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Constitution in Crisis

July 2010, Vol. 9, No. 7

In this issue:

Kagan hearings raise questions on executive power

BORDC News

Grassroots News

Law and Policy

New Resources and Opportunities

Kagan hearings raise questions on executive power

Supreme Court Justice John Paul Stevens long served as an outspoken check on executive power. He has been especially influential in recent years, challenging the expansion of executive power that took place under the Bush administration, particularly with respect to the rights of detainees to challenge their detention in court. His retirement from the Supreme Court ends an era. The question now is whether his replacement will demonstrate the same judicial independence for which her predecessor was renowned.

US Supreme CourtElena Kagan, current Solicitor General and former dean of Harvard Law School, has been nominated by President Obama to take Justice Stevens’ place. Because she has never served on the bench, she has no history of judgments that the Senate Judiciary Committee can examine, but there are some indications in Kagan’s past actions that may give some insight into where she will fall on the expansion or limits of executive powers.

While a professor at Harvard Law School, Kagan reportedly told her class that she agreed with those "who believed in the strongest vision of presidential control over agencies.” Later, as dean, she recruited Jack Goldsmith, a lawyer for the Justice Department under the Bush Administration who helped craft anti-terrorism policies. Some consider Goldsmith a war criminal because of a memorandum he wrote undermining the applicability of the Geneva Conventions. Most recently, in an exchange with Senator Lindsay Graham (R-SC) at a Justice Department hearing in February 2009, Kagan agreed with the senator when he stated that under military law, a member of an enemy force can be detained without trial. Specifically she said, “I think that makes sense, and I think you’re correct that that is the law.”

Kagan’s history doesn’t give a perfectly clear indication of whether, if confirmed, she will continue to allow the expansion of executive power or instead vote to scale back such excesses with the independence of Justice Stevens. Considering the tendency of Congress to defer to the president’s national security agenda, however, judicial independence is now more important than ever.

BORDC News

Stephen Rohde and Leonard Rubenstein join advisory board

This month, BORDC extends a warm welcome to Leonard Rubenstein and welcomes Stephen Rohde back to BORDC’s advisory board.

Leonard Rubenstein, JD, LLM, former president of Physicians for Human Rights and lifelong advocate for human rights and medical ethics, is now a visiting scholar at the Johns Hopkins Bloomberg School of Public Health. He is also a prolific writer, with articles appearing in national newspapers as well as scholarly publications.

Stephen Rohde, a constitutional lawyer, is chair of the American Civil Liberties Union Foundation of Southern California and author of American Words of Freedom and Freedom of Assembly. He is also chair of Interfaith Communities United for Justice and Peace in Los Angeles.

With support from BORDC, EPIC sues to stop airport body scanners

On July 2, 2010, the Electronic Privacy Information Center (EPIC) filed a suit, backed by BORDC, aiming to suspend the full body scanner program recently launched by the Transportation Security Administration (TSA) in airports across the country.

Fully body scanners capture naked images of air travelers using backscatter x-ray technology and millimeter wave technology. Backscatter technology is different than that of a traditional x-ray, in that backscatter allows TSA officers to visually penetrate layers of clothing, rather than tissue, leaving the traveler “naked” on the screen. Scanners enable TSA agents to detect illegal contraband worn underneath a traveler’s clothing without conducting a pat-down. The image resolution of backscatter x-rays is very high, which allows TSA to view the traveler in such detail as to distinguish intimate physical characteristics, and is therefore likened to a “digital strip search.”

After more than 19 major American airports began using full body scanners, constitutional rights groups, including BORDC and EPIC, began formulating the lawsuit that came to fruition on July 2. EPIC said that the program is "unlawful, invasive, and ineffective." EPIC argued that the federal agency has violated the Administrative Procedures Act, the Privacy Act, the Religious Freedom Restoration Act, and the Fourth Amendment. EPIC cited the invasive nature of the devices, the TSA's disregard of public opinion, and the impact on religious freedom, according to EPIC’s website.

