Dissent Is Patriotic
The Bill of Rights Defense Committee's email newsletter
September 2009, Vol. 8, No. 9
In this issue:
- Holder Announces Limited Torture Investigation; BORDC Pursuing Legal Action
- BORDC News: BORDC Seeks Interns, Legal Fellow; Sahar Aziz Joins BORDC as Pro Bono Counsel; Executive Director Relocates to Nation’s Capital; American Journal of Sociology Publishes Study on BORDC Resolution Campaign
- PCC News: Constitution Day in Schools and in Second Life; Get Involved in the People’s Campaign for the Constitution
- Law & Policy: September 9 PATRIOT Act Hearing Postponed; Executive Branch Ignores Federal Courts’ Rulings Freeing Yemeni Detainees; KindHearts Ruling Commentary from JURIST
- New Resources: Book Reviews: Daybreak by David Swanson; Bad Advice: Bush’s Lawyers in the War on Terror by Harold H. Bruff
- In Brief: New York, NY—OSI National Security and Human Rights Campaign Event
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Over the past several months, BORDC supporters have repeatedly raised their voices to demand a complete investigation of torture and prosecution of all officials involved. BORDC launched an email campaign in April, and, on behalf of thousands of concerned Americans who signed them, submitted in June a series of letters to Attorney General Eric Holder and the Senate Intelligence and Judiciary Committees demanding accountability. Then, on August 24, Holder responded to these and other efforts by announcing the appointment of prosecutor John Durham to investigate torture of detainees while in U.S. custody.
While BORDC is pleased that Attorney General Holder has heeded calls for some accountability, we are gravely concerned by the artificially narrow scope of the investigation. Durham will selectively investigate fewer than a dozen cases among many more potential violations, and will examine the actions of only CIA interrogators who exceeded officially approved techniques. A limited inquiry that includes only scapegoats—effectively immunizing senior officials who bear the greatest responsibility for authorizing torture policies—is simply not enough. In fact, by conferring false legitimacy on officially approved techniques, a limited investigation could be worse than none at all. Justice demands a full investigation, not a limited preliminary inquiry.
Moreover, the chorus of former interrogators and officials who oppose torture is growing. A recently released 2004 inspector general’s report revealed that torture failed to secure valuable intelligence and may have been counter-productive. According to the report, interrogators strayed well beyond even the interrogation guidelines set by the Bush administration, threatening detainees with power drills and the torture of their families.
Ali H. Soufan, a former FBI Special Agent and senior interrogator, reinforced concerns about how torture undermined security in a New York Times op-ed:
It is surprising, as the eighth anniversary of 9/11 approaches, that none of Al Qaeda’s top leadership is in our custody. One damaging consequence of the harsh interrogation program was that the expert interrogators whose skills were deemed unnecessary to the new methods were forced out.…[P]rofessionals in the field are relieved that an ineffective, unreliable, unnecessary and destructive program—one that may have given Al Qaeda a second wind and damaged our country’s reputation—is finished.
Earlier reports, such as a 2008 report by the Justice Department’s Inspector General, also noted that beginning in 2002, FBI agents complained repeatedly about torture being committed by their CIA counterparts, but were overruled by senior officials. Nor was the FBI alone: Marine Lt. Col. Stuart Couch, who lost a dear friend in the 9-11 attacks, refused to prosecute a detainee “with the most blood on his hands," after witnessing interrogation sessions that "started keeping [him] up at night." Still frustrated that torture helped ruin the case, Col. Couch has said "I'm hoping there's some non-tainted evidence out there that can put the guy in the hole."
Given the incalculable harm imposed on U.S. interests by the torture program, a thorough investigation throughout the chain of command is imperative. America’s reputation abroad; the safety and human rights of our soldiers, civilian contractors, and others; our credibility as an international human rights leader; the legitimacy of our own criminal justice system all depend on keeping our commitments to the Geneva Conventions and United Nations Convention Against Torture, which require prosecution of all those responsible for torture as a matter of law.
