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Constitution in Crisis

February 2010, Vol. 9, No. 2

In this issue:

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.

Grassroots activists call on Congress to protect liberties

Lobby Day in DCThe heavy wet snow lining the streets and sidewalks of Washington, DC, did nothing to deter the committed activists who gathered on Capitol Hill February 3, when the Bill of Rights Defense Committee led approximately 20 supporters for a grassroots lobby day opposing domestic spying. A broad coalition supporting BORDC’s efforts included the American-Arab Anti-Discrimination Committee (ADC), Center for Constitutional Rights (CCR), Defending Dissent Foundation (DDF), Muslim Public Affairs Council (MPAC), National Lawyers Guild (NLG), and many others.

The day began with an issue briefing led by BORDC Executive Director Shahid Buttar and CATO Institute Research Fellow Julian Sanchez. Buttar and Sanchez discussed the current status of the PATRIOT Act and the particular provisions that had been scheduled to sunset in 2009 before Congress’ short-term extension. Buttar then gave an overview of suggested talking points for supporters to use in their meetings with congressional staff. Following this briefing, the group split up into teams of three to five and made their way to the first appointments of the day.

Members of the coalition met with more than 20 congressional staffers. They discussed their concerns about the reauthorization of specific provisions of the PATRIOT Act and explored where their members of Congress stood on the issues. Our meetings focused on a few particular provisions:

  • National Security Letters: Following the recent abuses by the FBI highlighted in the Investigator General’s report, we and our team of grassroots lobbyists stressed the need—from both a legal standpoint and a security perspective—for a higher standard of issuance for these documents, which carry the weight of subpoenas and are issued to communications providers and financial institutions to obtain private records.
  • Racial Profiling: Highlighting the fact that the "underwear bomber" failed to match any existing profiles, the coalition members carried a message that profiling is both ineffective and counter to our nation’s most fundamental values.
  • Material Support: The PATRIOT Act criminalizes financial activities well beyond support of terrorist organizations. Given the documented chilling effect on charitable donations overseas, as well as prosecution of people who genuinely believed they were donating to legitimate charitable activities, grassroots lobbyists proposed a reform that would require prosecutors to prove intent to donate to terrorist activities in order to convict.

The day concluded with a debriefing, during which participants reported back on the content of the meetings and discussed next steps. The lobby day fulfilled its primary goal of educating members of Congress, as evidenced by the number of staffers engaging with the participants in a receptive and constructive manner. However, there is still much work to be done. Join with BORDC to defend civil liberties. Sign our letter opposing PATRIOT Act reauthorization and calling for necessary reforms, and organize in your community to do what the federal government has not.

BORDC News

BORDC hosts DC screening of The Most Dangerous Man in America

On Friday, February 12, BORDC joined First Run Features and the Open Society Institute in sponsoring a Washington, DC, screening of the new Oscar® nominated documentary, The Most Dangerous Man in American: Daniel Ellsberg and the Pentagon Papers.

Co-winner of this year's Freedom of Expression Award from the National Board of Review (and one of their Five Best Documentaries of the Year) and winner of the Special Jury Award at the International Documentary Film Festival Amsterdam, The Most Dangerous Man in America tells the story of Daniel Ellsberg, a high-level Pentagon official and Vietnam War strategist, who in 1971 leaked 7,000 pages of top secret documents to The New York Times, exposing decades of government lies and making headlines around the world.

The film tells the riveting story of a landmark struggle involving America's newspapers, its President, and Supreme Court. The documentary features Daniel Ellsberg, Patricia Ellsberg, Tony Russo, Howard Zinn, Hedrick Smith, John Dean, and, from the secret White House tapes, Richard Nixon and Henry Kissinger, who called Ellsberg "the most dangerous man in America."

The screening was followed by a question and answer session with Daniel Ellsberg and the filmmakers. Ellsberg called on members of his generation to re-engage in the fight for civil liberties, saying, "Courage is contagious." The issues today are the same as the ones depicted in the film, he explained.

Welcome BORDC’s newest interns: Chris Trice and Dave Mitchell

This past month, BORDC welcomed two new interns: Chris Trice and Dave Mitchell.

