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Constitution in Crisis

May 2010, Vol. 9, No. 5

In this issue:

Racial profiling now required in Arizona

Late last month, Arizona Governor Jan Brewer signed SB 1070 into law. The legislation directs state and local police officers to enforce federal immigration law, and essentially requires them to employ racial profiling in doing so. By mandating suspicion on the basis of race, the law represents one of the harshest blows to civil liberties in recent US history.

The new law directs law enforcement officers to question the immigration status of any person they encounter through “lawful contact” whom they “reasonably suspect” of being undocumented. This means that citizens and legal residents are required to carry their paperwork with them at all times, and even citizens are subject to detention and interrogation if they lack documentation. The law states that officers may not use race or religion as reasonable suspicion, but given the legislation’s requirements, what criteria are law enforcement officers expected to use as the basis of reasonable suspicion?

Our Constitution mandates individualized suspicion, and profiling by race, religion, and ethnicity flies in the face of that fundamental requirement. The Fourth Amendment protects all people within the US from unreasonable searches and seizures, and Arizona’s new law not only ignores, but fully reverses that protection, replacing the right to individualized suspicion with suspicion on the basis of race.

To make matters worse, the Arizona law contains a provision allowing individuals to sue their local law enforcement agencies if they do not enforce SB 1070 strongly enough. Put another way, local police officers are subject to civil damages unless they racially profile. In sharp contrast, civil rights measures such as the End Racial Profiling Act, or BORDC’s proposed legislative limits on local law enforcement authorities, do the inverse by creating rights of action to restrict—rather than perversely require—profiling.

Arizona’s missteps are appalling for many reasons, including that they endanger public safety. Independent research has shown that racial profiling, such as in immigration enforcement, encourages minorities to become understandably fearful of police, and inhibits them from reporting crime or cooperating with police investigations for fear of harassment. As a result, the entire community—minority and majority—is less safe and the police are less able to protect the public.

Racial profiling is illegal, immoral, counter-productive, and un-American. If you are ready to stand against Arizona’s dangerous precedent, join BORDC’s People’s Campaign for the Constitution and start organizing in your community. We have developed a model ordinance for consideration by local and state governments across the country that protects against Fourth Amendment violations including racial profiling and domestic surveillance. To get started, review our organizing toolkit and contact Emma Roderick, our grassroots campaign coordinator.

BORDC News

Interns Kelsey Genevich and Mary Ann Keys join BORDC

This month, we welcome two summer interns.

Kelsey Genevich, who will work with BORDC from Washington, DC, is currently a student at the University of the District of Columbia David A. Clarke School of Law. She received her Bachelor of Arts in political science and criminology from the University of Minnesota Duluth in 2009. Kelsey will be blogging, researching, and attending DC events on behalf of BORDC.

Mary Ann Keys, who will also be based in Washington, DC, is a rising senior at American University majoring in criminal justice. She blogs, writes articles, and conducts research for BORDC and is committed to social and criminal justice. Mary Ann plans to attend law school and envisions working as a prosecutor.

BORDC briefs audiences across the country

This month, BORDC participated in several events with students and grassroots constitutionalists.

On April 21, Chip Pitts, president of BORDC’s board of directors, gave a talk at Stanford Law School in California. In the talk, titled “Bodyscanners and Beyond: Preserving Privacy in a Transparent World,” Chip discussed how privacy continues to be affected by new technological developments.

Executive Director Shahid Buttar traveled to Ithaca, NY, for an April 22 presentation at Cornell University. After discussing “1984 in 2010: Threats to the Rule of Law—And How You Can Defend It,” Buttar recruited a number of students and local community members to consider launching a local campaign.

On April 28, Chris Pyle, a professor at Mount Holyoke College and author of books including Getting Away with Torture, led a discussion following a BORDC-sponsored screening of The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers at the Pleasant Street Theatre in Northampton, MA. Local activists in attendance discussed the film’s parallels to current events relating to government secrecy.

On May 4, Sahar Aziz, BORDC counsel, participated in a panel discussion in Rockville, MD, sponsored by the local Office of Human Rights, Commission on Hate/Violence, and Commission on Human Rights. The discussion focused on civil liberties, hate crimes, and bias incidents post-9/11. Other panelists included Mazen Basrawi, counsel to the assistant attorney general in the US Department of Justice, Civil Rights Division; Rajdeep Singh Jolly, director of law and policy at the Sikh Coalition; and Deepa Iyer, executive director of South Asian Americans Leading Together (SAALT).

Finally, on May 16, Buttar delivered a lecture on civil rights and the political process at the University of Toledo Law School in Ohio.

If you would like a BORDC representative to speak at an event in your area, email us.