If the Obama administration will not hold those who authorized torture accountable, private citizens must take action. That is why, in addition to demanding a formal investigation and potential prosecution, BORDC is also supporting ethics complaints in state bar associations around the country seeking the disbarment of government lawyers who provided legal arguments in support of torture—including John Yoo, William Haynes, David Addington, and others. Sign a letter demanding a robust investigation by state bar associations today, and check back in the coming days; letters to more state bar associations are coming soon. Join us in demanding that no one, not even senior U.S. officials, is immune from investigation and potential prosecution for enabling torture.
BORDC Seeks Interns, Legal Fellow
BORDC is currently seeking undergraduate interns in both Northampton, MA, and Washington, DC. The intern in Northampton will work out of the national administrative office and the intern in DC will work with Executive Director Shahid Buttar in the nation’s capital.
We are also offering an exciting opportunity for recent law school graduates: a deferral year law fellowship. BORDC’s deferral year law fellowship is a one-year position based in Washington, DC, under the supervision of BORDC's executive director.
Full job descriptions and application details are available online. In addition to these staff positions, BORDC offers a wide variety of volunteer opportunities. Please consider supporting BORDC’s work with your valuable time.
Sahar Aziz Joins BORDC as Pro Bono Counsel
Sahar Aziz, an attorney and former senior policy advisor at the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, has joined BORDC as pro bono counsel. Among Sahar’s first projects was writing commentary on the recent KindHearts case for JURIST. An excerpt of her commentary appears later in this newsletter.
Executive Director Relocates to Nation's Capital
This month, BORDC Executive Director Shahid Buttar relocates to Washington, DC, to establish a presence for the organization in the nation’s capital. Working out of Washington will allow Buttar to strengthen BORDC’s partnerships with other national organizations and more closely monitor policy discussions on Capitol Hill and K Street. We look forward to the new opportunities this move will afford BORDC.
American Journal of Sociology Publishes Study on BORDC Resolution Campaign
“Civil Liberty in America: The Diffusion of Municipal Bill of Rights Resolutions after the Passage of the USA PATRIOT Act,” by Columbia University’s Ion Bogdan Vasi and Cornell University’s David Strang, was published in the May 2009 issue of the American Journal of Sociology. The article describes BORDC’s resolution campaign, which was the study’s focus, as “the broadest grassroots effort to protect civil liberties in the history of the United States,” and “an exemplar in transcending the limitations of identity politics and the liberal-conservative divide.”
The study includes a statistical analysis of the resolution effort as a whole, and focuses in particular on successful resolution efforts in Boise, ID; Columbia, SC; Dallas, TX, and New York City. One factor key to success in all four cities was that the campaign was “an effort to protect the core principles that underlie American democracy. Its literal beneficiary was not a particular group or interest but a sacred text.” Unsuccessful efforts, the authors found, were characterized by leaders who, as one organizer put it, “didn’t do a very good job of being neutral. They were holding meetings but they weren’t inviting people most unlike them.”
Another of the campaign’s strengths, say Vasi and Strang, was that BORDC acted not as a “command and control center,” but as “an informational clearinghouse” utilizing the Internet to provide resources that could be adapted locally to reflect the major concerns and emphases of each particular coalition.
The study has done BORDC the profound services of analyzing our past efforts and affirming the trajectory of our work today. As current events bear out the sad conclusion that a vigorous Bill of Rights movement remains as needed under the Obama administration as under Bush, building alliances across the partisan divide grows increasingly important.
Constitution Day in Schools and in Second Life
BORDC Provides Resources for Schools
September 17 is Constitution Day, when schools receiving federal funds are required to integrate the Constitution into their lessons. The day offers an opportunity for all of us to teach students something about the Constitution, the document that unites us as Americans across all of our widely divergent political views.
Are you a teacher? Taking some time to discuss the Constitution in your classroom can help students make sense of this unique historical moment by connecting the rights it protects to current issues like domestic spying, preventive detention, and the expansion of executive power. Because it relates to so many subjects, the Constitution can be an apt subject for a lesson plan regardless of what you teach, or at what level.
