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Dissent Is Patriotic

The Bill of Rights Defense Committee's email newsletter

October 2009, Vol. 8, No. 10

In this issue:

  • BORDC Model Ordinances: Your Community Can Do What the Government Won’t
  • BORDC News: Lisa Graves Joins BORDC Advisory Board; BORDC Issues Privacy Report Card for EPIC Panel; Welcome Interns Andrea Flores and Heather Marlowe; Buttar Speaks at AU’s Public Anthropology Conference
  • PCC News: Educators and Volunteers Participate in Constitution Day; Legal Professionals Move Forward on Torture Accountability; Get Involved in the People’s Campaign for the Constitution
  • Law & Policy: Senate Judiciary Committee Considers PATRIOT Act Reforms; Administration’s State Secrets Proposal is No Real Fix; Supreme Court's Iqbal Ruling Faces Attack on Several Fronts
  • Grassroots News: Middlesex County, NJ—Municipalities End ICE Contract
  • New Resources: Book Reviews: The Torture Memos by David Cole

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

Get involved! Learn how you can help BORDC restore the rule of law.

BORDC Model Ordinances: Your Community Can Do What the Government Won’t

Warrantless surveillance. Torture. Privacy violations. Since the beginning of the so-called “war on terror,” we’ve seen these injustices and many more. Yet, despite our vocal protests and even the promises of a new President, little has changed, and no one in the government has paid for their unconstitutional and immoral actions.

We at the Bill of Rights Defense Committee, like you, have had enough. If the federal government won’t act to prevent unconstitutional violations of the rights of law-abiding Americans, or punish those responsible for violating our country’s most fundamental human rights commitments, then it falls to We the People to act. That’s why we have released two model ordinances that will allow communities across the U.S. to do what the federal government has not.

One model ordinance focuses on unconstitutional surveillance and privacy violations. It limits local law enforcement activities from infiltrating or spying on activist groups, protects against racial and religious profiling, restores Fourth Amendment rights compromised by intelligence collection efforts, and creates a private right of action for individuals whose rights are violated. This ordinance also blocks local law enforcement agencies from doing the work of federal immigration authorities, in order to protect their capacity to focus on public safety efforts undermined by local immigration enforcement.

A second model ordinance takes torture accountability to the local level by authorizing investigation and potential prosecution by local authorities. If any government official accused of conducting or authorizing torture enters a municipality that has passed an optional provision in this ordinance, local law enforcement officers must arrest the official and the local district attorney must investigate and seek to prosecute the official under the principle of universal jurisdiction.

Both of these ordinances will have the force of law where enacted.

If you’re ready to take action in your community, these ordinances are an excellent organizing opportunity. Get started with our organizing toolkit and contact Emma Roderick, BORDC’s grassroots campaign coordinator, to get advice and connect with other organizers across the country.

BORDC is building a movement across the United States to stop constitutional violations at the local level. Be part of that movement by introducing these ordinances before your city or town government. Start building your local coalition today.

BORDC News

Lisa Graves Joins BORDC Advisory Board

BORDC is pleased to announce that Lisa Graves, executive director of the Center for Media and Democracy, has joined BORDC’s advisory board. Graves, who previously worked at the ACLU and the Center for National Security Studies, wields vast expertise on civil liberties issues and a wealth of insight informing our advocacy efforts. Graves also appeared in BORDC’s FBI: Unbound video about abuses of national security letters, and testified before the Senate Judiciary Committee during a recent hearing about reforming the PATRIOT Act.

BORDC Issues Privacy Report Card for EPIC Panel

Last month, Chip Pitts, president of BORDC’s board of directors, participated in a panel discussion called “The Obama Administration Privacy Report Card.” Members of the panel, hosted by the Electronic Privacy Information Center (EPIC) and the Privacy Coalition, graded the Obama administration’s privacy record in four areas: consumer privacy, medical privacy, civil liberties, and cyber security. Pitts and BORDC addressed civil liberties, giving the Obama administration a D grade overall, explaining,

The Bill of Rights Defense Committee and its constituents share concerns that, despite comforting rhetoric from a president with constitutional law expertise, the Obama administration has continued—and in some respects expanded, worsened, or more deeply entrenched—privacy and civil liberties intrusions begun under the Bush administration.

