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Constitution in Crisis

March 2012, Vol. 11, No. 3

In this issue:

Transpartisan movement gains momentum to stop domestic military detention under the NDAA

BORDC News

Grassroots News

Law and Policy

New Resources and Opportunities

 

Transpartisan movement gains momentum to stop domestic military detention under the NDAA

For nearly four months, the Bill of Rights Defense Committee (BORDC) has mobilized grassroots supporters against the National Defense Authorization Act (NDAA) and its terrifying detention provisions. President Obama signed the NDAA into law on New Year’s Eve, extending the power to indefinitely detain in military custody anyone accused of a “belligerent act.” This power was first asserted by the Bush administration under the 2001 Authorization to Use Military Force (AUMF).

By removing the constitutional requirement for a trial by jury, removing the presumption of innocence, and authorizing the military detention of peaceful activists, the NDAA gravely threatens democracy in America. Yet voices from across the country—and across the political spectrum—have emerged to defend due process and resist domestic military detention.

NDAA Campaign MapIn only a few short weeks, more than half a dozen cities and counties have passed resolutions opposing the NDAA’s detention provisions. At least 11 state legislatures are considering—or have already passed—bills opposing the NDAA or nullifying its detention provisions within their states. And transpartisan campaigns are emerging in even more communities from coast to coast. Three maps tracking these efforts, compiled by BORDC and the Tenth Amendment Center, demonstrate the momentum of these resolutions and grassroots campaigns.

Virginia is the first state in which a bill protecting residents against indefinite military detention has reached the governor’s desk. According to Delegate Bob Marshall (R), who sponsored the bill:

By overwhelming votes (37-1 and 96-4), members of both houses of the Virginia General Assembly now have expressed themselves in their unmistakable understanding of the inviolate protections of our civil rights under the constitutions of the United States and Virginia…

Although it represents an important milestone, the Virginia bill—like the Due Process Guarantee Act championed by US Senator Diane Feinstein (D-CA)—sets a disturbing precedent by failing to restore due process for all individuals within the US. However, most of the resolutions that have been proposed across the country do restore these rights for everyone in America.

Last month, in an interview with Michael Ostrolenk of the Liberty Coalition (and a member of BORDC’s board of directors), BORDC Executive Director Shahid Buttar explained why the NDAA is so dangerous and how any concerned American can help resist its detention powers:

Americans of diverse political perspectives from all over the country are coming together to fight the NDAA’s indefinite detention provisions. Learn more and add your voice to the chorus today:

 

BORDC News                                 

Vote for BORDC on the CREDO donation ballot!

CREDO banner 180x150Each year, CREDO Mobile and Working Assets select 40 charities to support. Then they donate their profits to those charities in proportions determined by their customers and supporters. This year, CREDO has selected the Bill of Rights Defense Committee as one of the eight civil rights charities it will support, but to make the most of this opportunity, we need your vote!

You’re already eligible to vote if you are a CREDO mobile or Working Assets customer. But you don't have to be a customer to participate: you can also vote by becoming a member of CREDO Action. Simply visit CREDO Action and sign one of their petitions or join one of their campaigns and you'll be eligible to vote! And voting is easy: just visit the online ballot and allot your points to the charities you want CREDO to support.

BORDC is supporting crucial civil rights efforts all over the country, but we need more resources to meet the demand for our work. By voting for BORDC on the CREDO ballot, you can help expand our efforts without having to open your wallet.

Audiences from Connecticut to Texas welcome BORDC’s Shahid Buttar

Over the past month, BORDC Executive Director Shahid Buttar spoke out in various media outlets about issues including military detention under the National Defense Authorization Act (NDAA), the Justice Department’s feeble attempt to legalize extrajudicial assassination, and the NYPD’s foolish and counterproductive domestic spying in violation of the First Amendment protections of religious freedom.

Dallas Central MarketButtar also addressed live audiences from Connecticut to Texas. He spoke at a statewide convening in Connecticut on February 18, discussing the potential impacts of the NDAA, and later in the month led discussions about constitutional rights with student groups at Texas Wesleyan Law School, Southern Methodist University Law School, the University of Texas at Dallas, and Fordham University. He also attended a grassroots event in Dallas on February 25 co-sponsored by the ACLU of Texas, Amnesty International, the Dallas Peace Center, Code Pink, the Dallas-Fort Worth Chapter of the Council on American Islamic Relations, and the Muslim Legal Fund of America.

