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Constitution in Crisis

September 2012, Vol. 11, No. 9


In this issue:

House votes to extend FISA for five years, inviting more unconstitutional surveillance

BORDC News

Grassroots News

Law and Policy

New Resources and Opportunities


House votes to extend FISA for five years, inviting more unconstitutional surveillance

FISA:  Freedom is Sinking AwayOn Wednesday, September 12th, the House of Representatives voted 301-118 to extend the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA) for another five years, despite continuing secrecy, unanswered questions, and concerns from across the political spectrum about its sweeping invasions of privacy.

When originally passed, FISA was meant to curtail the federal government’s surveillance practices. Over the years, provisions for dragnet surveillance have been expanded, particularly since 2002. During the Bush administration, the National Security Agency began a warrantless wiretapping scheme hatched in secret, and in such clear violation of FISA that Attorney General John Ashcroft refused to authorize it and Justice Department officials threatened to resign en masse.

When the program was first revealed to the public in 2005, by New York Times journalists who risked prosecution to reveal state secrets, it caused an earthquake in Washington. However, in 2008, Congress amended FISA to essentially permit what the original statute prohibited. Since then, the program has continued to operate in secret, drawing widespread concerns as the NSA has escalated its war on privacy and the Constitution.

In response to questions from Senator Ron Wyden (D-OR), the Director of National Intelligence has even admitted that the NSA’s activities violated the Constitution, and the incredibly permissive limits of FISA, on at least one occasion.

The House’s vote to reauthorize the 2008 FISA amendments is beyond troubling. Many legislators and concerned Americans have called for greater transparency in the interpretation of this law, and how it has been applied. Yet the NSA has continuously denied requests to reveal information about how many Americans have been monitored.

Even more troubling is that lawmakers in the House voted to reauthorize these amendments without such information, aiming to entrench even beyond the next administration what BORDC executive director Shahid Buttar calls “the most pervasive state surveillance system ever known to humankind. The only settings in which powers like it have ever existed are dystopian science fiction novels.” In his recent article, “Uncle Sam is watching you,” Buttar states that though much about the NSA has been kept secret, what we do know about the program is quite telling:

We know that it began illegally, without any authorization by Congress and in clear violation of the FISA law crafted by Congress in the 1970s to stop our government from spying on Americans.

We know it is so vast and unchecked that, nearly ten years ago, Attorney General John Ashcroft refused to authorize it, even despite coercion from the Bush White House.

We know that an architect of the program, alarmed at how his work was co-opted to abuse the rights of Americans, blew a whistle about fraud and waste, only to face prosecution by the Obama Administration for espionage–until a federal court ultimately told the government to stop chasing a loyal servant of the American people.

Buttar also notes the Congressional failure is spread across party lines:

We know that congressional Democrats–including then Senator Obama–joined their Republican colleagues in 2008 to approve FISA, even while both parties paid lip service about defending constitutional values in Washington. Despite the partisan rancor apparent on many issues, Congress marches in lockstep on national security, elevating government power well beyond constitutional limits.

With the House vote complete, this overreaching authorization of unwarranted and unprecedented domestic surveillance will now move to the Senate.  Unfortunately, unless Senators finally heed the voices of Americans demanding answers and the restoration of their Fourth Amendment rights, many appear content to rubber stamp the House bill. For instance, Senate Intelligence Committee Chair Dianne Feinstein (D-CA) supports Senate approval without further revisions.

Until legislators acknowledge the concerned voices of We the People and act to impose overdue limits on dragnet domestic surveillance, it will be safe to presume that Uncle Sam is watching you.

BORDC News

BORDC in the news

Over the past month, radio programs from coast to coast, online media, along with a new web series, have featured BORDC’s commentary on important civil liberties issues.

Executive Director Shahid Buttar has appeared on outlets from Los Angeles, California to New York City in the last month where he was able to discuss the impending, and now actual, extension of the 2008 Foreign Intelligence Surveillance Act amendments and the recent injunction on the National Defense Authorization Act provisions for indefinite detention by New York’s Judge Forrest. On September 14 alone, Buttar appeared on three outlets to discuss these groundbreaking events—New York’s WBAI with Felipe Luciano, Chicago’s Radio Islam with Matthew Niemi, and Washington, DC’s “We Act Radio” with Ron Pinchback and Kymone Freeman. Buttar made his first of two “HuffPostLIVE” appearances on the 14th, as well, joining for a conversation on “What makes a country free, anyway?” The program is a new web series from the Huffington Post that brings together different voices on current events and hot topics.

