What About Constitutional Powers?

Institute for Public Accuracy
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Wednesday, October 29, 2008

What About Constitutional Powers? Two Views

MARJORIE COHN, Libertad48@san.rr.com, http://www.marjoriecohn.com
Cohn is the president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law and the author of "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law." She recently wrote the piece "A Palin Theocracy."

Cohn said today: "The next president will almost certainly appoint one to three justices to the Supreme Court, which is now delicately balanced politically. The most likely justices to retire are John Paul Stevens, Ruth Bader Ginsburg and David Souter. John McCain, who voted to confirm Robert Bork, Clarence Thomas, John Roberts and Samuel Alito, has vowed to appoint more justices like Roberts and Alito to the high court.

One McCain appointee would tip the balance of the Court to the right which would likely overturn Roe v. Wade and decisions protecting the rights of workers and the environment, and decisions curbing the power of the executive. Barack Obama voted against the confirmation of Roberts and Alito, and has promised to appoint justices like Ginsburg and Stephen Breyer. Even if Obama made three appointments, he would not tip the political balance of the Court to the left, but would maintain the status quo since he would likely be replacing the 'liberals.'"

BRUCE FEIN, bruce@thelichfieldgroup.com
Author of the new book "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy," Fein said today: "It's disgraceful that core constitutional questions have been virtually ignored in this election. Neither McCain nor Obama have indicated that they will move to a constitutional government and away from executive government.

"They have both said they would close Guantanamo, but that's really meaningless since they both assert the right to hold so-called 'enemy combatants' without charge, so they could simply move the people being detained to another facility.

"Both maintain that the executive can initiate war. Both -- like Bush now -- have said that they would not allow further waterboarding and that it is torture, but neither has said that they would prosecute the conceded waterboarding of the Bush administration. Likewise, neither has said they would prosecute members of the current administration for other criminal conduct, such as well-known criminal violations of the FISA statute. Neither Obama nor McCain has disclaimed the authority claimed by Bush to order current or former White House officials to defy congressional subpoena."

Fein recently wrote the piece  "Palin vs. Palin."


For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167

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Preemptive Strikes Against Protest at RNC

In the months leading up to the Republican National Convention, the FBI-led Minneapolis Joint Terrorist Task Force actively recruited people to infiltrate vegan groups and other leftist organizations and report back about their activities. On May 21, the Minneapolis City Pages ran a recruiting story called "Moles Wanted." Law enforcement sought to preempt lawful protest against the policies of the Bush administration during the convention.

Since Friday, local police and sheriffs, working with the FBI, conducted preemptive searches, seizures and arrests. Glenn Greenwald described the targeting of protestors by "teams of 25-30 officers in riot gear, with semi-automatic weapons drawn, entering homes of those suspected of planning protests, handcuffing and forcing them to lay on the floor, while law enforcement officers searched the homes, seizing computers, journals, and political pamphlets." Journalists were detained at gunpoint and lawyers representing detainees were handcuffed at the scene.

"I was personally present and saw officers with riot gear and assault rifles, pump action shotguns," said Bruce Nestor, the President of the Minnesota chapter of the National Lawyers Guild, who is representing several of the protestors. "The neighbor of one of the houses had a gun pointed in her face when she walked out on her back porch to see what was going on. There were children in all of these houses, and children were held at gunpoint."

The raids targeted members of "Food Not Bombs," an anti-war, anti-authoritarian protest group that provides free vegetarian meals every week in hundreds of cities all over the world. They served meals to rescue workers at the World Trade Center after 9/11 and to nearly 20 communities in the Gulf region following Hurricane Katrina.

Also targeted were members of I-Witness Video, a media watchdog group that monitors the police to protect civil liberties. The group worked with the National Lawyers Guild to gain the dismissal of charges or acquittals of about 400 of the 1,800 who were arrested during the 2004 Republican National Convention in New York. Preemptive policing was used at that time as well. Police infiltrated protest groups in advance of the convention.

Nestor said that no violence or illegality has taken place to justify the arrests. "Seizing boxes of political literature shows the motive of these raids was political," he said.

Further evidence the political nature of the police action was the boarding up of the Convergence Center, where protestors had gathered, for unspecified code violations. St. Paul City Council member David Thune said, "Normally we only board up buildings that are vacant and ramshackle." Thune and fellow City Council member Elizabeth Glidden decried "actions that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights."

"So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protestors who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do," Greenwald wrote on Salon.

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with "conspiracy to commit riot," a rarely-used statute that is so vague, it is probably unconstitutional. Nestor said it "basically criminalizes political advocacy."

On Sunday, the National Lawyers Guild and Communities United Against Police Brutality filed an emergency motion requesting an injunction to prevent police from seizing video equipment and cellular phones used to document their conduct.

During Monday's demonstration, law enforcement officers used pepper spray, rubber bullets, concussion grenades and excessive force. At least 284 people were arrested, including Amy Goodman, the prominent host of Democracy Now!, as well as the show's producers, Abdel Kouddous and Nicole Salazar. "St. Paul was the most militarized I have ever seen an American city to be," Greenwald wrote, "with troops of federal, state and local law enforcement agents marching around with riot gear, machine guns, and tear gas cannisters, shouting military chants and marching in military formations."

Bruce Nestor said the timing of the arrests was intended to stop protest activity, "to make people fearful of the protests, but also to discourage people from protesting," he told Amy Goodman. Nevertheless, 10,000 people, many opposed to the Iraq war, turned out to demonstrate on Monday. A legal team from the National Lawyers Guild has been working diligently to protect the constitutional rights of protestors.

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Supreme Court Checks and Balances in Boumediene

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

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The National Lawyers Guild Condemns Senate Grant of Immunity to Lawbreaking Telecommunications Companies

Responding to fear-mongering by the Bush administration, the Senate voted on February 12 to give retroactive immunity to the telecommunications companies that have turned over our telephone and Internet communications to the government. These companies have violated several laws, including the Foreign Intelligence Surveillance Act (FISA), Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution.

The Bush administration has been illegally engaging in warrantless surveillance since early 2001, through its "Terrorist Surveillance Program." Over 40 lawsuits against the telecommunications companies challenging the legality of the program are pending.

On the eve of Congress's Labor Day recess last year, the Bush administration had rammed that the "Protect America Act" through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn't anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that provided consumer telephone and computer data to the government.

The day before the Senate took up this issue, Vice President Dick Cheney invoked the memory of September 11, 2001 twelve times in his address to the Heritage Foundation, and urged Congress to make the Act permanent. In the face of lawsuits against the telecom companies, Attorney General Michael Mukasey described the need for the companies to defend against litigation as "an enormous burden." Indeed, defending these lawsuits has likely cut in to their enormous profits.

Although President George W. Bush claims that making the Act permanent was critical to keeping us safe, he threatens to veto the bill unless it includes the immunity provision. Apparently protecting corporate profits trumps national security.

The House of Representatives passed a bill without immunity for the telecoms. The two bills will have to be harmonized. The National Lawyers Guild urges Congress to adopt the House version that omits immunity. Litigation against the telecommunications companies is the only remaining avenue of accountability for the administration's lawbreaking.

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

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Senate Poised to Capitulate to Cheney's Fear-Mongering

After a January 24 debate in the Senate on amending the Foreign Intelligence Surveillance Act, the Senate appears ready to capitulate once again to the Bush administration's agenda of sacrificing liberty for questionable security.

On the day before Congress was slated to take up this issue, Dick Cheney addressed the Heritage Foundation, the most influential right-wing think tank. He was given a thunderous reception, to which he quipped, "I hold an office that has only one constitutional duty - presiding over the Senate and casting tie-breaking votes." But the most powerful vice president in this nation's history was about to strong-arm Congress into doing the administrations' bidding.

Invoking the memory of September 11, 2001 twelve times, Cheney said it was "urgent" that Congress update the FISA law immediately and permanently. Notwithstanding the administration's well-known violations of FISA months before 9/11, Cheney claimed they had used "every legitimate tool at our command to protect the American people against another attack." He omitted the illegal tools the administration has admitted using, that is, Bush's so-called "Terrorist Surveillance Program" and a massive data mining program. FISA makes it a crime, punishable by up to five years in prison, for the executive to conduct a wiretap without statutory authorization. The TSP has been used to target not just the terrorists, but also critics of administration policies, particularly the war in Iraq.

Although Cheney repeatedly linked amending FISA with protecting America, there is no evidence Bush's secret spying program has made us any safer. Indeed, in 2006, the Washington Post reported that nearly all of the thousands of Americans' calls that had been intercepted revealed nothing pertinent to terrorism. About the same time, the New York Times quoted a former senior federal prosecutor, who described tips from intelligence officials involved in the surveillance. "The information was so thin and the connections were so remote, that they never led to anything, and I never heard any follow-up," he said.

In his speech to the Heritage Foundation, Cheney aimed to bully Congress into making the so-called "Protect America Act of 2007" permanent. On the eve of Congress's Labor Day recess last year, the Bush administration had rammed that act through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn't anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law, which expires February 1, went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that turned over our telephone and Internet communications to the government.

Permanent immunity, retroactive to 9/11, for the telecommunications companies is apparently the most critical concern of the Bush administration, whose primary constituency has been the mega-corporations. Although Cheney touted these companies as patriotic partners in the administration's "war on terror," they are breaking several U.S. laws, including FISA itself, Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution. Indeed, as the Electronic Frontier Foundation put it, "the real heroes are the companies that refused to help [the administration], like Verizon Wireless" and Quest Communications.

Cheney quoted Attorney General Michael Mukasey, who described the need for these companies to defend against litigation as "an enormous burden." What he really meant is that defending the roughly 40 pending lawsuits is cutting into their enormous profits.

The House of Representatives passed a bill without immunity for the telecoms. But in a 60-36 vote, the Senate rejected a proposal from the Senate Judiciary Committee that omitted immunity and contained important limits on wiretapping powers. Republican senators John McCain and Lindsey Graham, and Democratic senators Hillary Clinton and Barack Obama were not present for the vote.

Senator Christopher Dodd has indicated his intent to filibuster, or prevent a Senate vote, on a version of the bill that includes immunity. Senate Majority Leader Harry Reid apparently now supports the filibuster. The Senate is scheduled to vote on whether to proceed to a final Senate vote on this issue on January 28. Three of the Democrats who voted against the SJC proposal must be persuaded to change their votes, and Clinton and Obama must follow suit in order to maintain the filibuster and prevent the Senate from adopting a bill that includes immunity and omits vital civil liberties safeguards.

Here are the Democrats who voted against the SJC proposal:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852

John Edwards, the only Democratic presidential candidate willing to effectively take on the corporations, should weigh in against immunity for the telecoms and challenge his competitors to do the same. This is a golden opportunity for Clinton and Obama to exercise leadership on a crucial issue. Our civil liberties and privacy rights are at stake.

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National Lawyers Guild and Society of American Law Teachers Strongly Oppose Homegrown Terrorism Act

On October 23, 2007, the House of Representatives passed the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 by a vote of 404-6. The bill will be referred out of committee this week and will then go to the Senate floor. The National Lawyers Guild and the Society of American Law Teachers strongly oppose this legislation because it will likely lead to the criminalization of beliefs, dissent and protest, and invite more draconian surveillance of Internet communications.

This bill would establish a Commission to study and report on "facts and causes" of "violent radicalism" and "extremist belief systems." It defines "violent radicalism" as "adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change." The term "extremist belief system" is not defined; it could refer to liberalism, nationalism, socialism, anarchism, communism, etc.

"Ideologically based violence" is defined in the bill as the "use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual's political, religious, or social beliefs." Thus, "force" and "violence" are used interchangeably. If a group of people blocked the doorway of a corporation that manufactured weapons, or blocked a sidewalk during an anti-war demonstration, it might constitute the use of "force" to promote "political beliefs."

The bill charges that the Internet "has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens." This provision could be used to conduct more intrusive surveillance of our Internet communications without warrants.

This legislation does not criminalize conduct, but may well lead to criminalizing ideas or beliefs in violation of the First Amendment. By targeting the Internet, it may result in increased surveillance of Internet communications in violation of the Fourth Amendment.

The National Lawyers Guild and the Society of American Law Teachers strongly urge the Senate to refuse to pass the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007.

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

The Society of American Law Teachers (SALT) is a community of progressive law teachers working for justice, diversity and academic excellence. SALT is the largest membership organization of law faculty and legal education professionals in the United States.

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Remembering Victor Rabinowitz: Legal Giant of the Left

On November 16, 2007, Victor Rabinowitz, one of the giants of the legal profession and a tireless fighter for social justice, died at the age of 96. One of the founders of the National Lawyers Guild 70 years ago, Victor defended unpopular clients when other lawyers were afraid to touch them. During the McCarthy period, he and his partner Leonard Boudin represented unions that were considered to be left-wing. The firm counted as clients Daniel Ellsberg, Paul Robeson, Julian Bond, Dashiell Hammett, Dr. Benjamin Spock, the Rev. Philip Berrigan, Alger Hiss, the Black Panthers, the Salvador Allende government in Chile, and the Cuban government.

Victor handled several landmark cases. In 1950, he challenged the provision of the Taft-Hartley Act that prevented unions from representing workers unless all union officers swore a loyalty oath that they were not members of or affiliated with the Communist Party. He lost the case 5 to 4 in the Supreme Court. His work in the Supreme Court case of United States v. Yellin was instrumental in the demise of the notorious House Un-American Activities Committee (HUAC). In 1964, in a 8 to 1 decision, the Supreme Court held in Banco Nacional de Cuba v. Sabbatino that U.S. courts cannot review the legality of the Cuban nationalizations of U.S.-owned property under international law. Victor represented the government of Cuba in that case.

John Mage, prominent radical lawyer and Officer and Director of the Monthly Review Foundation, wrote a review of Victor's book, Unrepentant Leftist: A Lawyer's Memoir, for Monthly Review. Mage recalled his favorite Victor story: "In the Cuban bank litigation, Victor (representing the Cubans) was served with a discovery demand that he forwarded to the Cuban Finance Ministry, at that time headed by Che. Shortly afterwards he was in Havana for an anniversary celebration and was invited to accompany Guevara. Che directed Victor's attention to the confetti being thrown from an office tower and said 'remember that discovery demand? . . . There it is.'"

The Rabinowitz Boudin partnership "constituted the defining invention of radical lawyering," said Northwestern law professor Bernardine Dohrn, a leader of the Weathermen who became the Guild student organizer while Victor was NLG president in 1967. The firm "always represented the most controversial victims of oppressive state power: labor struggles, the Community Party cases, constitutional right to travel and political speech issues, defense of the Cuban revolution, support for the civil rights/Black Freedom Movement, defense of anti-Vietnam War activists, and legal defense of Palestinian political activists," Dohrn added.

In his book, Victor characterized McCarthyism as "the era of Great Fear." In those days, it was the fear of Communism; today, it is the fear of Terrorism that the administration uses as an excuse to decimate civil liberties. Describing the government repression against Communists, leftists, and those suspected of being associated with them, Victor wrote, "It was the worst of times . . . It was a terrible and terrifying time." Even the ACLU "succumbed to the red scare" in those days.

"It became dangerous to utter radical or even progressive thoughts in an audible tone of voice," he added. The motion picture industry, teachers, progressive Congress members, progressive organizations, and those who read books considered "un-American" were targeted. "Thousands of people lost their jobs, with little prospect of finding new ones quickly. Families were destroyed and friendships were wrecked," Victor reported.

Rabinowitz Boudin "probably represented more clients before McCarthy and HUAC than any other law firm in the country, mostly for little or no fee," said Michael Krinsky, a partner in the firm.

Victor wrote, "I was under surveillance by the FBI from the early fifties until the late sixties. The earliest report on me I've found in my FBI files states that on June 23, 1943, I was believed to be a member of the Communist party, and it further described me as an 'agile-minded labor attorney' [Thanks]." Victor joined the Communist Party in 1942 after the Soviet Union and the United States became allies; he remained a member until the early 1960s.

During the Vietnam War, the Rabinowitz Boudin firm represented hundreds of men facing the draft or criminal charges for refusing induction due to their opposition to the war.

Lawyers pick and choose the cases they take for various reasons. Victor's decisions were always based on principle. "I had always adhered to a few basic rules," Victor observed. "I would not represent a landlord against a tenant; I would not represent a drug dealer; I would not represent an employer against a union; I would not represent a fascist or right-wing institution."

Victor helped found the National Lawyers Guild, to, in his words, "counter the anti-New Deal corporation-controlled American Bar Association (ABA), which at that time did not admit black lawyers or Communists to membership." As former Guild president and Yale law professor Thomas Emerson wrote, "The National Lawyers Guild was born in revolt - a revolt that embraced the entire intellectual life of the times."

Victor's efforts contributed mightily to the Guild's survival after the McCarthy period. He counted his work with the Guild as perhaps his most significant accomplishment. "There are a few things I can point to with some pride," Victor reflected. "The National Lawyers Guild is almost sixty years old, and I played some part in building it. I cannot think of more than a handful of national progressive organizations that have lived so long in this perilous world."

Tributes to Victor are legion. Doris Brin Walker, the first woman president of the Guild and one of its leaders during the McCarthy period, said, "Victor was inspirational, witty, insightful, tolerant/intolerant, humane, didactic - one of the most important and beloved persons in my life. And he will remain so." Ann Fagan Ginger, another Guild leader in this era, noted, "During the McCarthy/Truman repressive period, Victor played a particularly important role in meeting with other lawyers to figure out the best strategies to defend against, and finally to attack, the Red Baiters. His principles were larger than his ego, and after the meetings, he went back to his office and saw to it that the tasks agreed on were actually carried out." She called the Rabinowitz Boudin firm "a place of refuge and hope for many whose jobs, reputations, and family relationships were under attack."

"In each decade, Victor managed to stay utterly committed to the revolutionary principles of his youth," according to Dohrn, "to work with the highest intellectual and professional standards of the law, and to attract clients of the most urgent issues of the moment. His passionate love of books, his dedicated friendships, and his wry humor abide in our hearts."

The National Lawyers Guild and all justice-loving people will miss Victor Rabinowitz. He was a giant of a man.

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Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom

One week after renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the University of California at Irvine, Chancellor Michael Drake withdrew the offer, informing Professor Chemerinsky he had proved to be "too politically controversial." Duke Law Professor Chemerinsky is one of the most eminent law teachers and constitutional law scholars in the country. Author of a leading treatise on constitutional law, he has written four books and more than 100 law review articles. In 2005, he was named by Legal Affairs as one of "the top 20 legal thinkers in America."

This is the latest chapter in the post September 11 attack on academic freedom under the guise of protecting security. Two weeks after 9/11, former White House spokeman Ari Fleischer cautioned Americans "they need to watch what they say, watch what they do." The American Council of Trustees and Alumni, a group founded by Lynne Cheney and Senator Joe Lieberman, accused universities of being the weak link in the war on terror; it listed the names of 117 "un-American" professors, students and staff members. A few months later, a blacklisting Internet site called Campus Watch was launched. It published dossiers on scholars who criticized U.S. Middle East policy and Israel's treatment of the Palestinians. And the Bruin Alumni Association at UCLA offered students $100 to tape left-wing professors.

In 2003, the American Association of University Professors recalled the "still-vivid memories of the McCarthy era" and warned of the perils of sacrificing academic freedom in the war on terror. The premise of their report was that "freedom of inquiry and the open exchange of ideas are crucial to the nation's security, and that the nation's security and, ultimately, its well-being are damaged by practices that discourage or impair freedom."

At a 2004 conference on academic freedom at UC Berkeley, Professor Beshara Doumani observed, "Academic freedom in the United States is facing its most important threat since the McCarthy era of the 1950s. In the aftermath of 11 September 2001, government agencies and private organizations have been subjecting universities to an increasingly sophisticated infrastructure of surveillance, intervention, and control. In the name of the war against terrorism, civil liberties have been seriously eroded, open debate limited, and dissent stifled."

Art. 9, § 9 of the California Constitution, which sets forth the powers and duties of the Regents of the University of California, provides, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."

Drake denied he was influenced by pressure from donors, politicians or the UC California Board of Regents. Yet psychology professor Elizabeth Loftus, a member of the search committee, told the Los Angeles Times that Drake advised the committee he was compelled to make the decision by outside forces whom he did not identify. Her account was confirmed by a second member of the committee, who talked to the Times on condition of anonymity.

