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Constitution in Crisis

February 2011, Vol. 10, No. 2

In this issue:

Demand JUSTICE, not the PATRIOT Act

BORDC News

Grassroots News

Law and Policy

New Resources and Opportunities

Demand JUSTICE, not the PATRIOT Act

Demand JUSTICE, not the PATRIOT Act

Ten years after passing the USA PATRIOT Act, Congress is again debating this enormous expansion of government power. With three provisions set to expire at the end of this month, and a recent revolt in the House against fast-track reauthorization, there has never been a better time to insist that Congress restore constitutional rights.

After a surprise vote delaying fast-track authorization on February 8, the House of Representatives voted on February 14 to extend the expiring provisions until December 2011. With the PATRIOT Act now before the Senate, reauthorization bills introduced by Senators Grassley (S. 291), Feinstein (S. 289), and Leahy (S. 290) have become the focal point of the debate. None of them would put meaningful limits on PATRIOT Act powers that have been repeatedly abused, although the Leahy bill would impose some minimal protections for civil liberties.

Whatever the outcome of the PATRIOT Debate, the JUSTICE Act offers Congress the opportunity to curtail PATRIOT abuses, while also addressing further problems created by the FISA Amendments of 2008. As the Electronic Frontier Foundation explained when the bill was introduced in 2010,

The JUSTICE Act would renew two of the three expiring PATRIOT provisions, PATRIOT sections 206 (John Doe roving wiretaps) and 215 (FISA orders for any tangible thing), but would also add strong new checks and balances to those provisions and to the PATRIOT Act in general, especially those provisions dealing with the government’s authority to issue National Security Letters. If passed, the bill would also establish critically important protections for Americans against surveillance authorized under the [FISA Amendments Act].

A law so extensive that many members of Congress admitted to having never read it, the USA PATRIOT Act has been in place for too long—and there has been too little debate on its dramatic expansion of executive power—to allow a reauthorization without debate.

Millions of Americans from across the country—and the political spectrum—have already raised their voices calling for limitations on PATRIOT powers. Although he now supports extending the PATRIOT Act, President Obama himself joined this chorus of opposition during his presidential campaign.

Several reauthorization bills have been introduced in both the House and the Senate, but none of them would put meaningful limits on any of the PATRIOT Act powers that have been repeatedly abused. In contrast, the JUSTICE Act would curtail PATRIOT abuses, while also addressing further problems created by the FISA Amendments of 2008.

BORDC News

BORDC organizes supporters to meet their congressional representatives

In January, BORDC recruited several cosponsoring organizations and dozens of grassroots participants for a national lobby day focused on educating members of Congress about the PATRIOT Act, FBI abuses, and opportunities to trim the federal budget by cutting constitutionally-offensive programs.

Unfortunately, a blizzard in DC limited the event’s turnout: fewer than 10 percent of our expected participants were able to attend. However, we took our lemons and made great lemonade, visiting more than 100 congressional offices to deliver information including our original research on budget-cutting opportunities (compiled by a dedicated team of volunteers), a recent story by Cato Institute scholar Julian Sanchez calling for greater scrutiny of covert domestic intelligence operations, and a map depicting BORDC’s prolific success in organizing local resolutions opposing the PATRIOT Act in towns and cities across America.

In addition to identifying congressional aides on Capitol Hill responsible for covering the PATRIOT Act for their offices, BORDC also helped educate those staffers and inform them of the grassroots opposition to PATRIOT they rarely hear inside the beltway. While we can’t know what factors ultimately influence Congress’s actions, the February 8 House vote to reject fast-track reauthorization did indicate encouraging signs about the bipartisan possibilities in the new Congress.

BORDC welcomes newest interns

We are pleased to have three new interns joining the Bill of Rights Defense Committee this month.

Ari Cowan is an intern in BORDC's national office in Northampton, MA, and an activist and organizer in the Pioneer Valley. His activism addresses issues ranging from civil liberties protection and migrant rights to US foreign policy.

Asad Khan is a high school student in Chantilly, VA, who will be working remotely from the DC area. A former class president, Asad is also a member of his school’s wrestling team.