In the coming month, Buttar will speak at the Occupy the Midwest conference in St. Louis on March 15 and deliver the keynote address at a public interest law symposium at Loyola University Chicago School of Law on March 16. He will speak in Tacoma, WA, on April 14, and hopes to speak at UCLA Law School in Los Angeles as well.

BORDC in the news

On February 23, the Bill of Rights Defense Committee, together with a transpartisan coalition including the Tenth Amendment Center and Demand Progress, hosted a press teleconference on the National Defense Authorization Act (NDAA) and growing movement in the states to resist its unconstitutional detention provisions. Speakers included progressive author Naomi Wolf and former Reagan administration official Bruce Fein (both members of BORDC’s advisory board), as well as six local and state elected officials representing both major political parties and locations across the country, each of whom is supporting legislation to restore due process:

Following the press conference, Wolf published a piece in The Guardian highlighting the dangers of domestic military detention:

Let's be clear: the NDAA grants the president the power to kidnap any American anywhere in the United States and hold him or her in prison forever without trial. The president's own signing statement, incredibly, confirmed that he had that power. As I have been warning since 2006: there is not a country on the planet that you can name that has ever set in place a system of torture, and of detention without trial, for an "other", supposedly external threat that did not end up using it…on its own citizens.

Just days after the press conference, Senator Dianne Feinstein (D-CA) chaired a Senate Judiciary Committee hearing on the bill. BORDC’s Shahid Buttar spoke to the San Francisco Chronicle ahead of the hearing:

Shahid Buttar, executive director of the Bill of Rights Defense Committee, an activist group rallying opposition to the law, said there was no hearing on the detainee provisions.

He accused the sponsors—Senate Armed Services Committee Chairman Carl Levin, D-Mich., and ranking Republican Sen. John McCain of Arizona—of "a spectacular abuse of the legislative process" and accused all who voted for the bill of "a profound abdication of the oath of office to protect the Constitution." He called for full repeal of the detainee provisions.

More recently, Buttar appeared on Al Jazeera and Capitol Correspondent to respond to Attorney General Eric Holder’s defense of the Obama administration’s targeted killings of US citizens without due process.

Buttar also spoke out about “abject lawlessness by the New York Police Department,” as reporters uncovered the NYPD’s widespread surveillance of businesses, students, and houses of worship— even in communities outside New York City—based entirely on the subjects’ First Amendment-protected religious beliefs, without any basis for individual suspicion.

Beyond commentary by BORDC staff, campaigns supported by BORDC also sparked further news coverage of these important issues. For example, the University of Massachusetts Amherst’s Daily Collegian covered a recent resolution by the Northampton City Council opposing domestic military detention, quoting Bill Dwight, president of the Northampton City Council, and local ACLU lawyer Bill Newman.

Get the latest news and information on our blog

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

 

Grassroots News

Patriot Award: Nicholas Merrill

NYC Jewish Tech Meetup w/ Nick MerrillEach 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 Nicholas Merrill for his fight against privacy violations and national security letters.

In early 2004, Nick Merrill, owner of Internet service provider Calyx Internet in New York, received a national security letter (NSL) directing him to provide the FBI with constitutionally protected and private information on numerous clients. The letter also contained a gag order which prohibited him from telling anyone—even an attorney—about the letter.

Feeling his rights as an American were being violated, Nick disobeyed the order and contacted his private attorney, who connected him with the American Civil Liberties Union (ACLU). The ACLU brought a case against then-Attorney General John Ashcroft on Nick’s behalf, though because of the gag order, Nick wasn’t publicly named in the suit. His case, Doe v. Ashcroft, lasted six long years during which Nick was forced to hide his identity. Finally, in August 2010, he was partially released from the gag order.

“Despite being struck down as unconstitutional back in 2004, the gag is still affecting me on a daily basis, now, years later in 2012,” Nick says. “The law intends for gag orders to be coercive and threatening and I must say they are. Having the threat of five years in prison whenever I talk about the case is still a burden on me today.”