Read BORDC’s report card and news coverage of the event for more details.

Welcome Interns Andrea Flores and Heather Marlowe

BORDC is fortunate to have two interns beginning with us this fall: Andrea Flores working in our national office in Northampton, MA, and Heather Marlowe working with our executive director, Shahid Buttar, in Washington, DC.

Andrea Flores is a Law, Jurisprudence and Social Thought major at Amherst College, who spent the summer in San Diego, CA, interning with Catholic Charities Immigration Services, as well as volunteering with Latinas y Latinos En Accion on the development of a strategic action plan. Andrea will also be assisting our Northampton staff with conference calls, research, and other ongoing projects.

Heather Marlowe majors in Communications, Legal Systems, Economics, and Government at American University and has a strong interest in civil rights. Heather is a contributing writer for this issue of BORDC’s newsletter and will be researching issues for BORDC as well as attending meetings and hearings with Shahid in Washington, DC.

Buttar Speaks at AU’s Public Anthropology Conference

On Friday, October 9, BORDC Executive Director Shahid Buttar led two workshops at American University’s annual Public Anthropology Conference in Washington, DC. The first workshop focused on public performance as social action—a longstanding passion of his, having used spoken word poetry as a vehicle for activism and local organizing in cities across the country for the past decade. In his second workshop, Buttar discussed the continuing threats to the Constitution and rule of law under the Obama administration, and shared local and national organizing opportunities related to those threats.

PCC News

Educators and Volunteers Participate in Constitution Day

On September 17, PCC educators brought the Constitution into their classrooms. In celebration of Constitution Day, when all schools receiving federal funds are required to devote some class time to the Constitution, a team of educators across the country developed and compiled civil liberties lesson plans, making it easy for teachers—or volunteer guest lecturers—to integrate the Constitution into their lessons, regardless of what level or subject they teach.

If you are interested in adding your lesson plan to our collection or working with like-minded teachers to develop an essay contest around Bill of Rights Day (December 15), contact Emma for more information.

Legal Professionals Move Forward on Torture Accountability

A team of PCC legal professionals created and is currently circulating a series of letters to state bar associations demanding a robust inquiry responding to ethics complaints about senior government officials and their potential ethics violations in authorizing torture. The letters support ethics complaints underway in Texas, Pennsylvania, California, New York, and Washington, DC. Sign your name to the letters and circulate them among your colleagues. Every signature is welcome and appreciated, but we especially encourage signatures from lawyers licensed to practice in the five states mentioned above.

To join the PCC legal professionals team or get more information about their activities, contact Emma.

Get Involved in the People’s Campaign for the Constitution

Join the PCC

Visit the People’s Campaign for the Constitution website and join today. Emma will contact you shortly after you sign up to help you get started.

Read the latest news on our blog

Recent highlights on the PCC blog include:

Lend Your Time to the PCC

The PCC is currently seeking volunteer bloggers and researchers. Several volunteer bloggers have already begun to contribute weekly posts to the PCC blog, but we’re still seeking a few additional volunteer blog editors. We are also seeking volunteers to help us with a variety of research projects. Sign up to be a volunteer.

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. BORDC’s newly released model ordinances can offer a concrete project around which to organize and effect real change. Review our ordinance toolkit for tips on how to start your campaign, and email Emma to share word about your activities and how we can help.

Update the PCC About Your Local Activities

Please send information about your actions and events to Emma, our grassroots campaign coordinator, to help inform and inspire others.

Law & Policy

Senate Judiciary Committee considers PATRIOT Act reforms

In the past month, the PATRIOT Act has returned to the front page. On Constitution Day, September 17, Senators Russ Feingold and Dick Durbin—along with eight other senators—introduced the JUSTICE Act, which aims to fix provisions of the PATRIOT Act and last year’s FISA Amendments Act that threaten Americans' fundamental civil rights and liberties.