Chris is a senior at American University majoring in Government Studies and Film Production. In addition to participating in BORDC’s anti-PATRIOT Act lobby day on February 3, Chris will be blogging, doing research and writing projects, and representing BORDC at events in the Washington, DC, area.

Dave, who is based in California, is primarily interested in transparency, accountability, participatory governance, and the right to dissent. He is also is interested in the structure of our government and how it facilitates a lack of transparency, accountability, participation, and right to dissent. Dave, who will be working on writing and research projects, looks to cover current events with an eye to these issues in his weekly blog posts.

BORDC events across San Francisco Bay Area

BORDC Executive Director Shahid Buttar visited northern California this January for a series of speaking engagements: he delivered the keynote address at Stanford University’s "Listen to the Silence" conference; offered a "disorientation" for the National Lawyers Guild chapter at UC-Hastings Law School; and addressed the International Human Rights Funders Group conference.

While in the Bay Area, Buttar also met with local supporters of executive accountability in Berkeley and Palo Alto, CA, to strategize around campaigns calling for the local prosecution of Condoleeza Rice and John Yoo. Finally, Buttar represented BORDC at BASSstation, an event in the Mission District of San Francisco on Saturday, January 23. Hosted by organizers of the RoboSapiens theme camp at Burning Man, BASSstation featured six DJs, hosted over 150 guests in costume, and raised over $1,500 to support BORDC’s work defending constitutional rights. Many thanks to Adam Ebel and the event’s other organizers for their generous and invaluable support!

Buttar publishes new commentary on PATRIOT Act

Executive Director Shahid Buttar published a column this month concerning reauthorization of the PATRIOT Act, which he argues has "once again place[d] the Constitution in the cross-hairs of a complacent Congress, acquiescing to another administration whose political agenda lies at conspicuous odds with its leader's oath to defend the Constitution." Buttar concludes that "[t]he federal policymaking process surrounding domestic surveillance....lacks transparency, legislative accountability, and continuity from the prior debate, making a mockery of democracy while dragging our country further down the failed course of the Bush administration—despite the electorate’s resounding mandate in 2008 to reverse that course."

Offering a vivid analogy to help depict the offensiveness of the latest procedural updates from DC, he concludes that "the Constitution appears to have few friends left in our nation’s capital. That’s one reason (among many) to take matters into your own hands and organize to raise rights above the federal floor in your town. Don’t get angry. Get active."

BORDC cosponsors screening of USA vs. Al-Arian

On Friday, February 5, BORDC joined the Northampton Committee to Stop the War in Iraq, the Middle East Peace Coalition, and No More Guantánamos in sponsoring a Northampton, MA, screening of USA vs. Al-Arian. The film documents the struggle of Sami Al-Arian, a former engineering professor and civil rights activist who was arrested in February 2003 and charged with providing material support to a terror organization. For two-and-a-half years, he was held in solitary confinement, denied basic privileges, and given limited access to his attorneys. While the Bush administration considered his a landmark case in its campaign against international terrorism, Al-Arian claims he was targeted in an attempt to silence his political views.

Dr. Mel Underbakke, a friend and colleague of Mr. Al-Arian, appeared at the screening, offered an update about Al-Arian’s current status (he was finally released from prison in 2008 but remains under house arrest), and argued strongly for repeal of the PATRIOT Act, which—as BORDC recently noted for members of Congress—has been both counter-productive as a matter of national security and constitutionally offensive.

People's Campaign for the Constitution News

Start a local ordinance campaign

Last October, BORDC released two pieces of model legislation designed to encourage national policy changes through action at the local level. One ordinance imposes limits on local law enforcement authorities and creates enforceable protections against domestic surveillance, immigration enforcement, and racial and religious profiling. Another ordinance offers an opportunity for cities and towns to seek executive accountability for torture in the wake of the federal government’s continuing violations of international treaty commitments requiring investigation as a matter of law.

The ordinances, which author and blogger David Swanson described as "powerful tools for restoring the rule of law and defending our civil rights," provide grassroots constitutionalists with new and exciting opportunities to organize locally. BORDC’s ordinance toolkit offers resources and guidance to help you start your local ordinance effort.

Activists across the country have started work on building local coalitions to support these measures, and campaigns are underway in several cities across the country.