Between the years 2003 and 2006, the government issued more than 192,000 NSLs. The numbers are still high, with almost 25,000 Americans receiving NSLs in 2010, double the amount from the previous year. Because of Nick’s case, the gag orders that now accompany NSLs allow the recipient to contact an attorney; however, the recipient’s right to redress is still extremely limited.

Nick’s experience inspired him to start the Calyx Institute, a nonprofit organization advocating privacy over profits for telecommunications companies. He says the greatest risk to privacy today “is complacency on the part of providers (telecom, internet, and web based software) in terms of not doing everything they can to provide privacy to the best of their abilities.”

He urges individuals to avoid business with providers that do not commit to protecting the privacy of their patrons. “The internet will only continue to be an even more important part of our political and private lives,” he said.

He says he is not worried that he will receive another NSL, even though his business as an Internet provider makes him a common target. Even if he felt at risk, it wouldn’t matter, he says. “I am so concerned at the direction the telecommunications industry has been heading over the past decade that it is worth the risk.”

We thank Nick Merrill for his courage in standing up against the FBI's attempts to invade individual privacy and are honored to recognize him with our Patriot Award.

Amherst, MA: Preserving Our Civil Rights Campaign hits the streets

After securing the passage of two resolutions in Northampton (one challenging the misleadingly named “Secure Communities” immigration enforcement and biometric data tracking program, and another rejecting the indefinite detention provisions of the National Defense Authorization Act), the Preserving Our Civil Rights (PCR) Campaign of Western Massachusetts is taking root in nearby Amherst.

On the last day of February, dozens of University of Massachusetts students took to the streets (in the middle of a snow storm, no less!), knocking on doors to collect signatures supporting a by-law to stop information sharing between local law enforcement and Immigration and Customs Enforcement (ICE). The campaign’s canvassing effort successfully placed the by-law on the town warrant.

Over the next several months, the campaign will focus on educating the community about this important reform effort and how federal immigration enforcement is being used as a pretext to erode the privacy of all Americans, including citizens. At the same time, the campaign has remained active in Northampton, continuing to collect signatures for a citizen’s petition to curb domestic surveillance and information sharing with federal fusion centers.

The PCR Campaign is a project of BORDC, in partnership with the American Friends Service Committee of Western Massachusetts and the American Civil Liberties Union of Massachusetts. To get involved, contact Grassroots Campaign Coordinator Emma Roderick.

Hartford, CT: Coalition participates in hearing on anti-racial profiling bill

The Connecticut Coalition for Civil Rights has been working hard to build support for statewide reforms to stop racial profiling. The coalition includes BORDC, A Better Way Foundation, and the Connecticut chapters of the ACLU, CAIR, and the NAACP. Sandra Staub of the ACLU-CT and Mongi Dhaouadi of CAIR-CT offered powerful testimony at a recent hearing on the bill, and the coalition will continue to build support for this important measure.

To get involved in the Connecticut Coalition for Civil Rights, contact Grassroots Campaign Coordinator Emma Roderick.

New York: Resolutions against the NDAA moving forward in New York City and Albany

Several resolution campaigns have sprung up around the country to fight back against the indefinite detention provisions of the National Defense Authorization Act (NDAA), and one of them is in the Big Apple. Councilwoman Rosie Mendez of New York City’s District 2 has agreed to sponsor a bill that would oppose those provisions, and local activist Sallie Elkordy is mobilizing support for the bill.

Just a few hours north in New York’s capital, Albany, another group is working hard on a similar resolution. Members of Project SALAAM, who originally came together to challenge a disturbing pattern of preemptive prosecutions for thought crimes and plots manufactured by the FBI, have been working with County Legislator Doug Bullock to pass a resolution would oppose military detention under the NDAA.

To get involved in these efforts in Albany and New York City, contact Grassroots Campaign Coordinator Emma Roderick.

Asheville, NC: Public education events include art exhibit and trivia night

Have you ever heard someone share their personal experience about being profiled based on their appearance, accent, or neighborhood? Hearing—or telling—about a personal experience can have a profound effect on others who’ve never shared the experience.