Tavish MacLeod, an intern working remotely from Boston, MA, recently graduated from Boston University with a degree in international relations and history. Tavish’s concerns include human rights, executive accountability for torture, and drug policy reform.

Chip Pitts discusses civil liberties and the PATRIOT Act on C-SPAN

The PATRIOT Act is set to expire this month and will go in front of Congress for reauthorization. Chip Pitts, a BORDC board member, joined C-SPAN’s Washington Journal in January to discuss his concerns about its reauthorization.

It’s been an impetus for the regression of the rule of law around the world but in addition to that, I have a major problem with the ineffectiveness of the approaches represented by the PATRIOT Act. The way that it diverts scarce resources from the guilty to the innocent...inverts the presumption of innocence. It can also distract law enforcement’s attention and alienate communities...that we need to cultivate for effective intelligence against genuine terrorists...I’m also concerned that it tends to chill dissent...

Although the three expiring provisions involve some of the most controversial points of the PATRIOT Act, Chip also notes concerns about the numerous provisions that are not under review and are therefore “enshrined in law permanently.” Chip explains that all of these provisions suffer from a “core constitutional and legal infirmity”:

They don’t require individual or fact-based suspicion as required by the Constitution and they don’t impose checks and balances—the idea of testing law enforcement or intelligence efforts, fishing expeditions, by having them submit that to a neutral magistrate as required by the Constitution and Supreme Court cases. If you don’t have that, you have things like the national security letters…All Americans are at risk if our data can be examined without probable cause and without a sufficient security justification.

Grassroots News

Patriot Award: Muhammed Malik

Muhammed MalikEach month, BORDC recognizes an individual who has done outstanding work in support of civil liberties and the rule of law by honoring that person with our Patriot Award. This month, we recognize Muhammed Malik of Miami, FL, for his contribution to protecting and defending civil liberties.

The event that sparked Muhammed’s activism occurred the day after September 11, 2001. Muhammed, 18 years old at the time, found himself attacked by several men who targeted him because of his faith. This, coupled with the discrimination he felt while driving and flying, prompted him to enter law school with the goal of combating racial and religious profiling and Islamophobia.

Muhammed now works with the American Civil Liberties Union in Florida, focusing specifically on racial profiling by law enforcement authorities and racial justice in other contexts. He advises groups in Boca Raton and Orlando working to stop racial profiling, and also collaborates with groups in Miami. His most recent project focuses on voter disenfranchisement in Florida, which has one of the worst records in the US, with 1.2 million people unable to vote. He will soon meet with the clemency board in order to seek restoration of voting rights for convicted defendants who have paid their debts to society.

In addition to his work with the ACLU, Muhammed also works with a variety of other groups in the state of Florida. He formerly served as the director of the Council on American Islamic Relations in South Florida, where he fielded complaints of hate crimes and spoke out against discrimination. Muhammed has worked with Amnesty International on a national campaign against torture, reflecting his perspective that racial profiling and torture are two linked problems that have not been addressed at a national level. Muhammed is also co-chair of the Miami-Dade County Green Party, an organization that works with local groups outside the two-party establishment and aims to build a more responsive and representative political system in Florida.

Inspired by the fervor of democratic demonstrations throughout the Middle East, Muhammed organized three recent rallies in support of the protesters in Egypt. His goal of putting pressure on Florida legislators to voice their support for democratic ideals prompted a recent article in the Orlando Sentinel.

Muhammed’s work across these various issues embodies BORDC’s multi-faceted work to restore the rule of law. His focus on organizing across ethnic and religious communities to secure change at the grassroots level offers a compelling example to any activist who aspires to affect national issues.

City councilor champions local reforms in Asheville, NC

Cecil Bothwell by Steve MannAsheville city councilor and grassroots champion Cecil Bothwell (right) has been working this month with leaders from community organizations and faith-based groups to build a strong, effective coalition within diverse neighborhoods in that city. The group will work to organize grassroots support for the local campaign supported by BORDC by encouraging dialogue at the community level and conducting education activities with parent, church, and student groups.

The Asheville coalition has chosen to initially approach the City Council with proposals focused on the rights of undocumented workers, and aims to help underscore the need for broader reforms of the sort suggested by BORDC. To get involved in the Asheville campaign, contact Field Organizer George Friday.