Email Emma to get information on a local action or assistance for starting an effort in your city or town.

Get involved in the People's Campaign for the Constitution

Volunteer your skills for the PCC

The PCC is currently seeking volunteer writers and researchers. If you have an interest in writing commentary for and on behalf of BORDC or assisting with research project to support our grassroots organizing efforts, please let us know.

Join an affinity network

The PCC has organized networks of legal professionals and educators from across the country. We are also developing groups for military service members and their families, health professionals, clergy and lay religious leaders of all faiths, graphic and web designers, software engineers, and English language learners. Browse our full list of groups and opportunities and contact Emma if you'd like to get involved.

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. We’ll publicize your efforts in our next newsletter.

Read the latest news and analysis on our blog

Recent highlights from the People's Blog for the Constitution:

Law and Policy

Forthcoming OPR report to clear torture lawyers

Earlier this month, Newsweek columnists Michael Isikoff and Mark Hosenball reported a leak about a long-awaited report from the Office of Professional Responsibility (OPR), which is expected to deny allegations of ethical lapses by the Office of Legal Counsel (OLC) lawyers who wrote the notorious torture memos. Rather than find their analysis beneath the well-established standard of professional care required of other lawyers, OPR will find that John Yoo, Steven Bradbury, and (now appellate judge for life) Jay Bybee committed only "poor judgment" when failing to disclose controlling precedents contrary to their conclusions, contorting international law, ignoring the Constitution, and setting policy for the executive branch projecting unlimited presidential power.

In an effort to rationalize detainee abuse, the lawyers contrived dubious distinctions between protections explicitly extended universally by treaties such as the Geneva Conventions and the Convention Against Torture, and the inhumane "enhanced interrogation techniques" employed by the Bush administration. Despite public calls for accountability, the Obama administration continues to shield these lawyers from investigation, prosecution, or even ethics inquiries, while also keeping secret evidence of detainee abuse to cover the government’s criminal trail.

The good news: former and current officials complicit in torture can still be held accountable, but only if the public outcry for accountability rings louder. 

FBI exigent letter abuses revealed

We now know that without proper oversight in place, the FBI has repeatedly broken the law to obtain private phone records. The Justice Department’s Inspector General released yet another report last month exposing the FBI’s use of tenuous authorities to illegally obtain confidential information about law-abiding Americans.

Under the USA PATRIOT Act, the FBI gained nearly unbounded powers to obtain private information from communications providers and financial institutions through the use of national security letters (NSLs). An NSL carries the weight of a subpoena but does not require judicial oversight or probable cause; investigators merely have to assert a link to an ongoing investigation.

However, the FBI’s exigent letters and informal requests failed to adhere to even this minimal requirement. Investigators obtained tens of thousands of records through exigent letters, a mechanism by which they could cite "emergency circumstances" and request confidential information with the understanding that an NSL would follow in time. And yet, investigators did not always follow through with the NSL after they had obtained the information.

Even more shocking are the instances in which the FBI successfully acquired this kind of information without any kind of legal pretense. Agents would request records through informal means such as emails, phone conversations, and written requests delivered on post-it notes to private telecom representatives embedded in government offices. This activity, which went on for years and remains ongoing in the face of weak congressional oversight and prostration before the executive, offers concrete proof of the necessity for stricter legal controls and a higher standard of issuance for these extremely powerful—and widely abused—surveillance tools.

Grassroots News

Activists across US mount local actions to stop the PATRIOT Act

In solidarity with BORDC’s February 3 lobby day against the PATRIOT Act in Washington, DC, activists across the country raised their voices to demand a restoration of the rule of law. 

In Denver, the Campaign for Liberty organized a protest on the Colorado Capitol steps to end domestic spying. The protest brought together activists from across the political spectrum, united in their support for the Bill of Rights and opposition to continuing government violations.

In DC, 25 grassroots constitutionalists joined BORDC and met with the staffs of 17 members of Congress.  That group, drawn from the supporters of numerous co-sponsoring organizations, will meet regularly going forward to strategize about how to coordinate grassroots lobbying efforts.

