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Constitution in Crisis

March 2010, Vol. 9, No. 3


In this issue:

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


President and Congress extend PATRIOT Act

On the last Saturday in February, President Obama signed into law legislation extending all three provisions of the controversial PATRIOT Act that were set to expire in 2009, without any of the long overdue protections for civil liberties and transparency demanded by voices from across the political spectrum. The extension passed the House 315-97 and 70-28 in the Senate.

By abandoning even the minor protections and reporting requirements crafted by the House and Senate Judiciary Committees last fall, Congress has once again abdicated its responsibility to check and balance the Executive Branch, despite documented, repeated, and ongoing abuses. The Bill of Rights Defense Committee, which has led the grassroots opposition to the PATRIOT Act’s privacy- and Constitution-violating surveillance powers since 2001, is distressed and deeply disappointed by the extension of these provisions without needed protections for privacy and civil liberties that the American public has called on Congress to provide.

BORDC Executive Director Shahid Buttar reacted to the extension, saying, “Despite repeated abuses by intelligence agencies documented by the Executive Branch itself, Congress just wrote another blank check for the FBI and other agencies to continue abusing the rights of millions of law-abiding Americans. Congress has a constitutional responsibility to ensure transparency and accountability in government and its repeated failure holds tragic consequences for our Republic.”

Chip Pitts, president of BORDC’s board of directors, concurred, saying, “Grassroots education and action remain paramount if we are to have any chance of ‘leading our leaders’ in Congress and the Executive Branch and restoring the fundamental rights that have always formed the cornerstone of our national identity, success, and true strength. The Bill of Rights Defense Committee and activists, affinity groups, and coalition partners around the country remain committed to the defending and restoring those rights.”

Now that Congress and the President have shown they will not live up to their promises to protect and defend the Constitution, it is clearer than ever that grassroots action is needed. Join BORDC in our efforts to restore the rule of law by taking action in your local community to raise rights above the federal floor.

BORDC News

David Cole participates in Alliance for Justice panel on OPR report

On February 25, the Alliance for Justice sponsored a thought-provoking panel discussion in Washington, DC, to discuss what will happen “After the OPR Report.” Georgetown law professor David Cole suggested that “keeping this issue in the public eye is critical,” despite today’s consensus among federal institutions to allow torture with impunity. Columbia law professor and Harper’s editor Scott Horton agreed that, in the wake of recent events, “citizen advocacy is extremely important.”

Cole specifically commended BORDC’s work organizing local support for accountability. Horton reframed the Justice Department’s absolution of government lawyers complicit in torture by simply observing that “self-regulation is a fraud.” He cited the recently released OPR report as evidence that “the Department of Justice will not investigate itself,” and observed that the starting point for DOJ’s analysis—an analysis of potential ethical, as distinct from criminal, violations—fundamentally mistakes the issue.

Horton went on to allege the corruption of public integrity, based on quid pro quo agreements between the Bush administration and each of the torture memos’ authors: Jay Bybee sought appointment to his current lifetime seat on the US Court of Appeals for the Ninth Circuit; Steven Bradbury wanted confirmation in his acting capacity as assistant attorney general; and John Yoo—the only conspirator whose aspirations were reportedly denied—sought appointment as Bradbury’s successor.

Shahid Buttar leads off Crosspollinate Speaker Series in Jackson, MS

BORDC Executive Director Shahid Buttar was excited earlier this month to participate in several local events in Jackson, MS. Shahid was the featured speaker in the first of Jackson’s Crosspollinate Speaker Series, which included lectures at the Jackson Community Design Center and a Jackson high school on March 12 and an event with spoken word, live music, and DJs on March 13. The Jackson Free Press named Buttar its “Person of the Day,” publishing a profile recounting his background as an activist, lawyer, and politically engaged artist.

BORDC seeks summer interns

BORDC is pleased to offer three summer internship positions for 2010. We are seeking two interns—one part-time and one full-time—to work out of our national office in Northampton, MA, and another part-time or full-time intern to work with Executive Director Shahid Buttar in Washington, DC. We welcome students and non-students for each of these positions. Interested applicants should see the full postings for more details on the positions and how to apply.

People’s Campaign for the Constitution News

Enact a local ordinance raising rights above the federal floor

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 activist, 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 for 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, including at least one person to fill a vacancy on our team of volunteer blog editors, each of whom writes two posts on an assigned day each week. 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. We’ll publicize your efforts in our next newsletter to help inform and inspire others.

Read the latest news and analysis on our blog

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


Law and Policy

OPR report clears torture lawyers

Last month, we warned you about reports that the Justice Department would soon exonerate the lawyers responsible for the torture memos. Sadly, that has come to pass.