Online outlets have featured BORDC’s work this month, including Shahid Buttar’s “Uncle Sam is watching you” from September 12, originally published on the People’s Blog for the Constitution and also published by Truth-out and cited by many.

BORDC’s recent collaboration with RootsAction against weaponized drones also caught national attention. The Examiner and other online outlets featured Communications Specialist Samantha A. Peetros, who stated:

Assassination by Drone!Vulnerable to hacking, proliferation, dangerous crashes in civilian areas, and potentially other threats, the domestic deployment of drones runs the risk of undermining public safety. Drones have also been used abroad to kill American citizens who have never been convicted of a criminal offense.

Finally, BORDC's George Friday appeared in USA Today, noting in response to anti-dissent ordinaces implemented in Charlotte, NC, that:

Once you've got all this technology, it's not just going to sit there on the shelves...Who are they going to be watching post-DNC? What neighborhoods do you think those cameras will be in after the DNC?

To view prior appearances of BORDC’s work in traditional and new media, visit our online press archive.

Recent Events

On August 20, BORDC's Shahid Buttar spoke and performed at Busboys & Poets in Washington, DC, at a documentary screening and film premier of American autumn: an Occudoc. The film features footage of Buttar and BORDC's George Friday, each of whom addressed participants at Occupy the Courts, a rally at the US Supreme Court this January drawing attention to the Court’s First Amendment jurisprudence.

Last week, Buttar addressed several audiences in Houston, Texas.  On Friday, September 14, he shared remarks with a gathering of a few dozen lawyers and law students co-hosted by the South Asian Bar Association of Houston and the Muslim Lawyers Association of Houston.  On Saturday, September 15, he delivered the keynote address at the annual banquet of CAIR-Houston, attended by nearly 300 diverse community members, as well as activists from the Texas Libertarian party.

This week, on September 20, BORDC will host a reception in Northampton, MA, celebrating the 10th anniversary of the organization’s “standing for liberty when our government won’t.” Please RSVP to rsvp@bordc.org.

Read the latest news & analysis from the People’s Blog for the Constitution

Have you read BORDC’s blog lately? The People’s Blog for the Constitution has attracted a growing audience that has tripled over the past year. Featuring news & analysis beyond the headlines on a daily basis, it offers a great way to stay up to date and informed.

Highlights from the past month include:

Grassroots News

Patriot Award: Talat Hamdani

Talat HamdaniEvery month, BORDC honors an individual who has done outstanding work in support of civil liberties and the rule of law in his or her community. This month, the Patriot Award goes to Talat Hamdani in New York Cityfor her courageous work defending civil rights.

Talat taught middle school students in Queens, NY for twelve years, and is now completing a fellowship for human rights and national security reform leaders at the Rockwood Leadership Institute. She is a vocal grassroots advocate on several important civil rights and liberties issues, forcefully advocating for the repeal of the PATRIOT ACT and closure of the Guantanamo Bay detention facility.

When Long Island Congressman Peter King (R-NY) held hearings that promoted Islamophobia, Ms. Hamdani attended the hearings and spoke out in the media against their underlying premise. She has also lent her voice to ongoing demands for reform of the NYPD's program of racially profiling New York City residents. More broadly, Talat frequently speaks and writes about the importance of tolerance and cross-cultural understanding, particularly in schools.

Ms. Hamdani's activism was spurred by in part by the heroic actions of her son, Salman Hamdani, on September 11, 2001 and the subsequent failure of the NYPD and media sources to acknowledge his sacrifice. Salman, an NYPD Cadet, rushed from midtown to the site of the World Trade Center attacks in order to help, but tragically lost his life. In the days and weeks following the attacks, Salman's family did not know what happened to him. The NYPD and the media, seizing upon Salman's Muslim faith, insinuated at first that his disappearance was suspicious and possibly related to the attacks. Only after his remains were identified did the NYPD recognize his selfless actions.

