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Constitution in Crisis

April 2010, Vol. 9, No. 4

In this issue:

Court rules against warrantless surveillance and state secrets privilege

On March 31 in San Francisco, Judge Vaughn Walker declared unconstitutional the warrantless wiretapping scheme begun under the Bush administration as it existed before the FISA Amendments Act of 2008—which authorized the so-called Terrorist Surveillance Program (TSP) despite its clear constitutional violations and allowed its continuation under the Obama administration. The program has been held unconstitutional by every federal judge ever to review the program on its merits.

The case at issue, Al Haramain Islamic Foundation v. Obama, involves a charity (no longer in operation) whose members discovered, through an error by the government, that they had been spied on through the federal warrantless wiretapping scheme. Under both the Bush and Obama administrations, the Department of Justice invoked the state secrets privilege, seeking to end the case by claiming that pursuing it would endanger national security. Judge Walker refused to accept this argument—with good reason, given that it has been used to cover up government misconduct time and again.

Judge Walker...branded the government’s use of the state-secrets privilege an “unfettered executive-branch discretion” that had “obvious potential for governmental abuse and overreaching.”

The judge rejected not only the government’s state secrets claim, but also its arguments regarding warrantless wiretapping. Walker found that by spying on Al Haramain without securing a warrant, the government had violated the Foreign Intelligence Surveillance Act (FISA) as it existed before Congress’ 2008 amendments that expanded executive authority even further.

Walker ruled that it was the expressed will of Congress when it passed the FISA statute in 1978 to “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

Both the warrantless surveillance scheme and the invocation of the state secrets privilege are examples of increasing Executive Branch overreach. By standing up to the government and refusing to accept unconstitutional surveillance of law-abiding Americans, Judge Walker has defended the Constitution from an unfortunately ongoing threat. If we hope to see “change we can believe in,” all concerned Americans must do the same.

BORDC News

BORDC raises awareness and recruits supporters around the country

Over the past month, BORDC Executive Director Shahid Buttar has traveled far and wide to address grassroots constitutionalists and Americans from all walks of life, raising awareness about civil liberties and other constitutional principles eroded by the so-called “war on terror.” Buttar has discussed issues including government secrecy, domestic surveillance programs, persisting and unanswered allegations of widespread torture, and executive accountability for it—as well as opportunities to address each of these violations of the rule of law through activism at the local level.

On March 16, BORDC hosted a forum on "Understanding US Torture and Accountability" at the Institute for Policy Studies in Washington, DC. Featuring Buttar, former Justice Department ethics official Jesselyn Radack and former Air Force interrogator Matthew Alexander, the forum explored the continuing regime of torture with impunity, and opportunities in cities and towns across America to defend human rights.

On March 27, Buttar spoke on a panel about “The Criminalization of Dissent” at the National Lawyers Guild Midwest regional conference at DePaul University College of Law in Chicago. Attended by well over 100 law students, lawyers, and grassroots activists from across the Midwest, the panel discussed how government surveillance has undermined the constitutional rights of activist groups across the ideological spectrum and across the country.

Buttar then traveled to Ohio to give one of two keynote addresses at the annual human rights benefit banquet of the Cleveland Chapter of the Council on American Islamic Relations (CAIR) on March 28. The following day, Law Students for Social Justice at Case Western Reserve School of Law hosted a discussion with Buttar on continuing threats to the rule of law.

On April 2, Buttar addressed the Justice Café at the University of the District of Columbia with Johnny Barnes of the ACLU. And on April 12, Buttar spoke to the newly formed Bill of Rights Society at Amherst College in Massachusetts.

Buttar and other BORDC speakers continue to speak to groups across the country, as well as media sources, about continuing threats to the Constitution and rule of law. To find out about upcoming appearances, including an event at Cornell University in Ithaca, NY, later this month, see BORDC’s upcoming events.

Chip Pitts discusses privacy and technology on KERA

Chip Pitts, president of BORDC's board of directors, appeared on KERA's Think radio program in Dallas, TX, last week to speak about how privacy has been undermined by the government’s use of technology.

Pitts explained how the government is using information-gathering techniques and increasingly sophisticated databases in a purported attempt to protect national security. Massive quantities of information—the vast majority of which concerns law-abiding behavior—are being gathered and data-mined to detect of specific patterns and help stop security threats before they happen.