Orlando coalition hosts state conference

The Florida ACLU hosted BORDC Field Organizer George Friday at the Amnesty International state conference at Valencia Community College on February 5. Local ACLU staff spoke to the group about the utility of BORDC’s Local Civil Rights Restoration Act before students from the University of Central Florida outlined their efforts to enact a resolution inspired by it on their campus.

The UCF resolution has been introduced and is under review by the campus executive committee before a final vote. Student organizers from at least one other campus expressed an interest in introducing a similar resolution at their school. The local campaign organizers hope that the nearby municipalities will follow. To get involved in organizing to protect civil liberties in Florida, contact Field Organizer George Friday.

Northampton civil rights preservation campaign launched

Welcome to NorthamptonA campaign to preserve civil rights and liberties is underway in Northampton, MA. Last month, at an annual Martin Luther King Day celebration organized by the American Friends Service Committee (AFSC) of Western Massachusetts, organizers announced the launch of a campaign that would introduce local legislation to affirm Northampton's commitment against racial profiling, immigration enforcement by local officers, and domestic surveillance of law-abiding groups.

Organizations driving the coalition include BORDC, AFSC, the ACLU of Massachusetts, and the Justice for Jason coalition. They plan to introduce the legislation, largely modeled after BORDC's Local Civil Rights Restoration Act, in early March, and will host a community forum on March 9 to educate Northampton residents about how to protect rights at the local level. To get involved, contact BORDC Grassroots Campaign Coordinator Emma Roderick.

San Francisco protesters rally against FBI raids of peace activists

On Tuesday, January 25, about 250 protesters gathered in San Francisco to rally against last fall’s FBI raids and grand jury subpoenas of 23 anti-war and Palestinian activists in the Twin Cities and Chicago. The activists, who were preparing peaceful protests against the GOP’s National Convention, were preemptively arrested by the FBI in September. Last month’s protest was organized by members of The World Can’t Wait and other local groups and individuals in the Bay Area.

The protest included a street theater action in which 23 activists dramatized the plight of the 23 arrested activists by covering their mouths with caution tape and wore signs reading “WE WILL NOT TESTIFY.” The 23 participants entered the General Services Administration building where the protest was held and handed blank subpoenas to security personnel while people outside chanted, “They will not testify.”

After the street theater action, speakers from the US, Egypt, the Philippines, Columbia, and Palestine spoke about similar actions by US and foreign security forces around the world to repress dissent and deny human rights.

Get involved in the People’s Campaign for the Constitution

Share BORDC’s work with your friends

BORDC relies on volunteers for crucial research, writing, and outreach projects. We actively cultivate leadership among volunteers and customize each individual’s opportunities to his or her interests. If you know people—such as recent students or people between jobs—who are seeking opportunities to learn new skills or expand their activism, please refer them to us.

We have numerous projects available for volunteers, such as researching civil liberties issues, writing for our blog, identifying local allies and supportive local officeholders in cities across the country, and representing BORDC in outreach efforts to potential allies and coalition partners. We welcome volunteers with any skill or educational level from anywhere in the country. Feel free to sign up to be a volunteer or contact Emma Roderick for more information.

Calling all educators

BORDC is expanding our K-12 resources and lesson plans and looking for educators to develop more teaching tools. If you have taught a class addressing civil liberties issues and are willing to share lesson plans with other teachers, please contact Emma Roderick.

Please also share the resources that BORDC has already compiled with teachers you know and others who might be interested in supporting our work.

Update us about your local activities

Please send information about your actions and events to Emma Roderick, our grassroots campaign coordinator. We’ll publicize your efforts to help inform and inspire others.

We can also offer organizing, outreach, and communications support. Let us know about your group’s organizing needs. We’re excited to help.

Read the latest news and analysis on our blog

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

Law and Policy

FBI admits involvement in hundreds of violations regarding national security investigations

The FBI recently admitted to a presidential board that from 2001 to 2008, the Bureau was involved in nearly 800 violations of laws, regulations, or policies governing national security investigations. However, the government will not give any details of whether anyone was held accountable.