Talat, however, is still fighting for full recognition of her son's valor.  Salman's name is currently placed on the 9/11 memorial in a section of unaffiliated persons, rather than among the NYPD first responders who rushed to the site. In addition to ensuring remembrance of her son's courage, Ms. Hamdani has also started a scholarship in his name at his alma mater, Queens College.

BORDC salutes Talat Hamdani for her work in her community, and well beyond it, promoting constitutional rights. In honoring her with the September 2012 Patriot Award, we particularly encourage other teachers to follow her proud example this Constitution day, September 17, and throughout the academic year.

Grassroots Updates

To get involved in any of these efforts, email the BORDC Organizing Team at organizing@bordc.org.

Los Angeles, CA: Coalition responds to LAPD surveillance policy changes

In Los Angeles, CA, the LAPD announced revisions to its controversial Special Order 1 on August 28th, requiring regular audits of its efforts to track suspicious activities and also prohibiting racial and religious profiling. Despite those changes, civil liberties concerns persist, particularly regarding the new policy’s authorization for the use of informants in response to unverified tips, and inadequate oversight of those efforts, and cyber surveillance activities. According to local civil rights lawyer Anne Richardson, “If it’s one thing we have learned the hard way in Los Angeles, it’s that when oversight mechanisms are taken away, there is more likelihood of abuse.”

In addition to responding to the LAPD’s policy changes, the Stop LAPD Spying Coalition continues to engage new coalition allies, expand its membership and educate grassroots communities about the surveillance activities of the LAPD.

Over the past month, the coalition conducted workshops at a National Lawyers Guild annual retreat for law students, as well as an annual anarchist book fair.  In addition to the workshops, the coalition reached out to over a thousand community members at an annual Pakistan Day, and downtown residents at a labor day festival hosted by the LA Community Action Network.  Finally, coalition coordinators met with allies at Corazon Del Pueblo and Brown Berets to plan a community town hall in East Los Angeles.

The Stop LAPD Spying Coalition meets on Tuesday, September 18th at 6:30pm at the UCLA Downtown Labor Center, at 675 S. Parkview St. between Wilshire and 7th next to MacArthur Park.

Los Angeles, CA: Coalition emerges to challenge domestic military detention

NDAA J3 8340Also in Los Angeles, a diverse coalition has emerged to challenge domestic military detention under the NDAA and AUMF. The coalition met on August 23, with representatives from several organizations across Southern California, including the Republican Liberty Caucus of Southern California, the Tenth Amendment Center, and Oathkeepers in addition to the Japanese American Citizens League, ACLU, National Lawyers Guild, Interfaith Communities United for Justice & Peace, and others.

In the coming months, the coalition anticipates hosting a series of educational events across the LA area and expanding to include other communities concerned about military detention within the US.

Berkeley, CA: Coalition mobilizing to support reforms pending before City Council

The Coalition for a Safe Berkeley anticipates a City Council vote on September 18th regarding a series of policy proposals from the police department and city manager. The coalition provided guidance for these agreements this spring, mobilizing to offer testimony before the city’s Police Review Commission and supporting a set of reforms addressing domestic intelligence collection, mutual aid to nearby police departments suppressing First Amendment activity, enforcement of federal immigration law, and the militarization of the local police department.  

Ensuring effective civilian oversight of local policing efforts is a key priority for the Coalition. It is currently working with the NAACP to create a process for community members to report police abuse and misconduct, in order both to establish evidence of potential abuses and to engage African-American community members in Berkeley.

San Francisco, CA: The 99% lobby key Senator to repeal indefinite detention under NDAA

In late August, the SF 99% Coalition, which hosted a pair of events in July across the Bay Area, visited the local office of Senator Diane Feinstein (D-CA), chair of the Senate Intelligence Committee and author of the Due Process Guarantee Act (which would repeal parts of the detention provisions of the NDAA while continuing to allow domestic military detention in some instances). The coalition not only shared their concerns with Senator Feinstein's office, but also recorded a video clip reporting back on their visit, reiterating the various policy recommendations they shared with her office.