Government surveillance, however, is not only offensive to civil rights, but also ineffective and potentially even counterproductive:

It’s actually quite clear in the law…in US, European, regional law, as well as international human rights law, that privacy is a fundamental right….[Massive surveillance] is a waste of scarce law enforcement resources. It diverts attention from the guilty to the innocent and it stigmatizes populations on which we very well might depend for true security.

Pitts followed up his appearance on Think with an address on the same topic at the University of Texas at Dallas on Monday, April 12.

Sahar Aziz addresses AMA Foundation’s Monthly Policy Forum

BORDC counsel Sahar Aziz was a panel member at the American Muslim Alliance Foundation’s April 12 policy forum at the Carnegie Endowment for International Peace in Washington, DC. The panel featured discussion of "National Security and Muslim Americans," and included senior government officials and other civil rights leaders. The policy forum was part of an ongoing series of discussions about US policies, the Obama administration, and relations with Muslim communities.

Grassroots News

Coalitions launch local campaigns in major cities across the US

Immigrants’ rights organizers, interfaith leaders, student groups, and civil liberties activists have joined forces in several cities across the country to launch efforts seeking local legislation that will raise civil rights above the federal floor. Coalition efforts are currently underway in cities including the following:

  • New York, NY
  • Los Angeles, CA
  • Chicago, IL
  • Cleveland, OH
  • Hartford, CT

Whether working to pass an ordinance imposing limits on local law enforcement authorities by creating enforceable protections against domestic surveillance, immigration enforcement, and racial and religious profiling; or calling for their municipalities to seek executive accountability for torture in the wake of the federal government’s continuing violations of international treaty commitments, these coalitions are acting on an exciting opportunity to encourage policy changes at the national level through action at the local level.

To learn more about these efforts, or start a similar campaign in your community, email Emma for more information. We at BORDC are standing by and eager to support you.

Illinois Coalition Against Torture promotes anti-torture policy

Based in Chicago, the Illinois Coalition Against Torture (ICAT) is working to promote anti-torture policy on the local and state levels. One part of their effort is an educational campaign regarding torture that is set to launch this summer. The coalition is also recruiting additional organizational partners interested in approaching state and local legislatures to seek a declaration supporting a federal commission of inquiry. To join the Illinois Coalition Against Torture or learn more about their work, please contact Kali Cohn.

BORDC meets with coalition in Hartford, CT

On April 6, a diverse group of activists met in Hartford, CT, to discuss limits on local law enforcement. LaResse Harvey (center) from A Better Way Foundation, an organization addressing the War on Drugs and its effects on communities of color, convened a group of organizers from the National Lawyers Guild, the ACLU, Hart of Hartford, and more to meet with BORDC Executive Director Shahid Buttar (left) and Grassroots Campaign Coordinator Emma Roderick (right). Many participants at the meeting had been involved in passing recent legislation in Hartford, and shared their excitement about the opportunity to secure further protections for civil rights and liberties at the state level through BORDC’s model legislation.

CAIR-LA responds to police harassment cases

In Los Angeles, CA, local law enforcement authorities continue to commit routine violations of constitutional rights. The good news is that people are reporting these abuses and activists are responding. The Council on American-Islamic Relations in Los Angeles (CAIR-LA) has received numerous cases of police harassment and profiling, and has been working on individual cases while at the same time seeking change at the policy level.

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 new members for our team of volunteer blog editors. If you have an interest in writing commentary or assisting with research projects 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 religious lay-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 join one of the existing groups—or start your own.

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 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

Inspector General’s report reveals defects of 287(g)

On April 2, the Department of Homeland Security’s Office of the Inspector General released a report that prompted an uproar among immigrants’ rights groups. The report reviews the performance of the controversial 287(g) program, the section of the Immigration and Nationality Act that delegates federal immigration enforcement authorities to certain state and local law enforcement agencies.

Since its implementation, the 287(g) program has been the source of racial profiling and other civil rights abuses around the country. The report details its multiple defects.

According to Laura Murphy, director of the ACLU Washington Legislative Office, ”The 287(g) program, as this latest report confirms, all but abandons the constitutional guarantees of fair treatment and due process, and encourages racial and ethnic profiling.” Jumana Musa of the Rights Working Group noted, in particular, that “[Immigration and Customs Enforcement officials] insist that racial profiling is not occurring, but they then refuse to track the data that would give evidence to their claim.”