The Electronic Frontier Foundation (EFF) submitted a FOIA request to obtain 2,500 documents that the FBI submitted to the President’s Intelligence Oversight Board, which was created in 1976 to monitor US intelligence gathering. Although EFF has received documents from a variety of intelligence agencies, most of the records were so heavily censored that they couldn’t be properly evaluated.

DSC_4600According to the records, about a third of the reports of violations involved rules governing internal oversight of intelligence investigations, and about a fifth involved potential violations of the Constitution, FISA, or other laws governing criminal investigations or intelligence-gathering activities. Valerie Caproni, the FBI’s general counsel, said in an interview that most of the violations reported to the oversight board were about technical errors that did not translate to misconduct.

EFF lawyer Mark Rumold states:

These guidelines were put in place to prevent civil rights abuses and when the FBI is glibly treating violations as technical mistakes, it’s indicative of a broader problem—the FBI’s attitude toward dedicated, effective oversight. Moreover, President Obama promised to have a more transparent government, but when it comes to national security and intelligence investigations, that just hasn’t been the case.

It is crucial that Congress carefully consider these disclosures of FBI abuses as pressure mounts to reauthorize the PATRIOT Act.

New report warns that Secure Communities will likely increase negative effects of 287(g) program

Delegation & Divergence, a report recently released by the Migration Policy Institute, highlights the detrimental effects of the 287(g) program, while warning that the Secure Communities program (S-COMM), which is active in many communities and set for implementation nationwide by 2013, will likely expand abuses and further jeopardize community safety and civil rights.

The 287(g) program deputizes local and state police officers to perform immigration enforcement activities on behalf of Immigration and Customs Enforcement (ICE). Though 287(g) requires that officers complete an ICE training program, the Migration Policy Institute has found,

Police departments in [jurisdictions that have signed onto 287(g)] have employed roadblocks and other traffic operations that have resulted in large numbers of arrests in or near immigrant communities, sometimes near public schools or places of worship. In these same communities, we heard reports of police stopping immigrants for a variety of minor traffic violations, including broken taillights or turn signals, cracked windshields, improperly tinted windows, impeding the flow of traffic, failure to come to a complete stop at a stop sign, and having the wrong color warning flag on the rear of a truck.

These operations specifically target Latino immigrant communities in a severe form of racial profiling impacting even US citizens of Latino descent. They carry serious consequences, not only for the families of undocumented individuals deported even before receiving a day in court, but also for their neighborhoods and the larger communities of which they are a part. As a result, the report finds that,

where traffic operations have resulted in removals through the 287(g) program, community respondents were especially likely to report that immigrants were venturing into public places with less frequency, failing to report crimes or otherwise interact with police, interacting less with schools and other institutions, patronizing local businesses less often….

But 287(g) isn’t the only problem. The Migration Policy Institute warns that S-COMM, which directs local police to forward fingerprints of all arrested individuals to ICE, will likely increase the detrimental effects of 287(g), particularly through increases in racial profiling and related arrests.

Indeed, Secure Communities may even be more susceptible to this problem since there are no formal agreements defining the activities of participating law enforcement agencies, and local officers do not receive federal training in immigration enforcement....We have found that it is quite likely in the absence of that training and in the absence of oversight that the officers that bring those people to jail could be doing it on pretextual context, could be engaging in racial profiling....

Because S-COMM provides fingerprint data to ICE before a suspect is found guilty of any crime, it can encourage racial profiling by allowing arbitrary arrests to serve as a way to "fish" for non-citizens. ICE's own data from October 2008 to November 2010 demonstrates that only 15 percent of those identified by S-COMM as undocumented residents were even charged with a Level 1 (violent) offense, while 85 percent were charged with a Level 2 or Level 3 offense (nonviolent offenses including traffic violations, jaywalking, etc.) for which deportation is an extreme remedy.

Despite the Obama administration’s claim that its increasingly invasive immigration enforcement operations seek to remove "dangerous criminals," S-COMM has primarily impacted people whose only legal violation has been to enter the country illegally—a civil infraction that has historically carried the same legal weight as a parking ticket.