Finally, a number of BORDC supporters met with their congressional representatives’ staff in the field.  For instance, Damian Kemp, a supporter in Lewiston, Idaho, spoke with the staff of his two senators and his representative, and reported that "all three meetings went well!" Contact Emma for guidance if you are interested in meeting with your senators’ and representative’s field office staff.

Witness Against Torture visits DC to oppose arbitrary detention

From January 11 to January 22, more than one hundred and fifty activists joined Witness Against Torture (WAT) in fasts, vigils, lobbying, and civil disobedience calling for an end to all torture and arbitrary detention.

On January 21, a protest at the US Capitol led to the arrests of 42 grassroots constitutionalists. Those arrested on the Capitol steps held banners reading "Broken Promises, Broken Laws, Broken Lives," while another 14 activists performed a "memorial service" inside the Capitol for the three men whose deaths at Guantánamo in 2006 were initially reported as suicides and described as "acts of asymmetrical warfare" by military officials. New reports have revealed strong evidence that those detainees were in fact tortured to death at a secret prison within Guantánamo, and that the military statements after their deaths amounted to a cover-up to hide the Defense Department’s criminal trail.

Not only has the deadline for Guantánamo’s closure passed, but the Obama administration has announced plans to arbitrarily detain 50 men currently held in Guantánamo without trial or an opportunity to confront witnesses or evidence against them. BORDC co-sponsored the 12-day series of actions and facilitated Witness Against Torture’s meetings on the Hill, including an hour-long meeting with House Judiciary Committee Chairman John Conyers (D-MI).

Protests targeting John Yoo continue

Last November, Berkeley law students and staff members issued letters to the Justice Department calling for investigations into potential breaches of professional and ethical duties, as well as criminal violations, by former government lawyers who authorized torture. Activists in Berkeley, CA, have focused on John Yoo, who ironically teaches constitutional law at UC Berkeley Law School. While internal government leaks have revealed that the long awaited OPR report will clear the torture lawyers of professional misconduct, this revelation has only reinforced grassroots efforts for accountability.

Students from the Boalt Alliance to Abolish Torture recently wrote to decry the ongoing politicization of the Justice Department under the Obama administration. Those students are continuing to explore opportunities to engage the state of California and local activist groups. Other organizations, including Code Pink and World Can’t Wait, have organized protests on campus, disrupted Yoo’s law classes, and encouraged activists to confront Yoo at stops on his book tour.  

These actions provide a useful model for other activists around the country—especially those in states where torture lawyers are licensed to practice law, or in cities that have their own district attorneys. For help getting started in your community, contact Emma.

New Resources and Opportunities

The Most Dangerous Man in America opens across the country

The Most Dangerous Man in America provides an excellent organizing opportunity for local constitutionalists. We encourage you to organize a group to attend a screening, hold a discussion of the issues the film raises, and brainstorm about actions you can take locally to support the Constitution and the rule of law.  BORDC hosted a screening of the film featuring a live Q&A with Mr. Ellsberg and the filmmakers in Washington, DC, and will host similar events (to be announced) in cities around the country this spring. Upcoming screenings include:

Screenings marked with * will feature the filmmakers in person. Please contact First Run Features for more information about the filmmakers' appearances.

To find out more about what you can do to protect and restore our constitutional rights, contact Emma.

Night of 1,000 Conversations

Racial profiling continues to be a pervasive problem. Local, state, and federal officials are ignoring the impact of racial and ethnic profiling on targeted individuals and communities, as well as the ample evidence that demonstrates why racial profiling undermines public safety and national security. Join the Racial Profiling: Face the Truth campaign for the Night of 1,000 Conversations to promote awareness and take action against racial profiling. Racial profiling is ineffective and unconstitutional. It is a degrading practice and continues largely unchecked, violating the human and civil rights of those targeted.

To participate, host a conversation with your family, friends, colleagues, or community to learn more about the devastating impact of racial profiling and what you can do about it. A toolkit, conversation resources, and more information are available online, or by contacting Tong Lee at the Rights Working Group.

Editor: Amy Ferrer, associate director

Managing Editor: Barbara Haugen, administrator

Contributing Writers: Shahid Buttar, executive director; Andrea Flores, intern; Dave Mitchell, intern; Emma Roderick, grassroots campaign coordinator; Chris Trice, intern

Photo Credit: Storm Front by Matthew Johnston

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