BORDC encourages all concerned Americans to take similar action in our respective cities and towns. While meeting with members of Congress will not likely prove sufficient to restore constitutional rights and liberties, it remains a necessary step. Review BORDC’s suggested talking points for all the information you'll need.

Tacoma, WA: BORDC activism prompts investigative exposé of environmental and civil rights abuses in immigrant detention

Last week, the Tacoma News Tribune published a series of investigative reports documenting a variety of abuses by the GEO Group, the corporate prison company that operates the controversial Northwest Detention Center. Despite government claims that agencies emphasize the detention of violent criminals, the Northwest Detention Center, like other immigration detention centers, holds many immigrants whose worse crimes are traffic offenses.

The TNT’s five part series, “Center of Detention,” addresses numerous issues including the conflicts of interest presented by corporate profit-driven prisons, environmental violations, and an inspiring campaign spearheaded over many years by BORDC-Tacoma and BORDC Vice President (and November 2010 Patriot award winner) Tim Smith.

Chicago, IL: Activists plan events protesting police misconduct and unwarranted surveillance

SurveillanceChicago activists are planning several upcoming events to help educate and reach out to their neighbors about important local civil liberties issues. In the wake of the No Drones action last month at the Chicago Air Show, groups decided to continue organizing similar events, extending their outreach and education to gain broader support for local protections against the use of unmanned aerial vehicles to conduct domestic surveillance. 

Also, on September 12th, several organizations staged a rally at US Cellular Field to protest inaction by the Cook County State’s Attorney Anita Alvarez in the face of recurring appeals from South Side residents concerned about police violence, as well as the prosecution of Occupy activists. Many participants in the event had lost family members to police shootings. According to Pat Hunt, from the Campaign to Free the NATO 5, "It's easy for Alvarez and the [Chicago Police Department] to pat themselves on the back for brutalizing peaceful protestors, but when it comes to confronting the structural racism of Chicago law enforcement they are silent and useless."

Cleveland, OH: coalition raises awareness of violence and profiling in the war on drugs

On September 5th, coalition partners including the Greater Cleveland Immigrant Support Network, North Church, Denison Avenue United Church of Christ, and the Congregation of St. Joseph hosted "Walking together with the victims of the War on Drugs: a community forum on Drug Violence from Central America to Urban US.”

The event drew connections between the violence and deaths in Mexico, on the one hand, to racial profiling and mass incarceration of non-violent individuals in the US, on the other. It was one stop among many for a grassroots caravan traveling from California to DC, making frequent stops along the way to educate diverse community members about the war on drugs and its erosion of constitutional rights. 

Charlotte, NC: Activists challenge police abuses beyond the DNC

DNC Protest Yen AcalaResidents of Charlotte, NC, have experienced decades of race-based profiling and police misconduct.  Over the last decade, immigrant residents have seen increasing incidences of profiling in their neighborhoods, which the recent Democratic National Convention made even worse.  Early this year, the Charlotte City Council passed anti-dissent ordinances under the guise of addressing security needs at the DNC, which will remain law well after the DNC has left town. These policies severely limit civil liberties and could facilitate profiling. 

As delegates, celebrities, and politicians returned to their homes, the people who live and work in Charlotte planned to seek needed changes in the city.  Along with allied organizations and grassroots activists, BORDC worked to restore rights to dissent leading up to the DNC, and was pleased when National Lawyer’s Guild members and students at the Charlotte School of Law joined the fight by hosting law clinics and speaking out against police abuses of protesters.

Community leaders met at the close of the convention to plan next steps, which will include building relationships across communities that share concerns.  The group decided to promote People’s Power Assemblies in two areas to provide chances for those living in neighborhoods that have endured the “wars” on drugs, terror, and immigration to hear one another.  An advisory committee has been established and organizers including Yen Acala  and Loan Tran will guide this work moving forward.

New York, NY: Community action speaking out against racial profiling through Stop & Frisk

In New York City, Communities United for Police Reform held “Blow the Whistle on Stop and Frisk” rallies in each of the city’s five boroughs last Thursday, September 13. Over 10,000 whistles were distributed to concerned community members across the city, and participants blew all their whistles at 3:00pm to demonstrate audible resistance to the NYPD’s shameless racial profiling practices.