BORDC joins coalition calling for increased privacy on Facebook

On May 5, a coalition of 15 civil liberties and consumer protection groups, including BORDC, lodged a formal complaint against Facebook with the Federal Trade Commission (FTC), which “concerns material changes to privacy settings made by Facebook”:

Facebook now discloses personal information to the public that Facebook users previously restricted. Facebook now discloses personal information to third parties that Facebook users previously did not make available. These changes violate user expectation, diminish user privacy, and contradict Facebook’s own representations.

The complaint labels the recent changes as an “unfair” and “deceptive” practice that is subject to review by the commission under the Federal Trade Commission Act.

The groups’ objections center on the Instant Personalization service that was adopted in April, which allows Facebook partner companies to automatically tailor site visits to consumers’ tastes and networks. This feature is problematic for many reasons: it discloses personal information without obtaining consent from users; it conceals users’ ability to disable the feature; and, by reclassifying users’ profile information as “connections,” it makes personal information publicly available by default.

In light of recent comments from Facebook CEO Mark Zuckerberg, who has said that privacy is no longer a social norm, the complaint accuses Facebook of creating “privacy settings [that] are designed to confuse users and to frustrate attempts to limit the public disclosure of personal information that many Facebook users choose to share only with family and friends.”

Grassroots News

The Patriot Award: Kali Cohn

Kali CohnThis month, we’re beginning a new feature: the Patriot Award. Each month in our newsletter, the Bill of Rights Defense Committee will honor an individual who has done exceptional work in support of civil liberties and the rule of law. This month, we are proud to recognize Kali Cohn from Chicago, IL.

Kali graduated from the University of Rochester in May 2009, where she majored in political science and minored in legal studies. Upon moving to Chicago in June 2009, Kali began working with the Chicago Committee to Defend the Bill of Rights (CCDBR), which has fought for 43 years against government encroachment on constitutional rights in all its forms. CCDBR began as part of the struggle to disband the House Committee on Un-American Activities (HUAC), played a major role in the opposition to Chicago Police "Red Squad" spying in the seventies, and in 2003 helped facilitate the passage of the Chicago City Council resolution against the USA PATRIOT Act. Operating as a representative and board member of CCDBR, she began working with two other Chicago-based groups devoted to promoting civil liberties issues: the Illinois Coalition Against Torture (ICAT) and the Jail Jon Burge Committee.

The Illinois Coalition Against Torture (ICAT) is a coalition of community-based organizations and individuals promoting education about torture and advocating for an end to torture within and outside of the United States. As a representative of CCDBR, Kali has been very involved on ICAT’s legislative committee, helping to craft anti-torture legislation for implementation at the state level.

The Jail Jon Burge Committee is another coalition of community-based organizations taking a stand against the torture of suspects by Chicago police under former Police Commander Jon Burge, seeking justice for police torture victims, and raising awareness to prevent such crimes in the future. Formed by former torture victim Mark Clements, the committee is mobilizing awareness around Burge’s upcoming trial. Kali has worked with the public relations committee to assist with media and public outreach, mobilizing support for educational events and the Take a Stand Against Torture rally at the commencement of Burge’s trial on May 24.

In addition to her important work with Chicago-based civil liberties groups, Kali has also found time to volunteer with BORDC on the national level. She was part of a team of volunteers that contacted organizations across the country to raise awareness about BORDC's model legislation, and worked on developing lesson plans for last year's Constitution Day, which she presented to after-school programs in Chicago.

Kali is the first to point out that she is just one of many dedicated individuals building support for constitutional rights in Chicago. The civil liberties movement in Chicago is robust, gaining momentum as the Jon Burge trial approaches. Kali expressed her excitement to be working with the talented members of CCDBR, ICAT, and the Jail Jon Burge Committee, saying, “I am honored and impressed to be able to sit at tables with such impressive and accomplished individuals working tirelessly for a common goal.”

Thank you, Kali, for your dedication and excellent work!

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 New York, NY; Los Angeles, CA; Chicago, IL; Cleveland, OH; Hartford, CT (where a version of BORDC’s proposed limits on local law enforcement authorities will be introduced by a city council member in the next few months); and Albany, NY.

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.

HURRICANE Initiative hosts workshop in Greensboro, NC

On May 8, the HURRICANE initiative held a workshop in Greensboro, NC, on documenting human rights abuses. HURRICANE, or Human Rights Immigrant Community Action Network, is an initiative seeking to document and gain accountability for human rights abuses committed against immigrants and refugees. A variety of local groups involved in monitoring ICE activities collaborated on the training session, including the American Friends Service Committee, la Coalicion de Organizaciones Latino-Americanas, the Latin American Coalition, North Carolina Justice Center, and Southern Coalition for Social Justice.