EPIC and more than two dozen organizations had previously petitioned TSA for a public rulemaking, but TSA disregarded the petition. The suit is currently under review with the District of Columbia Court of Appeals.

Buttar outlines BORDC’s Fourth Amendment strategy

In commentary recently featured on Truthout and several other news outlets, BORDC Executive Director Shahid Buttar outlined BORDC’s strategy for restoring constitutional rights for all Americans by organizing local coalitions around sharedFourth Amendment interests. As Buttar explains,

[T]he Obama administration has proven itself either unwilling—or unable—to shift the paradigm driving increasingly invasive surveillance or increasingly pervasive profiling according to race, religion and national origin. Nearly halfway through the Obama administration's term, the battle to banish the Bush administration's policy legacy remains largely unfought, let alone won.

In response to the federal government’s failure to protect Fourth Amendment rights, BORDC is coordinating local efforts around the country to identify and stop racial profiling and bring surveillance and intelligence collection practices in line with longstanding constitutional principles.

BORDC’s model ordinance places legally binding, enforceable limits on local law enforcement agencies and their participation in federally coordinated intelligence collection, surveillance, and immigration enforcement. It also creates rights against racial profiling, backed up by transparency and accountability measures to expose and stop potential profiling. By bringing together these connected Fourth Amendment violations under a single legislative umbrella, this effort aims to convene coalitions among groups that have rarely joined forces despite the untapped strength of their numbers:

Whether concerned by government spying or the guilt by association apparent in profiling Latinos, African-Americans, Muslims, Arabs and South Asians for various so-called "signature crimes," limits on local law enforcement authorities offer the potential to galvanize solidarity among communities of color. Measures restricting domestic intelligence operations can also attract the support of libertarians—including some elements of the Tea Party—disaffected by the Washington consensus favoring expanding executive power.

Build momentum for the national civil liberties movement by coordinating a local effort to enact reforms protecting Fourth Amendment rights. Contact Emma for more information.

Grassroots News

Patriot Award: LaResse Harvey

Shahid Buttar, LaResse Harvey, and Emma RoderickEach month, the Bill of Rights Defense Committee recognizes with the Patriot Award an individual who has demonstrated strong commitment and support for civil liberties and the rule of law. This month, we recognize LaResse Harvey from Hartford, CT, for her remarkable commitment to the Bill of Rights.

LaResse (center, with BORDC's Shahid Buttar and Emma Roderick) got an early start fighting for justice and equality in Connecticut as a 17-year-old mom and activist, helping to secure the passage of Connecticut’s Children’s Act of 1988. When she was later incarcerated, LaResse became a firm believer in the power of education and the potential for the arts to open up the intellectual worlds of young people. She went on to earn three associate’s degrees from Tunixs Community College, as well as a bachelor’s degree in social work from St. Joseph’s University. She is currently working on her master’s degree and hopes to one day earn a Ph.D. LaResse has instilled her passion for education in her children, both of whom are currently attending college.

In addition to pursuing her education and raising two children, LaResse has also continued her activism. She joined A Better Way Foundation (ABWF) in 2005, served on the foundation’s board, and became its policy director in 2007. ABWF is a community-based organization in Connecticut “working on reducing prison populations and reforming drug policies.” Part of its strategy is to emphasize education, and shift the debate over drug policy to focus on public health and eliminate mandatory minimum sentencing guidelines. ABWF has also partnered with Goodwin College to offer a two-year scholarship for students who intern with the organization.

At ABWF, LaResse launched a new restorative justice campaign to help those who have been denied justice and level the playing field between individuals and the criminal justice system. Tied to these efforts, LaResse has recently opened her own lobbying firm, the Civic Trust Lobbying Firm Company, to help formerly incarcerated individuals. LaResse’s activism has also included participation in the New Britain School Task Force Committee and the steering committee of Youth of Incarcerated Parents.

As a partner with the BORDC, LaResse has helped Hartford City Councilor Luis Cotto develop a city ordinance to address racial profiling and surveillance based on BORDC’s model legislation. She is at the forefront of establishing a coalition of partners and organizations at the city and state level to enact the ordinance later this year and then move the debate state-wide.

