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Constitution in Crisis

November 2011, Vol. 10, No. 11

In this issue:

Bill of Rights Defense Committee turns 10


Grassroots News

Law and Policy

New Resources and Opportunities

Bill of Rights Defense Committee turns 10

Bill of Rights Defense Committee: Ten years of standing for liberty when our government won't

November 10, 2011, was a monumental day for the Bill of Rights Defense Committee. Ten years ago on November 10, a small group of activists gathered in Northampton, Massachusetts, to begin organizing against the just-passed USA PATRIOT Act. Their work resonated in their community and across the country, and together they founded the Bill of Rights Defense Committee.

BORDC’s founding director, Nancy Talanian, wrote about that time in her foreword to the third edition of Terrorism and the Constitution:

After September 11, 2001, it was impossible for those familiar with the U.S. government’s history of overreaching in times of crisis not to recognize the patterns, as Arab, Muslim, and South Asian immigrants were rounded up indiscriminately, the Justice Department’s surveillance powers were expanded through executive fiat, and Congress steamrolled passage of the USA PATRIOT Act in late October 2001.

Two weeks later, a small group of Northampton, Massachusetts, residents convened to consider the significance of the Patriot Act and other ominous government actions....

When change inside the Washington Beltway seemed impossible, the Northampton Bill of Rights Defense Committee formed to organize locally. In Northampton the group tested a strategy that has since been repeated in several hundred locales, involving local education and debate about federal policies, followed by passage of a city council resolution enabling the municipal government to take a stand—objecting to the civil liberties abuses of the “war on terror,” and telling local law enforcement not to infringe on locals’ constitutional rights even if the Patriot Act and other federal laws and policies might encourage them to do so.

Between 2001 and 2007, the Bill of Rights Defense Committee spearheaded a nationwide effort to oppose the PATRIOT Act. In the end, Bill of Rights resolutions were passed by 406 cities and towns, 8 states, and 89 labor unions, organizations, religious bodies, and campuses. These resolutions changed the debate around the PATRIOT Act and its reauthorization, including in Congress, where former Senator Larry Craig read the Idaho state resolution on the Senate floor.

Building on this successful national effort, BORDC began developing new local organizing platforms that go beyond symbolism and provide real, enforceable limits on government programs and policies that violate civil liberties and constitutional rights. In 2009, we launched our Local Civil Rights Restoration and torture accountability campaigns, now underway in dozens of cities across the Northeast, Southeast, Midwest, and West Coast, with new coalitions forming all the time.

We are deeply disappointed that our work remains necessary, but We the People are the only ones who can restore civil liberties and constitutional rights in the face of our government’s continued onslaught. We at BORDC are proud of what we have accomplished together these last ten years, and are honored to stand with you—today, and for as long as it takes to restore our nation to its founding ideals.


NSA whistleblower Thomas Drake joins BORDC Advisory Board

In the August issue of this newsletter, we told you about the four-year ordeal of whistleblower Thomas Drake, who was prosecuted under the Espionage Act for exposing illegal surveillance programs and wasteful practices during his time as an executive at the National Security Agency.

Drake, whose prosecution the judge called “unconscionable,” now speaks around the country to raise awareness about his experiences with the NSA’s warrantless wiretapping scheme—and our government’s illegal, unconstitutional activities under that program. As a military veteran, former executive official, and victim of our government’s lawlessness, Drake speaks to privacy and civil liberties concerns from a variety of compelling perspectives. We are proud to announce his addition to our advisory board.

Thomas Drake with BORDC staff and board

BORDC’s board and staff, pictured above with Drake (center), were honored to meet him at a retreat last month.

BORDC in the news

Over the last month, BORDC Executive Director Shahid Buttar traveled to a dozen cities, including Philadelphia, Seattle, San Diego, and Chicago. During his travels, in addition to speaking engagements and coalition meetings, he visited Occupy sites to share information and organizing opportunities.