Chemerinsky has handled several cases in the appellate courts and the U.S. Supreme Court, and has testified many times before congressional and state legislative committees, including before the Senate Judiciary Committee in the Samuel Alito confirmation hearings. Chemerinsky has represented Valerie Plame Wilson, the CIA agent whose identity was revealed by members of the Bush administration; a Guantánamo detainee asserting his right to habeas corpus; a man sentenced to 50 years-to-life under California's three strikes law; and a person challenging the Texas Ten Commandments monument.

UCI's November 16, 2006 press release announcing the inauguration of the new law school said, "UCI law graduates will be particularly encouraged to pursue careers in public service, including non-governmental organizations and philanthropic agencies. As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities." Chemerinsky is devoted to public service as well as legal scholarship and education. He was elected by voters to be a Commissioner and chaired the Los Angeles Elected Charter Reform Commission; the new Charter was adopted by voters in 1999. He also spearheaded the Los Angeles Independent Analysis of the Board of Inquiry Report on the Rampart Police Scandal, Prepared at the Request of the Police Protective League, September 2000.

Untold numbers of law students have been helped through law school and the bar exam by Chemerinsky, including National Lawyers Guild Student Vice President Teague Briscoe, who said, "Chermerinsky on Constitutional Law saved my life in law school and I loved him doing the Professional Responsibility lectures but, most of all, I really dug that he was a progressive law prof who defends an unpopular client."

David Dow, an adjunct lecturer at the Annenberg School of Journalism and former veteran CBS correspondent who frequently interviewed Chemerinksy on legal issues, said, "I can't imagine any considerations that would outweigh the prospect of launching a law school with an internationally-known, highly-respected, fair-minded expert at the helm. Apart from his legal and professional credentials, Erwin has demonstrated an ability to get along well with colleagues and the community wherever he's been." Dow's words were echoed by Stanford Law School Dean Larry Kramer, who called Chemerinsky "the nicest person in legal education." Conservative law professor Douglas Kmiec wrote of Chemerinsky, "there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal."

One of the "controversial" matters Drake cited to Chemerinsky was an August op-ed the professor wrote in the Los Angeles Times criticizing a proposed regulation by then-Atty. Gen. Alberto Gonzales to shorten the time death row inmates have to file habeas corpus petitions. In an op-ed in the Sep. 14 Times, Chemerinsky explained, "There are more than 275 individuals on death row in California without lawyers for their post-convictions proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court."

Drake's action, which sends a clear message to academics that they must avoid speaking out or writing about controversial issues, is a threat to academic freedom. As Chemerinsky wrote, "Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost."

Hundreds of faculty, students and staff at UC Irvine are urging reinstatement of Chemerinsky. In an open letter to Drake, they wrote, "We are disturbed because of the deep violation both of the integrity of the university and of the intrusion of outrageously one-sided politics and unacceptable ideological considerations into a hiring process that should be driven by academic excellence, administrative experience, leadership capacity, and personal integrity."

Chancellor Michael Drake should immediately reinstate Professor Erwin Chemerinsky as dean of the UC Irvine Law School.

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Targeting Dissent: FBI Spying on the National Lawyers Guild

In 1937, the American Bar Association refused to allow people of color to join its ranks. With the blessing of President Franklin D. Roosevelt, the National Lawyers Guild was founded as a multi-racial alternative to the ABA. The Guild's founding members included the attorney general, several judges, some congressmen, and the head of the National Labor Relations Board.

Three years after the creation of the National Lawyers Guild, the FBI began to conduct secret surveillance of the Guild. From 1940 to 1975, the FBI wiretapped Guild phones, burglarized Guild offices, and sent informers into Guild meetings. The June 25, 2007 New York Times report on the FBI's program of spying on the Guild omits FBI Director J. Edgar Hoover's primary rationale for undertaking this surveillance: "to blunt the Guild's criticism of the FBI and, if possible, to destroy the organization," in the words of Michael Krinsky, one of the lawyers who filed the 1977 lawsuit against the FBI.

The Guild, which provided legal support for the people, was a thorn in Hoover's side. In 1950, the Guild was about to release a big exposé on the FBI, prepared by Yale law professor and ex-Guild president Thomas Emerson. No other organization was undertaking such a comprehensive criticism of the FBI. Through illegal wiretaps and informants the FBI learned of the Guild's impending report. In advance of the report's release, the FBI launched a pre-emptive strike at the Guild by causing people in the press and the Senate to denounce the report. "So the story became the Lawyers Guild, not the FBI," Krinsky said.

The FBI asked Richard M. Nixon, a member of the House Un-American Activities Committee (HUAC), to call for an investigation of the Guild, on the eve of the release of the Guild report. The investigation led to the 1950 HUAC report titled, "National Lawyers Guild: Legal Bulwark of the Communist Party." It concluded with a call to the attorney general to designate the National Lawyers Guild a "subversive organization." The AG complied in 1953, but when no evidence to support the designation was forthcoming, he dropped it in 1958.

From the 1950s through the early 1970s, the FBI continued to focus on the National Lawyers Guild. The FBI had a list called The Security Index, which identified people, including Guild leaders, to be rounded up in the event of a national emergency.

Hoover's COINTELPRO (Counter-Intelligence Program) engaged in illegal surveillance of other organizations and individuals as well as the Guild. For example, in a program called Racial Matters, the FBI wiretapped Dr. Martin Luther King Jr.'s hotel rooms and tried to drive him to divorce and suicide. Dr. King's voter registration campaign and especially his vocal opposition to the Vietnam War incurred the wrath of J. Edgar Hoover, who went after Dr. King with a vengeance. Groups such as the Committee in Solidarity with the People of El Salvador (CISPES) were also on Hoover's surveillance list.

The revelation of President Richard Nixon's illegal surveillance of groups opposed to his policies as well as hearings by a select Senate committee chaired by Senator Frank Church led to the enactment of the Foreign Intelligence Surveillance Act (FISA) and other curbs on the power of the FBI and the CIA. Today we are faced with President George W. Bush's secret domestic spying program, which, as I explain in my book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, violates not only FISA, but the Fourth Amendment as well.

Bush's predecessors illegally targeted those who criticized their policies, under the guise of fighting communism. Bush's rationale for bending the Constitution is fighting terrorism, but his attacks are leveled at disssenters.

The HUAC report and the AG's designation of the Guild not only violated the Constitution; they nearly succeeded in destroying the organization. Membership in the Guild fell to about 300 members. But the Guild survived and today it boasts nearly 6,000 members.

Members of the National Lawyers Guild continue to work beside those who struggle for economic, racial and sexual equality, and against imperial wars and occupations. I'm proud to have been a Guild member for more than half of its 70-year life.

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Pentagon Attacks Lawyers of Guantánamo Detainees

In one of the most severe blows the Bush administration has dealt to our constitutional democracy, the Pentagon attacked the lawyers who have volunteered to represent the Guantánamo detainees.

Deputy Assistant Secretary of Defense Charles Stimson threatened corporate lawyers who agree to defend the men and boys imprisoned there. Flashing a list of corporations that use law firms doing this pro bono work, Stimson declared, "Corporate C.E.O.'s seeing this should ask firms to choose between lucrative retainers and representing terrorists."

In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts.

Adams later said his representation of those British soldiers was "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

Federal Judge Green, who has handled the many habeas corpus petitions filed by the Guantánamo detainees, expressed appreciation for the lawyers: "I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service."

More than 750 men and boys have been held like animals in cages during the last five years at Guantánamo. Many were picked up by warlords and sold to the U.S. military for bounty. None has been tried for any crime. Very few even have any criminal charges against them.

Ironically, there were no alleged terrorists connected with 9/11 there until Bush recently transferred 14 men from his secret CIA prisons to Guantánamo. Meanwhile, hundreds of detainees languish in custody, aided by 500 courageous lawyers from 120 firms who have volunteered countless hours to represent them.

Under the Military Commissions Act Bush just rammed through Congress, the Guantánamo prisoners could be held for the rest of their lives without ever seeing a judge. Those who decide that death could not be worse than life at Gitmo have participated in a hunger strike.

Rather than subject the Bush administration to embarrassment when prisoners die in U.S. custody, military guards force feed them. Thick plastic tubes are forced down their throats with no anesthesia. Tubes are not sterilized before being reused on other prisoners. The UN Human Rights Commission called the force-feeding "torture." Many prisoners also report being tortured during interrogations.

Guantánamo has become the symbol of U.S. hypocrisy. While fighting the "war on terror" and attacking other countries for their human rights abuses, the officials in the Bush administration have become war criminals. Torture and cruel or inhuman treatment are punishable as war crimes under the U.S. War Crimes Act.

The Supreme Court held in Rasul v. Bush that the Guantánamo prison is under U.S. jurisdiction, so prisoners there are entitled to the protections of the Constitution. The Sixth Amendment mandates that every person charged with a crime has the right to be defended by an attorney. The government is forbidden by the Fifth Amendment from denying any "person" -- U.S. citizen or not -- due process of law. The presumption of innocence is enshrined in our legal system.

Bush's attack on lawyers is the latest assault on our civil liberties, which now includes warrantless surveillance of our phone calls and email, and most recently, our U.S. Mail. Although Bush says he's spying on the terrorists, those who criticize his policies, including his illegal and immoral war on Iraq, are also invariably in his cross hairs.

All Americans should heed the words of Martin Niemoller: "First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left who could stand up for me."

George W. Bush must immediately renounce Stimson's threats and relieve him of his duties. A country that would sacrifice its own values under the guise of protecting them has no moral authority in this world.

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Rounding Up U.S. Citizens

The Military Commissions Act of 2006 governing the treatment of detainees is the culmination of relentless fear-mongering by the Bush administration since the September 11 terrorist attacks.

Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, "unlawful enemy combatants."

Bush & Co. has portrayed the bill as a tough way to deal with aliens to protect us against terrorism.

Frightened they might lose their majority in Congress in the November elections, the Republicans rammed the bill through Congress with little substantive debate.

Anyone who donates money to a charity that turns up on Bush's list of "terrorist" organizations, or who speaks out against the government's policies could be declared an "unlawful enemy combatant" and imprisoned indefinitely. That includes American citizens.

The bill also strips habeas corpus rights from detained aliens who have been declared enemy combatants.

Congress has the constitutional power to suspend habeas corpus only in times of rebellion or invasion. The habeas-stripping provision in the new bill is unconstitutional and the Supreme Court will likely say so when the issue comes before it.

Although more insidious, this law follows in the footsteps of other unnecessarily repressive legislation. In times of war and national crisis, the government has targeted immigrants and dissidents.

In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party's political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans.

The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.

The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything "false, scandalous and malicious" with the intent to hold the government in "contempt or disrepute." The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.

Subsequent examples of laws passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress.

The Patriot Act created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.

In 1944, the Supreme Court upheld the legality of the internment of Japanese and Japanese-American citizens in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

That day has come with the Military Commissions Act of 2006. It provides the basis for the President to round- up both aliens and U.S. citizens he determines have given material support to terrorists. Kellogg Brown & Root, a subsidiary of Cheney's Halliburton, is constructing a huge facility at an undisclosed location to hold tens of thousands of undesirables.

In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Seventy- three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans "they need to watch what they say, watch what they do."

We can expect Bush to continue to exploit 9/11 to strip us of more of our liberties. Our constitutional right to dissent is in serious jeopardy. Benjamin Franklin's prescient warning should give us pause: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

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The New Civil Rights Movement

In a wave of mass protest not seen since the 1960s, hundreds of thousands of people have taken to the streets to demand justice for the undocumented. An unprecedented alliance between labor unions, immigrant support groups, churches, and Spanish-language radio and television has fueled the burgeoning civil rights movement.

The demonstrations were triggered by the confluence of a draconian House bill that would make felons out of undocumented immigrants and HBO's broadcast of Edward James Olmos's film, "Walkout." But the depth of discontent reflects a history of discrimination against those who are branded "illegal aliens."

Since September 11, 2001, immigrants have become the whipping boys for the "war on terror." Calls for enhanced militarization of the southern US border - including a 700-mile-long Sisyphean fence - reached a crescendo in the bill passed by the House of Representatives.

Under its terms, three million US-citizen children could be separated from their parents, who would be declared felons and be subject to immediate detention and deportation. Those who employ them, and churches and nonprofits that support them, could face fines or even prison.

Cardinal Roger Mahony called it a "blameful, vicious" bill, and vowed to continue serving the undocumented even if it were outlawed.

Immigrants comprise one-third of California's labor force. But claims that immigrants take jobs away from Americans are overblown. Last summer, California suffered from labor shortages in spite of the high percentage of undocumented workers who labor in the fields.

As a likely result of pressure from business dependent on cheap labor and the escalating protests around the country, the Senate Judiciary Committee passed a bill that strikes a more reasonable balance. It would legalize the nation's 11 million undocumented immigrants, and provide them with the opportunity to become citizens. They would have to remain employed, pass criminal background checks, learn English and civics, and pay fines and back taxes. A temporary worker program would allow about 400,000 foreign nationals to enter the United States each year; they too could be granted citizenship.

The current debate in the full Senate has focused on accusations and denials of "amnesty" and threats to national security. But the "immigration problem" is more complex than the sound bytes that proliferate. Seventy-eight percent of the 11 million undocumented immigrants are from Mexico or other Latin American countries.

According to Michael Lettieri, a Research Fellow with the Council on Hemispheric Affairs, "The free trade accords that the Bush administration so tirelessly promotes do little to remedy such maladies, as both NAFTA and CAFTA-DR leave regional agricultural sectors profoundly vulnerable, as well as disadvantaged, in the face of robustly subsidized US agribusiness that enables Iowa to undersell Mexico when it comes to corn."

The US was instrumental in the passage of NAFTA, which protects the rights of employers and investors but not workers. As a result of NAFTA, wages in Mexico, Canada and the United States have fallen. US food exports have driven millions of poor Mexican peasants from their communities. They come north to find work.

Seventeen-year-old Carlos Moreno was among the thousands of students in Los Angeles who walked out of their high schools to protest the attack on immigrants. "I was born here," he said, "but I'm doing it for my parents, and for my family, and for all the Latinos, because I know what the struggle is."

Sergio, an undocumented tenth grader from San Diego High School, attended a rally in San Diego's historic Chicano Park. "My parents are proud of me," he said. "They told me that I should help every time I can."

A few years ago, San Diego filmmakers Issac and Judith Artenstein released "A Day Without a Mexican." In the film, all of the Mexicans in California disappeared one day. Gone were the cooks, gardeners, nannies, policemen, doctors, farm and construction workers, entertainers, athletes, as well as the largest growing market of consumers. The world's fifth largest economy was paralyzed.

Today we celebrate the birthday of César Chávez, one of the most influential labor leaders this country has ever known. In the 1970s, when undocumented workers crossed the border and went to work in California's fields for lower wages than employers had to pay union members, the United Farm Workers began to call the migra to have them deported. Eventually, César realized that a much better solution was to organize those immigrants into the union.

The answer is not to shut out those who work for less than minimum wage, without workers' compensation, occupational safety protections, and overtime pay. "It is a common-sense solution to bring an underground economy above ground," Senator Edward Kennedy (D-Mass.) said, "with strong labor protections to improve working conditions for all."

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Bush on Trial for Crimes against Humanity

The International Commission of Inquiry on Crimes against Humanity Committed by the Bush Administration convened last weekend in New York City's Riverside Church. Martin Luther King Jr.'s portrait hangs in the foyer. Dr. King delivered his historic 1967 speech, "Beyond Vietnam: A Place to Break the Silence," opposing the war and calling for the removal of all foreign troops from Vietnam, in that same church.

Center for Constitutional Rights President Michael Ratner, who delivered a keynote address to the commission of inquiry, invoked Dr. King's words from 1967: "A time comes when silence is betrayal." The following year, the Bertrand Russell War Crimes Tribunal put the US government on trial for "crimes without precedent" it was committing in Vietnam. In the tradition of the Russell tribunal, the panel of judges at the commission of inquiry heard evidence of George W. Bush's war crimes and crimes against humanity committed in Iraq, Afghanistan, Guantánamo Bay, and elsewhere.

Ratner said that Bush openly and notoriously "laid the plan for coup d'état in America" with a small paragraph in his "signing statement" attached to the McCain anti-torture amendment. Bush wrote that his commander in chief power allows him to do anything he thinks is necessary, including torture, notwithstanding the amendment passed by Congress. Ratner called that a "historic, unprecedented grab for power" that spells the end of checks and balances in our government. Bush, according to Ratner, has declared that George Bush is the law.

Harry Belafonte gave the other keynote address. "When a government fails to protect justice," Belafonte declared, "it is the responsibility of the people to rise up and change the guard, change the regime." In a hoarse voice, the legendary singer charged, "Those who fail to answer that call should be charged with patriotic treason."

T r u t h o u t writer Ray McGovern, a CIA analyst from 1961 to 1990, took the testimony of Scott Ritter, a senior United Nations weapons inspector in Iraq from 1991 to 1998. The allegation that Iraq possessed weapons of mass destruction was the only justification on which George W. Bush's war in Iraq was based, McGovern said. He cited statements by Colin Powell and Condoleezza Rice before September 11, 2001, that Saddam Hussein had no WMDs and was unable to pose even a conventional threat to his neighbors. After September 11, however, Donald Rumsfeld expressed "no doubt" that Hussein had WMDs. "A trained ape knows that," Rumsfeld said.

Ritter noted that Rumsfeld knew Iraq had disarmed and had no ongoing weapons program. By 1998, the weapons inspectors had accounted for 95 to 98 percent of Iraq's WMDs, Ritter said. "No nation had hard factual data that Iraq retained or was reconstituting WMDs," Ritter added. "No nation had those facts."

The Bush administration willfully misled the American people about Iraq's weapons programs, Ritter charged. When Dick Cheney said that Iraq was constituting its nuclear program, he "was lying," Ritter said.

From 1991 to 2003, the United States policy in Iraq was regime change, according to Ritter. The US and the United Kingdom sought to maintain the public perception that Iraq was not complying with its obligations to disarm, in order to justify regime change. The US never intended to disarm Iraq; it would have had to lift the sanctions, which were aimed at undermining Iraq's welfare, weakening the government, and facilitating regime change.

"Intelligence" in the George W. Bush administration "was being fixed around the policy of regime change," Ritter maintained. "What passes for intelligence is nothing more than politically motivated propaganda." He said, "There was no intelligence failure because the policy wasn't disarmament; it was regime change."

Another witness, David Swanson, from www.afterdowningstreet.org, detailed the Downing Street Minutes, which were prepared in March 2002 and July 2002, but were leaked to the public last spring. They disclosed that Bush was determined to go to war and was building a case to accomplish that goal. "Intelligence was being fixed around the policy," the minutes reveal. "Going to the UN was an attempt to legalize a war that had already been decided upon," Swanson testified.

Dahr Jamal, who spent 8 months in occupied Iraq as an independent journalist, also testified at the commission. He charged that the US military carried out collective punishment in Fallujah in violation of international law. Snipers engaged in targeted killings, and troops prevented ambulances from reaching the wounded and prevented the wounded from receiving medical attention, violations of the Geneva Conventions.

The United States decided that the entire city of Fallujah, with more than 350,000 civilians, was "a free-fire-zone," Jamal said. In the attack on Fallujah in November 2004, between 4,000 and 6,000 civilians were killed. The US military employed illegal weapons, including cluster bombs, depleted uranium, and white phosphorous.

Jamal accused the media, including CNN, Fox, Judith Miller, Thomas Friedman, Bill O'Reilly, and Rush Limbaugh, of aiding and abetting the Bush administration's war crimes and crimes against humanity in their coverage of the US assault on Fallujah.

Another eyewitness to the occupation, journalist Jeremy Scahill, testified about the targeted killing of independent journalists by the US military. He cited the killing of an Al Jazeera reporter and the bombing of the Palestine Hotel in Baghdad, both on April 8, 2004. More than 100 unembedded journalists were in that hotel, and the US knew it, Scahill contended. The attack killed two cameramen.

Scahill said the Pentagon warned unembedded journalists, "Baghdad is not a safe place. You should not be there."

The Bush administration has consistently attempted to link Iraq with the September 11 attacks. Scahill observed, "There is a connection between Saddam Hussein and Al Qaeda. It's called Washington," he said.

Challenging the Democrats to end the war, Scahill alleged: "We can't be vegetarians between meals. A loyal opposition is not going to end this war."

