokesman Matt Miller underscored that, "[a]s the attorney general has made clear, it would be unfair to prosecute any official who acted in good faith based on legal guidance from the Justice Department." This position still falls short of the United Nations Convention Against Torture, commemorated around the world on June 26. Article 2.3 of the Convention, to which the U.S. is a signatory, clearly provides: “An order from a superior officer or a public authority may not be invoked as a justification of torture.”
BORDC observes that all officials involved in the torture broke the law and should, accordingly, face investigation and potential prosecution. Please sign the letter if you have not yet done so, as we plan to send updated signature lists to continue pressuring Holder “to restore the rule of law by ensuring its equal application to all.”
Buttar Speaks at Press Conference Calling for Disbarment of Torture Lawyers
On Monday, June 29, BORDC Executive Director Shahid Buttar and Advisory Board member Bruce Fein joined attorney Kevin Zeese for Velvet Revolution's Disbar the Torture Lawyers press conference in Washington, D.C. At the press conference, Velvet Revolution announced their filing of disbarment complaints against CIA lawyers John Rizzo, Jonathan Fredman, and Scott Muller for “legally sanctioning the immoral and unethical ‘extended’ or ‘enhanced’ interrogation techniques (amounting to torture).”
Zeese stressed that the disbarment campaign is not about right or left, but about right and wrong. Holding a copy of the current issue of The New Yorker magazine, with Jane Mayer’s profoundly disturbing CIA article, “The Secret History,” Zeese warned that “we know a lot less than we think we know.”
Bruce Fein deplored the “sea change in political culture” illustrated by the fact that actions considered an impeachable offense in the days of Richard M. Nixon are now taken for granted. Fein urged that more important even than torture’s effect on its victims is the impact of permissive torture policy on our definition of ourselves as a nation. He also argued that we cannot leave it up to the attorney general to decide whether or not to investigate and prosecute, as the executive branch cannot be trusted to police itself.
BORDC’s Shahid Buttar emphasized the “legitimacy crisis facing our own domestic criminal justice system when, on the one hand, non-violent crime is prosecuted without inhibition…while torture goes unpunished when committed by politically connected senior officials.”
Watch Shahid's statement or the entire press conference.
Law & Policy
Congress Considers Military Commission Legislation
The charade of justice at Guantánamo Bay for detainees of the “war on terror” stands poised to enter a new phase with the Obama administration’s revival of Bush-era military commissions.
On July 2, Senator Carl Levin (D-MI) introduced the National Defense Authorization Act for Fiscal Year 2010 (S.1390). This bill contains the latest attempt by Congress and the Executive branch to revive military commissions. These commissions are proposed as an alternative to existing military and civilian judicial systems, created for the sole purpose of trying “alien unprivileged enemy belligerents.” The Bush administration attempted to create such military commissions twice before. Both times, however, the Supreme Court struck down the commissions as providing inadequate due process protections.
The creation of a military commission system reflects an implicit belief that federal courts and military courts-marshal are incapable of handling the trials of accused terrorists. Such a belief defies decades of legal history and experience demonstrating that federal courts are more than capable of prosecuting accused terrorists. Obama’s new military commissions, like the old military commissions, are ultimately an attempt to create a new judicial venue in which the administration might seek more favorable outcomes. The commissions would have far more relaxed rules of evidence than the federal courts, allowing for the admission of evidence that might otherwise be excluded, such as hearsay. By creating a new legal system with new rules of evidence, the administration is creating a system wherein they are all but guaranteed a conviction.
Administration officials have said that, where “feasible,” they would prefer to try detainees in federal courts. However, this proviso may mean only that if the administration can be assured a conviction in federal court, the detainee will be tried in federal court; and if not, the detainee will be tried before a military commission.
Further diminishing the credibility of the military commission system, if the administration cannot be guaranteed a conviction in even a military commission, the administration will simply hold the detainee indefinitely. Finally (and perhaps most appallingly), if a trial is held, either before a military commission or in federal court, and the accused is somehow acquitted of charges, the administration has asserted the authority to keep the acquitted detainee imprisoned regardless.
In the worlds of former military commission prosecutor Lt. Col. Darrel Vandeveld, testifying before Congress;
We do not need military commissions. They are broken and beyond repair. We do not need indefinite detention, and we do not need a new system of ‘national security courts.’ Instead, we should try those whose guilt we can prove while observing ‘the judicial guarantees which are recognized as indispensable by civilized peoples’—in other words, using those long-standing rules of due process required by Article III courts and military courts-martial—and resettle or repatriate those whom we cannot. That is the only solution that is consistent with American values and American law.