These and other creative actions continue the momentum building in New York to address a wide array of ongoing civil rights abuses, including the surveillance of businesses and universities (even well beyond New York) based on the religion of their customers and students, as well as demonstrably biased “Stop and Frisk” practices.

Hartford, CT: Coalition to Stop Indefinite Detention plans regional conference

The CT Coalition to Stop Indefinite Detention is hard at work planning a conference to mobilize resistance against domestic military detention.  The conference, which will take place the weekend of December 8, will bring together diverse organizers across the Northeast who are building grassroots resistance to provisions of the NDAA and AUMF that could authorize the indefinite domestic military detention of Americans.

Law and Policy

Federal Judge Strikes down NDAA Detention Powers, Government Appeals

Stop-NDAAIn a critical move for the preservation of civil liberties, federal Judge Katherine Forrest issued a permanent injunction on September 12 preventing domestic military detention. Her ruling prevents implementation of the indefinite detention provision of the National Defense Authorization Act of Fiscal Year 2012 ("NDAA"), affirming a preliminary injunction she previously granted in May. BORDC supported the case, filing an amicus curiae brief arguing that the law's detention powers are unconstitutional.

President Obama signed the NDAA into law on December 31, 2011, inciting much distress over the perilous powers it granted to the executive branch and the military. The NDAA affords, for the first time in US history since the Japanese internment, military authority to indefinitely detain persons within and outside of US soil.

Section 1021, in particular, could have authorized the indefinite detention of anyone, including Americans, suspected — but not proven —- to have "substantially supported Al-Qaeda, the Taliban, or associated forces". In enjoining this portion of the NDAA, Judge Forrest criticized its unconstitutional ambiguity. She condemned the 'support or association' standard for indefinite detention, suggesting that its lack of specificity could enable the detention of journalists, such as those who brought the suit.

Judge Forrest asked whether individuals who merely express extreme or unpopular views — by posting YouTube videos, for example — could be subjected to military detention under the NDAA even if they do not rise to the level of assisting Al-Qaeda, the Taliban, or their networks. Government lawyers conceded that the journalists' concerns were legitimate, prompting journalist (and BORDC adviser) Naomi Wolf to describe the law as "dictatorial."

Judge Forrest also cited the constitutional implications flowing from the NDAA's over-broad authority, noting the government's capacity to detain individuals over social and political opinions may have a chilling effect on protected First Amendment speech. Such potentially oppressive powers fly in the face of the liberties our nation purports to uphold.

Finally, Judge Forrest invoked the Fifth Amendment in her ruling limiting the NDAA. Pronouncing that capture and detention without notice violates due process, Judge Forrest found the standards under section 1021 too tenuous to risk the paramount interest in liberty.

While exciting, the ruling represents but one significant victory reinforcing various nationwide initiatives against the NDAA.  Resistance against the NDAA also spans the political spectrum: Arizona and Virginia, both traditionally red states, have joined the ranks of Rhode Island and Hawaii, two traditionally blue states, in pledging non-cooperation with the law's detention powers.  This solidarity across political lines shows that concerned Americans will not tolerate the erosion of our liberties.

The ruling against the NDAA's indefinite detention provision signifies a crucial blow against the interests placing freedom in jeopardy. Its implementation could have hearkened to Korematsu, Jim Crow laws, exclusion policies, and other systematic assaults on liberty, which have tainted US history. Although the government promptly appealed Judge Forrest's decision, her opinion vindicates the expressed concerns of the people, demonstrating that a persistent, united voice can contest and overcome assaults on our individual and collective freedoms.

Read Judge Forrest's opinion or learn more about the NDAA and its implications.

The Justice Department condones torture, ensuring it will recur

On Thursday, August 30, Attorney General Eric Holder announced that the Justice Department has closed the last remaining criminal investigations of illegal torture committed by US officials under the Bush administration. While the Obama administration had previously committed to violating the law by “looking forward, not backward,” the Justice Department had maintained a three-year investigation in two cases where CIA torturers killed detainees in custody by exceeding even the brutal interrogation methods approved by the CIA and Office of Legal Counsel.