On October 25, Buttar spoke about First Amendment and privacy principles at UC-Berkeley. At the very same time, police in nearby Oakland, CA, were attacking peaceful demonstrators with tear gas, rubber bullets and a sonic cannon. After joining the crowd in Oakland, Buttar and other lawyers led participants in reading from the Bill of Rights. Buttar later spoke with Christopher Danzig of Above the Law about “an obligation...incumbent on all lawyers and law students—to defend the rights of dissent in an age of state repression.”

The next day was the tenth anniversary of the PATRIOT Act, which BORDC marked with an op-ed appearing in nearly a dozen publications around the country, including the Sacramento Bee, the Columbia Daily Tribune, and The Progressive.

Earlier this month, Buttar also spoke to about US v. Jones, a case in which the government asserts the authority to use GPS devices to secretly track individuals’ locations without a warrant. Buttar suggested that observers

compare the vast investigatory powers police already have against the profound harm to privacy and associational rights in removing any judicial check on warrantless location tracking. In asserting this authority, our government is claiming police powers more like those in the Soviet Union or Communist China, well beyond the traditionally limited government powers on which we Americans, inspired by our Founders, have always insisted.

The Supreme Court heard arguments in the case on November 8, and its ruling, expected in spring 2012, could dramatically impact the scope of Fourth Amendment protections.

Finally, recent Santa Clara Law School graduate Farid Zakaria generated significant attention this month with his BORDC blog post. The post, titled “US researchers and pharmaceutical companies conducting human experimentation in Africa,” examined “Non-Consensual Research in Africa: The Outsourcing of Tuskegee,” a report recently released by the Rebecca Project For Human Rights calling for congressional hearings into human experiments that US researchers and drug companies have conducted in Africa. His post was shared more than 500 times on Facebook, was cross-posted by more than a dozen other blogs, and was ultimately viewed by more than 3,000 readers.

For more recent coverage of BORDC’s work, visit our press archives.

Get the latest news and analysis on our blog

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

Grassroots News

Patriot Award: Hamid Khan

Hamid KhanEach 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 honor Hamid Khan from Los Angeles, CA, for his work to defend and protect civil liberties.

Khan came to the United States from Pakistan in 1979. Living in Southern California, he experienced life as a South Asian immigrant in the United States and recognized the lack of protection for immigrant rights in his community. Inspired by Gandhi and Martin Luther King Jr., Hamid began hosting town hall meetings to discuss social, political, economic, and civil injustices facing people in the southern Californian South Asian community. These meetings eventually lead him to co-found the South Asian Network (SAN) in 1990 “to provide an open forum for people of South Asian origin to gather and discuss social, economic, and political issues affecting the community, with the goal of raising awareness, engagement and advocacy among community members leading to an empowered and active community....”

After 9/11 and passage of the PATRIOT Act, Khan’s work with SAN shifted as police surveillance of South Asian communities drastically increased. Working in partnership with the Youth Justice Coalition (YJC), Hamid became involved in the Los Angeles Community Action Network (LACAN). Together with SAN, YJC and LACAN came together with the goal of using a “triangulated approach to community advocacy” to broaden the reach of the movement that Khan has supported for over 20 years.

Khan believes that to be effective, grassroots responses to government violations must be local in nature. Locality gives people an opportunity to reclaim their individual and collective agency, giving the community as a whole the power create transformative change. BORDC honors Hamid Khan as he continues his excellent and necessary work, reflecting the age old principle that “an injury to one is an injury to all.”

Los Angeles: BORDC's George Friday visits to mark PATRIOT Act anniversary

BORDC’s national field organizer, George Friday, joined the ACLU of Southern California on October 26 for “Ten years after the PATRIOT Act: Where do we go from here?”, an event looking back on the decade since the PATRIOT Act was signed.