The following week, Senate Judiciary Committee Chairman Patrick Leahy introduced an alternative bill, the USA PATRIOT Act Sunset Extension Act. While Senator Leahy's bill did include some important improvements to PATRIOT Act provisions, it was less ambitious than the JUSTICE Act, which would go much further in protecting Americans' fundamental rights and preventing government abuses of surveillance powers.

Then, in a committee hearing on October 1, Leahy presented for markup a compromise bill even less ambitious than his original proposal. At that hearing, eight Democrats joined the committee’s Republicans in rejecting the stronger protections proposed in the JUSTICE Act. Word later emerged that the White House had lobbied the Committee for two weeks in an effort to undermine civil liberties protections, while publicly claiming to have supported them.

As disappointing as these developments have been, hearings continue on these bills, and it is not too late to act. Senators still have an opportunity to add the most important JUSTICE Act provisions to the final bill: the bill’s limits on the use of national security letters, and a prohibition on the bulk collection of Americans’ international communications. In addition, the House Judiciary Committee, chaired by Congressman John Conyers (D-MI), will have an opportunity to craft a contrasting piece of legislation—if he can resist pressure from the White House to continue the Bush-era policies.

As this process continues, it is imperative that you stay in touch with your senators and representatives and demand that they protect the fundamental, constitutionally guaranteed rights and liberties of all Americans by passing the reforms included in the JUSTICE Act.

Administration’s State Secrets Proposal No Real Fix

During President Obama’s campaign for the presidency, he claimed to abhor his predecessor’s use of the state secrets privilege to avoid transparency on torture and unlawful wiretapping policies. Since President Obama has taken office, he has promised to reform the state secrets privilege practices and to invoke it only when it is absolutely necessary.

Attorney General Eric H. Holder Jr. recently announced further internal Justice Department review of requests made by federal officials to invoke the state secrets privilege. Holder has promised that this policy will only be used “in the narrowest way possible,” allowing its use only if it revealing state secrets in court could cause “significant harm” to national security.

To date, however, Attorney General Holder has used the state secrets privilege in exactly the same way as the previous administration: he has continued to assert the privilege broadly to compel the dismissal of lawsuits alleging government wrongdoing even before any evidentiary issues have arisen.

Ultimately, the problem with that state secrets privilege is that no independent checks and balances constrain its use. All decisions are made within the executive branch, under the attorney general.

The only way to ensure the state secret privilege is used appropriately is to mandate a court review of all state secrets claims made by the executive branch. Judges would be required to review the actual documents, rather than simply taking the word of federal officials, who have historically lied when invoking the privilege. Legislation is the only way to ensure proper treatment of the state secrets privilege and prevent its abuse.

Supreme Court's Iqbal Ruling Faces Attack on Several Fronts

The Supreme Court’s May 18 decision in Ashcroft v. Iqbal has effectively shut out plaintiffs in more than 1,500 District Court and 100 appellate court cases by requiring them to detail in their initial pleadings facts to which they could not possibly have access before the discovery phase of the litigation. Before Iqbal, only “notice pleading” was required: just a simple statement of the plaintiff’s claim that would let the defendant know what the suit was all about. The procedural ruling at the core of Iqbal is not easily reduced to sound bites, though John Vail of the Center for Constitutional Litigation declared that the decision violates the civil jury trial guarantee of the Seventh Amendment and that "[i]t heralds a return to the kind of legal practice Dickens condemned in Bleak House.”

While Iqbal affects a wide range of plaintiffs, BORDC’s concern is with plaintiffs like Javard Iqbal himself, who seek to hold government officials at the policy-making level accountable for the abuses inflicted on the plaintiffs by lower level officials carrying out those policies. Because higher officials take care to hide their involvement in practices they know are illegal, access to confidential memos and similar material is not generally available to the plaintiffs without court-ordered discovery. The Supreme Court’s latest decision allows guilty officials to escape accountability by making it impossible for plaintiffs to come before the court.