Craig Murray, former UK ambassador to Uzbekistan, testified before the commission. Murray charged that Uzbekistan practices torture on an industrial scale. He cited a UN investigation that concluded torture was widespread and systemic in that country. Thousands of people are tortured every year, Murray said. This includes rape with objects like broken bottles, smashing of limbs, pulling out of fingernails, and immersing people into boiling liquid.

Uzbekistan, Murray said, is a US ally in the war on terror, a member of the coalition of the willing. Murray displayed a letter on the big screen. It was from Ken Lay, former chairman of Enron, to then Texas Governor George W. Bush in April 1997. It began, "Dear George" ["Look who's boss," Murray noted], and continued, "You will be meeting with" the Uzbek ambassador to the United States to discuss Enron's $2 billion oil and gas contract.

The real reason underlying the war in Iraq, Murray testified, was oil and gas. So "they needed false intelligence from torture chambers," he said, in order to justify the war on terror. Sir Michael Wood informed Murray that the official position was that it's not illegal to get information from torture provided they do not themselves torture or direct that a specific individual be tortured.

"You can't build security on evil," Murray said. "I don't believe torture works," he concluded. "But even it if did work, I'd rather die than have anyone tortured to save my life."

I presented the testimony of Janis Karpinski, a brigadier general who was assigned to Iraq in July 2003 to oversee 17 prison facilities, including Abu Ghraib. Karpinski described how General Geoffrey Miller transferred the interrogation techniques he had instituted at the US prison at Guantánamo Bay to Abu Ghraib.

Miller was specially selected by Rumsfeld and sent to Iraq to run the interrogations operation, to work with the military intelligence personnel and teach them new and improved interrogation techniques to obtain more actionable intelligence from their interrogations.

When Miller arrived at Abu Ghraib, he said, "It's my opinion that you're treating the prisoners too well. At Guantánamo, the prisoners know that we are in charge, and they know that from the very beginning." He said, "You have to treat the prisoners like dogs, and if you think or feel differently, you've lost control."

Miller declared, "We're going to Gitmo-ize the operation" (referring to the techniques they used at Guantánamo Bay).

Karpinski thought Miller came with the authority of Rumsfeld because General Ricardo Sanchez, who was a 3-star, deferred to Miller, although he was only a 2-star. Even though Miller told Congress he was sent to Abu Ghraib merely in an assisting capacity, Colonel Thomas Pappas furnished Miller with a daily report detailing the results of interrogations at Abu Ghraib.

Sanchez himself signed an 8-page memorandum with a laundry list of harsher interrogation techniques, including the specific use of unmuzzled dogs, Karpinski said.

Control of cellblocks 1-A and 1-B, "the hard sites," was transferred to military intelligence. Karpinski didn't learn of the torture and abuse until January 12, 2004. In fact, she never attended any of the meetings in which the progress of interrogations was discussed. Sanchez said, "We scheduled them specifically when she would not be available to attend."

When Karpinski was told about the photographs and the abuse, she prepared to hold a press conference and tell the Iraqis in Arabic that there would be a full investigation. But Sanchez warned her off. "He looked me dead in the eye and said, 'absolutely not. You are not to discuss this with anyone. And that's an order.'"

Karpinski discovered that all personnel and documents relating to the scandal had been removed from Abu Ghraib. The only thing that remained was a memorandum signed by Rumsfeld. It was called, "Approval of Harsher Interrogation Techniques," and listed sleep deprivation, stress positions, playing loud music, insulting religious beliefs. In the margin, there was a note in Rumsfeld's handwriting. It said, "Make sure this happens."

Sanchez would not have implemented the techniques without the approval of Rumsfeld, and Rumsfeld would not have authorized them without the approval of the vice president, Karpinski testified. "And so it filtered down, and it never filtered down to me because I wasn't even responsible for interrogations."

Ultimately, however, Karpinski and 7 low-ranking soldiers were made the scapegoats. Karpinski was demoted to colonel. "I believe the Pentagon wanted to put this into a nice little package, 7 so-called bad apples, out of control on the night shift, and a female officer. They wanted to put that in a package, tie it up in a bow, and sink it forever, to make people believe we got it under control, we solved the problem."

Karpinski also testified that American female soldiers in Iraq were assaulted or raped by male soldiers in the women's latrines, and an alarming number committed suicide. "Because the women were in fear of getting up in the darkness [to go to the latrine], they were not drinking liquids after 3 or 4 in the afternoon," Karpinski said. "In the 100 degree heat, they were dying of dehydration in their sleep. Rather than making everyone aware - it was shocking - they told the surgeon not to brief on the details, and don't say specifically that they were women." Karpinski identified the commander who ordered that the cause of death of the women not be listed on the death certificates. It was General Sanchez, she said.

The commission heard testimony about the Bush administration's criminal responsibility for indefinite detention, rendition for torture, destruction of the global environment, attacks on global public health and reproductive rights, and actions and inactions leading up to and following Hurricane Katrina. The panel of judges will consider the testimony and release its findings.

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Alito Sounds Death Knell for Individual Rights

Yesterday, the Senate Judiciary Committee began its confirmation hearings on the nomination of Samuel Alito for Associate Justice of the Supreme Court.

Alito is no John Roberts. Whereas Roberts had barely been a judge for two years when Bush nominated him for the Supreme Court, Alito has authored 361 opinions during his 15-year tenure on the federal court bench. Whereas Roberts is photogenic, with a winning smile, Alito is stiff and awkward before the cameras. Most significantly, whereas Roberts replaced Chief Justice William Rehnquist, who had a similar judicial philosophy, Alito would take the place of Justice Sandra Day O'Connor, who provided the swing vote 77 percent of the time.

If confirmed, Alito would tip the high court's delicate balance radically to the right. Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents.

In a 196-page report released last week, the Alliance for Justice (AFJ) determined that in split decisions - the "difficult cases" - "the reasoning Judge Alito employs and the results he reaches are not balanced. Rather," the report found, "they track the staunchly conservative political and legal views he expressed in his 1985 application to be Deputy Assistant Attorney General for the Office of Legal Counsel in President Reagan's Justice Department."

Alito's 1985 application stresses his commitment to federalism (states' rights), his view that "the Constitution does not protect a right to an abortion," and his disagreement with the criminal procedure, reapportionment (one-man, one-vote), and Establishment Clause (church-state separation) decisions of the Warren Court.

The members of the Senate Judiciary Committee drew clear lines in yesterday's session. Although abortion was a significant concern for three senators from each party, the limitation on executive power was a much more prominent theme during the opening statements.

Six Democratic senators, as well as committee chairman Sen. Arlen Specter (R-Pa.), expressed alarm at the recent revelation that Bush has been secretly spying on Americans since 2002. Five Democrats made reference to O'Connor's opinion for the Court in Hamdi v. Rumsfeld: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Alito's record reveals that he "has been extraordinarily deferential to the exercise of government power, especially executive branch power, except in cases involving alleged infringements on religious expression," according to the AFJ. His "judicial record strongly suggests that he will ... interpret the Constitution as giving the president greater authority to evade Congressional statutes and constitutional limitations whenever deemed essential to national security."

Indeed, in a memorandum he wrote as a lawyer in the Reagan Justice Department, Alito argued that the attorney general should receive absolute immunity from lawsuits when he illegally wiretaps Americans. The Supreme Court rejected Alito's view in a 1985 decision.

Alito also advocated that the president make a "signing statement" indicating what he thinks the law means when he signs a bill. Even though the Constitution grants the lawmaking power only to Congress, and thus courts look to congressional intent to interpret statutes, Alito hoped that the president could divert the courts' focus away from congressional intent in favor of what he called "the President's intent."

George W. Bush has issued at least 108 such "signing statements," according to the Washington Post. Most recently, Bush qualified his concurrence with the McCain amendment that outlaws torture and cruel, inhuman or degrading treatment, implying that he would be free to torture if he felt it was necessary for national security.

In 2000, Alito told a Federalist Society meeting that he was a strong proponent of the "unitary executive," which means that all federal executive power resides in the president. This theory would reject discretionary executive power of independent agencies Congress has created since the New Deal, such as the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve Board.

Alito argued in other memoranda that the Federal Bureau of Investigation should have broad latitude to investigate federal employees, and that an American Bar Association opinion prohibiting lawyers from secretly taping conversations should not prevent IRS lawyers from secretly taping as part of a federal criminal investigation.

Although the senators only touched on Alito's alarming civil rights record in yesterday's session, one would hope they would fully inquire into this area during the questioning.

In split decisions on claims involving violations of the civil rights of women, racial minorities, seniors and the disabled, Alito almost uniformly ruled against the claimants.

As America mourns the deaths of the 12 miners in West Virginia, we are reminded of the importance of mine safety regulations. Yet Alito disagreed with the Department of Labor and would not have applied mine safety rules to an area of a defunct Pennsylvania mine from which the company was still extracting materials to process into energy.

Sen. Edward Kennedy (D-Mass.) has raised the issue of Alito's credibility. Although he promised the Senate Judiciary Committee in his 1990 confirmation hearing for the Court of Appeals that he would recuse himself from cases involving Vanguard companies, in which he had substantial financial investments, Alito subsequently proceeded to sit on a Vanguard case. And on his 1985 job application, Alito boasted of his membership in the ultraconservative Concerned Alumni of Princeton, which opposed co-education and affirmative action. Yet he now denies any memory of being in that group.

In his opening statement, Alito told the senators, "A judge can't have any agenda. A judge can't have any preferred outcome in any particular case."

Yet Sen. Chuck Schumer (D-NY) advised Alito, "We need to know that presidents and paupers will receive equal justice in your courtroom. If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair." Schumer observed, "The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions."

Sen. Patrick Leahy (D-Vt.) said, "It's important to know whether [Alito] would serve with judicial independence or as a surrogate for the president nominating him." Sen. Russ Feingold (D-Wis.) declared, "We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect. And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach."

We will see during the questioning whether the senators will indeed hold Samuel Alito's feet to the fire, and demand that he forthrightly state his beliefs on the critical issues. Sen. Dianne Feinstein (D-Calif.) correctly noted that Alito's nomination is a "pivotal" one in the history of this country.

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Big Brother Bush Is Listening

Any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order.
-George W. Bush, April 20, 2004, Buffalo, New York.

In an assertion of executive power that rivals the excesses of the McCarthy era of the late 1940's and 1950's, and the dreaded COINTELPRO (counter-intelligence program) of the 1950's, 1960's and 1970's, George W. Bush's National Security Agency has been secretly spying on United States citizens without warrants for the last three years.

George Orwell's book "1984" was first published during the heyday of McCarthyism in 1949. In the society Orwell described, everyone was under surveillance by the authorities. The people were constantly reminded of this by the phrase, "Big Brother is watching you."

During the McCarthy period, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

Although Orwell's allegory was aimed at communism, it was the United States government that initiated COINTELPRO, designed by its own terms to "disrupt, misdirect, discredit and otherwise neutralize" political and activist groups. In the 1960s, for example, the FBI targeted Dr. Martin Luther King, Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights campaign, and particularly his opposition to the Vietnam War, "represented a clear threat to the established order of the US." The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of COINTELPRO, a congressional committee chaired by Senator Frank Church, a Democrat from Idaho, conducted an investigation of activities of the domestic intelligence agencies in the 1950's, 1960's and early 1970's. Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Reacting against President Richard Nixon's assertion of unchecked presidential power, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978, to regulate electronic surveillance, while at the same time protecting national security.

FISA established a secret court to consider applications by the government for wiretap orders. It specifically created only one exception for the president to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers, and that there is no substantial likelihood that a United States person will be overheard.

FISA allows the Attorney General to engage in wiretapping in emergency situations without a prior judicial order provided he or she applies for one within 72 hours after initiating the surveillance. And FISA specifically covers warrantless wiretaps during wartime; it limits them to the first 15 days after war is declared. Since 1978, the court has granted about 19,000 warrants and only turned down five.

Nevertheless, in spite of FISA's streamlined procedure for allowing lawful surveillance, Bush has sidelined the Foreign Intelligence Surveillance Court. In 2002, he signed an executive order that authorizes the National Security Agency to wiretap people within the United States with no judicial review. It is estimated that the NSA has eavesdropped on thousands of private conversations in the last three years. Additionally, the NSA has combed through large volumes of telephone and Internet communications flowing into and out of the United States. It has thus collected vast personal information that has nothing to do with national security.

In the wake of the outcry after the New York Times broke the story of Bush's secret surveillance, Attorney General Alberto Gonzales cited Congress's authorization of the use of force the day after the September 11 terrorist attacks as justification for the program. But the 2001 Authorization for Use of Military Force (AUMF) only permits the president to use "necessary and appropriate force" against "nations, organizations, or persons" that "planned, authorized, committed, or aided" the 9/11 attacks, or that "harbored such persons."

That license to use appropriate force does not authorize the government to spy on people in the United States without a warrant. Indeed, several congresspersons who voted for the AUMF say they only intended to grant the president authority to invade Afghanistan, not to conduct unbridled electronic surveillance of people in the United States.

Tom Daschle, a former Democratic senator from South Dakota, was Senate majority leader when Congress passed AUMF. He helped negotiate the law with the White House counsel's office. "I can state categorically that the subject of warrantless wiretaps of American citizens never came up," Dashcle said. "I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance."

In fact, Daschle revealed that Congress turned down White House proposals both to authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States," and to authorize the use of appropriate force "in the United States."

Senator Edward M. Kennedy, D-Mass., described Bush's spying program as an "arrogant usurpation of power." He said, "The president is not above the law; he is not King George." Senator Russ Feingold, D-Wis., agreed: "He is the president, not a king," Feingold noted.

Senator Arlen Specter, R-Pa., Chairman of the Senate Judiciary Committee, said such behavior by the executive branch "can't be condoned." He declared on the Senate floor, "That's wrong, clearly and categorically wrong. This will be a matter for oversight by the Judiciary committee as soon as we can get to it in the new year - a very, very high priority item."

The spying revelation also influenced the Senate vote on the renewal of the USA Patriot Act. It swayed New York Democratic Senator Charles Schumer's decision. "Today's revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote," Schumer said. "Today's revelation makes it very clear that we have to be very careful - very careful."

In a stunning blow against Bush, who had hoped several provisions of the Patriot Act would be made permanent, Congress extended the Patriot Act for only five weeks just before it recessed for the holidays.

It is not just congresspersons who are outraged at Bush's secret surveillance. US District Judge James Robertson, one of 11 members of the FISA court, has resigned. Robertson, selected by former Chief Justice William Rehnquist to serve on the FISA court, reportedly expressed deep concern that Bush's program is legally questionable and may have tainted the FISA court's work, according to the Washington Post.

Besides the NSA program, the American Civil Liberties Union has discovered through a Freedom of Information request that counter-terrorism agents at the FBI have conducted extensive surveillance of such groups as the Vegan Community Project, the People for the Ethical Treatment of Animals, and a Catholic Workers group the FBI accuses of having a "semi-communist ideology." Red-baiting is once again alive and well in America.

In 1975, Senator Frank Church said of the NSA, "That capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide." Church worried about the capacity of "this agency and all agencies that possess this technology" to "make tyranny total in America."

George W. Bush has fulfilled the prophesies of both George Orwell and Frank Church - with a vengeance. But neither Orwell nor Church could have foreseen the technological developments that enable Bush's large ears to penetrate our most intimate conversations.

The real motivation underlying Bush's unprecedented assertion of executive power was revealed by Dick Cheney: "Watergate and a lot of the things around Watergate and Vietnam, both during the 1970's, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area. The President of the United States needs to have his constitutional powers unimpaired."

Bush has gone far beyond what the Constitution authorizes, however. Only Congress has the power to make laws. Congress has not authorized the president to suspend the law. And FISA makes it a crime, punishable by up to five years in jail, for the executive to conduct a wiretap without statutory authorization.

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Bush Game on Padilla May Backfire

Once again, at the 11th hour, the Bush administration has pulled its punches in the case of Jose Padilla. Using an approach that more closely resembles a game of chess than a system of justice, Team Bush has altered its strategy, while seeking to keep all options open. Its fancy footwork, however, may ultimately backfire.

Last Tuesday, just before today's due date for the government's reply to Padilla's petition to the Supreme Court, Attorney General Alberto Gonzales announced the criminal indictment of Padilla. With this move, Bush hopes to prevent the high court from placing limits on his power to hold anyone he designates an "enemy combatant."

I remember the day in May of 2002 that Jose Padilla, a US citizen, was arrested at O'Hare Airport in Chicago. Former Attorney General John Ashcroft interrupted his trip to Moscow to ceremoniously announce on television that the government had foiled Padilla's effort to detonate a radioactive "dirty" bomb on the streets of America. Coming just 8 months after the September 11 attacks, those were fighting words to the American people.

The day of Padilla's arrest, I appeared on MSNBC's Abrams Report. Dan Abrams was foaming at the mouth about "the dirty bomber." When I reminded Abrams, a lawyer himself, about the presumption of innocence, he became furious, slamming his papers on the table.

Bush & Co. were banking on a similar reaction from the American people and the US courts. Team Bush hoped we would just salute and march when they rounded up hundreds of "terrorists," locked them up, and then threw away the key. They hoped we would look the other way when they tortured their prisoners. They hoped that the Imperial President could designate anyone an "enemy combatant" and no questions would be asked.

The government has changed its designation for Jose Padilla 3 times. When Padilla was arrested, he was called a "material witness," being held to testify against the terrorists. A month later, Bush labeled Padilla an "enemy combatant." Padilla was transferred to a military brig in South Carolina and denied any contact with counsel. Even though a federal judge ruled in December 2002 that Padilla was entitled to have a lawyer to challenge his detention, he was not permitted to consult with counsel until March 2004.

Bush finally allowed Padilla to meet with a lawyer in order to pre-empt an unfavorable ruling in his upcoming Supreme Court case in 2004. And while the Court was considering Padilla's case, the Justice Department announced that he had planned to use natural gas to blow up apartment buildings in the US. These 2 moves by the administration were designed to save face and undercut Padilla's case in the Supreme Court.

In June 2004, the Supreme Court ruled in the case of Yaser Hamdi that a US citizen held in the United States as an enemy combatant has a due process right to contest his detention before a neutral decision maker, and that includes the right to counsel. Justice Sandra Day O'Connor wrote for the Court: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

The same day, however, the high court declined to rule on Padilla's case because his habeas corpus petition had been filed in New York, where he was originally held, rather than South Carolina, where he was currently incarcerated. Five of the 9 justices said that Padilla must re-file his petition in South Carolina and name the commander of the military brig, rather than Donald Rumsfeld, as a defendant. Padilla filed a new petition.

In the Hamdi case, Justice Sandra Day O'Connor and 4 other justices limited the definition of "enemy combatant" to someone "carrying a weapon against American troops on a foreign battlefield." But Padilla was arrested in the United States. Padilla's lawyers are asking a question that the Bush administration is afraid for the Court to answer: "Does the President have the power to seize American citizens in civilian settings on American soil and subject them to indefinite military detention without criminal charge or trial?"

Bush will argue that this issue is now moot, since he filed criminal charges against Padilla. But, talking out of both sides of its collective mouth, the Bush administration also maintains that even if Padilla is ultimately acquitted of the criminal charges, it can re-arrest him and hold him as an enemy combatant. Thus, Padilla's lawyers are arguing that the issue is not moot and the Supreme Court should decide it.

Ironically, the charges the government brought against Padilla have nothing to do with dirty bombs or natural gas explosions. The indictment portrays Padilla as a bit player in a conspiracy to murder and kidnap, but not in the United States. And it accuses him of providing material aid to terrorists. It does not even allege he is a member of al Qaeda.

If the government had charged Padilla with dirty bomb or explosion charges, the testimony of the prosecution's only "witnesses" would be inadmissible or unbelievable since they were tortured to implicate Padilla. One of them, Khalid Sheikh Mohammed, suffered excessive use of "waterboarding," a torture technique that simulates drowning. This was confirmed last year in a report by the CIA inspector general. Another review released by US intelligence agencies in April 2003 assessed the quality of Mohammed's information as "Precious Truths, Surrounded by a Bodyguard of Lies."

A second government "witness" against Padilla, Binyan Mohammed, was taken to Morocco to be tortured, according to his lawyer Clive A. Stafford Smith. "He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that's absolute nonsense, and he doesn't know Jose Padilla."