Dick Cheney recently admitted to violating international law by ordering government lawyers to contrive legal opinions authorizing conduct long considered by the international community to constitute torture. Others have alleged that their authorizations were part of a pre-meditated, coordinated campaign to construct a public case justifying the invasion of Iraq.

Following the Justice Department’s release last month of its Office of Professional Responsibility (OPR) report finding Bush administration lawyers who authorized criminal conduct at the highest levels of government culpable only of “poor judgment,” the Bill of Rights Defense Committee is renewing calls for prosecutions of those former federal officials to prevent torture from recurring in the future. Given the Justice Department’s failure to pursue accountability or deterrence, BORDC continues to promote long overdue independent action by Congress, as well as by state courts, bar associations, state legislatures, and city councils.

BORDC has crafted model legislation enabling municipal legislative bodies, such as town meetings and city councils, to pursue accountability by calling for transparency through an independent commission. If the federal government continues to abdicate its legal duty to investigate, the responsibility to enforce international human rights falls to the sovereign states and We the People.

According to Shahid Buttar, executive director of BORDC, “These lawyers invited future torture around the world of victims including US troops, drove recruits into the arms of our nation’s enemies, and dishonored the sacrifices of veterans of our nation’s world-historic victory in WWII. States are well within their rights to pursue prosecution—in fact, they routinely prosecute far less objectionable conduct every day.” Chip Pitts, president of BORDC's board of directors, concurred, saying, “These analyses aimed to justify criminal acts by government officials. Unless those officials are held accountable, we risk undermining fundamental ethical standards and international legal protections against torture.”

Civil liberties groups offer amicus arguments in warrantless cell phone tracking case

The Electronic Frontier Foundation (EFF), the American Civil Liberties Union, the American Civil Liberties Union of Pennsylvania, and the Center for Democracy and Technology have filed an amicus brief offering the Third Circuit Court of Appeals arguments as to why the federal government should not be allowed  to use cell phones to track individuals’ movements without probable cause. Oral arguments were heard in February.

The fact that this type of search is technically possible should come as no surprise to anyone who has a map application on his or her phone. Most modern cell phones come equipped with a GPS chip, which law enforcement officials can use to discover a person’s whereabouts. Even older cell phones can be tracked by examining which cell towers a caller is using at any given time. Phone companies also store this information, recording a history of where the cell phone has been and when.

While this is a useful tool in apprehending criminals, the government has shown a disturbing lack of concern for Fourth Amendment rights to personal privacy. EFF’s website offers an overview of the Court of Appeals cases across the country that have considered this issue since 2005. In October of that year, a letter from the US Attorney’s office of the Eastern District of New York stated bluntly: “One who does not wish to disclose his movements to the government need not use a cellular telephone.”

As of 2009, 89 percent of the total US population used cell phones. That gives the government the ability to see where nine out of every ten people in the US are at any given moment. There is great cause for concern with this ability, and we should all pay close attention when the judges issue their decision a few months from now.

Supreme Court remands Uighur case

On March 1, citing “a change in the underlying facts,” the Supreme Court declined to rule in Jamal Kiyemba, et al. v. Barack H. Obama, President of the United States, et al., a case regarding Uighurs held at Guantánamo Bay detention center, on whether federal habeas jurisdiction empowers the court to order the release of Guantánamo detainees into the United States once they have been determined to be no threat to US security.

Since the original District Court ruling in favor of the Uighurs, Chinese Muslims who fear retaliation if returned to their homeland, Switzerland has agreed to take two of the detainees and the remaining five have refused offers of repatriation from two other countries. The Supreme Court apparently viewed the men’s refusal to accept those invitations as an indication that they are now remaining at Guantánamo by choice, and are therefore no longer detained against their will. Consequently, the case now goes back to the Court of Appeals to determine “what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments.”

However, as Adam Liptak noted in The New York Times, “The central issue…is likely to reach the court again, as there remain other cases in which prisoners cleared for release with nowhere to go remain at Guantánamo.”

Attorney general battling to reject arbitrary detention

Senator Lindsey Graham (R-SC) disclosed on Face the Nation on March 7 that he would “help [the Obama administration] in getting the Republican votes that are needed to close Guantánamo,” if the administration can get Attorney General Eric Holder to reverse his commitment to try accused 9/11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators in federal criminal court.

President Obama has increasingly come under fire from civil rights groups and grassroots constitutionalists appalled at his deepening embrace of the military commissions system. As a candidate, Obama pledged to reject military commissions because of their failure to provide legitimate verdicts and ad hoc procedures allegedly aimed to ensure convictions, rather than accuracy. Most pointed was the ACLU’s New York Times ad, also on March 7.