A full house filled the ACLU’s meeting space as George Friday, along with Shakeel Syed of the Islamic Shura Council of Southern California, Professor Hiroshi Motomura of the UCLA School of Law, Ameena Qazi of the Council of American-Islamic Relations of Los Angeles, and Ahilan Arulanantham of the ACLU of Southern California addressed government surveillance over the past decade and what grassroots coalitions can do about it. The diverse audience included many students who were in grade school when President Bush signed the PATRIOT Act 10 years ago. One student asked, “How do we fight for freedoms we’ve never known?”

Berkeley: Civil liberties coalition presses local police departments

A coalition of local allies convened by BORDC hosted a public event covered by local broadcast media. And after the crackdown on Occupy Oakland, the coalition mobilized to press their city council to reject secret inter-agency agreements between the Berkeley Police Department and other law enforcement agencies.

On October 24, the Coalition for a Safe Berkeley co-hosted a speak-out and forum on civil rights featuring a diverse, energetic, and intergenerational array of speakers, including Cinthya Munoz from Causa Justa, Veena Dubal from the Asian Law Caucus, BORDC’s Shahid Buttar, and Mansour Id-Deen from the Berkeley NAACP, as well as local organizers including George Lippman from the Berkeley Peace & Justice Commission and Sharon Adams from the National Lawyers Guild. The standing-room-only event, which highlighted the civil rights issues raised by the misleadingly named Secure Communities program, was attended by Members of the City Council, Rabbi Michael Lerner from Tikkun Magazine and the Network of Spiritual Progressives, and a camera crew from Telemundo.

Then, on November 8, the coalition mobilized to attend a Berkeley City Council hearing about proposed agreements between the Berkeley Police Department and other law enforcement agencies. The hearing followed within days of reports that the Berkeley Police Department had participated in the October 25 crackdown on Occupy Oakland (in which Iraq vet Scott Olsen was critically injured).

BORDC helped bring together the Coalition for a Safe Berkeley, which includes the Berkeley Peace & Justice Commission, National Lawyers Guild, East Bay Sanctuary Covenant, NAACP, Black Alliance for Just Immigration, ACLU Berkeley/Richmond chapter, National Network for Immigrant & Refugee Rights, Council on American-Islamic Relations-SF Bay Area, Berkeley Fellowship of Unitarian-Universalists Social Concerns Committee, and the Asian Law Caucus.

Chicago: Committee to Stop FBI Repression hosts national conference

Shahid Buttar at Committee to Stop FBI Repression's conferenceThree BORDC representatives—Grassroots Coordinator Emma Roderick, National Field Organizer George Friday, and Executive Director Shahid Buttar—participated in the Committee to Stop FBI Repression’s national conference on November 5 in Chicago, IL.

Students, activists, union leaders, lawyers, and civil rights advocates gathered at Chicago-Kent Law School to discuss the FBI and DOJ crackdown on peace and justice activists, labor organizers and international solidarity advocates. A series of raids beginning in fall 2010 targeted dozens of activists who continue to face potential indictment for activities that were, until the Supreme Court reinterpreted the “material support” provisions of the PATRIOT Act in spring 2010, constitutionally protected under the First Amendment.

As part of a panel discussion, Shahid explained how FBI surveillance programs and intelligence gathering relate to the government’s repression of dissent, while also connecting the dots between the Supreme Court’s “material support” ruling, the fall 2010 raids, and the JUSTICE Act. In the “Mapping the Landscape for Struggle” workshop, Emma and George helped civil liberties and civil rights organizers brainstorm diverse allies to expand and strengthen their coalitions.

Cleveland: “A Wake-Up Call for Civil Rights”

Civil rights leaders in Cleveland are preparing to host “A Wake-Up Call for Civil Rights – Islamophobia, Profiling, Preemptive Prosecutions” on November 18 and 19. Nine speakers will participate in two evenings of events at the Islamic Center of Cleveland. BORDC has been invited to conduct a training on coalition building as part of the events, hosted by the National Committee to Protect Civil Freedoms and the Council on American-Islamic Relations-Cleveland.