Lawsuit challenging the NSA’s warrantless wiretapping scheme dismissed

On January 31, a federal court dismissed a lawsuit filed in 2006 by the Center for Constitutional Rights against the Bush administration seeking to end the National Security Administration’s warrantless wiretapping scheme. Even though warrantless wiretapping has been rejected as unconstitutional by every federal judge ever to have reviewed a challenge to it, the court dismissed CCR’s suit on the ground that the plaintiffs could not prove that they had actually been subjected to surveillance.

According to CCR Senior Attorney Shayana Kadidal,

The Obama administration has never taken a position—in this or any of the other related cases—on whether the Bush administration’s NSA surveillance program was legal. Instead, it fought to keep this case out of court on the Catch-22 argument that no one can ever prove they were targeted by a secret program.

New Resources and Opportunities

Suggestions for smarter and more effective national security spending

Late last month, BORDC distributed to members of Congress a list of suggested budget cuts to national security programs. Researched by a team of committed volunteers, these cuts focus on programs that are expensive and ineffective as well as constitutionally offensive. If enacted, such cuts would not only allocate funds more effectively, but also put an end to policies that infringe on our civil rights and liberties.

Two Hundred Dollars 1For example, the elimination of the controversial and unnecessary full body scanners used by the Transportation Security Administration in the nation’s airports could save $3 billion over the next eight years.

Even more surprising is the amount of national funding available for fusion centers. According to Homeland Security Secretary Janet Napolitano, at least $327 million in direct funding and $812 million for related information-sharing technology goes toward fusion center activities, which translates to upwards of $3.8 billion a year. This number is actually higher once Department of Justice (DOJ) spending is calculated into the cost, which includes $750,000 in fusion center support to local law enforcement and $500,000 in enhancing fusion center awareness and performance. Since so much information about the operations of these fusion centers remains secret, it is impossible to break down what the money is actually funding or how much fusion center funding has come from cash-strapped states.

Another $233.9 million goes toward advanced electronic surveillance for the FBI, which is unproven and potentially wasteful, as no investigations leading to successful prosecution have been based on sophisticated data-mining techniques or the analysis of information gathered under surveillance, as opposed to the tips and leads relied upon by professional investigators.

Overall, if BORDC’s recommendations were enacted, the government could save over $20 billion while also helping secure the civil rights of all Americans.

Resources to help stop PATRIOT Act abuses

With the reauthorization of the USA PATRIOT Act before Congress once again, the Bill of Rights Defense Committee and grassroots activists across the country are working to put a stop to the rights abuses that have resulted from the law’s grand expansion of executive power.

We at BORDC have a number of resources to help you organize against the PATRIOT Act:

Demand JUSTICE from your members of Congress

The JUSTICE Act, introduced in the last Congress by Rep. Rush Holt (D-NJ) and former Senator Russ Feingold (D-WI), would put in place meaningful safeguards for privacy and civil liberties. We’re calling for its reintroduction before the PATRIOT Act is reauthorized.

Call your senators to urge them to vote “no” on reauthorizing the PATRIOT Act until the meaningful safeguards provided by the JUSTICE Act are passed. Please also ask your friends, family, colleagues, and acquaintances to join you in doing so.

Share our PATRIOT Act PSA

We offer a short, fun video that tells you just a few of the ways the PATRIOT Act affects your life. View the video on YouTube and share it with your friends and family.

The "War on Terror" and the ConstitutionLearn more about the PATRIOT Act

If you’re interested in learning more about the PATRIOT Act and other violations of fundamental rights that have happened as a result of the so-called “war on terror,” BORDC has a booklet that can help you.

The “War on Terror” and the Constitution lays out the damage the PATRIOT Act and other laws and policies have done to our civil liberties. This 24-page booklet is available for just $3 plus shipping costs from our secure online store.

Wear your beliefs on your sleeve

Want to show off your opposition to the PATRIOT Act—and your wit? Visit our secure online store to purchase our fun button. They’re just a dollar each, or free with every donation of $35 or more.

That's so 1984

Please support BORDC's work to defend the Bill of Rights

Contribute online, or mail a check or money order to:

Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060

Contributors: Ari Cowan, Amy Ferrer, George Friday, Barbara Haugen, Tavish MacLeod, My Nguyen, Emma Roderick, and Matthew Swyers

Banner 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