Padilla has been held by the Bush administration in solitary confinement for more than 3 years without criminal charges. Now, in the government's haste to avoid an unfavorable ruling in the Supreme Court, it has charged Padilla with crimes that may be trumped up. For the first time, Padilla will have an opportunity to tell his side of the story in court; it may be a story of harsh interrogation that the government would prefer to keep quiet. Padilla will undoubtedly be offered a plea bargain to prevent his telling the truth about what happened to him while he languished in military custody for so long. The government may offer Padilla a deal like the one it offered John Walker Lindh, who was also facing life in prison. Lindh was allowed to plead guilty to lesser charges on the condition that he not mention the mistreatment he suffered while in custody.

The legal maneuvering by the Bush administration is "a remarkable game of musical courtrooms," said Eugene Fidell, president of the National Institute for Military Justice. "The Justice Department cannot continue changing course each time action from the courts is imminent," according to Rep. Adam B. Schiff (D-Calif.), a member of the Judiciary Committee.

Bill Goodman, Legal Director of the Center for Constitutional Rights, characterizes the charges against Padilla as a "stale conspiracy" and predicts the government will try to have Padilla's petition to the Supreme Court dismissed as moot. "In my judgment," Goodman said on Democracy Now!, "that borders on abuse of process by the Justice Department. What they are doing is manipulating the process in order to sustain an opinion that says the President can virtually shred the Constitution ... and saying someone who had been held in violation of constitutional principles because he was such a danger to the United States because of these allegations, now they're irrelevant. It's shocking. It's an outrage."

Jose Padilla's case may end up being a lose-lose situation for the Bush administration if the Supreme Court decides to go ahead and hear Padilla's petition anyway. Depending on the composition of the high court after Samuel Alito's confirmation hearing, the Court could place some limits on the President's power to indefinitely detain a US citizen arrested on American soil and held as an "enemy combatant." Padilla could refuse a plea bargain and testify about how he was treated - or mistreated - while in custody. And the defense may have a meritorious motion to dismiss the criminal charges because the government denied Padilla due process by its delay in filing the charges against him.

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The President and His Vice: Torturer's Puppetmasters

The dots have finally been connected and the picture is not a pretty one. It is the face of the president of vice, Dick Cheney. The policies on the treatment of prisoners emanating from Cheney's office triggered the abuse and torture, according to Lawrence Wilkerson, former Secretary of State Colin Powell's chief of staff.

"It was clear to me that there was a visible audit trail from the Vice President's office through the Secretary of Defense down to the commanders in the field," Wilkerson, a former colonel, said on National Public Radio's "Morning Edition." The interrogation techniques sanctioned by Cheney "were not in accordance with the spirit of the Geneva Conventions and the law of war," Wilkerson declared.

Not coincidentally, Cheney has been lobbying Congress to prevent it from outlawing torture (which is already against the law, by the way). After Republican Senator John McCain secured 90 votes in the Senate to codify the prohibition against cruel, unusual, or degrading treatment or punishment, Cheney began to sweat. With CIA Director Porter Goss in tow, Cheney paid a visit to McCain and tried to convince the senator to allow an exemption for the CIA. McCain refused to legalize the CIA's ongoing illegal torture of prisoners.

Last week, Dana Priest wrote in the Washington Post that the CIA has been surreptitiously interrogating prisoners in a Soviet-era compound in Eastern Europe. Human Rights Watch identified Romania and Poland, two supporters of Bush's wars on Iraq and Afghanistan, as locations for these secret prisons.

Only Bush and a few of his top officials, undoubtedly including Cheney, have known about the existence and situs of these "black sites," as they are called in classified White House, CIA, Justice Department and Congressional documents, according to Priest.

The secret prisons were established pursuant to a presidential "finding" signed by Bush six days after the September 11 attacks. That finding gives the CIA permission to kill, capture and detain members of al Qaeda anywhere in the world. Assassination, or summary execution, violates US and international law.

More than 100 suspected terrorists have been taken to these "black sites." Many are held underground and subjected to torture out of view of the International Committee of the Red Cross.

CIA interrogators use "Enhanced Interrogation Techniques," which violate US law. They include "waterboarding" (mock drowning) and mock suffocation. Another enhancement is a "stress position," in which a prisoner in suspended from the ceiling or wall by his wrists, which are handcuffed behind his back. Iraqi Manadel Jamadi was subjected to this treatment before he died in CIA custody at Abu Ghraib in November 2003. Tony Diaz, an MP who witnessed his torture, said that blood gushed from Jamadi's mouth like "a faucet had turned on" after he was lowered to the ground.

Several current and former intelligence officials are nervous about these "black sites," which were set up in a knee-jerk response to 9/11, Priest reported.

About the same time the "black sites" were established, Cheney undertook a campaign to introduce torture as a standard interrogation technique, according to the Washington Monthly. One of his test cases was Ibn al-Shaykh al-Libi, an al-Qaeda prisoner captured shortly after 9/11. An ex-FBI official reported that "they duct-taped his mouth, cinched him up and sent him to Cairo" for some torturous Egyptian interrogations, in violation of US law prohibiting extraordinary renditions.

A newly declassified memo reveals that al-Libi provided us with false information that suggested Iraq had trained al-Qaeda to use weapons of mass destruction. Even though US intelligence thought the information was false as early as 2002 because it was obtained under torture, al-Libi's information provided the centerpiece of Colin Powell's now thoroughly discredited February 2003 claim before the United Nations that Iraq had developed WMD programs.

Dick Cheney not only ordered the torture; he was willing to use false information obtained through torture to support Bush's pre-determined decision to make war on Iraq.

Now that Cheney has been fingered as complicit in the torture, it is just a matter of time before the official torture dots connect to the President himself. In December 2004, the American Civil Liberties Union released an internal FBI email that the ALCU received pursuant to the Freedom of Information Act. The email, dated May 22, 2004, describes an Executive Order that authorized sleep deprivation, placing hoods over prisoners' heads, the use of loud music for sensory overload, stripping detainees naked, the use of "stress positions," and the use of dogs. The White House, Pentagon and FBI officials denied that Bush had issued such an Executive Order, saying that it was really a Defense Department directive instead.

It is undisputed that Bush determined in a February 7, 2002, order that he had the authority to suspend the Geneva Conventions, a position never before taken by an American president and a clear violation of US law.

Bush wrote in that order, "As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva." (Emphasis added.)

In essence, Bush declared, incorrectly, that as commander in chief, he had the power to override the law with his policy. Where did he get that idea? From a January 25, 2002, memo sent by Alberto Gonzales to the President, which described the Geneva Conventions as "obsolete" and "quaint." That memo was inspired by David Addington, just named by Cheney to replace the indicted I. Lewis "Scooter" Libby as the Vice President's chief of staff.

Addington was assistant general counsel to the CIA when Reagan was funding the death squads in El Salvador and the illegal Nicaraguan contras. Cheney's new chief of staff helped draft the infamous August 2002 memo that illegally narrowed the definition of torture, and justified torture in some cases. Now, Addington is trying to prevent the Pentagon from adopting the language of Geneva in its revised rules for handling prisoners. The circle of torture remains unbroken.

Libby is charged with obstruction of justice and lying to the FBI about the outing of a CIA agent. As in the Watergate scandal, a White House official is being prosecuted for the cover-up. There is plenty of evidence that officials in the Bush administration have been trying to cover up their torture since the inception of Bush's "war on terror."

The earliest example of the official cover-up was when John Walker Lindh, captured in Afghanistan shortly after September 11, 2001, was given a plea bargain that required him to keep mum about the mistreatment he suffered while in US custody. Col. Janis Karpinski told me in an August 3, 2005, interview for t r u t h o u t (Abu Ghraib General Lambastes Bush Administration) that after she first learned of the abuse scandal at Abu Ghraib, Gen. Ricardo Sanchez took systematic steps to hush it up. Soldiers reported to Human Rights Watch that US soldiers, called "Murderous Maniacs," broke prisoners' bones every other week at FOB Mercury; then, "those responsible would state that the detainee was injured during the process of capture and the physician assistant would sign off on this."

Most recently, in an effort to smooth over the torture of the hunger strikers by US officials at Guantánamo prison, Donald Rumsfeld said, "There are a number of people who go on a diet where they don't eat for a period and then go off of it at some point. And then they rotate and other people do that." Rumsfeld refuses to allow UN human rights investigators to meet with the prisoners there.

What is Rumsfeld trying to hide at Guantánamo? About 200 prisoners, many of whom have been there nearly four years without criminal charges, have been on a hunger strike for several weeks. Several of them are being force-fed through large tubes inserted into their noses and down into their stomachs, with no sedatives or anesthesia. One prisoner explained to his lawyer, "Now, after four years in captivity, life and death are the same."

The Washington Post reported today that Cheney has waged an intense, largely unpublicized campaign over the past year to prevent Congress, the Pentagon and the State Department from restricting interrogations of terrorist suspects.

Dick Cheney is right in the center of the Bush administration's government of dirty tricks. By replacing Libby with Addington, Cheney has signaled his determination to continue Bush's torturous policies. In a recent editorial, the Washington Post called Dick Cheney "Vice President for Torture." The President and his Vice continue to pull the torturers' puppet strings. Will Bush be deemed complicit in the torture? Or will his deputies cover up for him the way Ronald Reagan's men insulated him from liability in the Iran-Contra scandal?

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Enforcing US Human Rights Laws

Challenging US Human Rights Violations Since 9/11
Ann Fagan Ginger, ed., Prometheus Books, 2005, 574 pp.

The Bush administration is using the terrorist attacks of September 11, 2001, as an excuse to launch a massive assault on the human rights of people throughout the world. From the invasions of Afghanistan and Iraq, to the torture and inhuman treatment of prisoners in US custody, and the insidious profiling and harassment of Arabs and Muslims in the US, Team Bush has engaged in unprecedented violations of US and international law, under the guise of fighting "the war on terror."

Bush has done nothing to hide his contempt for the United Nations and our treaty commitments, which are part of US law under the Constitution. When Security Council approval for his war on Iraq was not forthcoming, Bush threatened the UN with becoming "irrelevant." Nothing exemplifies Bush's disdain for the United Nations better than his nomination of John Bolton, avowed UN-hater, for US ambassador to the UN. And although the 60-year anniversary of the founding of the United Nations will take place later this month, Secretary of State Condoleezza Rice and former President George H.W. Bush will not attend, and George W. Bush has not announced that he plans to travel to San Francisco for this momentous occasion.

The administration's terrorizing of people at home and abroad has been chronicled by Prof. Ann Fagan Ginger, Executive Director of Meiklejohn Civil Liberties Institute, in her new book, Challenging US Human Rights Violations Since 9/11. For the first time, a listing of Team Bush's breaches of our laws since Sept. 11 has been amassed in one place. Ginger presents reports of 180 alleged violations, in 30 categories, by the White House; the Pentagon; the Departments of State, Justice, and Labor; the FBI; the Attorney General; immigration officials; and state and local police against people in the United States, Iraq, Afghanistan, Guantánamo Bay, and elsewhere. Each report includes the sources for the allegation, and each section lists the specific US and international laws allegedly violated.

In this unique book, Ginger has collected reports on the basic rights of all peoples under US jurisdiction: the right not to be killed or disappeared; the right not to be tortured or ordered to torture; the right peaceably to assemble and petition the government; the right to equal protection regardless of race or national origin; the right to equal protection for women; the right to free exercise of religion; the right of the media to report facts and not be killed; the right to privacy vs. surveillance and registration; the right of libraries not to report on readers; the right of universities to accept foreign scholars and students; and the right to travel.

Some examples of violations include the "disappearing" of 3,000 men in Afghanistan after the fall of the Taliban; the use of napalm in Iraq, cluster bombs in Afghanistan, and depleted uranium in both Iraq and Afghanistan; the killing and torture of prisoners in Iraq, Afghanistan, Guantánamo, and abuse of prisoners in US prisons; the arrest of animal rights activists, hailed by the Bush administration as a blow against terrorism; the pepper spraying of environmental and antiwar activists in Portland, OR; the firing of journalists for criticizing Bush; and the failure of the US government to comply with its duty to report human rights violations to the US Civil Rights Commission, the Inter-American Commission on Human Rights of the Organization of American States, and the UN Human Rights Committee. Judge Richard Margolis said he personally saw police commit 20 felonies during anti-globalization demonstrations in Miami.

The US government has corresponding duties to we-the-people, also listed in Ginger's reports. They include the duty to count the votes accurately and report to the people honestly; the duty to obey the Constitution, the law of nations, and the laws of war; the duty to protect people's rights; the duty to properly fund the general welfare; and the duty to report violations to Congress and the UN.

Ginger cites the specific laws violated, and documents what people are doing to challenge those violations, both in the courts and in the political arena. She provides the basic text of the US Constitution, the UN Charter, and other ratified human rights and antinuclear weapons treaties. The specific statutes at issue, including the Patriot Act, are listed in each report.

The City Council of Berkeley, CA passed a resolution to submit Ginger's reports to the UN High Commissioner for Human Rights. On March 31, representatives of the National Lawyers Guild, Lawyers Committee on Nuclear Policy, Gold Star Families for Peace, and Center for Constitutional Rights, whose work is memorialized in the reports, were on hand for the presentation in New York.

Ann Fagan Ginger has compiled a shocking compendium of human rights violations by the Bush administration. But, unlike prior works, she presents remedies for these transgressions in a well-organized book accessible to activists, lawyers, students, teachers, union members, government officials and judges. This gripping work is an indispensable tool for citizens and lawyers defending civil liberties in the era of the Patriot Act and the War on Terrorism. Prof. Ginger is making several presentations per week, inviting listeners to share their experiences of violations, and fight backs, following some of the new paths for action in the book. She can be contacted at MCLI@mcli.org.

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Team Bush Goes Unpunished for Torture

When the torture photographs began to emerge from Iraq's Abu Ghraib prison one year ago, Bush said, "Those mistakes will be investigated, and people will be brought to justice." As fingers began to point up the chain-of-command, some prisoners were released and commanders were reassigned. Congress held hearings, investigations were undertaken, and some low-ranking soldiers were prosecuted. But those responsible for setting the policy that led to widespread and systemic torture of prisoners in United States custody remain uninvestigated and un-indicted.

Last week, the Army inspector general cleared four of the five top Army officers who oversaw prison policies and operations in Iraq. Lt. Gen. Ricardo Sanchez, who authorized the use of vicious dogs to exploit "Arab fear of dogs," was exonerated, as was his deputy, Maj. Gen. Walter Wojdakowki. Col. Marc Warren, the command's top legal officer who failed to report abuses witnessed by the Red Cross to his boss for more than one month, escaped unscathed. And the report cleared Maj. Gen. Barbara Fast, former chief intelligence officer in charge of the Abu Ghraib intelligence center, who failed to properly advise Sanchez about the management of interrogations.

Only Brig. Gen. Janis Karpinski was reprimanded. Although she was in charge of the prison, Karpinski was discouraged from visiting the cellblock where most of the torture occurred.

In his State of the Union address, Bush said, "Torture is never acceptable, nor do we hand over people to countries that do torture." Yet former CIA Director George Tenet, who approved the illegal renditions of prisoners to Egypt and Syria where they were formally tortured, has not been charged with any crime.

Secretary of Defense Donald Rumsfeld, the man who, according to Seymour Hersh, personally approved physical coercion and sexual humiliation of prisoners, has not been prosecuted. And Alberto Gonzales, responsible for some of the most egregious torture memos, remains the chief law enforcement officer of the United States. When asked by Senator Richard Durbin at the confirmation hearing in the Senate Judiciary Committee, "Can US personnel legally engage in torture under any circumstances?", Gonzales refused to give a categorical "no" answer. He waffled, "I don't believe so, but I'd want to get back to you on that." The would-be attorney general surely knew that the Convention against Torture prohibits torture at any time, including wartime.

In fact, even if the United States had not ratified the torture treaty, which, under the Supremacy Clause of the Constitution, is part of the supreme law of the land, US personnel would still be legally forbidden from torturing prisoners. The international prohibition against torture is on par with slavery and genocide. It is considered a preemptory norm of international law, which means that torture can never be justified in any circumstances. The first Congress of the United States decided that the law of nations could be directly enforced in US courts. It enacted the Alien Tort Claims Act in 1789, which provides victims the right to sue for a violation of the law of nations. In its recent case of Sosa v. Alvarez-Machain, the Supreme Court upheld the preemptory nature of the ban on torture.

On Thursday, the one-year anniversary of the release of the Abu Ghraib photos, the New York Times reported that the Army is preparing to issue a new interrogations manual that bans interrogation practices that weren't even in the old manual. Tom Malinowski, Washington advocacy director of Human Rights Watch, said, "The existing manual was clear. It was the exceptions that caused problems."

Indeed, most of the torture did not occur during interrogations. Sodomy with foreign objects, forced masturbation, stacking of naked prisoners in pyramids, threatening prisoners with dogs, and leading crouching prisoners around with leashes like dogs were not carried out to secure information. They were designed to humiliate the Arabs in captivity.

Just as US soldiers who fought in Vietnam were trained to think of the Viet Cong as "gooks," making it more palatable to kill and abuse them, so did the US forces objectify their Iraqi prisoners when they sexually abused and sadistically humiliated them. One US official told the Los Angeles Times, "There was a mentality that the people we're in charge of are not humans."

When the Abu Ghraib photos first emerged, there was a sense of outrage. But even though allegations of torture, not just in Iraq, but also in Afghanistan, in Guantánamo Bay, and in secret CIA prisons, continue to surface, the indignation has died down. When the subject of torture comes up, Bush's war on terror is often cited to deflect attention from the disgusting images. Yet a recent Gallup Poll found 60 percent of Americans would not support torture, even against a terrorist who had information about an impending attack.

So why has the revulsion disappeared? If we were confronted with pictures of US personnel torturing Swedes, would demands that the perpetrators be brought to justice have evaporated so easily?

All three branches of our government must take responsibility for addressing these atrocities. The executive should appoint a special independent prosecutor to thoroughly investigate and prosecute those responsible, no matter how high up in the chain-of-command. Because of his role in the preparation of the torture memos, Alberto Gonzales has a conflict of interest and is thus incapable of fairly performing this function.

Congress must convene an independent commission to launch an investigation similar to that of the 9/11 commission. The military has shown it cannot impartially investigate itself.

And human rights and civil liberties organizations will continue to file litigation to bring the perpetrators to justice in the courts. The American Civil Liberties Union and Human Rights First filed a lawsuit on behalf of eight men allegedly tortured by US forces in Iraq and Afghanistan. The defendants are Donald Rumsfeld, Janis Karpinski, Ricardo Sanchez, and Col. Thomas Pappas, head of military intelligence at Abu Ghraib. The suit is based on both the Alien Tort Claims Act and the US Constitution, which guarantees due process prohibits cruel and unusual punishment.

"Brutalization doesn't work," said Dan Coleman, a former FBI agent who retired last year. "Besides that," he added, "you lose your soul." If we stand by and permit our high government officials to maintain impunity in the face of their torture, we, too, will have lost our soul.

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First They Came for Lynne Stewart

First they came for the communists, and I did not speak out--
because I was not a communist;
Then they came for the socialists, and I did not speak out--
because I was not a socialist;
Then they came for the trade unionists, and I did not speak out--
because I was not a trade unionist;
Then they came for the Jews, and I did not speak out--
because I was not a Jew;
Then they came for me--
and there was no one left to speak out for me.

-Pastor Martin Niemöller, 1945
Now they're coming for the lawyers, and we must all speak out.

Last Thursday, after 13 days of deliberations, prominent New York civil rights attorney Lynne Stewart was convicted of conspiracy, providing material support to terrorists, and defrauding the United States government. Her 7-month trial was held in the same federal courthouse where the Rosenbergs were tried for conspiracy to commit espionage more than 50 years ago. Stewart faces between 35 and 45 years in prison.

Stewart was indicted in March 2002. The indictment was based on governmental monitoring of conversations between Stewart and her client, Shiek Omar Abdel Rahman, which occurred two and a half years before the terrorist attacks of September 11, 2001.

Rahman is serving a life plus 65-year sentence for conspiring to bomb several New York City landmarks and soliciting crimes of violence against the U.S. military and Egyptian President Hosni Mubarak.

Beginning in 1997, the Bureau of Prisons, at the direction of the Attorney General, imposed special administrative measures (SAMs) on Rahman, limiting his access to the mail, the media, the telephone and visitors.

Stewart was obliged to sign an affirmation agreeing to be bound by the SAMs, before being allowed to see her client. She agreed "only to be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters" and not to "use my meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman."