Massachusetts: Coalition collecting signatures for citizen’s petition

Preserving Our Civil Rights CampaignThe Preserving Our Civil Rights Campaign in Western Massachusetts is hard at work collecting the 3,000 signatures necessary to introduce a citizen’s petition ordinance to the Northampton City Council. The coalition, convened by BORDC and including the ACLU of Massachusetts and American Friends Service Committee, supports local reforms modeled on BORDC’s Local Civil Rights Restoration Act. Northampton recently passed a resolution against the Secure Communities program, and the coalition is following up by proposing measures to stop racial profiling and curb domestic surveillance.

The campaign hosts weekly canvassing trainings and will hold an educational event during the first week of December. The campaign will also expand to several nearby cities, including Springfield and Amherst, in the coming months.

Contact Grassroots Campaign Coordinator Emma Roderick if you’d like to get involved in the Preserving Our Civil Rights campaign in Western Massachusetts.

Hartford: Campaign preparing for introduction of civil rights ordinance

Luis CottoThe Hartford Civil Rights coalition continues to educate residents about its proposed reforms modeled on BORDC’s Local Civil Rights Restoration Act. In the wake of the recent re-election of BORDC Patriot Award honoree Luis Cotto (right) to the Hartford Common Council, the organizers anticipate that their reforms, which stalled last legislative session, will be reintroduced in the next several months.

Contact Grassroots Campaign Coordinator Emma Roderick if you’d like to get involved in the Hartford Civil Rights Coalition.

Law and Policy

First Amendment under fire at Occupy Oakland

the first amendment is our permitThe Occupy movement demonstrates the power of the First Amendment and the importance of free assembly and free speech. For the last two months, the country has been captivated by Occupy’s actions and message against corporate influence on our country’s political system. However, recent actions by law enforcement against the protests highlight a growing threat to our constitutional rights.

In Oakland, CA, police raided an Occupy site outside City Hall on October 25. Over the course of the day, police responding from dozens of law enforcement agencies arrested 85 participants and fired numerous rounds of tear gas, one of which fractured the skull of Iraq veteran Scott Olsen. A week later, police in Oakland arrested 101 more participants, including a member of the press, despite her clearly stating her role as a journalist when approached by police. The city had initially waived ordinances that banned camping in the area, but soon reinstated them after expressing concerns about “hazards” including “sanitation issues” and “graffiti.”

But the police onslaught on First Amendment rights has also spread beyond Oakland.

On November 9, baton-wielding police beat protestors at an encampment at UC-Berkeley in the precise location where the Free Speech Movement started 40 years ago. The incident prompted segments on national broadcast media including the Colbert Report and Countdown with Keith Olbermann. And on November 12, police in Denver arrested 17 participants while tearing down an Occupy site.

Even police in cities where public officials had previously welcomed Occupiers have turned hostile. After initially resisting politicized orders to violate the First Amendment rights of occupiers, the police department in Albany, NY, arrested two dozen participants. Across the country in Portland, OR, police declared an eviction order and arrested nearly that same number.

Law enforcement violations of the right to assemble present a fundamental danger to all of our First Amendment rights: the freedoms to speak freely, to petition our government for redress of grievances, and to receive news from independent media. Rather than work with Occupiers to find common ground, many cities have opted to intimidate participants instead. This police-state mentality may keep our streets cleaner, but it profoundly weakens our rights as Americans and threatens the vision for which our veterans—including Scott Olsen and Kayvan Sabeghi, another Iraq vet hospitalized by Oakland police department violence—served.

DOJ proposes, then drops, rule allowing government to lie about information requests

Classified document on Resolute deskThe Justice Department has dropped its controversial plan to allow officials to deny the existence of certain sensitive documents, or rather its “license to lie,” when confronted with Freedom of Information Act (FOIA) requests. "We will not include that provision when the Department issues final regulations," the Justice Department said.