HURRICANE members use the Martus database to record reports of abuses and make them part of a larger response network. By ensuring that these rights violations are recorded and disseminated, HURRICANE empowers communities to better analyze the problems they face and respond with demands for policy change.

Get involved in the People’s Campaign for the Constitution

Volunteer your skills for the People’s Campaign for the Constitution

The People’s Campaign for the Constitution (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 People’s Campaign for the Constitution 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.

We can also offer organizing and outreach support. Let us know about your group’s organizing needs.

Read the latest news and analysis on our blog

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

 

Law and Policy

Times Square Bombing attempt renews debate over Miranda rights and citizenship

Faisal Shahzad, a naturalized American citizen, was arrested early May 4 in connection with the attempted Times Square bombing. He is likely to be charged with multiple felony counts of attempting to detonate explosives in Times Square and could face life in prison. Authorities questioned him for several hours under the public safety exception before reading him his Miranda rights.

Controversy has ignited about whether Shahzad should have been read his Miranda rights or, if by doing so, authorities lost the opportunity to obtain valuable information related to the attempted bombing. At this point in the investigation it appears that no valuable information was compromised by reading Shahzad his Miranda rights.

Those who believe Shahzad should not have been read his rights, including Sen. John McCain (R-AZ) and Peter King (R-NY), believe that he should have been labeled an enemy combatant and questioned as such. They also argue that obtaining knowledge of other potential attacks from Shahzad should have been a top priority and should have taken precedent over reading him his Miranda rights.

Attorney General Eric Holder testified before a subcommittee of the Senate Appropriations Committee following the arrest. In his testimony, he stated that authorities use the public safety exception extensively. He also stated that labeling Shahzad an enemy combatant would not void his due process rights. Holder believes that reading Shahzad his Miranda rights did not hinder the investigation and  stated that Shahzad cooperated with authorities both before and after his rights were read to him. However, even Holder wants to look into expanding exceptions to Miranda for terror suspects.

But Miranda rights aren’t the only ones some members of Congress want to strip from terror suspects. Sen. Joseph Lieberman (I-CT) has proposed legislation that would allow US citizens to be stripped of their citizenship if they join foreign terrorist groups. Under current law, US citizens cannot be tried in military tribunals. Stripping them of their citizenship, as Lieberman is suggesting, would allow the government to try them in a tribunal rather than criminal court.

The renewed debate over Miranda warnings and citizenship rights is likely to continue over the next several months at least. That is why it is more important than ever that we work to protect the Bill of Rights and restore the rule of law, without which America’s most fundamental values are in grave danger.

Civil liberties groups petition for an end to TSA body scanner program

A number of civil liberties and privacy groups, including BORDC, are petitioning the Department of Homeland Security to discontinue the use of full-body scanners used by TSA in a growing number of major airports. The body scanners—according to the petition—violate the Fourth Amendment's protection against unreasonable search and seizure by subjecting innocent travelers to very detailed and intrusive photographs of their bodies. "At this point, there is no question that the body scanner program should be shut down," says Marc Rotenberg, president of the Electronic Privacy Information Center. "This is the worst type of government boondoggle—expensive, ineffective, and offensive to Constitutional rights and deeply held religious beliefs."

TSA officials claim that the body scanners (once they have passed testing and are positioned in the airports) do not have the capabilities to print or transmit the photographs, but that the machines do have the technology to do so when being tested. "Machines are delivered to airports without the capability to store, print, or transmit images, and cannot be modified by the operators. There are no circumstances when the system would be entered into the test mode in an airport environment," said TSA's acting administrator Gale Rossides.

In recent weeks, the TSA has publicized the machines' effectiveness in detecting contraband. In the first year of deployment, the machines found about 60 "artfully concealed" illegal or prohibited items, TSA said. The TSA body scanners use both millimeter wave technology and backscatter technology that enable the TSA officers operating the scanners to see photographs that resemble fuzzy negatives and chalk etchings, allowing them to see beneath clothing for illegal contraband.

The issue of privacy arose because of the graphic detail of the photographs and the threat of these images being shared. The civil rights and privacy groups issuing the petition are concerned that these personal photographs will not remain private and may be circulated between TSA personnel and elsewhere.  In fact, federal employees already share these concerns; a TSA employee in Miami was recently arrested for attacking a co-worker after enduring insults about his genitalia during a training exercise.

Outdated electronic privacy law unites tech companies and civil liberties groups in call for reform

BORDC recently joined the Digital Due Process Coalition (DDPC), which is calling for updates to the Electronic Communications Privacy Act (ECPA).