BORDC has developed resources for teachers and volunteers interested in serving as guest lecturers. Please consider a September 17 lesson focused on the Constitution and its current relevance. Feel free to use BORDC’s lesson plans, and please share feedback on your students' experiences.
Let Emma know if you’re interested in helping compile lesson plans or other curricular materials about current constitutional issues, or if you know teachers who might be interested in having guest lecturers visit their classrooms.
BORDC Joins Second Life
BORDC has joined the virtual world of Second Life. Within Second Life, BORDC is part of the Four Bridges Project,,a virtual sustainable global community model founded on principles including universal human rights. This Thursday, September 17 (Constitution Day), BORDC Executive Director Shahid Buttar will visit Second Life at 5 p.m. EDT (2 p.m. PDT) to offer an informal introduction to the community and address the importance of the Constitution. The event may also feature poetry and music.
On October 1, Four Bridges will host an introduction ceremony for the Four Bridges Project and its participant organizations. BORDC is also honored to have been invited to participate in the exciting premiere of a Story Without Borders Quest. The events begin 10am PDT (SLT) and continue until the last avatar goes home!
Get Involved in the People’s Campaign for the Constitution
PCC affinity networks are now up and running. Nationwide teams of educators and legal professionals have been meeting via phone and email to coordinate work on several important projects, many of which could use your help. Are you interested in:
- a campaign to disbar torture lawyers through ethics complaints in state bar associations?
- a decentralized investigation seeking transparency into the opaque domestic spying activities of fusion centers?
- an effort to develop civil liberties curricula for K-12 students and their teachers?
We’d be thrilled to connect you to the relevant team and offer specific, concrete projects for you to pursue independently. Email Emma to connect with the project(s) in which you’re most interested.
We’re still looking for individuals willing to help lead groups for health professionals, interfaith religious leaders, and students. If you’d be interested in playing a leadership role, or starting a group not listed here, please let us know.
Start a Local Coalition
There’s plenty of work to be done in your local community, and all you need is a few friends to get things started. Review our toolkit for tips on starting a local coalition, and email Emma to share word about your activities and how we can help.
The PCC is currently seeking volunteer researchers and blog editors.
Research projects include identifying and collecting contact information for academics writing about issues including torture, detention, and surveillance; and identifying and researching the current roles of city council members across the country who supported resolutions opposing the PATRIOT Act.
Additional projects are available relating to each of the PCC affinity groups' respective projects, and we’re also looking for guest bloggers. To pursue one of these opportunities, or suggest another idea about how you can help, email Emma.
Share Your News
Do you have experience forming an affinity group or local coalition to share? Organizing an upcoming event you’d like to promote? Please send information about your actions and events to Emma, our grassroots campaign coordinator, to help inform and inspire others.
Not Yet a PCC Member?
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.
September 9 PATRIOT Act Hearing Postponed
The House Committee on the Judiciary’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties postponed at the last minute a hearing on the PATRIOT Act scheduled for September 9. Congressman Jerrold Nadler (D-NY) was to have chaired the hearing, focusing especially on issues related authorization of roving wiretaps (Section 206) and expanded search of business and personal records (Section 215), as well as classification of “lone wolf” terrorists as agents of a foreign power for intelligence purposes (Section 6001(a) of the Intelligence Reform and Terrorism Prevention Act). These provisions are due to expire December 31, though last March Rep. Lamar Smith (R-TX) introduced H.R.1467, the Safe and Secure America Act of 2009, which would extend them for another ten years, through 2019.
The hearing has yet to be re-scheduled.
Executive Branch Ignores Federal Courts’ Rulings Freeing Yemeni Detainees
Judge Gladys Kessler of the U.S. District Court for the District of Columbia granted Mohammed Al-Adahi’s petition for habeas corpus on August 17 and “further order[ed] the Government to take all necessary and appropriate diplomatic steps to facilitate [his] release forthwith.” Al-Adahi is the third Yemeni Guantánamo detainee since April whom federal courts have ordered be released, but all three remain in detention without trial.