The government charged that Stewart allowed the Arabic translator to read letters to Rahman regarding Islamic Group matters, and to conduct a discussion with Rahman regarding whether Islamic Group should continue to comply with a cease-fire in Egypt. It also alleged that Stewart concealed those discussions from prison guards, and announced to the media that Rahman had withdrawn his support for the cease-fire, in violation of the SAMs.

Stewart denied these allegations, and testified that she believed in good faith that relaying Rahman's statement calling for more consultation about the Egyptian cease-fire did not violate the SAMs. She said she was trying to have Rahman transferred to Egypt to serve his sentence by keeping him visible. Rahman is old, blind, does not speak English, and has been kept virtually incommunicado in a federal prison in Minnesota.

Her good-faith belief, Stewart tesfitied, was based on actions of former U.S. Attorney General Ramsey Clark, another of Rahman's attorneys. Clark also signed these SAMs, held press conferences, and conveyed Rahman's statements about Egyptian politics to the press. Yet, Clark was never prosecuted.

Clark, who testified for Stewart at her trial, told Amy Goodman of Democracy Now!, "I don't know of anything that Lynne did that I didn't do." He said, "This case would never have been brought except for the fear generated, and the advantage that the Bush administration was taking of it, by the events of September 11, 2001. In ordinary times and circumstances, it would be recognized that everything that Lynne did was exactly what an effective attorney representing a client zealously would be obligated to do."

At a 2002 conference, Stewart noted, "Usually if one breaks a Bureau of Prisons edict, one is told one can't visit the prison again, or one gets some sort of administrative slap on the wrist of some kind. One does not usually get indicted for aiding a terrorist organization."

Why did the government wait so long before indicting Lynne Stewart? According to Heidi Boghosian, executive director of the National Lawyers Guild, Stewart was a "prime target for the Attorney General, who needed desperately to show that the Justice Department was actively fighting terrorism."

When Stewart was indicted, John Ashcroft had arrested only one person since September 11 - John Walker Lindh. "By indicting Stewart," noted Boghosian, "Ashcroft effectively sent the dual message that he could indict other lawyers who represented clients with unpopular beliefs and that such clients do not deserve defense."

The same day Bush signed the USA Patriot Act into law, General Ashcroft announced an interim amendment to the Bureau of Prisons regulation, which took effect five days later, without the usual public comment period. It permits the Department of Justice (DOJ) unlimited and unreviewable discretion to eavesdrop on confidential attorney-client conversations of persons in custody, with no judicial oversight and no meaningful standards. It applies not only to convicted inmates, but to all persons in the custody of the DOJ, including pretrial detainees, material witnesses, and immigration detainees who have not been accused of any crime.

At a 2002 convention of the National Lawyers Guild, Stewart expressed alarm at what her indictment portends for the future of the attorney-client privilege and criminal defense. She said, "This is about protecting the right to defend. Once the attorney-client privilege is lost, there is no right to defend as we know it." Speaking about the government's monitoring of her conversations with her client, Stewart stated, "The question you should be asking is not what I was doing in that room, but what was the government doing in that room?"

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

Since September 11, those who question government policy have been, and will continue to be, branded "terrorist." Even though "terrorism" was not an element of any of the offenses with which Lynne Stewart was charged, and Osama bin Laden was not part of any of the charges, the prosecution was permitted to bring bin Laden's name into the trial.

A written threat from the Jewish Defense Organization was posted on the door to Stewart's home after 10 ½ days of jury deliberations in the trial. It referred to a message purporting "to reach out so the jurors understand what she is. And that's been done." The message gave Stewart's home address and said she "needs to be put out of business legally and effectively." It threatened to "drive her out of her home and out of the state." If this message did reach any jurors who were sitting on the fence, it may have pushed them over to the guilty side.

Stewart told Amy Goodman, "These SAMs said you know, 'If you break these regulations, you may be cut off from your client.' That was our greatest concern, that we would be cut off from the client. The idea of prosecution never entered our minds." Stewart continued, "I believe with my mind and heart that it was the right thing to do."

Lynne Stewart's indictment, and conviction, will also chill attorneys from taking on cases of unpopular clients. "The purpose of this prosecution," said Michael Ratner, president of the Center for Constitutional Rights, "was to send a message to lawyers who represent alleged terrorists that it's dangerous to do so."

Stewart's attorney, Michael Tigar, does not blame the jury for this injustice. "We have all in our lifetimes seen well-meaning juries get caught up in the media-dominated government rhetoric of their time, based mostly on fear," Tigar said after the verdicts were announced. "I do not criticize these jurors. I have every confidence this verdict will be set aside."

Lawyers representing Guantánamo detainees are being asked to sign agreements that their consultations with their clients will not be confidential. Tigar told Amy Goodman, "The only way that we will ever get to the bottom of the American concentration camp abuses at Gitmo and Abu Ghraib is if the lawyers for these prisoners are permitted to tell their stories to the world. If the government can shut off that communication, which they have attempted to do over and over and over again, these activities will continue in secret."

It is essential that people feel safe in these perilous times. But, as Supreme Court Associate Justice Sandra Day O'Connor wrote in a 1995 opinion, "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis." The confidential relationship between attorney and client sits at the heart of our criminal justice system. We must zealously guard it or we will all be at risk.

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Lady Liberty Under Attack

Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed, to me.
I lift my lamp beside the golden door.
- Emma Lazarus, The New Colossus,
Quoted on base of Statue of Liberty

The House of Representatives today is debating the REAL ID Act of 2005 (HR 418). This bill threatens the very principles upon which this country was founded. It resurrects several anti-immigrant and anti-refugee provisions dropped from the final version of the "Intelligence Reform and Terrorism Prevention Act of 2004" in December 2004 due to widespread opposition.

Although purporting to enhance our nation's security, the REAL ID Act does absolutely nothing to make us safer. Instead, it targets the world's most vulnerable group - refugees fleeing persecution, including torture, rape and other atrocities.

Under section 208 of the US Immigration and Nationality Act, a refugee may be granted asylum if she has been persecuted or has a well-founded fear of persecution if she is returned to her home country. The persecution must be based on her race, religion, nationality, membership in a particular social group, or political opinion.

The REAL ID Act would require a refugee to prove her persecutor's "central" reasons for harming her - essentially penalizing a refugee who cannot prove with unrealistic precision what is going on in her persecutor's mind. It would give an immigration officer or judge broad leeway to deny a refugee asylum based on her perceived "demeanor" and alleged "statements" taken in unreliable circumstances, ignoring the fact that survivors of rape or torture, suffering from post traumatic stress disorder, may appear lacking in emotion or have difficulty making eye contact.

This bill will allow the wives and children of victims of extortion by alleged terrorists to be deported or barred from asylum based on overly broad definitions of what constitutes "supporting" terrorism. It would require that non-citizens meet a virtually impossible burden of proof to convince the government they did not knowingly support terrorism. Current immigration law makes foreign nationals inadmissible if they knew or should have known that the support they provided to a group would further the group's terrorist activity.

Under the REAL ID Act, a person would be deportable unless she could show "by clear and convincing evidence" that she did not know the group she was supporting was a terrorist organization under the law's extremely broad definition of that term. Since it is almost impossible to prove lack of knowledge, this standard would make it nearly impossible for an innocent immigrant to defend herself against deportation. This would, for example, allow the deportation of an immigrant who donated money for tsunami disaster relief in the Aceh province of Indonesia, not knowing the organization that received funds had a subgroup the Department of Homeland Security considered terrorist.

The REAL ID Act would also establish extensive federal control over state issuance of driver's licenses and state identification cards. If someone is undocumented or has overstayed a visa, he could not get a license or identification card under this scheme. It would undermine the states' efforts to create a driver's license system that assures all drivers are certified to drive, are insured, and are carrying valid licenses. This would drive undocumented people further into the shadows and undermine rather than improve security.

One of the most heinous parts of this bill is section 102, which would empower the Secretary of Homeland Security to suspend any and all laws in order to ensure the "expeditious" construction of a set of barriers and roads to keep illegal immigrants out. Then, it prohibits any judicial review of the Secretary's decision to suspend any law.

What laws could the Secretary of Homeland Security suspend? Environmental and labor laws, such as the Endangered Species Act, National Forest Management Act, and the Davis-Bacon prevailing wage laws and the right to organize and bargain collectively. Defenders of Wildlife warns that section 102 could be used to waive all laws in all areas in the vicinity of the US borders with both Mexico and Canada, nearly 7,500 miles in total. Many of our borders run near or through national parks, forests and monuments, wildlife refuges, wilderness areas and other environmentally sensitive areas.

The American Immigration Lawyers Association cautions that the REAL ID Act will be detrimental to the welfare of the country in that it will actually increase the number of uninsured, unlicensed drivers; limit the critical law enforcement utility of Department of Motor Vehicle databases; make it difficult for people fleeing persecution to obtain refugee status in the United States; undermine free speech and association; and waste valuable resources, both economic and environmental, on false border security solutions.

Recall that the USA Patriot Act, which resurrected several formerly rejected anti-civil liberties provisions, was rammed through a timid Congress in the month following September 11, 2001. Likewise, the substance of the REAL ID Act will be tacked on to a "must pass" emergency spending bill, such as the financing of the Iraq war or tsunami relief, making it much more difficult for the Democrats to block its odious provisions.

The REAL ID Act of 2005 is opposed by myriad religious and civil liberties organizations, including the Anti-Defamation League, Episcopal Migration Ministries, Lutheran Immigration and Refugee Service, American Immigration Lawyers Association, Amnesty International USA, Center for Victims of Torture, Kurdish Human Rights Watch, Inc., National Council of La Raza, and Human Rights First.

Bush's second term will be characterized by this and other attacks on our liberty and security. It is up to us to challenge these assaults or we will all face the wrath of what is increasingly becoming a police state.

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Alito Threatens Dr. King's Dream

Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.
-Dr. Martin Luther King Jr., Letter from a Birmingham Jail

During his confirmation hearing for the Supreme Court, Samuel Alito Jr. pledged allegiance to the principle of one man-one vote and denied he was a bigot. It is astonishing that these issues even entered our national discourse in 2006. But it is Alito's record, both as a member of the Reagan administration and as a judge on the Court of Appeals, that raises allegations of racism. And it is that same record that betrays Dr. King's values and threatens the future of civil rights in this country if Alito is confirmed to the high court.

In his 1985 application for a job in the Reagan Justice Department, Alito noted that he became interested in constitutional law "in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." The reapportionment cases that upset him were the landmark decisions that affirmed the bedrock principle of our democracy: one person-one vote.

Fred Gray, the veteran civil rights lawyer who represented Dr. King and Rosa Parks, testified at Alito's hearing. "As one who has been in the trenches and still is in the trenches," Gray told the senators, "I appear today to attest to the tremendous importance of the reapportionment cases - those cases decided by the Warren Court, one of which I actually litigated and was my brainchild, Gomillion versus Lightfoot ... The cases illuminate the inequities of mal-apportionment which deprived African Americans of voting strength across the nation. In my view, there is no more important body of law than that generated in the field of voter registration and in civil and human rights." Gray testified, "I am troubled, extremely troubled, by Judge Alito's comments made in his application, notwithstanding his testimony before this committee ... A nominee to the Supreme Court who has a judicial philosophy that's set against the Warren Court and against the reapportionment cases is in effect saying that he would turn the clock back."

Indeed, when Alito became a judge, he ruled against minority voters who claimed a school board voting plan illegally diluted their voting strength. If he is confirmed, Alito will vote on a series of cases alleging minority vote dilution now pending before the Supreme Court.

Moreover, certain important provisions of the Voting Rights Act that have enhanced the opportunities for African Americans and other minority groups to vote effectively are set to expire next year, unless Congress renews them. These special provisions allow for significant federal oversight of state and local voting functions for jurisdictions deemed to have the worst and most persistent histories of voting discrimination against their minority populations. This heightened oversight is intended to identify and prevent proposed voting changes that worsen the position of minority voters, or to deter covered jurisdictions from proposing such voting changes.

For example, section 5 of the act requires certain covered states and political subdivisions to obtain federal or judicial preapproval or "preclearance" of any voting law changes or practices before they can legally take effect. This oversight has resulted in the detection and prohibition of several harmful voting laws and practices. Appeals of district court decisions on these preclearance provisions go directly to the Supreme Court.

Alito will have the opportunity to rule on section 5 preclearance issues, and may also review the 2007 congressional renewal of the act's special provisions.

Besides his astounding statement opposing reapportionment, Alito also proudly touted his membership in the Concerned Alumni of Princeton in the same job application. CAP was formed to maintain Princeton as a white male college. It complained that increased numbers of "women and minorities will largely vitiate the alumni body of the future."

In spite of his avowed pride in being a CAP member, Alito denied any memory of the group after he was nominated for the Supreme Court. His amnesia is particularly surprising in light of his vast recall of the details of the myriad cases on his court's docket.

Alito's judicial record in civil rights cases corroborates his bias. In all split decisions in cases alleging race and sex discrimination, Alito voted against the claimants. His dismal record led the NAACP Legal Defense and Education Fund, the Hispanic Caucus Civil Rights Task Force, and the National Bar Association to oppose Alito's confirmation.

The mainstream media has fixated on Martha Alito's tearful exit from the hearing after Republican Senator Lindsey Graham's defensive rhetorical question about whether her husband was a "closet bigot." Unfortunately, that dramatic film clip obscured the merits of the issue.

Samuel Alito's record on and off the bench shows a consistent pattern of bigotry - a pattern that promises to continue once he becomes a justice of the Supreme Court. Senators from both parties who truly seek to realize the dream of Dr. Martin Luther King Jr. have a solemn obligation to filibuster and defeat Alito's nomination.

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Litigating the Election

Without much fanfare, a number of lawyers are busy mounting court challenges to the election. Lawsuits have been filed and other actions are being taken in Ohio and Florida, the two key electoral states. Members of Congress have demanded a General Accountability Office investigation of the election. The largest Freedom of Information Act request in the nation's history has been launched, and other efforts are in the works.

Is there substance to these challenges? On Thursday, the University of California's Berkeley Quantitative Methods Research Team released a statistical study - the sole method available to monitor the accuracy of e-voting - reporting irregularities associated with electronic voting machines may have awarded 130,000-260,000 or more excess votes to Bush in Florida. The three counties where the voting anomalies were most prevalent were also the most heavily Democratic: Broward, Palm Beach and Miami-Dade, respectively. The official tally in Florida shows Bush with 380,978 more votes than Kerry.

Recount, Lawsuits, Hearings in Ohio

Green Party candidate David Cobb and Libertarian Party candidate Michael Badnarik have sought a recount of the votes in Ohio. A demand for a recount can only be filed by a presidential candidate who was on the ballot or a certified write-in candidate. Alleged improprieties in Ohio include mis-marked and discarded ballots, problems with electronic voting machines, and the targeted disenfranchisement of African-American voters. Although a recount doesn't typically begin until after the vote has been certified (December 6), Cobb and Badnarik have asked for the recount to proceed forthwith for fear there won't be sufficient time to complete the recount in time for the December 13 date on which the Ohio presidential electors will meet.

Bush now leads Kerry by about 136,000 votes in Ohio. A battle is looming over nearly 155,000 provisional ballots, which might decide who really won the election. The Ohio Democratic Party has joined a lawsuit by elector Audrey J. Schering, which asks U.S. District Judge Michael H. Watson to order Ohio Secretary of State Kenneth Blackwell to impose uniform standards for counting provisional ballots on all 88 counties. The lawsuit cites the U.S. Supreme Court's opinion in Bush v. Gore, which "held that the failure to provide specific standards for counting of ballots that are sufficient to assure a uniform count statewide violates the Equal Protection Clause of the United States Constitution." Attorney Donald J. McTigue, who filed the suit, told me that although many of the provisional ballots are being counted, his client is concerned about those that are not being counted. Blackwell has provided only limited instruction about which provisional ballots to count. But many doubts remain about how different election boards determine whether someone is a registered voter. Some may type the name in on a computer; others may look for typographical errors; still others may look at the hard copy. McTigue worries that there is no way of knowing what each board is doing. Do they go back to the purged files? Were they properly purged?

Of the 11 counties that had completed checking provisional ballots by Wednesday, 81 percent have been ruled valid. McTigue expects the counting of provisional ballots to last at least two more weeks.

On Election Day, Sarah White filed a class action against Blackwell and the Board of Elections of Lucas County, claiming they violated the Help America Vote Act, passed in the wake of the 2000 election debacle, that gives voters in federal elections a right to cast provisional ballots. White claimed that although she requested an absentee ballot one month before the election, she never received one. Blackwell ruled that persons who had requested, but not received their absentee ballots, would not be permitted to cast a provisional ballot. U.S. District Judge David A. Katz, however, ordered that "the Board of Elections of Lucas County shall immediately advise all precincts to issue provisional ballots to those voters who appear at the voting place and assert their eligibility to vote, including that the voter is a registered voter in the precinct in which he or she desires to vote, and that the voter is eligible to vote in an election for Federal office."

Last week, the Ohio Election Protection Coalition held public hearings in Columbus. Extensive sworn and written testimony of Ohio voters, precinct judges, poll workers, legal observers, and party challengers revealed a widespread and concerted effort by Blackwell to deny primarily African-American and young voters the right to cast their ballots within a reasonable time. Precincts were deprived of adequate numbers of voting machines, so voters waited in lines from 2-7 hours, even though 68 electronic voting machines remained in storage and were never used on Election Day. Blackwell, who oversaw the election in Ohio, also served as co-chair of the Ohio Bush-Cheney reelection campaign. Lawyers for the Ohio Election Protection Coalition plan to use the testimony from the Columbus hearings to challenge the results of Ohio's presidential vote in the state Supreme Court next week.

Lawsuits in Florida

On Election Day, the American Civil Liberties Union of Florida and Florida Legal Services sued Miami-Dade County and Broward County election officials in U.S. District Court for denying voters sufficient time to mail in absentee ballots. The Broward County Supervisor of Elections sent 13,300 absentee ballots to voters late. Plaintiffs Fay Friedman, Adam Meyer, and Daniel Benhaim claimed the two counties violated the Civil Rights Act of 1964 and the First and Fourteenth Amendments because they did not receive their absentee ballots until Election Day, and it was therefore impossible to comply with state law requiring persons who are out-of-state but present in the U.S. to submit absentee ballots by 7 P.M. on Election Day. Under Florida state law, a separate rule gives more time to absentee voters outside the U.S., who may postmark their ballots by November 2 as long as the ballot arrives within 10 days after the election. JoNel Newman, a Florida Legal Services attorney, says, "The rules governing absentee ballots should apply equally to every voter, whether they are temporarily in other parts of the country or overseas." On Tuesday, U.S. District Court Judge Alan Gold denied plaintiffs' motion for a preliminary injunction to include the late ballots in the final vote tally; however, the lawsuit remains alive for trial on a request to apply the late counting rule used for foreign absentees to domestic ballots.

Opponents of slot machines at South Florida pari-mutuels filed a lawsuit seeking an official recount of about 78,000 absentee ballots cast in Broward County on Amendment 4. About 94 percent of the new votes on the amendment were "yes" and only 6 percent were "no," a "statistical anomaly." No hearing has yet been scheduled on the case.

Recount in New Hampshire

Pursuant to a request by Ralph Nader, votes in some New Hampshire towns are being recounted. An analysis showed wide differences in voting trends between the 2000 and 2004 elections; about three quarters of precincts with severe changes used Diebold optical scanning machines. Last week, Diebold agreed to pay $2.6 million to settle a lawsuit with the state of California. Diebold officials misled state leaders about the security and certification of its products to get payments from the state, according to California Attorney General Bill Lockyer. Diebold is headed by Republican CEO Wally O'Dell. Last year, O'Dell wrote to Ohio Republican donors, saying he was "committed to helping Ohio deliver its electoral votes to the President next year."

Lawsuits Challenge Mayoral Results in San Diego

Election results in San Diego's mayoral race remain in doubt. The unofficial tally shows Mayor Dick Murphy the victor. But write-in votes for Donna Frye have been excluded because voters did not darken the oval on the left of the line where they wrote in Frye's name. A lawsuit seeks to force the county registrar of voters to count the excluded write-in votes, which many believe will tip the results in her favor. Two other lawsuits are attempting to have Frye's candidacy ruled illegal and force a runoff between Murphy and Supervisor Ron Roberts. Frye ran on a platform critical of Murphy's financial leadership and the culture of secrecy at City Hall.