Even though international law, the U.S. Constitution, and federal statutes, all require prosecution of human rights abuses, without the discretion normally enjoyed by prosecutors, the Obama administration has continued to defend Bush administration torturers, several of whom continue to serve in government and draw taxpayer funded salaries. Writing at the UK Guardian, Glenn Greenwald noted that:

Obama has shielded Bush torture crimes not only from criminal prosecution, but any and all forms of accountability….[and] Obama's top officials…secretly worked with GOP operatives to coerce other countries, such as Spain and Germany, to quash their investigations into the US torture of their citizens….

LA under occupation? Rise in LAPD shootings and violent arrests

LAPD Los Angeles is no stranger to controversy involving its police department, so it is no surprise that a number of recent violent arrests have caused a public outcry.  This comes on the heels of a recent report showing a sharp increase in use of force.

The Office of the Inspector General (OIG) issued a report in July showing that shootings by officers increased 50% from the 2007-2010 average, with the sharpest increases in Southeast and South Central LA. While Chief Charlie Beck asserts that this increase correlates to an increase of assaults on officers, the OIG's report demonstrates that the way assaults and shootings are calculated is misleading. In calculating assaults on officers, each officer present is counted.  Yet, each shooting involving officers is counted as one, regardless of how many suspects or officers are present.

The Police Commission discussed the OIG report on July 3rd, but simply approved the report and agreed with the OIG’s conclusion that statistics should be reported more accurately. Even under reporting methods charitable to the LAPD, the fact remains: there was an unexplained and significant increase in officer shootings. 

What makes this increase particularly disturbing is the well-documented increase in violent arrests.  One recent video shows LAPD officers dragging a tiny woman out of her car and slamming her onto the ground, and then giving each other congratulatory fist bumps.  The woman, a registered nurse and mother, is now being charged with resisting arrest. 

Even more chilling is a video that shows the violent arrest of a woman who died shortly afterwards.  Alesia Thomas, a 35 year old woman, was arrested around 2 am on July 22nd.  The patrol video shows an officer threatening to kick her in the genitals if she resists, and then following up on the threat.  The video then shows Alesia in the car, having difficulty breathing, until she dies. Chief Beck has promised to investigate whether Alesia was intoxicated or died from a medical condition.

Even as these documented incidents are giving rise to public debate, one officer has claimed that use of force incidents are not on the rise, and that instead, these videos have merely drawn more attention to a consistent rate of police shootings. 

There is an obvious disconnect here.  The LAPD’s numbers are misleading, and these videos provide clear evidence of violence. While the police department is holding public meetings on the arrests, it remains to be seen whether it will hold those responsible accountable, or simply offer more excuses while committing fatal violence with impunity.  

New Resources and Opportunities

Resources for celebrating Constitution Day

Today is Constitution Day, celebrating the anniversary of the Constitution’s signing in 1787. Since 2004, Congress has dedicated every September 17 to promoting the values of the US Constitution, offering a great opportunity to reach out to your community.

Our Constitution is a document that has inspired hopes, controversy, drama, and debate, throughout America’s history. Over 200 years after its signing, Americans are still debating what the Constitution requires, including on issues such as due process vs. indefinite military dentation, racial profiling vs. equal protection and freedom from unreasonable searches & seizures, and privacy vs. dragnet surveillance and infiltration of advocacy groups. 

TIME: ConstitutionConstitution Day provides great opportunities for action –both in the streets and in the classroom. BORDC has put together a set of recommended resources for (professional or guest) teachers interested in educating students about the Constitution and its importance. Helping students to better understand our Constitution can be a great way to engage them in the struggle to defend civil liberties and civil rights.

Visit us online for downloadable lesson plans, put any that may be useful to work in a classroom near you, and let us know how it goes!

Another tool that can help you educate your community is Time Magazine’s The Constitution: The Essential User’s Guide. The book includes the history of the founders and their relationships to the Constitution, and also suggests their potential reactions to contemporary issues. The book also includes the full Constitution, as well as commentary on the more controversial amendments. The Constitution: The Essential User’s Guide is extremely accessible and relatively affordable at $14.95.


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Contributors: Shahid Buttar, George Friday, Annette G. Macaluso, Samantha Peetros, Emma Roderick, Nadia Kayyali, and Michael Figura

Banner Photo Credit: Storm Front by Matthew Johnston

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