The Obama administration cites the active presence of al-Qaeda in Yemen for its reluctance to repatriate the Yemeni detainees. This will continue to be a huge stumbling block as the cases of the remaining Guantánamo detainees move through the federal courts because “[n]early 100 of the remaining 223 detainees at Guantanamo Bay are from Yemen.”
Al-Adahi’s attorney, John Chandler, stated the obvious: “The way our system is supposed to work is that if a federal district court orders that a branch of the government do something, they’re supposed to do it.” Normally, when a judge rules in favor of a petitioner seeking habeas corpus, the petitioner simply walks out of the courtroom “forthwith.” In the cases of the Guantánamo detainees, however, the judicial rulings have been effectively overruled by the “necessary and appropriate diplomatic steps” the administration has claimed necessary to “facilitate the Petitioner’s release.”
David Remes, attorney for other Yemeni detainees, notes that further complications arise because “[t]he government is designating the very fact of approval for transfer ‘protected’ information, meaning it can’t be disclosed to anyone who has not committed to obeying the protective order—which in turn prohibits the disclosure of ‘protected’ information.”
In al-Adahi’s case, Judge Kessler has ordered the government “to report back to Court no later than September 18, 2009, as to the status of [his] release and what steps have been taken to secure that release.”
A recent ruling by a federal district court signifies an encouraging shift. For many Muslim charities in the United States, mere investigation by the Department of Treasury’s Office for Asset Control (“OFAC”) into their humanitarian activities abroad has become a kiss of death.
Under the PATRIOT Act, Treasury’s authority to designate organizations suspected of supporting terrorism as Specially Designated Global Terrorists (SDGT) pursuant to Executive Order 13224 was expanded to asset blockage pending mere investigation into whether an organization meets the standards for an SDGT. This authority enables OFAC to effectively shut down charities pre-emptively.
The ruling relates to KindHearts, which was founded in January 2002 after OFAC shut down the largest American Muslim-affiliated charities in fall 2001. Exercising its broad authority under the PATRIOT Act, OFAC froze KindHearts’ $1 million of humanitarian donations in February 2006 pending investigation as to whether it provided material support to Hamas.
One especially troubling aspect of the KindHearts case is that its founders purposely took great care to ensure compliance with anti-terrorism financing laws, sought guidance from the U.S. Department of Treasury during the organization’s inception, and proactively implemented Treasury’s voluntary guidelines for charitable organizations. These efforts were ultimately futile, raising concerns throughout the nonprofit sector.
More than three years after the asset block, the U.S. District Court for the Northern District of Ohio recently held that KindHearts has “a fundamental right to be informed on what basis and for what reasons the government deprived it of its assets and shut down its operations.” The Court found that KindHearts never received timely or adequate notice of the basis for the investigation or why it was “preliminarily” designated. The charity thus was unable to prepare a meaningful defense to the government’s allegations. The court concluded that OFAC violated KindHearts’ Fifth Amendment due process rights.
The Court also found that OFAC’s asset-blocking constitutes a seizure subject to Fourth Amendment analysis, and held that OFAC is required to obtain a judicial warrant based on probable cause prior to issuing an order blocking a charity’s assets.
This article was adapted from commentary originally published by JURIST.
Book Review: Daybreak by David Swanson
David Swanson’s Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union offers a roadmap for how America got to where we are today, and how we can undo the rapid expansion of executive power begun under the Bush administration. Swanson himself is an organizer: the co-founder of the anti-war After Downing Street Coalition and a leader of the campaign for President Bush’s impeachment, he has long written about the demise of democracy in the United States and strategies for its restoration. Daybreak lays out the problems our country faces in clear, readable terms and offers solutions in the same practical manner.