The 287(g) program was first employed by the Bush administration and has expanded under the Obama administration. Tyler Moran, the policy director for the National Immigration Law Center responded to the report and current immigration dilemma:

Immigration, civil rights, and law and order advocates have repeatedly called for the termination of this program and other programs that involve local police officers in enforcing immigration law. It’s time to acknowledge that this immigration enforcement system, much like our entire immigration system, is broken and needs dramatic reformation.

Google and AT&T join civil liberties groups in call for increased Internet privacy protections

Within the last month, an alliance of technology companies and consumers' and citizens' rights groups, the Digital Due Process Coalition (DDPC), has formed to promote better protections for privacy. The DDPC—which includes notorious past privacy violators such as Google and AT&T as well as civil liberties organizations like the Electronic Frontier Foundation, the Center for Democracy and Technology, and the American Civil Liberties Union—is calling on Congress to adopt new electronic privacy provisions to update a law that has fallen behind new technologies. Among the reforms sought by the DDPC are requirements for warrants before searching online data, just as warrants have historically been required before implementing wiretaps.

The main issue is what is called cloud computing, technology that makes it possible for Internet users to archive their data on the web instead of their computers' hard drives. Among the most serious privacy concerns relates to the illusion of hard drive-less storage. While cloud computing has enabled users to access their data from anywhere, they have in the process centralized online data stored by users in massive servers with little protection against infiltration or seizure by the government.

DDPF’s focus, the Electronic Communications Privacy Act of 1986 (ECPA), was passed by Congress in order to extend previously existing surveillance law (e.g., wiretap protections) to new kinds of electronic communication. Unfortunately, the only update to ECPA came as the USA PATRIOT Act, which weakened some of its provisions. The coalition of industry and civil liberties groups is calling on Congress to enact three amendments to the law:

  • Require warrants to access information stored “in the cloud.” Currently, all the government need do to access your files is assert that the documents sought are relevant to an investigation of foreign counterintelligence. There is no judicial oversight on this executive power.
  • Require warrants to track individuals' locations using the GPS chips contained in most cell phones or the towers a mobile phone uses to route calls. Currently, the government routinely uses these signals to track your whereabouts, but no warrant is required to do so.
  • Judicial oversight of requests to intercept information on phone and Internet communications. Right now, each time you dial a number or someone calls you, the government may intercept that information without a warrant because you "voluntarily" gave that information to your phone company.

Dawn Johnsen withdraws nomination to OLC

Last year, Dawn Johnsen—a known champion of the rule of law—was nominated by President Obama to head the Office of Legal Counsel in the Department of Justice—the same office that generated the infamous torture memos under the Bush administration. After more than a year without Senate confirmation, Johnsen withdrew her nomination this month.

In an article in Time, Theo Emery said of the withdrawal,

[T]he rancor around Johnsen's nomination reached an unusual pitch for a position that until recent years was typically filled quickly and without controversy. The vitriol flowed in part because of the candidate herself, with her pro-choice positions and national-security stances. But the other reason was the long shadow that hangs to this day over the office known as the OLC. That shadow is torture.

New Resources and Opportunities

April 22: Blueprint for Accountability at the Newseum in DC

The Blueprint for Accountability series, developed by the Culture Project, is an urgent call to action for policy makers, elected officials and Americans across the country. On April 22 at 7:30 p.m., Blueprint for Accountability will fuse theater, film, journalism, and debate to craft a moral response against torture. Event speakers and participants are scheduled to include:

  • Valerie Plame Wilson, former CIA officer
  • Ron Suskind, Pulitzer Prize-winning journalist
  • Vince Warren, executive director, Center for Constitutional Rights
  • Dr. Allen Keller, director, Bellevue/NYU Program for Survivors of Torture
  • Robert F. Kennedy Jr., author and environmental activist
  • Jeremy Scahill, best-selling author and investigative journalist
  • Rose Styron, poet, journalist and human rights activist
  • Matt Dillon, Academy Award-nominated actor
  • Mariska Hargitay, Golden Globe and Emmy Award-winner
  • John Leguizamo, Emmy Award-winning Performer
  • Fisher Stevens, Academy Award-winning producer of The Cove

Culture Project is offering a 20 percent discount to BORDC supporters—just use code blprt1 whether you order online or by phone at (866) 811-4111. To order VIP Patron tickets, call Julianne Hoffenberg at (212) 925-1806 or email rsvp@cultureproject.org.