IMG_2723On March 1, the community art project “Nuestras Historias, Nuestras Voces (Our Stories, Our Voices)” opened at the Highsmith Union Gallery at the University of North Carolina in Asheville. The exhibit runs all month and is one of the lead-up events for the Stand Against Racism week in April.

Asheville civil rights and civil liberties partners are taking advantage of these and other opportunities to raise awareness and build support across various communities for their Local Civil Rights Restoration campaign. The city council anticipates a vote on the proposed reforms in the coming weeks.

In addition to the art exhibit and planned public education presentations at local schools, faith organizations, and civic groups, Asheville residents are also learning more about the campaign during Civil Rights Night at Firestorm Café on the second Monday of each month. The event features presentations, films, discussion, and more: this month’s event, on March 12, included a civil rights trivia competition modeled after one held in Northampton, MA, last summer.

To get involved in the Local Civil Rights Restoration campaign in Asheville, contact BORDC National Field Organizer George Friday.

Miami, FL: Broad coalition launches local anti-NDAA campaign

In Miami, a broad coalition long active on immigration enforcement has launched an effort to challenge the detention provisions of the National Defense Authorization Act (NDAA). Leaders of the coalition, many of whom actively supported Occupy Miami, have vocally challenged the NDAA for months. Now, the coalition will conduct a community outreach and education campaign that they hope will secure a local resolution. The group is confident that the people of South Florida understand the value of due process and will demand that their elected officials defend it.

To get involved in the anti-NDAA efforts in Miami, contact BORDC National Field Organizer George Friday.

San Francisco, CA: Board of Supervisors considers reforms to restore local and state protections from unchecked surveillance

January 24, 2012: Introduction of Safe SF Civil Rights Ordinance Press Conference.On March 13, the San Francisco Board of Supervisors voted on a proposed San Francisco Civil Rights Ordinance to restore local privacy laws circumvented by local police through collaboration with the FBI's Joint Terrorism Task Force (JTTF). Sponsored by a broad coalition including BORDC and coordinated by the Asian Law Caucus and ACLU of Northern California, the ordinance would replicate a successful model already in place in Portland, OR.

The ordinance, which passed in a vote of 6 to 5, will face a confirmation vote on March 20. After that vote, it will head to Mayor Ed Lee, for signature or veto. The of Northern California is working to ensure that Lee does not veto the bill:

The loudest voices in the Mayor’s ear at the moment are coming from those in law enforcement who oppose the local civilian oversight and accountability this law would bring. They even claim to support the civil rights principles behind the legislation while arguing it's not necessary to enact them into law.

The ACLU and more than 80 legal, civil rights and community organizations who back this legislation aren't buying it. We know civil rights are not protected by vague assurances. They're protected by laws.

Coalition members recently testified about their concerns at a March 1 hearing. According to BORDC’s Shahid Buttar, whose testimony was read by Tina Sinha from the Asian Law Caucus:

The City of San Francisco would be well served to join communities around the country seeking to limit otherwise unchecked—and largely secret—intelligence gathering activities by their local police departments....

Both the longstanding history, and the more recent record, reflect that the Federal Bureau of Investigation (FBI) shares little of San Francisco’s respect for civil rights and civil liberties....The FBI has affirmatively misled federal courts, as well as Congress.

Across the country, the New York City Police Department has recently endured widespread criticism for its serial disregard for civil rights and surveillance of peaceful people based on their beliefs....

[T]he same pattern of secrecy, surveillance, and unaccountability demonstrated by the NYPD has long been the norm at the FBI. While the New York City Council has disclaimed the capacity to meaningful conduct oversight of the NYPD, this Board need not resign itself to similarly wringing its hands in the face of systemic ongoing civil rights abuses enabled by a public agency under its jurisdiction.

To get involved in the Coalition for a Safe San Francisco, contact BORDC National Field Organizer George Friday.

Berkeley, CA: Local Commission approves due process resolution

After initially rejecting a proposed resolution challenging the NDAA’s detention provisions, Berkeley’s Peace and Justice Commission approved a resolution based on BORDC’s model on March 5. Expected to come before the city council in May, the resolution refers to prior policies by the city council to comply “only with constitutionally valid requests from the federal government,” and “instructs all [Berkeley] public agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents' freedom of speech, religion, assembly, privacy, or rights to counsel.”