Swanson reminds us of how U.S. democracy is supposed to function. He offers a lengthy discussion of the powers of Congress and the Judiciary, and how, both through the Bush administration’s actions and through the dysfunction and negligence of Congress, the Executive Branch has become the only branch empowered to take on the duties of governance. He argues that putting faith in President Obama to solve our country’s problems—or even pressuring Obama to do so—misses the point. We need to restore our checks and balances by pressuring Congress to exercise their authority and remembering our own power as citizens. The book ends with a “to do” list enumerating demands to place on Congress and suggestions for informing ourselves and organizing for accountability.
Swanson has embarked on a national organizing and book tour for Daybreak, speaking at colleges and bookstores across the country, making the case for democracy’s restoration. Interested in attending or helping to publicize an event near you? Let us know!
Bad Advice: Bush’s Lawyers in the War on Terror by Harold H. Bruff
This review was written by Stephen F. Rohde, a constitutional lawyer and chair of the ACLU Foundation of Southern California, and is excerpted with permission from the September 2009 issue of Los Angeles Lawyer. Rohde is the author of American Words of Freedom and Freedom of Assembly and coauthor of Foundations of Freedom. He is also an active participant in the torture accountability campaign of the People’s Campaign for the Constitution’s legal professionals affinity group.
Harold Bruff, author of a new and engrossing book Bad Advice: Bush’s Lawyers in the War on Terror, uses the test of “right and conscience” to judge the wisdom and ethics of the lawyers who advised President George W. Bush. Did John Ashcroft, Alberto Gonzales, John Yoo, David Addington, Jay Bybee, and others at the Justice Department and in the White House meet the fundamental standard of the American Bar Association to “exercise independent professional judgment and render candid advice”? Based on his sober and comprehensive study, Bruff convincingly concludes that, “[i]gnoring the need for detachment and lacking a willingness to consider constitutional claims of the other branches, President Bush’s lawyers manipulated the law for political ends.”
After the [September 11, 2001] terrorist attack…[a]ccording to Bruff, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Addington, and Yoo “counted existing law among the threats to national security.” Within weeks after September 11, Yoo began composing a series of legal memos that Bruff analyzes in detail. The first memo, justifying an expansive scope of presidential power, laid the groundwork in which Yoo “wrote a blank check for the president to cash at any time.”
Bruff reserves his most scathing analysis for memos Yoo and the other lawyers wrote justifying indefinite detention of enemy combatants and abusive interrogation techniques. In January 2002, Yoo issued a lengthy memo concluding that the president could either suspend the Geneva Conventions in Afghanistan or find that none of them applied to Al Qaeda and Taliban prisoners.
Even as this memo was being drafted, State Department Legal Adviser William Howard Taft IV…objected that “the most important factual assumptions on which your draft is based and its legal analysis [are] seriously flawed” and “contrary to the official position of the United States, the United Nations, and all other states that have considered the issue.” According to Bruff, Yoo’s memo “failed in the duty imposed by conscience to take an independent and candid look at the issues” and instead “furnished a thinly based, misleading brief for a particular policy position.”
It remains to be seen whether President Barack Obama will uphold his lofty rhetoric that no one is above the law and seek criminal prosecution of members of the Bush administration. Bad Advice provides a lucid and compelling legal indictment against Yoo and others who regrettably gave their leader the advice he wanted instead of the advice he needed.
Copyright © 2009 Los Angeles County Bar Association
OSI National Security and Human Rights Campaign Event
New York, NY--On September 15, the Open Society Institute’s National Security and Human Rights Campaign is hosting a Constitution Day event. Daniel Ellsberg and John Dean, two Nixon-era whistleblowers, will discuss the dangers of excessive government secrecy and abuses of power in the name of national security. The event will take place at the New York Society for Ethical Culture Concert Hall, 2 West 64th Street, New York NY from 6:30 to 8:30 p.m. Admission is free and open to the public.
Editor: Amy Ferrer, Associate Director
Managing Editor: Barbara Haugen, Administrator
Contributing Writers: Sahar Aziz, Pro Bono Counsel; Amy Cross, Four Bridges Project; Emma Roderick, Grassroots Campaign Coordinator; Stephen F. Rohde, ACLU Foundation of Southern California