ECPA was created in 1986, hasn’t been updated since, and has been notoriously inefficient in accommodating privacy in the technological era. The antiquated law has languished for years, but now, updating ECPA is gaining traction on the Hill.

As the Digital Due Process Coalition points out,

Technology has advanced dramatically since 1986, and ECPA has been outpaced. The statute has not undergone a significant revision since it was enacted in 1986—light years ago in Internet time. As a result, ECPA is a patchwork of confusing standards that have been interpreted inconsistently by the courts, creating uncertainty for both service providers and law enforcement agencies. ECPA can no longer be applied in a clear and consistent way, and, consequently, the vast amount of personal information generated by today’s digital communication services may no longer be adequately protected.

During a May 6 hearing on ECPA, members of the House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties concurred with the position shared by Google, Intel, the ACLU, BORDC, and other DDPC organizations, all of whom are calling for modernizing our laws to protect consumer privacy.

Chairman Nadler (D-NY) said, “These robust new communications technologies bring with them new opportunities for law enforcement agencies, charged to protect us from criminals, to intervene in our private lives.” Rep. Hank Johnson (D-GA) called on Congress to rewrite ECPA: “I would hate to see a [communications] company turned into an agency for law enforcement at the expense of their customers.”

Current privacy protections in ECPA simply do not stand up to the nearly unlimited capacity for email storage that exists today. As Jim Dempsey, Center for Democracy and Technology’s VP for Public Policy explained during the hearing,

A handful of recent court cases deal with problems in the ECPA. But cloud-based email users should be concerned that their warrant protections expire after 180 days. Every one of us probably has five, six, maybe 10 years of email stored.

This hearing is likely to be just the first in a long line of hearings regarding electronic privacy as DDPC member organizations continue to work with Congress to craft legislation that will protect consumers even as technology grows and changes.

New Resources and Opportunities

May and June screenings of Most Dangerous Man

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 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:

May 24 and June 4: Anti-torture rally and panel discussion in Chicago

The Jail Jon Burge Committee urges the residents of Illinois to join in a call 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 in a civil suit related to torture.

The rally will feature appearances by victims who were tortured during Jon Burge’s tenure as commander, as well as their families. Speakers will include Mark Clements, Marvin Reaves, and Nick Escamilla, who are all victims of Burge’s torture regime. Attorney Flint Taylor, renowned advocate for police torture victims, and 21st Ward Alderman Howard Brookins, fierce public advocate, will also appear.

Then, on Friday, June 4, the Illinois Coalition Against Torture (ICAT) will hold its first panel discussion. The event, titled "From Chicago to Abu Ghraib: Is Torture US Policy?" will be held at DePaul University's Schmitt Academic Center at 2320 N. Kenmore, Room 154, from 7:00 – 8:30 p.m. For more information, visit ICAT's blog.

May 27: Limiting Knowledge in a Democracy

In January, we mentioned a conference hosted by the New School in New York City called “Limiting Knowledge in a Democracy.” The last day of the conference, which had to be rescheduled due to inclement weather, has been rescheduled for Thursday, May 27. The conference examines how the US government and other political and cultural institutions distort or otherwise affect the flow of information, and we encourage you to attend the final sessions later this month.

June 7: Blueprint for Accountability in New York City

On June 7, BORDC is co-sponsoring Culture Project’s Blueprint for Accountability at the NYU Skirball Center for the Performing Arts in New York, NY. The event will begin at 7:30 p.m.

Igniting an unprecedented sense of hope and possibility, the election of Barack Obama served to position American resolve and commitment as never before. Spurred by the one-year anniversary of the President's pronouncement to close Guantanamo, and the fates of nearly 200 detainees still hanging in the balance, Culture Project presents its groundbreaking Blueprint for Accountability series.

Culture Project’s "Blueprint for Accountability" event fuses theater, film, debate, and discussion to call attention to these crimes, urging policy makers, elected officials, and world citizens to craft a decisive moral response, capable of restoring both America's dignity and standing throughout the international community.

Fisher Stevens (Academy Award Winner, The Cove) will direct the event, which will include panelists Valerie Plame Wilson, Lt. General Ricardo Sanchez, Robert F. Kennedy, Jr., Ron Suskind, Jeremy Scahill, Rose Styron, Vince Warren, and Dr. Allen Keller, and dramatic scenes performed by James Spader, Liev Schreiber, Julianna Margulies, Mariska Hargitay, and Matt Dillon.

Purchase tickets for Blueprint for Accountability from the Skirball Center website or by phone at (212) 352-3101 or (866) 811-4111.

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, Kelsey Genevich, Mary Ann Keys, Emma Roderick, and Chris Trice

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