To get involved in the Coalition for a Safe Berkeley, contact BORDC National Field Organizer George Friday.

Law and Policy

DHS exposed: Wikileaks documents reveal spying on Occupy movement

March - Occupy CongressRecent claims that the Department of Homeland Security (DHS), the FBI, and other intelligence agencies are spying on the Occupy movement highlight a significant threat to First Amendment rights and civil liberties. The focal point of these claims is an internal DHS report included among five million newly leaked documents published by Wikileaks.

In a joint effort, Rolling Stone Magazine and Wikileaks investigated the DHS report titled “SPECIAL COVERAGE: Occupy Wall Street,” which details the activities and potential dangers of the Occupy movement. In addition to those issues raised by the report, the involvement of the Stratfor Global Intelligence group in this particular issue has been widely scrutinized. This DHS investigation of a primarily non-violent movement across the country, without clear respect for constitutional rights to free speech, is deeply disturbing.

One specific concern arising from the recently revealed documents is that DHS clearly advocates for controlling the expansion and impact of the Occupy movement in order to curb what it perceives as an increasing “potential for violence.” In particular, DHS report notes how “larger numbers and support from groups such as Anonymous substantially increase the risk for potential incidents and enhance the potential security risk to critical infrastructure (CI).”

The report references five key areas of critical infrastructure: the financial sector, commercial faculties, transportation, emergency services, and government facilities. However, DHS seems to give a disproportionate amount of attention to the financial sector, seeming to draw political conclusions favoring corporations. In an interview on Citizen Radio, Michael Hastings, author of the Rolling Stone report, explains:

[The DHS documents include] talk about threats to 'critical infrastructure' and this fear that these protests are going to…make commerce difficult and people are going to start losing money. There is a kind of bottom line in analysis to what they're talking about. There isn't an emphasis on public safety in a way one would expect from a department that's supposed to protect the homeland. It's this sort of sense that they're protecting somebody's homeland, and they're the folks who generally make all the money… When you go look at the back-and-forth, it's all about, well, we have to protect lower Manhattan so the bankers can get to work on time.

Hastings expresses concern about government surveillance of activist groups as well as the involvement of the Stratfor Global Intelligence group, a private firm acting as a “shadow CIA” by offering covert services and intelligence to stifle protests and advance the interests of corporate clients. Stratfor’s clients are primarily large corporations, but also include some federal agencies such as DHS, which pay huge sums for its services. In the same interview, Hastings commented on Stratfor emails that were included in the five million leaked documents:

You have Coca-Cola hiring Stratfor to go after animal rights activists, to sort of keep tabs on them, and then also the question is: why would Stratfor have this Department of Homeland Security document, right? And the answer to that is Stratfor's clients…clearly Stratfor saw a business opportunity in keeping track, and figuring out how to handle protesters. In fact, in the email record...they're talking about different tactics in lower Manhattan about, well, the streets are narrow down there, so if they push the protesters this way, or that way, that's a better way to catch them. They're drilling down into the best ways to kind of protect the financial services [sector]....

Reaching a conclusive decision on how to respond to the Occupy movement has challenged the political establishment, Democrats and Republicans alike. In a press release issued last November, White House Press Secretary Jay Carney stated on behalf of the president that “every municipality has to make its own decisions about how to handle these issues, and we would hope and want, as these decisions are made, that it balances between a long tradition of freedom of assembly and freedom of speech in this country.”

At about the same time last November, Rick Ellis from The Examiner reported that, according to one Justice Department official, law enforcement efforts to evict Occupy sites were coordinated with help from the DHS, FBI, and other federal police agencies. However, the same official reported that the DHS and FBI only provided tactical support and planning assistance, and that the ultimate decision on how to proceed remained with local authorities.

Whatever the extent of US government involvement may be, the DHS report and Stratfor emails released by Wikileaks indicate that civil liberties, even those as fundamental as the freedom of speech, can no longer be considered safe. As government and big business become increasingly intertwined, the voices of We the People have become marginalized, and the principles that have served as the foundation of our democracy continue to erode.