BORDC commends LaResse Harvey for her extraordinary activism in support of civil liberties and the rule of law. She offers a powerful example of how one person can make a real difference.

Vijay Shah fights back after rights violations at 2004 DNC

Benjamin Franklin once wrote, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

Steps from the Old State House, where Bostonians first heard the Declaration of Independence, essential liberty was traded for temporary security at the 2004 Democratic National Convention in Boston.

On July 25, 2004, Ohio native Vijay Shah was sitting on the steps surrounded by secret service agents, Czellecz and Holloway, who had snatched him from an anti-war protest and demanded to see his identification. From a large group of people exercising their First Amendment rights, Shah was picked out for his dark skin, full beard, and “suspicious behavior.” He was grabbed from behind, handcuffed, and taken to an adjacent dark alley where agents took their investigation to the “dark side.”

When Shah respectfully withheld his identification, the agents threw him into the back of a police cruiser and drove him to a nearby station, without reading Shah his rights or acknowledging an arrest. Shah explained to agents that he withheld his identification because he takes the Constitution seriously and paid close attention to landmark civil liberties cases such as Miranda. Agent Czellecz thought Shah said he diligently followed Iran.

Upset about the agents’ behavior and unwilling to let this happen to others, Shah filed a civil lawsuit asserting his Fourth Amendment right to be free from unlawful search and seizure and challenging his de facto arrest.

In the courtroom, Justice Department lawyers asserted “the ticking bomb” scenario and spoke of a desperate need to heighten security measures. Asking “what else could [the agents] do?,” the government lawyers included in their opening statement references to 9/11, the Madrid election bombing, and the show 24 as indications of what could happen if security had not been the main agenda at the convention.

In March, Agent Czellecz was found liable for violating Mr. Shah’s rights.

As Shah’s defense team noted, “Sometimes it’s hard to stand on principle. Our Constitution was written by stubborn men for stubborn men like Mr. Shah.” If Shah did not stand up, Czellecz would have never been held accountable for violating Shah’s Fourth Amendment rights and would likely have repeated those abuses elsewhere.

Ben Franklin would be proud.

Hartford organizers set to introduce ordinance to city council

A coalition of immigrants and civil rights leaders in Hartford continues to meet and organize in anticipation of the introduction of legislation to restore civil rights and liberties in the city. Luis Cotto, a city council member whose leadership was instrumental in Hartford’s passage of anti-profiling measures in 2008, will sponsor the legislation based, in part, on BORDC's model ordinance placing limits on local law enforcement.

We’ll keep you updated as the campaign in Hartford unfolds. If you (or others you know) live in Hartford, please let us know and we’ll put you in touch with organizers on the ground.

Illinois Coalition Against Torture introduces anti-torture bill

Fueled by momentum of the trial of Chicago Detective Jon Burge for perjury relating to a torture ring that violated the human rights of hundreds of African-American suspects in Chicago from 1972 to 1992, the Illinois Coalition Against Torture (ICAT) proposed legislation to criminalize torture in Illinois on the local, state, and federal level without a statute of limitations. This month, members of Congress representing Illinois introduced H.R. 5688 in the US Congress.

If you want to help stop torture at all levels of our government, contact Emma to learn how to get involved.

Campaigns expand in cities across the US

Coalition efforts to raise rights above the federal floor are currently underway in cities across the country, including Chicago, IL; Cleveland, OH; New York, NY; Albany, NY; Hartford, CT; and many others.

Whether working towards enforceable protections against domestic surveillance and racial and religious profiling, or calling for municipalities to seek executive accountability for torture, these coalitions are acting on an exciting opportunity to encourage national policy changes through action at the local level.

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

Get involved in the People’s Campaign for the Constitution

Develop Lesson Plans for K-12 Classrooms

Are you an educator? We’re expanding our K-12 resources and lesson plans and looking for educators to develop more teaching tools this summer. If you teach (or have taught) a class raising civil liberties issues that you’d be willing to share with other teachers—or if you’re interested in developing lesson plans for use by other educators across the country, let us know.