Attorney General Eric Holder’s decision to proceed in civilian court for Mohammed and the others accused, though promising, was muddied by its limitation to those specific 9/11 defendants, while others were relegated to the considerably weaker procedural protections of the military commissions. Now Obama is rumored to be pressuring the attorney general to reverse this small step to restore due process standards, allegedly in order to fulfill his campaign promise to close Guantánamo.

While closing Guantánamo once meant ending a shameful period in US history, Obama’s promise has transformed into a battle over whether detainees may be held indefinitely without trial on US instead of Cuban soil.

Truthout’s Jason Leopold quotes Army Maj. Gen. William L. Nash as saying that if Obama reversed Holder, it "would give aid to our enemies, it would lessen our reputation with our allies....This is not the time to be scared. This is not the time to accommodate those who have led this country under an aura of fear for eight years.” Rather, “[I]t's time to do the right thing and persevere through."

Grassroots News

Coalition against torture forms in Illinois

While the federal government continues to evade responsibility for engaging in torture, activists in Illinois are fighting back on the local level. They've formed the Illinois Coalition Against Torture and are planning to promote a local ordinance calling for torture accountability. They're also planning a teach-in this June and a fundraiser later this month. For more information or to connect with their efforts, contact Emma.

Student civil liberties group begins at Amherst College

Student organizers in Amherst, MA, have formed a Bill of Rights Society dedicated to raising awareness about constitutional violations since the "war on terror" began. The group held its first event last month—a screening and discussion of the documentary Unconstitutional: The War on Our Civil Liberties. For more information about the Amherst College Bill of Rights Society, contact Andrea Flores. For information about how to start a similar group at your school, contact Emma

Political Research Associates: “Suspicious activities reporting” undermines national security

On March 10, Political Research Associates (PRA), along with the Council on American-Islamic Relations (CAIR) and Interfaith Communities United for Justice and Peace, led a discussion on the institutionalization of suspicious activities reporting and its ramifications for communities affected by US counter-terrorism policies. The Los Angeles, CA, event unveiled PRA's new study, "How the Nationwide Suspicious Activities Reporting Initiative Institutionalizes Domestic Surveillance, Invites Racial Profiling, and Undermines Security." The event was attended by attorneys, academics, and activists. 

Operation Defuse hosts Maryland town hall forum on domestic spying and fusion centers

On March 11, Operation Defuse held a town hall forum in Baltimore, MD, to discuss domestic spying and fusion centers, which “fuse” national and local intelligence efforts and make spying on innocent Americans easier than ever. On the program were speakers from the Liberty Restoration Project, Texans for Accountable Government, and the Maryland ACLU, along with the coordinator of the Maryland Anti-Terrorism Advisory Council. A member of the Baltimore non-violence center, who was spied on and branded a terrorist as a direct result of the Maryland fusion center’s activities, spoke as well. 

BORDC is organizing a FOIA campaign to seek transparency into the operation of fusion centers, which raise profound civil liberties concerns. To get involved, contact Emma.

BORDC hosts events for the Night of 1,000 Conversations

On Sunday, February 28, BORDC sponsored two events for the Night of 1,000 Conversations, the first effort in the Rights Working Group’s Face the Truth Campaign. In Dallas, TX, BORDC held a conversation in coalition with allies including the Dallas Peace Center, the Council on American Islamic Relations, the Muslim Legal Fund of America, and supporters of Ron Paul’s Libertarian Revolution. The event prompted an informative and stimulating dialogue and was attended by a state gubernatorial candidate. The group plans to meet again and host a speaker next month, following additional outreach to community leaders and individuals interested in preserving and expanding rights.

Local activists and representatives from BORDC, the Prison Policy Initiative, and Justice for Jason gathered in Northampton, MA, to talk about local incidents of racial and religious profiling. After a conversation that included discussion of the PATRIOT Act and profiling of activists as well as 287(g) immigration enforcement agreements, the profiling of Muslims, Arabs, and South Asians post-9/11, and police profiling of African Americans, those in attendance discussed opportunities to organize locally to stop such abuses.

New Resources and Opportunities

March and April screenings of The Most Dangerous Man in America

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), Winner of the Special Jury Award at the International Documentary Film Festival Amsterdam, and Academy Award® Nominee for Best Documentary, 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 the 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 film provides an excellent organizing opportunity for grassroots 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 recently 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 in cities (to be announced) around the country this spring. Upcoming screenings include:

Screenings marked with an asterisk (*) 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.

March 16 Torture accountability panel discussion in Washington

On Tuesday, March 16, the Institute for Policy Studies in Washington, DC, will host a panel discussion on torture and accountability in the United States.