FOIA establishes that any person has a right of access to federal agency records, and that federal agency records must be made available to the public unless they are specifically exempt from public release.

At one point, the Justice Department claimed that under the proposed policy it would not really be "lying" by stating that "there exist no records responsive to your FOIA request." It reasoned that such specific language would be "wholly accurate" because in these sensitive cases, the only records that do exist are not subject to FOIA.

Sen. Charles Grassley, R-Iowa, who had promised to fight the “license to lie,” said the Justice Department made the right decision to pull the proposed regulation. Grassley argued that a government response that there are "no records" when such records do, in fact, exist, could undermine public trust in government.

The American people are increasingly cynical with the federal government, and increasing transparency can be an important tool to build more trust.... In other words, the public’s business ought to be public.

“The new proposed regulation stands in stark contrast to both the president’s and your prior statements about FOIA, transparency, and open government,” Grassley wrote in a letter to Attorney General Eric Holder. “In fact, this policy directly contradicts your many statements, to me and other members of the Judiciary Committee, as part of your nomination hearing, that you support transparency of the executive branch.”

California County joins chorus resisting ICE and biometric ID

Santa Clara County, CA, joined a growing national movement of states, counties, and cities in refusing to honor requests from Immigration and Customs Enforcement and its misleadingly named Secure Communities Initiative (S-COMM). Santa Clara County includes San Jose, the third largest city in the state.

On October 18, the Santa Clara County Board of Supervisors passed what Supervisor George Shirakawa called “the most progressive policy” in the nation against municipal cooperation with ICE. The policy goes beyond lessening the impact of S-COMM on local governments, and seeks to both protect civil rights and resist the financial demands of additional fingerprinting, information transfer, and detention that ICE has tried to force on local authorities. Ultimately, it refuses to give ICE anything that ICE does not pay for.

At the heart of the controversy are ICE “detainer requests”—requests from ICE for cooperating authorities to hold individuals in custody for up to an additional 48 hours after scheduled release so that ICE officials can investigate and interview them, with the intention of then pursuing deportation actions against anyone whose documentation is at all in question. The extended holding period for those who would otherwise be released often goes well beyond 48 hours, and cities are forced to foot the bill. And that’s where Santa Clara’s policy kicks in.

My eyeS-COMM was launched in 2008, supposedly to focus deportation efforts on dangerous criminals who happen to be in violation of US immigration law. It requires municipal authorities to provide information to ICE on every person taken into custody—whether or not he or she is actually guilty of any crime—in order to identify potential deportees. Independent research has already shown, however, that the initiative has led to widespread profiling, undermined public safety, and deportation of even US citizens.

But it doesn’t end there. In conjunction with the FBI, ICE is using S-COMM to build a vast database of biometric information about immigrants and citizens alike. The collection and use of such information threatens both privacy and due process. In addition, an extensive biometric database would be an inevitable target for identity thieves.

This all comes in the wake of a New York judge’s ordering the release of Department of Homeland Security documents reaffirming that municipalities are under no legal obligation to prolong detentions or provide fingerprints or other information to ICE. ICE had attempted to make collaboration mandatory, but the documents indicate that cooperation was never required and that detainers were always intended as requests that may be rejected.

If separating families, detaining individuals without due process, destroying community trust in the police, and building a biometric database of citizens and non-citizens is not justification enough, expecting local municipalities to work at the direction of federal agencies—and cover the costs as well—may turn the tide against ICE, the FBI, and S-COMM.

Reports emerge that US supported torture at Bagram

Bagram prison cellDetainee treatment and abuse have been in the spotlight for years following coverage of abuses at Guantánamo Bay, Abu Ghraib, and CIA secret prisons around the world. Recent allegations of US tolerance for—and even funding of—continuing human rights abuses at Bagram Air Force Base in Afghanistan further indicate US disregard for the UN Convention Against Torture and other national and international laws. The Washington Post and Human Rights First detail the abuses and troubling lack of transparency.