In the mean time, feel free to share the resources we’ve compiled with teachers you know, and introduce us to other educators interested in participating.

Organize events during the Face the Truth campaign’s week of national action

The week of September 26, 2010, the Face the Truth campaign will hold actions around the country to highlight the destructive effects of racial profiling.  As the culmination of the Face the Truth hearings, the week of action will include a report of testimonies from affected individuals, as well as national and local events. Consider hosting a Face the Truth town hall in your community, press events to highlight local campaigns to stop profiling, direct action to heighten local campaigns or a "Night of 1,000 Conversations" educational event to learn about how racial profiling impacts different communities. For more information please contact Pabitra Benjamin.

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

The People’s Campaign for the Constitution (PCC) is currently seeking volunteer accounting professionals to offer advice (not services) to our grassroots coalition partners. If you have an expertise in accounting and interest in supporting local organizing, 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, and software engineers. 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 us 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.

Law and Policy

Humanitarian Law Project ruling chills First and Fifth Amendment rights

US law makes it a crime to provide any “material support” to any group that has been designated by the State Department as a foreign terrorist organization. Recently, the Supreme Court ruled in Holder v. Humanitarian Law Project that the “material support” statute is constitutional despite its limits on the First Amendment.

The plaintiffs in the case include the Humanitarian Law Project (HLP), a Tamil-American physician, and several other Tamil-American human rights organizations. HLP is a human rights organization that, under the “material support” statute, was held criminally liable for humanitarian work because some of the local groups they educate about nonviolent dispute resolution have been designated as terrorist organizations. Similarly, the physician and other human rights groups sought to enter into Sri Lanka after the 2005 tsunami to assist in rebuilding infrastructure and provide medical care, but would have faced criminal penalties for their work because the Liberation Tigers of Tamil Eelam (LTTE), essentially the functioning government of the region, are on the terrorist list.

The plaintiffs’ main claims are that the statute is unconstitutional because it violates their freedoms of speech and association guaranteed by the First Amendment, and also that the statute is unconstitutionally vague, violating the Due Process Clause of the Fifth Amendment. Both the District Court and the US Court of Appeals for the Ninth Circuit agreed with the plaintiffs, but the Supreme Court disagreed and overruled both courts.

In the opinion announced on June 21, the Court ruled that the statute did not violate the First or Fifth Amendments. Chief Justice Roberts wrote that the statutory terms at issue (e.g., "training," "expert advice or assistance," "service," and "personnel") apply directly to the actions of the plaintiffs. He went on to say that support in the form of intangibles frees up resources for other illegal uses, and that, combined with the government’s interest in denying terrorist groups legitimacy, was sufficient to trump the First Amendment issues raised by the plaintiffs.

The decision effectively blocks groups like HLP from providing assistance in the form of political speech to groups on the designated terrorist list. Justice Breyer, joined by Justices Ginsburg and Sotomayor in his dissent, offered a different interpretation. In his reading of the law, prosecution should only occur if an individual or group knowingly provides “material support” to terrorist groups they have reason to believe would be used to further violence. Justice Breyer wrote, “not even the ‘serious and deadly problem’ of international terrorism can require automatic forfeiture of First Amendment rights.”

ACLU challenges no-fly list

The ACLU is filing suit over the government‘s no-fly list, which allegedly violates Americans’ constitutional rights. The suit lists as defendants Attorney General Eric Holder, Federal Bureau of Investigation Director Robert Mueller, and Timothy Healy, director of the Terrorist Screening Center.

The no-fly list currently includes more than 8,000 names —double the number before the failed bombing of a Detroit-bound airliner last Christmas Day. The suit was filed on behalf of ten citizens that were placed on the list without any explanation, some of whom were stranded in foreign countries, unable to return home.

The ACLU claims that the no-fly list “violates due process rights guaranteed under the Constitution because individuals on the list have no opportunity to ‘confront or rebut the basis for their inclusion.’” According to Ben Wizner, a staff lawyer at the ACLU’s National Security Project:

It really is abominable that they would treat US citizens this way…There is simply no legal basis for placing a US citizen into involuntary exile. And to use a secret government list without any process to accomplish that goal is so un-American and so unconstitutional.