A press conference will directly follow the event at the Newseum. The evening will be streamed live by FORA.tv with video available on-demand following the presentation. 

May 24: Anti-torture protest in Chicago

The Jail Jon Burge Committee urges residents of Illinois to join in a cry for justice from 8:30 to 10:00 a.m. on May 24, 2010, at Daley Plaza in Chicago.

The event will coincide with the commencement of the trial of former Chicago Police Department Commander Jon Burge, accused of perjury and obstruction of justice during a civil suit related to the Chicago Police Department’s use of torture to force false confessions from criminal suspects.

The Jail Jon Burge Committee, a coalition of community-based organizations, is taking a stand against torture of suspects by police officers under the supervision of former Police Commander Jon Burge, seeking justice for police torture victims, and raising awareness to prevent such crimes in the future. For more information, please visit jailjonburge.org or contact Kali Cohn .

Book Review: How to Break a Terrorist: The U.S. Interrogators Who Used Brains, Not Brutality, to Take Down the Deadliest Man in Iraq

How to Break a Terrorist (Free Press, 2008) provides ample evidence that torture tactics are blatantly un-American, ineffective in securing intelligence, and provide our enemies with their most powerful recruitment incentives. Still using the protective pseudonym under which How to Break a Terrorist was published in December 2008, Matthew Alexander continued to write and speak about US military intelligence-gathering standards and techniques. Last month, he joined BORDC’s executive director, Shahid Buttar, and DOJ whistleblower Jesselyn Radack, in Washington, DC, for a panel on torture accountability.

Co-authored by John R. Bruning, the book (which contains only 13 of the 93 redactions originally imposed by military censors) introduced the American public to a military interrogation approach that replaces brutality with creative intelligence, getting the job done without sacrificing the human rights ideals upon which our nation was founded. Alexander’s smart approach to intelligence is grounded in the interrogator’s patient, respectful building of rapport to reach behind the terrorist “monster” stereotype to the human motivations that underlie the actions of even high-ranking Al Qaeda “fanatics.” This general approach is new neither to civilian police nor military interrogation, but as Alexander explained to Harper’s Magazine’s Scott Horton:

I watched day in and day out as my group of interrogators used American ingenuity in adapting these approaches for each individual detainee and they were highly effective. Interrogation is about being smarter, not harsher.

Initial reviewers of the book remarked that the narrative unfolds like a thriller, as Alexander makes an end-run around old-school interrogators who have failed to make any headway at all, and succeeds at the eleventh hour to obtain the critical information that leads immediately to the bombing death of Abu Musab al Zarqawi, then the leader of Al Qaeda in Iraq.

Although President Obama signed an executive order outlawing torture and the “hastily revised” Army Field Manual now applies to all US governmental interrogations, Alexander noted in a January New York Times op-ed,

If I were to return to one of the war zones today…I would still be allowed to abuse prisoners…. The greatest shame of the last year, perhaps, is that the argument over interrogations has shifted from debating what is legal to considering what is just “better than before....”

Unless we rewrite the book, we will only continue to give Al Qaeda a recruiting tool, to earn the contempt of our allies and to debase our most cherished ideals.

April and May 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.

Upcoming screenings include:

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

Petition to stop racial profiling in immigration enforcement

The Rights Working Group recently launched a petition aimed at fixing the Department of Justice’s guidance on racial profiling. As written, the 2003 guidance has loopholes and omissions that allow for some of the very behavior the guidance is intended to regulate.

The 2003 DOJ Guidance Regarding the Use of Race by Law Enforcement Agencies:

  • Allows for profiling based on religion and national origin;
  • Includes loopholes that allow profiling at borders in the name of national security;
  • Doesn’t apply to all federal law enforcement activity;
  • Isn’t enforceable; and
  • Doesn’t consistently apply to state or local law enforcement agencies working in cooperation with federal agencies or receiving federal money.

We urge you to sign RWG’s petition to strengthen the guidelines.

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
Managing Editor: Barbara Haugen
Contributing Authors: Andrea Flores, Dave Mitchell, and Emma Roderick

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