Congressmen Request GAO Investigation

Three members of Congress - John Conyers, Jr., Jerrold Nadler, and Robert Wexler - wrote to the Government Accountability Office on November 5, requesting an immediate investigation of the efficacy of voting machines and new technologies used in the 2004 election, how election officials responded to difficulties they encountered, and what we can do in the future to improve our election systems and administration. The Congressmen cited an electronic voting system in Columbus, Ohio, that gave Bush 4,000 extra votes; an electronic tally of a South Florida gambling ballot initiative that failed to record thousands of votes; a North Carolina county that lost more than 4,500 votes due to a mistaken belief by officials that a computer that stored ballots could hold more data than it did; a substantial drop off in Democratic votes in proportion to voter registration in counties utilizing optical scan machines that was apparently not present in counties using other mechanisms; and numerous reports from Youngstown, Ohio, as well as Palm Beach, Broward and Dade counties in Florida, that voters who attempted to cast a vote for John Kerry on electronic voting machines saw their votes instead recorded as votes for Bush.

Freedom of Information Act Requests

Blackboxvoting.org, a nonpartisan, nonprofit consumer protection group for elections, has filed the largest Freedom of Information Act request in history. It seeks the internal computer logs (which are public records ) from voting machines from every county that used electronic voting machines. The organization has initiated fraud investigations in selected counties. It needs lawyers to enforce public records laws, as well as computer security professionals and citizen volunteers.

Open Records Act Motions

Cindy Cohn, Legal Director of the Electronic Frontier Foundation in San Francisco, told me that independent testing of voting machines could shed light on why so many people who tried to vote for Kerry saw their votes registered for Bush. Her organization is moving under the Open Records Act, which allows people to see government records, to gather information, including the impoundment of voting machines, in some counties in Florida, Ohio, New Mexico and Pennsylvania that had serious problems with the machines. Local counsel are needed to help with this effort. Cohn can be contacted at cindy@eff.org.

Results Not Final Until January

Although John Kerry conceded that George W. Bush won the election, a candidate's concession is not legally binding. Electors will be certified on December 7, which gives a presumption of legitimacy to the vote; but electors actually vote on December 13. These votes are not opened by Congress until January 6, so there is still time to challenge the results in key states such as Ohio and Florida. A challenge requires a written objection from one House member and one senator. If that objection is recorded, both Houses separate again and they vote by majority vote as to whether to accept the slate of electoral votes from that state.

Bush is claiming he has a mandate, planning to spend his "political capital." Curiously, virtually all of the so-called "anomalies" in the voting results favor Bush. The electors have not yet voted; the election results are not yet final. In the words of Yogi Berra, "It's not over until it's over."

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Beware Scalia-Thomas Clones

After months of intense campaigning about Iraq, terror, taxes and jobs, the future of the Supreme Court has finally entered the public discourse. Chief Justice William Rehnquist is in the intensive care unit, after undergoing a tracheotomy for thyroid cancer. The Court issued a terse statement, saying the Chief would take the bench when the justices reconvene on Nov. 1. Unlike the detailed updates released during Ruth Bader Ginsburg's struggle with colon cancer in 1999-2000, however, we have been given no details about Rehnquist's prognosis.

Just as Bush has downplayed the disappearance of 380 tons of high explosives in Iraq that U.S. forces should have secured, he has mentioned little, if anything, about Rehnquist's illness. Karl Rove, Bush's evil genius, is undoubtedly aware of the explosive nature of a dialogue about how the next commander-in-chief could shape the face of the Supreme Court for decades.

Rove likely knows a recent Time magazine poll showed 86 percent felt appointments to the Court during the next four years were very important (59 percent) or somewhat important (27 percent) to their choice for president. In that poll, 43 percent said it would make them more likely to vote for Kerry, whereas 38 percent thought it would lead them to choose Bush.

When the issue arose in the second and third presidential debates, Bush said he would have "no litmus test" for his judges. But during the 2000 campaign, Bush let slip that the justices he admired most were Antonin Scalia and Clarence Thomas. During the second debate recently, Bush echoed that sentiment, saying he would pick "strict constructionists," a buzz-phrase for Scalia-Thomas clones.

Fortunately, no vacancies have arisen on the high Court during Bush's term. But his choices for lifetime appointments to the lower federal court bench reveal a definite litmus test - anti-choice, anti-civil rights, anti- worker, anti-gay, anti-environment and pro-corporate. (See my editorial, Bush's Judges: Right-Wing Ideologues.) Bush's 201 nominees - 24 percent of all active judges - were ideologically screened by the conservative Federalist Society. Many Bush appointees are "embarrassingly unqualified for judicial office," wrote Professor Ronald Dworkin in The New York Review of Books recently.

Bush could have as many as four appointments to the high Court during a second term. All justices but Clarence Thomas are over 65 years old. Rehnquist is 80. John Paul Stevens, the most liberal on the Court, is 84. Sandra Day O'Connor, 74, and Ginsburg, 71, are both cancer survivors. Ginsburg, another liberal, is in frail health.

The Supreme Court is currently divided by a razor-thin 5-4 margin. Regardless of the outcome of Rehnquist's illness, he has said he would not remain on the Court for another four years. Bush, if given a second term, would replace Rehnquist with a much younger, right-winger, who would remain on the Court for years to come. Bush would also have the opportunity to choose the next chief justice, who could significantly shape the Court. If Bush had his druthers, he would elevate Scalia or Thomas to Chief. But either choice would invite a nasty partisan battle in the Senate, which must approve the president's nomination by a two-thirds vote. Bush would probably find another right-wing zealot to assume the role of chief justice.

What would the Court look like if Bush were to appoint justices in the mold of Scalia and Thomas? Roe v. Wade could be overturned. Abortion could become a crime in most states - back to back-alley abortions for poor, young women. Workers could lose family and medical leave. Gays could be imprisoned for having consensual sex in the privacy of their own homes. Equal voting rights for African Americans and other racial minorities could be at risk (not just de facto, the way they are today, but de jure, as well.) Affirmative action could be eviscerated. Preservation of the environment could give way to corporate profits. Inmates in this country (not just in Iraq and Guantánamo) could be beaten with impunity.

In the second debate, Bush's seemingly righteous criticism of the racist Dred Scott decision was really a veiled message to his right-wing followers that he would appoint anti-abortion judges to the Supreme Court, according to former Supreme Court law clerks Charles Rothfeld and Thomas Colby, writing for americaprogress.org.

The May 2004 report, Courting Disaster 2004: How a Scalia-Thomas Court Would Endanger Our Rights and Freedoms, published by People For the American Way, concluded: "Supporters of Justices Scalia and Thomas praise them as 'strict constructionists,' 'originalists,' 'traditionalists,' and advocates of the 'rule of law.' These labels are misleading because they obscure the two Justices' ultra-conservative activism. The terms suggest that Thomas and Scalia are committed only to an interpretation of the law that is true to its actual wording, or in the case of the Constitution, true to the intent of the Framers. This legal approach, its adherents say, ensures that they are not activists who use their position to shape the law in their own political image. Actually, the opposite is true. A Supreme Court modeled after Scalia's and Thomas' judicial philosophy would be an activist Court that would produce dramatic changes in the law as we know it. And virtually every change would move our laws in the direction advocated by right-wing conservatives."

The future of the law of the land is at stake in this election. The differences between Bush and Kerry are stark on judicial appointments. During the third debate, Kerry said: "I'm not going to appoint a judge to the court who's going to undo a constitutional right, whether it's the First Amendment or the Fifth Amendment or some other right that's given under our courts today, or under the Constitution." Kerry added: "And I believe that the right of choice is a constitutional right."

Voters will have a choice between an administration that fights to protect the rights of everyone, not just those of straight white rich religious men, and one that promises to remake the Court in the image of those who would deny basic liberties to many.

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Bush Gets 'F' in Civil Rights

While many of our citizens prosper, others doubt the promise, even the justice, of our own country. The ambitions of some Americans are limited by failing schools and hidden prejudice and the circumstances of their birth ... We do not accept this, and we will not allow it ... And this is my solemn pledge: I will work to build a single nation of justice and opportunity...
- President George W. Bush, Inaugural Address, Jan. 20, 2001.

George W. Bush has betrayed this promise, according to a 180-page draft report of the U.S. Commission on Civil Rights, Redefining Rights in America - The Civil Rights Record of the George W. Bush Administration, 2001-2004.

Bush rarely uses the terms "civil rights," "diversity," or "discrimination." When he does, it's usually in reference to a historical celebration or holiday. "The dearth of substantive presidential statements reveals that civil rights is not a priority for this administration," according to the draft report.

Even when Bush does state a commitment to the protection of civil rights, his actions belie his rhetoric. The draft report "finds that President Bush has neither exhibited leadership on pressing civil rights issues, nor taken actions that matched his words." Bush "has not defined a clear agenda nor made civil rights a priority." The net increase in Bush's requests for civil rights enforcement agencies was "less than those of the previous two administrations."

It is not surprising that the Republicans on the Civil Rights Commission have resisted the release of the report until after the November election. They were rebuffed, however, in their attempt to remove the draft report from the website.

The draft report finds: "President Bush does not speak about civil rights initiatives often, but when he does he promotes the faith-based program more than any other. He has presented the initiative as an end to discrimination against religious organizations, using terms such as 'remove barriers,' 'equal access,' and 'equal treatment,' which convey that such programs have civil rights relevance. In reality, the program does not remove barriers to discrimination. On the contrary, it allows religious organizations that receive public funds to discriminate against individuals based on religion in employment."

Whereas the leaders of the Civil Rights Movement in the 1950s and 1960s, and César Chávez with the United Farmworkers Union, used faith to sustain them, Bush uses it as a bludgeon. Bush's faith actually undermines the protection of civil rights. This agenda comes through loud and clear in the draft report: "The faith-based initiative, a so-called civil rights action, actually constitutes a retreat, not an advancement from employment discrimination," especially against gays and lesbians.

Instead of leading him to protect civil rights, Bush's faith has victimized the most vulnerable among us. In nearly every category of civil rights analyzed in the draft report, Bush receives a failing grade. His record is abysmal in education, fair housing, voting, gay and lesbian rights, affirmative action, environmental justice, racial profiling, protection of disadvantaged groups, and judicial nominations.

Equal Educational Opportunity

Bush frequently touts the No Child Left Behind Act (NCLB), which he widely promoted, and which garnered bipartisan support. "Despite its worthy goals, however," the draft report says, "NCLB has flaws that will inhibit equal educational opportunity and limit its ability to close the achievement gap." For example, "NCLB does not sufficiently address unequal education, a major barrier to closing the achievement gap between minority and white students." Furthermore, Bush did not exhibit leadership to make sure NCLB was sufficiently funded, "leaving state and local school boards, teachers, and administrators without the resources to comply with the law."

Fair Housing

"Policies instituted under the Bush administration have diminished housing opportunities for poor, disproportionately minority families," the draft report concludes.

Election Reform

In spite of the national angst over the 2000 presidential election process, and Bush's promise "to unite the nation and improve its election system, the President has failed to act swiftly toward election reform," finds the draft report. "As a result of the President's inaction, little will change before the 2004 elections, and the problems that linger, unless resolved, will most likely disenfranchise some eligible voters." Indeed, evidence has emerged that raises the specter of widespread violation of voter rights. (See truthout's Voter Rights page.)

Christopher Edley, Jr., dean of Boalt Hall School of Law at UC Berkeley, and member of the Civil Rights Commission, documented voter suppression and disenfranchisement "approaching a torrent" in a recent article in Newsday. "The U.S. Commission on Civil Rights, on which I sit," wrote Edley, "has heard many hours of testimony on these abuses, and civic groups are sounding alarms. Dismayingly, Attorney General John Ashcroft has not met the rising flood of examples with high-profile investigations and criminal indictments. Instead," noted Edley, "state and local officials face little more than embarrassment in the media."

Gay and Lesbian Rights

Although Bush appointed some gay rights supporters to Cabinet and administrative positions, he "has stated unequivocal support for a constitutional amendment banning same-sex marriages. If passed," states the draft report, "the amendment would be the first in U.S. history to limit rather than preserve and expand the rights of a group."

Affirmative Action

The draft report concludes that Bush's "stance on affirmative action is equivocal at best ... He has not exhibited strong leadership on this issue where leadership is vital." While celebrating diversity, Bush's administration filed a brief with the Supreme Court opposing university policies that allow race to be considered as one factor to promote diversity in college admissions. "To speak about the importance of diversity without acknowledging the role of affirmative action or the need for comprehensive data is to disregard the remaining vestiges of discrimination," wrote the authors of the draft report.

Environmental Justice

Minority and low-income populations are disproportionately affected by environmental pollutants. Toxic waste dumps are frequently located in neighborhoods populated mostly by people of color. Yet, under the Bush administration, the Environmental Protection Agency "has taken few actions to ensure that minority and low-income persons are not disparately affected by environmental contamination and has failed to develop a standard for assessing how exposure to hazards affects public health," the draft report reads.

Racial Profiling

Early in his term, Bush promised to end racial profiling. He issued guidelines to prohibit racial profiling in federal law enforcement. However, after the September 11 attacks, Bush's attorney general rounded up immigrants of Arab, Muslim and South Asian descent. These men were not suspected of criminal activity, but were targeted solely on the basis of their national origin. "Many detainees alleged mistreatment by prison guards, including being hosed down with cold water, strip searched, forced to sleep upright in freezing conditions, denied food or legal representation, and kept in their cells for long periods."

Immigrants

The draft report examines three Bush administration proposals on immigration. "All lack strong civil rights protections for immigrants," it finds. "President Bush has endorsed policies that allow discrimination against certain groups in the processing of asylum applications," for example, Haitians.

Native Americans

"President Bush has acknowledged the great debt America owes to Native Americans. However, his words have not been matched with action." He has not requested sufficient funding for tribal colleges and universities, Native American health care, or housing programs. "In 2003," according to the draft report, "President Bush terminated funding for critical law enforcement programs, including the Tribal Drug Court Program. Experts agree that problems with the criminal justice system in Indian Country are serious and understated." Bush's "lack of commitment to the nation's trust responsibility to Native Americans ensures that their education, housing, and law enforcement conditions remain substandard."

Women

"President Bush's record on women's issues is mixed. Economic gains for which he has paved the way are overshadowed by other actions that have set back women's rights." His administration launched a program to improve women's access to capital by creating a Web site and conferences, but abolished the Department of Labor's Equal Pay Initiative. Bush "attempted to redirect Title IX enforcement, but ceased his effort after overwhelming public expressions of support for the law." The draft report didn't mention that the Bush administration has resisted the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, which has been ratified by 177 countries, including more than 90 percent of the member states of the U.N.

Judicial Nominations

"Many of his nominees and appointees do not support civil rights protections. The effect may be eventual weakening of civil rights law," according to the draft report. It cites objections from myriad civil rights organizations to several of Bush's nominees, "claiming that the administration is trying to pack the judiciary with anti-civil rights ideologues."

The Disabled

The Bush administration has implemented some programs to benefit the disabled, including an initiative to integrate disabled persons into the labor force, and proposed funding for it. The draft report finds that although it is "too soon to measure the ultimate impact of the administration's efforts, the disability rights community has embraced them."

Bush Betrayed His Promise of Justice and Opportunity

Bush has excluded civil rights leaders from policy discussions and refrained from soliciting input from anyone other than his own close circles, according to the draft report. When challenged on his civil rights record, Bush simply points to African-Americans Colin Powell and Condoleezza Rice and that ends the discussion.

"Under Attorney General Ashcroft, the Department of Justice's enforcement of civil rights has become less vigorous, indeed almost passive, and the pursuit of civil rights cases has waned significantly," the draft report finds.

It concludes: "The administration's statements frequently do not match its actions. Its civil rights promises often suffer for lack of funding and ineffective implementation." Bush has significantly reduced funding for programs that benefit low-income individuals and minority communities. "Failing to build on common ground, the Bush administration missed opportunities to build consensus on key civil rights issues and has instead adopted policies that divide Americans."

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Bush's War on Democracy

When George W. Bush's weapons-of-mass-destruction rationale for invading Iraq evaporated, his excuse morphed into bringing democracy to the Iraqi people. But the way Bush has eviscerated our democracy in the United States is proof positive that his democratic credentials are phony.

We have seen our government assault First Amendment rights in the past - during the McCarthy era, and when the FBI instituted COINTELPRO to spy on and discredit civil rights activists.

But Bush has taken the attack on civil liberties to a new level. The most striking warning of his strategy to stifle dissent in an unprecedented way was former White House Press Secretary Ari Fleischer's admonition shortly after the September 11 attacks that Americans should "watch what they say, watch what they do."

That statement is now the mantra of Team Bush.

The Bush administration depicts as public enemies, and even potential terrorists, those who speak out against U.S. government policies.

In an annual survey by the First Amendment Center in 2003, 93 percent of respondents agreed that individuals should be allowed to express unpopular opinions in this country. Two-thirds supported the right of any group to hold a rally for a cause even if offensive to others.

Three new developments on Bush's watch have a chilling effect on protected First Amendment activity: 1) the shift from reactive to preemptive law enforcement; 2) the enactment of domestic anti-terrorism laws; and 3) the recent relaxation of FBI guidelines on surveillance of Americans.

From Reactive to Preemptive Law Enforcement

Like Bush's new "preemptive" or "preventative" war strategy which led us into Iraq in violation of the United Nations Charter, law enforcement in the United States has moved from reaction to "preemption," in violation of the U.S. Constitution.

Collective preemptive punishment against those who wish to exercise their First Amendment rights has taken several forms: content-based permits, where permission to protest is screened for political correctness; pretextual arrests in anticipation of actions that haven't yet occurred; the setting of huge bails of up to $1 million for misdemeanors; the use of chemical weapons; and the employment of less lethal rounds fired without provocation into crowds.

Protestors are painted by the government and the mainstream media as violent lawbreakers.

In this week's demonstrations against the Republican Convention in New York, police are prepared to use sound, ostensibly to convey orders to the crowd. This Long Range Acoustical Device (LRAD) has been utilized by the U.S. military in Iraq, and during the Miami free trade protests last year.

When employed in the weapon mode, LRAD blasts a tightly controlled stream of caustic sound that can be turned up to high enough levels to trigger nausea or fainting. Even if LRAD is not used by the police, the warning that it might be was designed to frighten potential protestors from taking to the streets of New York.

New Domestic Anti-Terrorism Laws

The USA PATRIOT Act, rushed through a timid Congress a month after September 11, 2001, creates a new crime of "domestic terrorism," defined so broadly that anyone who may have, at some time, participated in civil disobedience, or even a labor picket, could be targeted.

This provision has been used to label environmental and animal rights groups "terrorist." Congressman Scott McInnis (R-Co) called Earth Liberation Front, which was responsible for major property damage in Colorado, a major domestic terrorist organization. Rep. George Nethercutt (R-Wash) suggested treating Earth Liberation Front like the Taliban: "I propose," he said, "that we use the model that has worked so well in Afghanistan. Give them no rest and no quarter." These politicians draw no distinction between human rights and property interests.

Relaxed FBI Surveillance Guidelines

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

COINTELPRO (counter-intelligence program) was designed, by its own terms, to "disrupt, misdirect and otherwise neutralize" political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King Jr. in a program called "Racial Matters."

King's campaign to register African-American voters in the South raised the hackles of FBI director J. Edgar Hoover, who disingenuously claimed King's organization was being infiltrated by communists.

In fact, the FBI was really concerned that King's civil rights and anti-Vietnam War campaigns "represented a clear threat to the established order of the U.S." It went after King with a vengeance, wiretapping his telephones and securing very personal information, which it used to try to discredit him and drive him to divorce and suicide.

A congressional committee chaired by Frank Church documented the abuses of COINTELPRO. As a result, in 1976, Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering.

John Ashcroft, again using the excuse of September 11, has relaxed the 1976 guidelines on FBI surveillance, spying and infiltration of political groups and meetings. The probable cause requirement for initiating surveillance of individuals and organizations has been removed. FBI surveillance of all public meetings and demonstrations is now authorized.

An internal FBI newsletter encouraged agents to conduct more interviews with activists protesting the war "for plenty of reasons, the chief of which it will enhance the paranoia endemic in such circles and will further serve to get the point across that there is an FBI agent behind every mailbox."

The national drive by the FBI to collect intelligence related to protests through local law enforcement has resulted in the harassment of people in places such as Denver, Fresno, CA, New York, and Drake University in Iowa.

In an October 2003 memo, the FBI urged law enforcement to monitor the Internet, because "protestors often use the Internet to ... coordinate their activities prior to demonstrations," reported The New York Times.