Surveillance drones coming to local police departments

In early February, President Obama signed new legislation requiring the Federal Aviation Administration (FAA) to begin allowing the use of drones by local law enforcement. Until recently, drones have been used primarily for military purposes, but with the new provisions put in place by the FAA Reauthorization Act, drones can now be more freely used for routine law enforcement and domestic surveillance.

Drones have become increasingly sophisticated in recent years, and as such the increased presence of drones in US skies raises serious privacy concerns. A predator drone, for example, can eavesdrop on electronic transmissions and cell phone conversations, intercept text messages, and infiltrate wireless networks without being detected. As reported by the Electronic Frontier Foundation (EFF):

Many drones, by virtue of their design, their size, and how high they can fly, can operate undetected in urban and rural environments, allowing the government to spy on Americans without their knowledge. And even if Americans knew they were being spied on, it’s unclear what laws would protect against this.

With the recent proliferation of drones, the time has come to ask government officials some important questions about safeguarding privacy rights in America. However, as EFF reminds us, protecting privacy from drone surveillance has not been successful in the past: “Supreme Court case law has not been friendly to privacy in the public sphere, or even to privacy in areas like your backyard or corporate facilities that are off-limits to the public but can be viewed from above.” Furthermore, “the Supreme Court has also held that the Fourth Amendment’s protections from unreasonable searches and seizures may not apply when it’s not a human that is doing the searching.”

The consequences of using drones for domestic surveillance are extremely worrisome. The use of these devices—and the lack of legislation in place to protect privacy—presents a looming threat to the Bill of Rights. "Neither the Constitution nor common law appears to prohibit police or the media from routinely operating surveillance drones in urban and other environments," writes Ryan Calo, the director for Privacy and Robotics at Stanford University's Center for Internet and Society. Moreover, as the ACLU, the Electronic Privacy Information Center (EPIC), and other organizations have noted, the facial recognition capacities of drone cameras could easily be linked to the FBI’s Next Generation Identification (NGI) initiative—a national biometric identification system currently being tested—which would only further increase the likelihood that First and Fourth Amendment rights will be violated.

The NYPD’s civil rights record worsens: Department spied on Muslim students throughout the northeast

EM_120303_PROTEST_NYPD_001In the past few months, the Associated Press (AP) has exposed a series of ongoing civil rights violations by the NYPD. In mid-February, the already stained reputation of the NYPD grew worse, as the AP revealed that the NYPD has spied on college students throughout the Northeast, from the University of Pennsylvania to Yale.

The NYPD tracked Muslim student groups’ websites on a daily basis, recording the names of students and professors even without any reason to suspect them of criminal activity. An undercover NYPD agent even participated in a City University whitewater rafting trip, noting not only the Muslim students’ names, but also how many times they prayed.

In all of the documents uncovered by AP, not a single one of the students or professors was ever accused of any wrongdoing.

Previously, the AP uncovered NYPD documents detailing how police systematically monitored New York City Muslims, their businesses, and places they worshipped, ate, and shopped. Several particular ethnic groups, including Moroccans and Palestinians, were special targets of the NYPD’s biased policing.

New evidence of NYPD civil rights abuses impacting students outside of New York City, as well as their university campuses, has generated concern and often outrage from diverse supporters of civil liberties, including Jewish students, university administrators, senior analysts at FOX News, the US attorney general, and even the FBI. Many government officials, including New Jersey Governor Chris Christie and Newark (NJ) Mayor Corey Booker, have denounced the NYPD’s actions for intruding into local areas and infringing upon residents’ civil rights.After months of choosing not to take sides, the New York Times, also spoke out against NYPD abuses:

It is a distressing fact of life that mistreatment of Muslims does not draw nearly the protest that it should. But not just Muslims are threatened by this seemingly excessive warrantless surveillance and record-keeping. Today Muslims are the target. In the past it was protesters against the Vietnam War, civil rights activists, socialists. Tomorrow it will be another vulnerable group whose lawful behavior is blended into criminal activity.