Attacks on the Iqbal ruling are now proceeding on several fronts. On July 22, Senator Arlen Specter (D-PA) introduced the Notice Pleading Restoration Act of 2009 (S.1504). The bill was referred to the Senate Judiciary Committee, but no hearings have yet been scheduled.

On September 14, the American Association for Justice hosted a meeting to discuss strategies for attacking Iqbal. The wide range of groups represented at the meeting are uniting in support of Senator Specter’s bill, but are also considering the more lengthy process of amending the Federal Rules of Civil Procedure themselves.

Finally, because the Supreme Court actually sent Iqbal’s case back to the Second Circuit, it is possible for Javard Iqbal’s attorney, Alex Reinert, to amend his pleadings based on information obtained before the ruling was published. "We absolutely still could win," Reinert said.

For more background on cases leading up to Iqbal, see Herman Schwartz’s article in the September 30 edition of The Nation.

Grassroots News

Municipalities End ICE Contract

Middlesex County, NJ—On October 1, local organizers in Middlesex County won a huge victory: county freeholders ended their contract with Immigration and Customs Enforcement (ICE) that allowed federal detainees to be held at the Middlesex County jail. Local organizers protested the lack of adequate medical care at the facility—which led to the death of one of the detainees—and the role that ICE was playing in their community, particularly with regard to the controversial 287(g) program, which allows local law enforcement to enforce federal immigration law.

The vote came the same day as another victory against 287(g) and the vast expansion of federal authority in local communities: two counties in Massachusetts, Framingham and Barnstable, ended their participation in the program. One day later, the Congressional Hispanic Caucus sent the Obama administration a letter asking them to immediately terminate the program.

New Resources

Book Review: The Torture Memos by David Cole

In The Torture Memos: Rationalizing the Unthinkable, David Cole, a Georgetown University law professor and BORDC advisory board member, reproduces five Bush-era legal memoranda written by attorneys in the Justice Department’s Office of Legal Counsel (OLC). These previously secret memos, released in 2004 and 2009, tell the story of the Bush administration’s efforts to find legal justification for torture, no matter how far fetched.

In his 40-page introductory commentary, Cole reviews the memos, detailing how Bush administration lawyers perverted international law to satisfy their own ends. “Once the lawyers were done,” he writes, “laws designed to prohibit absolutely all forms of torture and cruel, inhuman, and degrading treatment were read instead to permit exactly that.” (Emphasis in original.) He goes on to say, “To conclude, as the [torture] memos did, that waterboarding not only does not amount to torture, but is not even cruel, inhuman, or degrading, takes not only a lot of work, but an affirmative suspension of disbelief."

Cole also describes how these memos clearly violate attorneys’ ethical obligations: “The lawyers involved in drafting the ‘torture memos’—Jay Bybee, John Yoo, Daniel Levin, and Stephen Bradbury—failed to live up to [their legal] obligations. In their hands, the law became not a constraint on power, but the handmaiden of unconscionable abuse.” Further, Cole explains, the August 2002 torture memo did not address contrary legal precedents, and instead “simply disregarded them altogether, thereby violating the lawyer’s ethical obligation when acting in an advisory capacity to present objective advice."

In The Torture Memos, Cole joins the chorus of Americans calling for torture accountability, specifically advocating for an investigation by an independent commission. “Absent a reckoning for those responsible for making torture and cruel, inhuman, and degrading treatment official U.S. policy,” he says, “the United States’ commitment to the rule of law appears to be a hollow shell.”

Editor: Amy Ferrer, Associate Director
Managing Editor: Barbara Haugen, Administrator
Contributing Writers: Emma Roderick, Grassroots Campaign Coordinator; Heather Marlowe, Intern

Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060 Web: www.bordc.org
Email: info@bordc.org
Telephone: 413-582-0110
Fax: 413-582-0116