The Justice Department's Office of Legal Counsel (OLC) - the same group that wrote the memos advising Bush how to get away with torturing prisoners - blessed the 2003 FBI memo. The OLC said that interrogating and gathering evidence on potential political protestors raised no First Amendment concerns. But, it went on to say, any "chilling" effect would be "quite minimal" and far outweighed by the overriding public interest in maintaining "order."

The Bad News and the Good News

As we approach the November election - and for the next four years if Bush secures another term - we can expect that opponents of the Bush administration's repressive policies will increasingly be targeted.

But over 300 cities and four states have called for the repeal of the PATRIOT Act, and organizations like the National Lawyers Guild have filed lawsuits challenging the unconstitutional actions of the government.

And in the largest demonstration ever at a political convention, hundreds of thousands of demonstrators registered their protest Sunday against the assault on democracy by the forces of George W. Bush.

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Supreme Court: War No Blank Check for Bush

In a direct repudiation of the Bush administration’s position that the President is answerable to no one, the Supreme Court held the Guantánamo prisoners and U.S. citizen Yaser Hamdi are entitled to contest their detention in federal courts. The Court, however, punted in Jose Padilla’s case, holding that he filed his case against the wrong person in the wrong court.

For more than two years, the government has held 600 foreign-born men and boys prisoner at Guantánamo Bay, Cuba. No charges have been filed and they have not been allowed access to any court to challenge their confinement. Bush has maintained that, under his war-making power, he could hold prisoners captured in the "war on terror" incommunicado indefinitely if he decided they were "enemy combatants."

Bush ruled in 2002 that he could suspend the protections of the Geneva Conventions. His order likely led to the torture that has recently come to light at Guantánamo, as well as in Afghanistan and Iraq. (See my editorial, "Bush’s 'Humane' Torture Policy Hits a Speed Bump.")

Prisoners released from Guantánamo report being tortured. They describe assaults, prolonged shackling in uncomfortable positions, sexual abuse and threats with dogs. There are reports of prisoners being pepper sprayed in the face until they vomited, fingers being poked into their eyes, and their heads being forced into the toilet pan and flushed. Dozens of videotapes of American guards brutally attacking prisoners are reportedly catalogued and stored at the Guantánamo prison. Thirty-two suicides took place in an 18-month period.

As evidence of torture leaked out of Abu Ghraib prison during the last few months, a Guantánamo-Iraq torture connection was revealed. General Geoffrey Miller, implicated in setting torture policies in Iraq, had been transferred from Guantánamo to Abu Ghraib last fall specifically to institute the same harsh interrogation procedures he had put in place at Guantánamo.

Bush’s torturers had plied their trade in secret, accountable to no court or public scrutiny. Guantánamo was, according to a Red Cross spokeswoman, "a legal black hole."

The Bush administration denied these men their day in court, saying that Guantánamo Bay is not a U.S. territory, and thus, U.S. courts are not available to them. This position was premised on the absurd notion that Cuba is actually sovereign over Guantánamo Bay, even though the United States exercises exclusive jurisdiction over it.

Amnesty International noted: "It is deeply ironic that the USA is violating fundamental rights on Cuban soil, and relying on the fact that it is on Cuban soil to keep the US courts from examining its conduct."

The government’s lawyer asserted during oral argument in a Ninth Circuit case that the Guantánamo prisoners would have no judicial recourse even if they were claiming the government subjected them to torture or summary execution. The court was deeply disturbed by this notion.

When the first 20 shackled prisoners arrived at Guantánamo on Jan. 11, 2002, Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, warned: "These are people who would gnaw through hydraulic lines at the back of a C-17 to bring it down." But last week, The New York Times reported that the value of the information possessed by the alleged terrorists was greatly exaggerated.

Nevertheless, these men have languished in tiny cells under inhuman conditions. With no judicial accountability, military interrogators could torture them with impunity. They could all be held until the "war on terror" ends - that is, for the rest of their lives, solely on Bush’s say-so.

Fortunately, the Supreme Court’s ruling in Rasul v. Bush has changed that. It held that the Guantánamo prisoners have the right to go to federal court to challenge their confinement. The United States exercises "complete jurisdiction and control" over the Guantánamo Bay base, wrote Justice Stevens. "Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority" under the habeas corpus statute.

The Court’s opinion, however, is a bittersweet ruling. Although it provides the Guantánamo prisoners access to the courts, it implies that courts could uphold the President’s "enemy combatant" designation in certain cases, resulting in lifetime confinement even without a criminal conviction. The Court tragically ignores the explicit prohibition on indefinite detention enshrined in international law.

In Hamdi v. Rumsfeld, the Supreme Court ruled that due process demands a U.S. citizen held in the United States as an enemy combatant is entitled to a meaningful opportunity to contest the factual basis for his detention before a neutral decision maker. That includes the right to counsel. Yaser Hamdi’s detention might be lawful, however, if a court determined that the government correctly classified him as an "enemy combatant."

Hamdi’s father, who filed the lawsuit on his son’s behalf, said the 20-year-old was traveling on his own for the first time, and because of his lack of experience, he was trapped in Afghanistan once the U.S. military campaign began. Hamdi, who went to Afghanistan to do relief work, was there less than two months before September 11, 2001. The government filed a document filled with vague generalities to support Bush’s designation of Hamdi as an enemy combatant.

Justice O’Connor wrote for the Court: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens." In a direct slap at Bush, O’Connor noted, "even the war power [of the President] does not remove constitutional limitations safeguarding essential liberties." O’ Connor echoed a theme she has raised in prior Court decisions, which is particularly relevant today: "It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."

But, instead of holding that a President cannot hold an American citizen indefinitely, the Court set forth a balancing test for determining whether the President’s designation of a U.S. citizen as an enemy combatant will be upheld. Henceforth, a court reviewing a claim will weigh the private interest of the detained citizen against the governmental interest in determining whether to sustain an enemy combatant classification.

O’Connor did, however, make clear that detentions of U.S. citizens must be limited to the Afghanistan context; they are not authorized for the broader "war on terrorism." She acknowledged, "history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not pose that sort of threat."

Justice Souter wrote a concurring opinion, noting that the USA Patriot Act authorizes the detention of alien terrorists for no more than seven days in the absence of criminal charges or deportation proceedings. Congress, therefore, would require the government to clearly justify its detention of an American citizen held on home soil incommunicado.

Curiously, the right-wing Justice Scalia, in his separate opinion joined by the most liberal Justice Stevens, would not permit the indefinite detention of an American citizen in Hamdi’s present situation. They would require the government to prefer criminal charges or release the individual, unless Congress were to suspend the writ of habeas corpus.

"The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal," according to Scalia.

Only Justice Thomas held out for blind deference to the President: "This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision."

That the Rasul and Hamdi decisions are a mixed blessing is illustrated by the reactions to them. Hamdi’s lawyer said he was "delighted" by the decision. The American Civil Liberties Union called the rulings "a huge defeat for the government." Likewise, the American-Arab Anti-Discrimination Committee said the decisions represent "a major victory in upholding due process rights … a great victory in protecting our core values as Americans." In striking contrast, the conservative Wall Street Journal called them "a modest but important victory for the Presidency." Its editorial celebrated the Court’s affirmation of "the authority of the Commander-in-Chief to detain enemy combatants, including U.S. citizens."

Finally, the Supreme Court, in a 5-4 nod to the Bush administration, elevated procedure over substantial rights, and declined to rule on Jose Padilla’s case. Ironically, whereas the Guantánamo prisoners can now file habeas corpus petitions in any federal court, U.S. citizen Jose Padilla’s petition was thrown out because it was filed in New York rather than South Carolina.

After he was arrested in Chicago, Padilla was taken to New York to answer a grand jury material witness warrant. While Padilla was in New York, Bush ordered Donald Rumsfeld to designate Padilla an "enemy combatant."

Rumsfeld transferred Padilla to military custody and sent him to a naval brig in South Carolina. Meanwhile, Padilla filed a habeas corpus petition in the New York Court, naming Rumsfeld as a defendant. Five of the nine justices ruled that Padilla had to re-file his petition in South Carolina and name the commander of the military brig as a defendant.

The four dissenters decried Padilla’s "secret transfer" to South Carolina, which prevented his lawyer from filing in South Carolina. Once he was transferred, Padilla was denied access to his attorney until February 11, 2004. The dissent’s author, Justice Stevens, wrote: "At stake in this case is nothing less than the essence of a free society." Accusing the majority of using a procedural technicality to deny Padilla fundamental rights, Stevens concluded his opinion with reference to torture:

"Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."
Tragically, Jose Padilla remains incarcerated in limbo indefinitely until the lengthy procedure to secure the rights guaranteed him by the Constitution works its way once again through the judicial system.

George W. Bush has used the crimes against humanity committed on September 11, 2001, to launch a "war on terrorism." Under the guise of his new "war," Bush rounded up more than 1000 men in the United States solely for being Arab or Muslim. At Guantánamo, Bush has kept 600 men and boys locked up, with the intention of keeping them there incommunicado until his "war on terror" is over. In Iraq, Bush invaded a sovereign country that posed no threat to the United States, killed thousands of its people and allowed nearly 1000 of our people to be killed. In spite of the absence of any evidence linking Saddam Hussein to the September 11 attacks, Bush claims his war on Iraq is a centerpiece of his "war on terror."

The Supreme Court has bought into Bush’s claim that we are fighting a "war on terror." It has declined to tell Bush he cannot hold "enemy combatants" indefinitely. But, most significantly, the Court has told Bush his power is not absolute. The 600 prisoners at Guantánamo and Yaser Hamdi finally have the right to go into court and claim their innocence.

This is indeed a victory for the rule of law.

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Spain, the EU and the US—War on Terror or War on Liberties?

Once again, the eyes of the world are focused on a brutal and devastating terrorist attack on innocent civilians, this time in Spain. But instead of demanding tougher anti-terrorism laws, the Spaniards on Sunday voted out the center-right government that supported the Iraq war. The Spanish people, who had overwhelmingly opposed the war, were evidently moved by Al Qaeda's statement that the attack was "a response to your collaboration with the criminals Bush and his allies."

As the Spanish national elections approached last week, the center-right government had tried to lay blame for the vicious rail attack on the Basque separatist movement ETA, hoping that the people would respond by voting for the existing government. But when the evidence pointed to Al Qaeda, the Spanish people unseated the old government, and replaced it with the Socialists.

On Sunday, the New York Times analyzed Spain's readiness to sign onto George W. Bush's war on terror: "Spain, like Britain, embraced the American approach, principally in order to place its fight against ETA in the context of a global war on terrorism." The soon-to-be Prime Minister Jose Luis Rodriguez Zapatero recognizes this well. "This [former] government," he told journalists, "doesn't serve Spaniards any more, it only serves the interests of Bush."

Spain was one of the few European countries that stood by Bush in his war on Iraq. After September 11, 2001, under the guise of the "war on terror," the Bush administration had launched a war on civil liberties. Although unable to convince most European countries to participate in its Iraq war, Washington successfully pressured the European Union to enact a framework law on terrorism reminiscent of the repressive anti-terrorist legislation in the United States.

At the end of February, I participated in a colloquium in Brussels on the struggle against terrorism and the protection of fundamental rights. Invited by the Belgian Progress Lawyers Network, I was tasked with explaining the post-September 11 anti-terrorism laws in the United States to a large gathering of European lawyers.

Three days before the colloquium, United States Education Secretary Roderick R. Paige called the largest teachers union in the U.S. a "terrorist organization." This characterization alarmed the lawyers at the colloquium, who fear that their own anti-terrorism laws will be used to suppress labor struggles.

As lawyers and law professors from country after country rose to speak about their anti-terrorism laws, I felt an ominous deja-vu. The geography was different but the themes were familiar: vague laws that criminalize dissent, authorize preventive detention, and blur the separation of powers.

Many of the new anti-terrorism laws in Europe, as in the United States, were in the works before September 11. The 342-page Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or USA Patriot Act, rushed through Congress a month after September 11, contains detailed provisions that had to have been a long time in the drafting. Similarly, my European colleagues explained that their governments, looking for ways to criminalize trade union activity throughout the 1990s, took advantage of the September 11 attacks to pass laws that will facilitate attacks on labor.

In June 2002, the European Union enacted a framework decision on combating terrorism. It establishes a joint definition of "terrorism" that member states are expected to insert in their national legislation. This definition is so broad, it proscribes many social, political and labor movements. It says that committing or threatening to (a) cause extensive damage to a government or public facility, transport system, infrastructure facility, or private property likely to result in major economic loss, which may damage a government or international organization, constitutes a terrorist offense, when committed with the intent either (a) to compel the organization to perform or abstain from any act, or (b) to seriously destabilize or destroy the fundamental political, constitutional, economic or social structure of a country or international organization. A general strike or a large demonstration against the World Trade Organization, where property is damaged and considerable expense is incurred to mobilize a police force, could be punished as terrorism under this definition.

The framework decision contains a clause that aims to protect civil liberties: "Nothing in this Framework Decision may be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly, of association or of expression, including the right of everyone to form and to join trade unions with others for the protection of his or her interests and the related right to demonstrate." But the European lawyers at the colloquium were of the mind that this disclaimer merely provides lip service to the protection of basic civil rights. They pointed out that the Nazi occupiers attached the word "terrorist" to the political prisoners interned at the Breendonk concentration camp near Brussels, and Nelson Mandela was called a terrorist before he was released from prison and elected president of the newly liberated South Africa.

Six European Union member states have enacted specific legislation to comply with the framework decision. All consider the destabilization of political or economic power an element of terrorist crime. Other member states are using their existing laws on criminal conspiracy to punish not just participation in terrorist acts, but also simply being a member of prohibited organizations.

In December 2003, the Belgian Parliament enacted an anti-terrorism law to comply with the framework decision. Under its terms, someone painting graffiti in an urban environment can be considered a terrorist, if the public prosecutor and judge decide that the destruction of property was undertaken with the purpose of "destabilizing or destroying the fundamental political, constitutional, economic or social structures of a country" and it caused "considerable economic damage."

The United Kingdom passed the Anti-Terrorism, Crime and Security Act 2001 in the wake of the September 11 attacks. A person can be indefinitely detained if the Home Secretary issues a certificate stating he has (a) a reasonable belief that a person's presence in the United Kingdom is a risk to national security, and (b) a reasonable suspicion that the person is a terrorist. "Terrorism" in the United Kingdom encompasses the use or threat, "for the purpose of advancing a political, religious or ideological cause," of action "designed to influence a government or to intimidate the public or a section of the public," which involves serious violence against any person or serious damage to property, endangers the life of any person, or "creates a serious risk to the health or safety of the public or a section of the public, or is designed seriously to interfere with or seriously disrupt an electronic system."

The law professors from the United Kingdom felt that this definition is so broad, it is unworkable, and blurs the line between protest and terrorist groups.

In Italy, the anti-terrorism law provides for five to ten years imprisonment for simply participating in organizations that "aim to commit violent actions with subversive purposes against the democratic order." An Italian lawyer complained that the provision does not define "subversive purpose" or delineate what level of participation is required to run afoul of this statute. He said the Italian law harkens back to the Fascist code on terrorism. Likewise, some pointed out that the Spanish definition of terrorism is the same as the one in effect during Franco's regime.

Two hundred European lawyers, magistrates and jurists signed a statement complaining that the European framework decision threatens democratic rights. Last year, members of the United Nations Human Rights Commission expressed concern at the "broad use of the word terrorism" and the "increasing attack on human rights" in the struggle against terrorism.

Lawyers at the colloquium observed that in Germany, Belgium and the United Kingdom, the executive branch had enacted anti-terrorist laws, which place all power in the executive, blurring the separation of powers.

Many also expressed concern at the absence of guarantees that the privacy of databases shared by European countries with the United States would be protected. A British lawyer observed that providing sophisticated security devices will be quite profitable; he called it the "security-industrial complex."

Some pointed out that whereas the European Union defines terrorism as a crime, the United States sees terrorism as an act of war. International state terrorism, or regime change (such as the United States' war on Iraq), however, is conveniently excluded from the definitions of terrorism.

Most people in Europe opposed the war on Iraq, and they do not see a war on civil liberties as an effective antidote to terrorism. David, a young Spaniard, told the New York Times why he changed his vote to Socialist: "Maybe the Socialists will get our troops out of Iraq, and Al Qaeda will forget about Spain, so we will be less frightened."

During the election campaign, Zapatero vowed to change the government's policy toward ETA, saying, "We have to sell the idea that Spain can be more democratic and that it can understand the needs of the Basque country." He understands that long as poverty, repression and imperialism are the norm, terrorism will be the frightening response.

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Dropping the Ball on Torture: The US Supreme Court Ruling in Chavez vs. Martinez

The use of torture to obtain information from suspects has become an important topic in fighting the war on terror. In December, for example, the Washington Post reported that CIA officials at Bagram air base in Afghanistan used interrogation techniques that could constitute torture.

In Chavez v. Martinez, decided May 27, the United States Supreme Court was presented with a golden opportunity to address the issue of torture in the context of a 42 U.S.C. §1983 claim against police. Acting like a deer staring into the headlights of an oncoming truck, the high court failed to take decisive action. The facts of this case were egregious.

Oliverio Martinez was riding his bicycle to his girlfriend’s house when two Oxnard police officers ordered him to dismount, spread his legs, and place his hands behind his head. A frisk of Martinez yielded a knife and an altercation ensued. Martinez was shot five times, leaving him paralyzed and blind.

On the way to the hospital and in the emergency room, Officer Ben Chavez repeatedly interrogated Martinez. In response to Chavez’ questions about what had occurred during the altercation with the officers, Martinez said several times, “I am dying” and “I am choking.” At one point, Martinez told Chavez, “I want them to treat me,” and he later asked Chavez, “Aren’t you going to treat me or what?”

The District Court found that Martinez “had been shot in the face, both eyes were injured; he was screaming in pain, and coming in and out of consciousness while being repeatedly questioned about the details of the encounter with the police.” Martinez admitted taking the officer’s gun and pointing it at the police; he also admitted that he regularly used heroin. At no time did Chavez Mirandize Martinez, who was never charged with a crime.

Both of Martinez’s constitutional arguments, violation of his Fifth Amendment privilege against self-incrimination and violation of his Fourteenth Amendment due process rights, were sustained by the Ninth Circuit Court of Appeals.

The U.S. Supreme Court was so fractured it produced six separate opinions. Six justices agreed that Martinez could not recover against Chavez for violation of Martinez’s privilege against self-incrimination, since he had not been criminally prosecuted. Five justices, writing for a Court unable to agree on whether Martinez’s due process rights had been violated by Chavez, punted that issue back to the lower court.

It is well-settled that police methods so brutal and offensive to human dignity that they shock the conscience violate the due process clause. Justice Clarence Thomas, writing also for Chief Justice William Rehnquist and Justice Antonin Scalia, was satisfied that Chavez’s interrogation of Martinez did not constitute a due process violation. Thomas admitted that “police torture or other abuse that results in a confession is [not] constitutionally permissible [even if] the statements are not used at trial.” Thomas’s denial of Martinez’s due process claim, however, is an implicit rejection of the notion that police used torture to elicit statements from Martinez.

Three justices – John Paul Stevens, Anthony Kennedy, and Ruth Bader Ginsburg – discussed this case with reference to torture. Stevens felt so strongly that Chavez’s conduct rose to the level of torture, he began his separate opinion with the following words: “As a matter of fact, the interrogation of respondent was the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods.”

Kennedy wrote separately: “A constitutional right is traduced the moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place. These are the premises of this separate opinion.” In Kennedy’s words, Martinez’s “blinding facial wounds made it impossible for him visually to distinguish the interrogating officer from the attending medical personnel. The officer made no effort to dispel the perception that medical treatment was being withheld until Martinez answered the questions put to him … Martinez begged the officer to desist and provide treatment for his wounds, but the questioning persisted despite these pleas and despite Martinez’s unequivocal refusal to answer questions.”

Justices Stevens and Ginsburg agreed with Kennedy, who wrote that “severe compulsion or even torture” violates the right against compelled self-incrimination, and that the “use of torture or its equivalent in an attempt to induce a statement violates an individual’s fundamental right to liberty of the person,” a violation of due process.

In her separate opinion, Ginsburg cited with approval Stevens’s characterization of “Martinez’s interrogation as ‘the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods’.” She also quoted E. Griswold in The Fifth Amendment Today, who analogized “the struggle to eliminate torture as a governmental practice” with the privilege against self-incrimination, “one of the great landmarks in man’s struggle to make himself civilized.”