The suit was filed after the parents of a six-year-old girl were unable to contest their daughter’s placement on the Department of Homeland Security’s no-fly list. According to James Hardiman of the ACLU, “That particular case…highlights how ridiculous some of the decisions that are being made actually are….” As FBI Agent Jack Cloonan told 60 Minutes in 2006, “Intended to be a serious intelligence document, the No Fly List soon became a ‘cover your rear end’ document designed to protect bureaucrats and make the public feel more secure.”

Pittsburgh threatens to shut down police review board

The Pittsburgh police review board is aiming to fulfill its mandate—to review the practices of local police and protect residents from abuses of power—but the city has other ideas.

Civilian police review boards exist to monitor local police activity and protect the public from abuses of power. However, this mandate seems not to apply to police practices involving security operations at high-profile national events that may, should they come to light, embarrass a city or cost it financially.

This is allegedly the case in Pittsburgh, PA, where a recent exposé on Law and Disorder Radio noted that the city council, faced with a lawsuit by activist groups charging police violation of First and Fourteenth Amendment rights during G-20 summit protests last year, has come up with a novel solution: removing the members of the review board before they are able to get access to the secret records of possible police misconduct during the summit.

The ACLU of Pennsylvania suggests that the Pittsburgh mayor’s nominations to replace the board members, which came “as the board was asking an Allegheny County judge to hold police Chief Nate Harper in contempt for refusing to turn over to the board documents related to police activities during the Group of 20 economic summit,” “will likely be considered invalid.”

Read the latest news and analysis on our blog

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

 

New Resources and Opportunities

The Most Dangerous Man in AmericaJuly and August 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 Supreme Court, and 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. Upcoming screenings include:

Book Review: The Cost of Counterterrorism by Laura K. Donohue

In her book, The Cost of Counterterrorism: Power, Politics, and Liberty, Laura K. Donohue of Georgetown University does an excellent job of reviewing and analyzing national security policies in the United States following the terrorist attacks of September 11, 2001. The book offers insightful background for anyone interested in civil liberties.

With regard to surveillance, Donohue starts at the beginning, providing a brief but comprehensive history of the Executive Branch’s domestic surveillance activities. Her review allows the reader to clearly see recurring patterns; it establishes a lengthy and damning record of the judiciary upholding privacy rights and restricting the Executive to its constitutionally mandated powers. Further, it is very effective in showing the Executive’s tendencies to overstep its bounds and violate individual rights.

In discussing the PATRIOT Act, Donohue neither succumbs to a vitriolic assault, nor strays away from how it perilously expands upon previous legislation concerning domestic surveillance. In outlining the many ways that the Act extended the government’s powers to enable surveillance of law-abiding Americans, Donohue offers powerful arguments that will appeal to any reader, regardless of ideology.

Donohue also works to break down the veil of infallibility that the intelligence community so eagerly uses in defense of its own interests. In particular, she reveals how many within the intelligence community and Justice Department, throughout history, have worked to destroy any record of their domestic surveillance programs to avoid accountability.

The Cost of CounterterrorismAt the end of the section on America’s surveillance culture, Donohue brings up one issue that seems particularly poignant and timely: the politicization of surveillance. Information has been gathered and maintained on anti-war groups, political dissidents, and LGBTQ individuals and organizations; all despite exhibiting no signs of or desire to engage in violent or destructive behavior. Through national security letters and other mechanisms, domestic surveillance programs usually lack limits on whom the government may investigate or monitor; even American citizens unsuspected of criminal activity, much less terrorism, can be placed under surveillance and personal information can be collected and stored indefinitely.

By targeting individuals who are different, the intelligence community and Justice Department are attempting to scare society into thinking with one mind and conforming to a single set of social norms. The potential result is not only an Orwellian nightmare, but also reduced opposition to such programs of surveillance and fear-mongering.

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: Kelsey Genevich, Mary Ann Keys, Phil Leggiere, Christine Monska, Christopher Montero, 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