The US transferred detainees to Afghan detention centers, despite repeated warnings to top officials in the State Department, CIA, and US military. Under particular scrutiny are the actions that took place at an Afghan detention facility known as Department 124, to which US Special Operations troops delivered detainees. CIA officers worked with the staff and Afghan intelligence at that location on an almost daily basis, and 26 of 28 detainees interviewed by the UN said that they had been tortured there.

The UN brought these allegations of widespread detainee abuse in Afghanistan to General John Allen of the US military on August 30. However, reports of abuse have been circulating since as early as 2007 from human rights groups such as Amnesty International and Human Rights Watch. Afghan officials said the CIA should have known about the abuses because of the prevalence of the beatings. Some hoped that, after the examples at Abu Ghraib drew attention to Bush administration torture policies (which the Obama administration has refused to investigate or prosecute), US officials would be very careful to avoid abuse.

Yet the Defense Department funded the Bagram detention center and transferred detainees to it even after receiving verified reports of human rights abuses, violating not only the UN Convention Against Torture but also the Leahy Amendment, which prohibits US funding of foreign security forces when there is credible evidence that they have committed human rights abuses. Despite public demands for accountability, the American legacy of torture continues to grow.

New Resources and Opportunities

December 1-2: Securing Our Rights conference in San Francisco

Early next month, a coalition of organizations led by the Rights Working Group and including BORDC will host “Securing Our Rights in the Information Sharing Era,” a conference on the evolution of government policies that infringe on civil liberties and human rights.

The convening will bring together organizers, policy experts, and community leaders. This is an opportune time for the "Securing Our Rights" convening, as this year marks not only the tenth anniversary of 9/11, but also 15 years since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the bill that established the 287(g) program which later set the stage for the misleadingly named Secure Communities program, and 40 years since the war on drugs began. The government has used each of these events to expand policies and invest in enforcement strategies that violate our civil liberties and human rights.

BORDC Executive Director Shahid Buttar and Field Organizer George Friday will both participate in panel discussions at the convening.

January 11: National Day of Action Against Guantánamo

close guantanamo rally 027lowres On January 11, 2012, Guantánamo Bay Detention Center will mark its tenth anniversary. On this somber occasion, a coalition of organizations will lead a national day of action against Guantánamo and other illegal detention schemes.

To mark the 10th anniversary of unlawful counterterrorism detentions at Guantánamo and to call for an end to indefinite detention and unfair trials, we will be creating a human chain between the White House and the Capitol. We need 2,700 people—the number of detainees still unlawfully held by the US government at Guantánamo and Bagram [Air Force Base in Afghanistan].

The coalition includes Witness Against Torture, World Can't Wait, Physicians for Human Rights, Code Pink, Center for Constitutional Rights, Amnesty International, and many others.

Sign up to participate in the human chain or get more information about the national day of action.

Help BORDC restore the rule of law

  • Get involved! Volunteer, organize, raise your voice—we have an opportunity that's right for everyone.
  • Read our blog. We publish the latest civil liberties news, plus analysis beyond the headlines.
  • Support our work! Contribute securely online, call (413) 582-0110 to donate by phone, or mail a check or money order to:
    Bill of Rights Defense Committee
    8 Bridge St., Suite A
    Northampton, MA 01060
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  • Spread the word! Share this newsletter with your friends and family.

Contributors: Adam Arnold, Shahid Buttar, Amy Ferrer, George Friday, Lindsey Needham, Alice Post, Emma Roderick, Alicia Williams, and Angela Williams

Banner Photo Credit: Storm Front by Matthew Johnston

Bill of Rights Defense Committee
8 Bridge St., Suite A
Northampton, MA 01060
Telephone: (413) 582-0110
Fax: (413) 582-0116