CIA Admits to Deceiving Congress and Obama Threatens Veto of Intelligence Funding Bill Expanding CIA Briefings
According to several Democratic members of Congress, CIA Director Leon Panetta has admitted that the CIA concealed “significant actions” from Congress. Panetta testified in a closed-door session that the deception occurred between 2001 and late June 2009. Representative Rush Holt (D-NJ), who made the information public by releasing a letter discussing Panetta’s testimony, did not detail the deception, but indicated that it was not “trivial.” After Holt’s revelations, Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee, told reporters that, according to Panetta, it was former Vice President Dick Cheney who ordered the CIA not to disclose a highly classified counterterrorism program to Congress.
In spite of these revelations, President Obama has threatened to veto a bill that would provide funding for intelligence agencies because it contains a provision that would expand briefings on covert intelligence operations. The bill would include all members of the House and Senate Intelligence Committees, rather than just the eight leaders who currently receive these briefings. The bill would also give Congress the power to restrict briefings, whereas the Executive branch currently claims that power.
As explained in The Atlantic, these changes have resulted in a veto threat because “[t]he Obama administration, like all previous administrations of the modern era, believe that the president, and only the president, has the power to determine what constitutes national security information and, even more vitally, what safeguards ought to be in place to protect the information.”
Holder Said to Be Leaning Towards Torture Investigation
Over the past several months, BORDC has launched a number of initiatives—including emails to the attorney general, sign-on letters to the attorney general and Congress, commentary by our executive director, and support for the National Days of Action on Torture—advocating for torture accountability through the appointment of a special prosecutor. Also during this period, more disturbing news has come to light regarding the treatment of detainees in U.S. custody.
Now it appears our hard work may be paying off. This month, the Associated Press, Newsweek, and other news outlets reported that Attorney General Eric Holder is considering—even “leaning toward”—appointing a special prosecutor to conduct an inquiry into torture policies. With this news, it’s now more important than ever to keep up the pressure for accountability. Sign a letter or send an email to the attorney general and make your voice heard.
Get Involved in the People's Campaign for the Constitution!
Affinity Groups
Are you a high school teacher interested in connecting with other high school teachers about how to best teach students about our civil liberties? A rabbi looking to connect with other faith leaders to take a stand against human rights abuses at detention centers? A librarian interested in educating your library about the impact of the PATRIOT Act on library records? A college student willing to organize other students to stop the racial and religious profiling of Muslims?
The PCC is forming affinity groups for students, educators, clergy, attorneys, librarians, doctors, and people fluent in languages other than English. The educators and legal professionals have begun coordinating and will soon announce a series of discrete projects with volunteer opportunities. Get involved in one of these groups: email Emma and put the group you are interested in joining in the subject.
Share Your News
Have experience forming an affinity group or local coalition that you want to share? Email us your thoughts for inclusion in our next newsletter.
Already up and running? We want to hear your news too, and share it in our next newsletter to inspire others. Email Emma!
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Grassroots News
Events Across the Country Bring Attention to Torture
On Torture
Accountability Day and the U.N.
International Day in Support of Victims of Torture—June
25 and June 26, respectively—activists held events around the
country to bring attention to the torture issue and to support efforts
to hold senior Bush administration members accountable for their role
in authorizing its use.
Torture Accountability Day saw public events including:
- David Swanson speaking aginst torture in Washington, D.C.
- Bye Bye Bybee Rally in San
Francisco, CA
- Code Pink action in Pasadena,
CA
- BORDC Executive Director Shahid Buttar speaking and performing
in Cambridge, MA
- Torin Nelson, former military interrogator, speaking in Salt Lake City, UT
Actions also took place in Portland, OR; Tampa Bay, FL; Thousand Oaks, CA; Bryn Mawr, PA; and Las Vegas, NV.
PCC in Southern VT!
Brattleboro, VT—A People’s Campaign for the Constitution chapter is starting up in Southern VT! Contact Phil to get involved.
Interested in starting up a chapter of your own? Sign up for the People’s Campaign or contact Emma directly to get started.
Free Fahad Campaign
New York, NY—On July 7, more than 60 New Yorkers packed into a courtroom to support Fahad Hashmi, a Muslim immigrant and Brooklyn College Graduate who has been detained for over two years without trial on material support charges. Interested in supporting Fahad? You can read more about the case, join the Facebook group supporting him, or attend a biweekly volunteer meeting in New York City.