Meanwhile, New York City Mayor Michael Bloomberg and Police Commissioner Ray Kelley have firmly refused to even acknowledge problems, let alone correct them:

[Bloomberg and Kelley] did not provide for sufficiently strong supervision of this formidable and far-flung intelligence operation—to check the well-known tendency of all such agencies, operating in secrecy and under murky rules, to abuse their powers. It appears that many thousands of law-abiding Muslim-Americans have paid a real price for that omission.

We are wondering what happened to the Michael Bloomberg who stood up for fairness and religious freedom.... We hope that mayor re-emerges soon to restore trust.

Sadly, neither Kelley nor Bloomberg have wavered on defending the NYPD, despite its destruction of community trust and disregard for civil rights. Yet many New Yorkers will continue to push for long overdue oversight and necessary reforms regardless of their leaders’ refusal to abide by the law.

Attorney general defends assassination without trial of US citizen

10di1562-16The very same week that US Attorney General Eric Holder finally raised his voice to question unconstitutional domestic spying by the NYPD, he also delivered a poorly reasoned and confused speech at Northwestern Law School attempting to defend the US government's authority to assassinate citizens without trial or judicial process. Few claims could be more offensive to our Founders’ constitutional legacy.

Holder attempted to distinguish the authority to kill citizens without judicial process from the authority to “assassinate” them, but simply presumed his own conclusion.

His claim rested on the dual assertions that “assassination” refers only to unlawful killings, whereas the president's authority to conduct an extrajudicial killing renders it lawful. Both claims, however, are demonstrably false.

According to attorney, columnist and Columbia Law School lecturer Scott Horton,

Holder is wrong here, and misleading. It’s certainly not true, as a historical matter, that “assassinations are unlawful killings.” Assassinations are politically motivated killings....

Holder was referring specifically to Executive Order 13222, issued by President Ronald Reagan in 1981, which says, “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” But as with so much U.S. national-security legislation, this order turns out to be far less than meets the eye. Simplified, the present law of EO 13222 could be summarized this way: “No one shall be assassinated—unless the president authorizes it, in which case we will refrain from calling it an assassination.”

Not only is Holder’s limited definition of “assassination” indefensible, but the president's approval hardly makes summary execution legal. The Constitution, after all, includes Article III and the Bill of Rights for a reason: to limit executive authority. Even those within the Bush administration who strongly advocated for executive power never advanced any claim as radical as the one defended by Attorney General Holder last week.

Even if an entirely executive process could possibly justify abandoning the fundamental right to due process (which it can not), the process described by Holder could not.

Holder described an entirely executive process, suggesting that it could offer a meaningful alternative to judicial process. Notably, he described limits in terms of temporal immediacy, association with known terrorists, the target’s intentions, the unavailability of capture as an alternative to targeted killing, and proportionality.

Yet, as revealed by the one known use of these powers (a CIA drone strike that killed terrorist propagandist Anwar al-Awlaki and his 16-year-old son last year), the standards seem flexible at best and arbitrary at worst. If nothing else, it is secretive and ambiguous: “Holder’s speech served mainly to highlight the many questions that remain to be answered,” according to Horton.

Some Americans may believe that killing Al-Awlaki was an appropriate act. Yet, as ACLU attorney Hina Shamsi noted, "Anyone willing to trust President Obama with the power to secretly declare an American citizen an enemy of the state and order his extrajudicial killing should ask whether they would be willing to trust the next president with that dangerous power." She was quoted by journalist Adam Serwer, who noted that “If the standards for when the government can send a deadly flying robot to vaporize you sound a bit subjective, that's because they are.”

New Resources and Opportunities

Book Review: Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution—and What We Can Do about It by Elizabeth Holtzman and Cynthia L. Cooper

This review by David Swanson was excerpted from WarIsACrime.org.

Cheating JusticeElizabeth Holtzman's new book, coauthored with Cynthia Cooper, is called Cheating Justice: How Bush and Cheney Attacked the Rule of Law and Plotted to Avoid Prosecution and What We Can Do About It. Holtzman begins by recalling how widespread and mainstream was the speculation at the end of the Bush nightmare that Bush would pardon himself and his underlings. The debate was over exactly how he would do it. And then he didn't do it at all.

Holtzman ends her book by pointing out that legal accountability can come after many years, as in the case of various Nazis, or of Chilean dictator Augusto Pinochet, or of the murderers of civil rights activists including Medgar Evers. 