Torture is a profound abuse of the rule of law. A lack of full accountability for those responsible for US torture policies has far-reaching and unexpected implications. A just rule of law cannot be established without full accountability for torture of U.S. detainees. If we allow those who committed and authorized torture, whether interrogators or senior executive officials, to go uninvestigated and unpunished, we risk destabilizing the international legal regime and delegitimizing our domestic criminal justice system. True accountability for torture is not only a moral imperative, but also, because of international obligations such as the Convention Against Torture, a legal obligation.

The event will feature an interactive panel including:

  • Shahid Buttar, executive director of the Bill of Rights Defense Committee
  • Matthew Alexander, author, New York Times contributor, and Air Force veteran whose military interrogation team located Abu Musab al-Zarqawi, the former leader of al-Qaeda in Iraq
  • Jesselyn Radack, homeland security director of the Government Accountability Project and a former Department of Justice ethics official and whistleblower

The speakers will present concrete action opportunities to promote torture accountability, with discussion to follow.  This event is free and open to the public, but you must register online. The session will be held on March 16 from 6:45 PM to 8:45 PM at the Institute for Policy Studies, 1112 Sixteenth Street, NW.

March 25 discussion on fusion centers in Boston area

BORDC is co-sponsoring a discussion on fusion centers in Roxbury, MA, on Thursday, March 25.

Fusion centers are a new mechanism to bring together surveillance of "suspicious activities" from various law enforcement and intelligence agencies at the federal, state, and local levels, in addition to military intelligence. Fusion centers, which remain thoroughly opaque and unregulated, raise numerous concerns: How is this data collected? Who can see this data? Can you find out if information has been collected about you, and can you correct that information if it is false or misleading? What is considered suspicious? Many are concerned that fusion centers may compromise the privacy and civil liberties of marginalized groups such as Muslims, Arabs, South Asians, and Latinos, who often face higher scrutiny from law enforcement and intelligence authorities.

The discussion will be held at the Islamic Society of Boston Cultural Center on March 25 from 6:00 PM to 8:30 PM and will feature the following speakers:

  • Mike German (Policy Counsel, Washington Legislative Office, American Civil Liberties Union ACLU)
  • Carol Rose (Executive Director, ACLU of Massachusetts)
  • David Gersten (Acting Deputy Officer for Programs and Compliance, Office for Civil Rights and Civil Liberties, US Department of Homeland Security)
  • Juliette Kayyem (Assistant Secretary for Intergovernmental Affairs, US Department of Homeland Security)

In addition to BORDC, the event is sponsored by the Muslim American Society of Boston, the Department of Homeland Security, the American Civil Liberties Union, and the Arab-American Institute.

March 28: CAIR-Cleveland Civil Rights Benefit

BORDC Executive Director Shahid Buttar will give a keynote address at the eighth annual Cleveland Chapter of the Council on American-Islamic Relations (CAIR) Civil Rights Benefit on Sunday, March 28. Imam Mahdi Bray of the MAS Freedom Foundation will also give a keynote address at the event, which is open to the public. For more details or to purchase tickets to this event, which are discounted if you purchase before March 21, call (216) 830-2247.

While in Cleveland, Buttar will also address a student group at Case Western Reserve Law School on Monday, March 29.

National Lawyers Guild Midwest and Mid-Atlantic Conferences

March 26 through 28, the National Lawyers Guild (NLG) will host its Midwest Regional Conference at DePaul University College of Law in Chicago. BORDC Executive Director Shahid Buttar will attend the conference and speak as part of the “Dangerous Inheritance: The Ongoing Criminalization of Dissent in America” panel on Saturday morning. The conference is open to the public. The NLG website provides further information, including registration costs and a detailed schedule.

Also coming up is the NLG’s Mid-Atlantic Conference, which will be held at the Georgetown School of Law on Saturday, April 17. A full lineup of the workshops and other details for that conference will be released shortly.

Weaving a Net of Accountability: Anti-Torture Conference at Duke University

Thursday, April 8, through Saturday, April 10, activists will gather in Durham, NC, to participate in the Weaving a Net of Accountability conference. The event, which will focus on taking on extraordinary rendition at the state and local levels, is sponsored by the Duke Human Rights Center, North Carolina Stop Torture Now, the Immigration and Human Rights Policy Clinic at the University of North Carolina School of Law, and the International Human Rights Law Society at Duke University Law School. The conference is free and open to the public. If you would like to attend, RSVP to NC Stop Torture Now or the Duke Human Rights Center.


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


Editor: Amy Ferrer, associate director
Managing Editor: Barbara Haugen, administrator
Contributing Writers: Shahid Buttar, executive director; 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