Want your group's actions included in our next newsletter?
Please send information about your actions and events to Emma, our grassroots campaign coordinator, to help inform and inspire others.
New Resources
Book Review: Getting Away with Torture, by Christopher Pyle
In Getting Away with Torture, Christopher Pyle offers a comprehensive look into the Bush administration’s “war on terror” policies, which not only permitted, but actively encouraged, what a world consensus recognizes as war crimes. Pyle examines the source of those policies in the convoluted legal logic hand-crafted for Vice President Dick Cheney by the Department of Justice. He also examines the legislative, judicial, military, and political histories enabling such policies, either through willful ignorance or outright collusion. Finally, Pyle outlines steps that must be taken to restore the rule of law, while acknowledging the many institutional, political, and cultural obstacles to such restoration.
Perhaps most significantly, Pyle offers a direct refutation of the argument that our government’s war crimes were the “isolated excesses” of a “few bad apples,” as was argued during the Abu Ghraib scandal. Rather, the crimes at Abu Ghraib, Guantánamo Bay, Bagram Air Force Base, and elsewhere were the predictable and unavoidable result of policies and legal opinions created at the highest levels of the Bush administration. Pyle shows how Bush administration officials consciously, with intent and purpose, crafted a set of policies which would lead to the crimes we have already seen, and those we are learning more about every day.
In Brief
Inspector General’s Torture Report Delayed—Again
The CIA has again delayed the release of an Inspector General’s report outlining the agency’s detention and interrogation programs during the “war on terror.” A heavily redacted version of the report was released last year in response to a FOIA request by the American Civil Liberties Union. The ACLU appealed the original disclosure, requesting that more information be released. The new report was scheduled for release June 19 of this year, but has been delayed twice already by the CIA, to June 26 and then to July 1.
The CIA has now said the report will not be ready until August 31. Announcement of the delay came less than two weeks before revelations that the CIA has concealed counterterror programs from Congress.
Senate Reinstates Flawed “No-Match” Immigration Policy
In a reversal of President Obama’s decision to end a 2007 rule, the Senate this month passed an amendment requiring employers to fire workers who cannot resolve discrepancies in their Social Security records. Given the frequency of errors in the Social Security database, civil libertarians have long derided the Bush-era “No-Match” rule for causing the termination of innocent American citizens’ jobs.
Joanne Lin, ACLU Legislative Counsel, explained, “While the Senate might think it has taken a step to fix illegal immigration, it has actually set into motion a rule that will jeopardize the jobs of tens of thousands of U.S. citizens who could be unjustly fired under the rule due to SSA database errors. ... Social Security no-match letters were never designed to be immigration enforcement tools, and they cannot and will not solve the problem of illegal immigration.” Read more.
NSA and AT&T to Monitor Traffic on Government Websites
This May, President Obama announced plans for a new cybersecurity initiative. Privacy advocates were initially encouraged by the President’s assurances that the program “will not…include monitoring of private-sector networks or internet traffic,” but details are beginning to emerge, and they are less than encouraging. In particular, recent revelations that Obama is proceeding with a Bush administration program that monitors government computer traffic (emails sent to government addresses and visits to dot-gov web sites, for example), have privacy advocates expressing concern.
Einstein 3, developed and operated by the National Security Agency (NSA), would monitor all traffic into or out of government networks and web sites and autonomously intercept and block potentially damaging viruses or code. The system requires all incoming internet traffic to be routed through key choke points so that it can be scanned for malicious code. To facilitate this, the NSA plans to partner with telecommunications companies, including AT&T. The exact details of the program, including what traffic will be monitored and how, remain unknown.
Proponents of Einstein 3 claim that the system is intended only to spot malicious code, not read emails. Such assurances, however, carry little weight from a government agency and private telecom that previously lied to Americans by claiming they were listening only to terrorists’ phone calls. As Lee Tien of the Electronic Frontier Foundation put it, “The same folks are being potentially entrusted with cybersecurity who have already shown that they have no regard for the law.”
Editor: Amy Ferrer, Associate Director
Managing Editor: Barbara Haugen, Administrator
Contributing Writers: Shahid Buttar, Executive Director;
Emma Roderick, Grassroots Campaign Coordinator; Max Solie, Summer
Intern
Bill of Rights Defense Committee
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Northampton, MA 01060 Web: www.bordc.org
Email: info@bordc.org
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Fax: 413-582-0116