In between, for the bulk of the book, Holtzman, a former district attorney, lays out the prospects for a prosecution of Bush and others on charges of lying to Congress about the grounds for war, wiretapping Americans, and conspiring to torture.

In each area Holtzman finds charges that would stick, if our laws were enforced. She also finds charges that would have stuck, had the statute of limitations not elapsed, and others for which a couple of years yet remain.... Charges of torture, Holtzman concludes, could be brought at any time in the future.

Holtzman argues for lengthening the statutes of limitations for grave abuses of power, for creating a special prosecutor, restoring the War Crimes Act, reclaiming protection against unchecked surveillance, recovering missing records, pursuing civil cases, impeaching torture lawyer turned judge Jay Bybee, and looking abroad for hope and change. She sees some chance of the International Criminal Court pursuing charges of torture.

Glaringly absent from Holtzman's book, despite its 2012 publication date, is any significant mention of the approach that President Obama has taken. There's not one word about "looking forward, not backward," not even so much as one tangential reference to Obama's public instructions to Attorney General Eric Holder, no analysis of the intense effort that the Justice Department, State Department, and White House have pursued to protect Bush and Cheney from accountability, no mention of the ways in which Obama has continued a similar pattern of criminality—a state of affairs which, of course, might explain his reluctance to allow the enforcement of laws against his predecessor.... 

Partisan prosecution of crimes and non-crimes by Republicans under President Clinton has been aggravated by Republican defensiveness and Democratic spinelessness under Bush. But it is the Democratic switch to defending all presidential wrongdoing since 2008 that has put the largest nails into the coffin of legitimate rule by law in this country. Bush's crimes have been legitimized. Obama has claimed the power to torture as he deems necessary, the power to imprison and rendition as he sees fit, the power to murder any human being including US citizens and children as he and he alone declares necessary, and powers of state secrecy that Nixon and Cheney never dreamed of....

I have to strongly recommend that this book be read and presented to every prosecutor in this country....

April 16-20: National End Racial Profiling Advocacy Week

On April 16 to 20, the Rights Working Group is leading National End Racial Profiling Advocacy Week. This event will bring together communities across the country for a week of advocacy and activism to end the discriminatory practice of racial profiling. And on April 18, advocates, organizers, and community members will convene in Washington, DC, to share this message with their representatives in Congress. Together, impacted individuals, community and faith leaders, law enforcement officials, and advocates will meet with members of Congress to urge them to take decisive action to end racial profiling.

The week’s events are part of the ongoing “Racial Profiling: Face the Truth” campaign. The Rights Working Group, which BORDC’s Shahid Buttar advises as a member of the RWG Steering Committee, also asks local partners and supporters to visit their members of Congress during the National End Racial Profiling Advocacy Week. BORDC is joining forces with RWG to give voice to this critical issue and help restore Fourth and Fourteenth Amendment protections to end profiling for all communities.

May 4-6: National convening in Chicago for local civil rights activists

In Chicago from May 4 to 6, BORDC will host a national convening of organizers building Local Civil Rights Restoration (LCRR) campaigns across the country. Participants will come together to share best practices, discuss campaign strategy, and build broad movements for civil liberties.

Chicago has long been home to struggles for civil rights and civil liberties, and LCRR leaders will meet some of the city’s most seasoned organizers at an opening reception at the Second Unitarian Church on May 4. The group then convenes at Loyola University on May 5 and 6 for workshops, presentations, and skill-building sessions.

Representatives of campaigns at different stages of development will share valuable lessons and skills. Together, participants will coordinate organizing strategies and next steps across their various local efforts. We look forward to connecting committed local activists pursuing parallel efforts in different places and supporting their relationships with allies in other cities.

To help make the convening accessible, BORDC is offering travel and lodging scholarships to participants. If you are involved in a local campaign to restore civil rights and civil liberties, please complete the convening application today and join us in Chicago in May!

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Contributors: Shahid Buttar, Amy Ferrer, George Friday, Robert Jain, Lindsey Needham, Emily Odgers, Louisa Rockwell, and Emma Roderick

Banner Photo Credit: Storm Front by Matthew Johnston

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