None of the justices mentioned the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention is an international treaty ratified by the United States and therefore part of our supreme law under the Supremacy Clause of the Constitution. The Convention’s definition of torture includes any act of a public official, by which severe mental suffering is intentionally inflicted on a person to obtain information or a confession, or to coerce him. Chavez’s conduct fits the Convention’s definition of torture.

The justices should not have hesitated to underscore our duties under the Torture Convention. Indeed, Justices Stevens, O’Connor, and Souter have advanced international law to support their opinions in other cases.

The Supreme Court’s failure to definitively resolve this case is disturbing. The Court must face the difficult issues arising from the “war on terror” without trepidation. The same day the Court announced its decision in Chavez v. Martinez, it refused to review whether the hundreds of secret deportation hearings since September 11, 2001, violated the First Amendment, and indeed, the International Covenant on Civil and Political Rights, another treaty ratified by the United States.

Litigators must educate judges about the international jurisprudence that has been incorporated into our domestic law. Jurists must incorporate treaty principles into their decisions. And hopefully, Oliverio Martinez, who was subjected to incomprehensible anguish in that ambulance and emergency room, will receive some relief for his suffering.

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A Double Standard on Torture: The U.S. Should Practice What We Preach

The Bush administration has a double standard on torture and human rights violations as it prosecutes the "war on terror." While trying to convince the American people in his State of the Union address that war with Iraq is necessary, President George W. Bush marshaled accusations that Saddam Hussein has tortured his people to coerce confessions. Yet in the same speech, Bush sanctioned extrajudicial killings by the United States. He said that more than 3,000 suspected terrorists had been arrested but many others had met a "different fate," so they would no longer cause us problems. Even more recently, Human Rights Watch and other human rights monitoring groups have expressed concern that the United States has actually been using torture to extract information from prisoners.

The evidence of American torture and associated inhumane conduct is especially disturbing. In December of last year, the documentary "Massacre in Afghanistan" was aired on German television, to the consternation of the U.S. State Department. It shows interviews with eyewitnesses to the torture and slaughter of 3,000 Taliban POWs, who surrendered to U.S. and allied Afghan forces. The film demonstrates the complicity of the American army command in the killing of these 3,000 men. Some of the prisoners died from suffocation while being transported in closed containers that lacked any ventilation. An Afghan soldier who traveled with the convoy reported he was ordered by an American commander to fire shots into the containers to provide air, knowing he would hit the men inside. One of the drivers recounted the fate of survivors of the transport - dumped in the desert, shot and left to be eaten by dogs, as 30 to 40 American soldiers looked on. These allegations suggest evidence of war crimes and crimes against humanity under the statute of the new International Criminal Court. It is precisely liability for actions such as these that Bush sought to escape when he endeavored to remove the United States' signature on this treaty last year.

A week after the documentary was shown in Germany, the Washington Post reported that "stress and duress" tactics were being used on captured al Qaeda operatives and Taliban commanders who are being interrogated at the CIA's secret detention center at the U.S.-occupied Bagram air base in Afghanistan. Those who remain uncooperative may be kept standing or kneeling for hours, wearing black hoods and spray-painted goggles. Some are kept in awkward, painful positions and deprived of sleep with a bombardment of lights for 24 hours. According to the Post: "While the U.S. government publicly denounces the use of torture, each of the current national security officials interviewed for this article defended the use of violence against captives as just and necessary." At least two prisoners are known to have died at Bagram base, one of a pulmonary embolism, the other of a heart attack. The article quotes "Americans with direct knowledge and others who have witnessed the treatment," who reported that MPs and U.S. Army Special Forces troops beat captives and confined them in tiny rooms. Many are blindfolded, thrown into walls, bound in painful positions, subjected to loud noises and deprived of sleep. They also report prisoners being bound to stretchers with duct tape for transport. This was the treatment that U.S. citizen John Walker Lindh received, which proved the driving force behind the government's agreement to a plea bargain. Attorney General John Ashcroft sought to avoid testimony about Lindh's mistreatment while in captivity.

The Post also reported in March that the U.S. government was secretly sending terrorism suspects to countries such as Egypt and Jordan for interrogation, where they would be subjected to torture. This practice is known as "rendition." One U.S. diplomat is quoted as saying: "These sorts of movements have been occurring all the time. It allows us to get information from terrorists in a way we can't do on U.S. soil."

These actions of the U.S. government constitute direct violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the International Covenant on Civil and Political Rights, which also proscribes torture. Both of these treaties, which the U.S. has ratified, forbid torture even in wartime. Alarmed at the Post report about torture undertaken or condoned by the U.S., Human Rights Watch Executive Director Kenneth Roth wrote to Bush, saying that immediate steps must be taken "to clarify that the use of torture is not US policy." Roth reminded Bush that, "U.S. officials who take part in torture, authorize it, or even close their eyes to it, can be prosecuted by courts anywhere in the world." The prohibition against torture is so basic, it is considered jus cogens, and is thus binding on all countries, even if they haven't ratified the Torture Convention. The U.S. government's practice of torture is unjustifiable and a clear violation of international law.

The Bush administration has been emboldened to engage in serious human rights violations since the horrific attacks of September 11. Cofer Black, head of the CIA Counterterrorist Center in September, 2002, testified at a joint hearing of the House and Senate intelligence committee: "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves came off." Indeed, in his speech, Bush said: "All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let's put it this way - they are no longer a problem to the United States and our friends and allies." Bush was likely referring to the November 2002 assassination of an alleged al Qaeda leader in Yemen by the CIA. Besides violating the Torture Convention and the jus cogens norm prohibiting torture, extrajudical killings, or summary executions, violate the Covenant on Civil and Political Rights.

Many of the detainees at Guantanamo Bay, Cuba and the U.S. mainland have also been victims of torture and other cruel, inhuman or degrading treatment by the U.S. government. In Guanatanamo, prisoners have been locked in 8-foot by 8-foot cells 24 hours a day, with one 15-minute exercise break each week. A class action filed by the Center for Constitutional Rights in April 2002, alleged that prisoners in the U.S. were beaten into unconsciousness, bloodied, pushed, kicked in the face, teeth loosened, head slammed against the wall, thumbs bent back and called terrorists. Likewise, many foreign nationals who came forward to register recently with the Immigration and Naturalization Service pursuant to Ashcroft's order, reported being forced to sleep standing up, or were hosed down before they went to sleep on cold concrete floors in frigid temperatures, according to the Los Angeles Times. These constitute violations of the Torture Convention. Amnesty International has reiterated the U.S. government's international obligations to refrain from violating the Torture Convention and the Covenant on Civil and Political Rights in Afghanistan, in Guantanamo and in the United States.

Victims of torture may have a cause of action in U.S. courts under the Alien Tort Claims Act and the Torture Victim Protection Act. There have been 27 cases brought in U.S. federal courts, in five circuits and nine districts, in which the Convention Against Torture was used successfully. Last year, a judge in Georgia awarded compensatory and punitive damages to plaintiffs, based in part on the Covenant on Civil and Political Rights, in a lawsuit brought by four Muslim refugees from Bosnia-Herzegovina against a former Bosnian Serb police officer under the Alien Tort Claims Act and Torture Victim Protection Act.

Thus far, primarily immigration lawyers and attorneys with foreign-born clients have used the Torture Convention in their litigation. There is, however, great potential to assert the treaty to support U.S. client claims as well, particularly under the Torture Victim Protection Act.

The United Nations has taken steps to make countries that engage in torture accountable to the international community. In December 2002, the U.N. General Assembly adopted a new anti-torture treaty after 10 years of negotiation. The Optional Protocol to the UN Convention against Torture will allow independent international and national experts to conduct regular visits to places of detentions within the States Parties, to assess the treatment of detainees and make recommendations for improvement. The treaty was adopted by a vote of 127 in favor, 4 against and 42 abstentions. The United States was joined by Nigeria, the Marshall Islands and Palau in opposing this treaty.

While decrying human rights violations in other countries as it furthers Washington's agenda, the Bush administration refuses to be accountable for its own transgressions. As U.S. Senior District Judge Jack Weinstein (E.D.N.Y.) wrote last year: "The United States cannot expect to reap the benefits of internationally recognized human rights - in the form of greater worldwide stability and respect for people - without being willing to adhere to them itself." During his speech, Bush celebrated "the cause of human dignity." His words, however, ring hollow.

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War on Civil Liberties Hits a Speed Bump

"Watch out for well-meaning men of zeal!” These words penned 74 years ago by U.S. Supreme Court Justice Louis Brandeis are no less relevant today. Brandeis was dissenting from a ruling that exempted wiretapping from the protections of the Fourth Amendment. The Supreme Court later reversed its decision, holding that the government must follow the Fourth Amendment when it electronically seizes our conversations. But under the guise of the “war on terror,” the zealous men in Washington have launched a major new assault on our constitutional rights.

One of the most recent manifestations of this dangerous zeal is the new TIPS program. Under the Terrorism Information and Prevention System, Attorney General John Ashcroft seeks to recruit millions of Americans to spy on each other. TIPS is designed to ask volunteers, including letter carriers, utility employees, truck drivers and train conductors, to report “suspicious activity” to the government. TIPS was originally slated to be initiated this month in the nation’s ten largest cities, and the Department of Justice hopes to recruit 1 million informants for a total population of almost 24 million.

Informant reports will then enter databases from which the government can create dossiers on its citizens. TIPS is reminiscent of the East German stasi, or secret police, who maintained files on millions of people. When asked how the data will be stored and used, Ashcroft has been less than forthcoming.

Operation TIPS will not only help the government spy on us more effectively. It will encourage neighbors to snitch on neighbors, and won’t distinguish between real and fabricated tips. Anyone with a grudge or vendetta against another can provide false information to the government, which will then enter the national database.

Shortly after TIPS was unveiled, there came a public hue and cry. The United States Postal Service stated categorically it would refuse to allow its mailpersons to participate. Even the Washington Post, in a recent editorial, was alarmed by the prospect of TIPS: “Americans should not be subjecting themselves to law enforcement scrutiny merely by having cable lines installed, mail delivered or meters read.” The government seeks to use private citizens to circumvent the dictates of the Fourth Amendment. As the Post editorial says, “Police cannot routinely enter people’s houses without either permission or a warrant. They should not be using utility workers to conduct surveillance they could not lawfully conduct themselves.”

The House Select Committee on Homeland Security, headed by Rep. Dick Armey (R-Tex.), shelved the repressive program. In response to the public and congressional backlash, the Bush administration announced on August 9 that it would no longer solicit tips from persons with access to our homes. Laura W. Murphy, head of the American Civil Liberties Union in Washington, hailed the administration’s “backpedaling” on TIPS, saying, “It’s quite a relief . . . knowing that even the Ashcroft adminstration is not immune to public criticism.” But the government still intends to enlist a multitude of workers to participate in TIPS this fall, leading Murphy to question whether the government has truly backed down or simply seeks to neutralize the criticism. The administration may be attempting to derail legislation which proposes to gut the program. And the Senate is scheduled to take up the TIPS program in the fall.

TIPS is just the latest manifestation of a steady dragnet by Attorney General John Ashcroft and the FBI to intimidate Americans and emasculate their civil liberties. Since the horrific attacks on September 11, Ashcroft has:

• rammed the USA PATRIOT Act, which significantly lowers the standards for surveillance of telephone and computer communications, through a timid Congress;


• inaugurated a new program of COINTELPRO-style surveillance activities, which were banned by Congress in the 1970s after civil rights leaders like Martin Luther King Jr. were targeted;


• urged federal agencies to resist Freedom of Information Act requests, a vehicle for citizens to hold the government accountable by allowing them to request, receive and publicize public records;


• ordered his agents to eavesdrop on conversations between attorneys and their clients, defying the oldest and one of the most important privileges in our society;


• indefinitely detained hundreds of men of Arab, Muslim and South Asian descent in the United States and Guantanamo, Cuba, with no charges or suspicion of terrorist ties;


• determined to set up internment camps to hold U.S. citizens in indefinite detention, and deny them their constitutional rights including the right to counsel and access to the courts;


• and, in what New York Times columnist William Safire characterized as “the new Ashcroft-Mueller diktat,” the FBI has been granted sweeping new surveillance powers, to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity.

It is essential that people feel safe and secure in these perilous times. But we cannot have confidence that turning ordinary Americans into snitches or relaxing limitations on the FBI’s spying activities will make us any safer. We must be vigilant to safeguard the liberties and freedoms under gird a democracy. That means speaking out, and writing op-eds, letters to the editor, our congresspersons, the White House and the Department of Justice, to express our concerns. The government’s backpedaling - even if temporary - from TIPS in the face of public criticism, demonstrates that we can affect official policy. If we uncritically succumb to the government’s frightening surveillance campaign, we will find ourselves in the midst of a police state.

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Civil Liberties: J. Edgar Ashcroft?

On May 30, 2002, the same day America mourned the victims of the September 11 attack and the conclusion of the Ground Zero cleanup, Attorney General John Ashcroft and FBI Director Robert Mueller III unveiled sweeping new surveillance powers for the FBI. In order to cover up its own incompetence in failing to properly analyze the data it already had before September 11, the FBI has now been given wide latitude to more effectively spy on law-abiding citizens.

Under what New York Times columnist William Safire characterized as "the new Ashcroft-Mueller diktat," the FBI will now be able to conduct investigations for up to a year without the necessity of showing any suspicion of criminal activity. The G-men and G-women can create dossiers on anyone they like, tracking the Internet sites we visit, trips we take, our political and charitable contributions, magazine subscriptions, book purchases, and meetings we attend. Anyone perceived as critical of the government is fair game for an FBI "fishing expedition." It will discredit and discourage those who seek to exercise their First Amendment right to dissent.

The relaxation of the FBI's surveillance guidelines will likely return us to the days of J. Edgar Hoover's dreaded COINTELPRO (counter-intelligence program). During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

COINTELPRO was designed, by its own terms, to "disrupt, misdirect, discredit and otherwise neutralize" political and activist groups. In the 1960s, the FBI targeted Dr. Martin Luther King, Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights campaign "represented a clear threat to the established order of the U.S." The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of the FBI, in 1972, a congressional committee chaired by Senator Frank Church conducted an investigation of activities of the domestic intelligence agencies in the '50s, '60s and early 70s. After documenting the abuses of COINTELPRO, Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Those guidelines required the FBI to have a valid factual basis for opening an investigation, i.e., "information or an allegation whose responsible handling required some further scrutiny." They also mandated the investigations be "performed with care to protect individual rights and to insure that investigations are confined to matters of legitimate law enforcement interest." Before opening an investigation, the guidelines required that "the danger to privacy and free expression posed by an investigation" be considered.

But even with those protective guidelines, the FBI continued to spy on law-abiding people in the United States. In the 1980s, it conducted intensive surveillance of CISPES, the Committee in Solidarity With the People of El Salvador, which was formed to counter the United States government's support for the brutal Salvadoran dictatorship.

The National Lawyers Guild, formed in 1937 as an alternative to the American Bar Association which had excluded non-whites, filed a lawsuit against the FBI for unlawful surveillance of the Guild over many decades. Many thousands of pages of documents gained through discovery revealed that the FBI put agents in Guild meetings, wiretapped lawyers' offices and homes, and built dossiers on those perceived as critical of governmental policies. In 1989, the FBI settled the lawsuit, admitting it had tried to disrupt the Guild even though it had no proof the Guild was a subversive or communist organization.

An additional result of the Church Committee's investigation was the enactment of the Freedom of Information Act in 1974, in the wake of the Watergate scandal. The FOIA, one of our most significant democratic reforms, enables ordinary citizens to hold the government accountable for its activities, by obtaining public documents and records. Through FOIA requests, journalists, newspapers, historians and public watchdog groups have exposed governmental malfeasance.

Many recent revelations of official misconduct have resulted from FOIA requests. The Charlotte Observer showed that the electric utility, Duke Power Co., engaged in a creative accounting scheme to relieve it from charging lower rates to its 2 million customers in North Carolina and South Carolina. The Environmental Working Group, a Washington-based non-profit organization, published lists of recipients of billions of dollars in farm subsidies, which revealed that federal monies earmarked for small family farmers had instead lined the pockets of the huge agricultural corporations. And USA Today publicized widespread misconduct by higher-ups in the National Guard, including inflation of troop strength, misuse of taxpayer funds, sexual harassment and the theft of life-insurance payments that should have gone to widows and children of guardsmen.

In fact, as the result of three lawsuits brought under the FOIA, and a 17-year legal battle, the San Francisco Chronicle has just obtained thousands of pages of previously secret FBI records detailing surveillance of the University of California. According to those documents, the FBI unlawfully colluded with the head of the CIA to harass faculty, students and members of the Board of Regents. Several federal judges found the FBI had engaged in the unlawful investigation of student protestors, interfered with academic freedom and intruded into internal university affairs. J. Edgar Hoover ordered his agents to turn up derogatory information on UC's faculty members and top administrators. A 60-page report resulted, which said that 72 students, faculty members and employees were listed in the FBI's "Security Index," a secret list of people considered by the FBI as potential threats to national security; they would be detained with no warrants during a crisis.

The Freedom of Information Act should provide a vehicle to determine whether the FBI abuses its new powers by violating civil liberties. But in the post- traumatic stress following September 11, Ashcroft directed his deputies not to honor FOIA requests, effectively preempting the ability of the public to hold the FBI accountable for its actions.

Ashcroft and Mueller justify the new guidelines as a way to prevent additional terrorist attacks like those of September 11. The guidelines themselves, however, belie that claim. All of the changes relate to the FBI's domestic guidelines, not the international terrorism guidelines under which Osama bin Laden and Al Qaeda are investigated. The FBI is subject to two sets of guidelines. The distinction between them has nothing to do with where the investigation is conducted; both relate to investigations in the United States. The difference is in the nature of the organization being investigated. The foreign guidelines govern investigations inside the United States of foreign powers and international terrorism organizations such as Al Qaeda, which carry out activities in the U.S. The domestic guidelines govern investigations of organized crime and "terrorist" groups that operate and originate in the U.S.

Section 802 of the USA PATRIOT Act, which was rammed through Congress shortly after September 11, creates a new crime of "domestic terrorism." This section could target civil disobedience by animal rights activists who raid mink farms and set the animals free. Congressman Scott McInnis (R-Co), who convened congressional hearings on domestic "terrorist" organizations, labeled Earth Liberation Front, which was responsible for major property damage in Colorado, as a major domestic terrorist organization. Rep. George Nethercutt (R-Wash) suggested treating Earth Liberation Front like the Taliban: "I propose that we use the model that has worked so well in Afghanistan … Give them no rest and no quarter." These politicians draw no distinction between human rights and property interests.

The same day the new FBI guidelines were revealed, Mueller outlined the "FBI Priorities" as follows: protect the U.S. from terrorist attack; protect the U.S. against foreign intelligence operations and espionage; protect the U.S. against cyber-based attacks and high-technology crimes; combat public corruption at all levels; protect civil rights; combat transnational and national criminal enterprises; combat major white-collar crime; combat significant violent crime; support federal, state, local and international partners; and upgrade technology to successfully perform the FBI's mission. But although none of these priorities identify domestic activities as threats to America, the expanded powers of the FBI target domestic, not international, "terrorism."

We cannot have confidence that relaxing limitations on the FBI's spying activities will make us any safer, or make the FBI more competent. Giving the FBI more power would not have prevented its specious prosecution of nuclear scientist Wen Ho Lee, its failure to catch spy Robert Philip Hansen, or its failure to "connect the dots" leading to September 11. It will only succeed in making it easier for the FBI to monitor the activities of law-abiding people. The new FBI will pose a threat, not to the terrorists, but to the civil liberties of law-abiding people.

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Televise Moussaoui's Trial

U.S. District Court Judge Leonie M. Brinkema has denied Court TV's request to broadcast the trial of accused terrorist Zacarias Moussaoui, citing security and procedural concerns. She determined that the public benefit from televising this noteworthy trial is "heavily outweighed" by the "significant dangers... [it] would pose to the orderly and secure administration of justice." Although cameras have been excluded from federal criminal courts for 56 years, this trial should be televised.

In 1963, the Warren Court held that televising a trial denies the defendant due process. Twenty-one years later, the Burger Court ruled that a state judge may allow cameras into the courtroom unless the defendant demonstrates that televising the trial would deny due process by interfering with the ability of the jury to be fair. That case assigned the defendant a burden, which was almost impossible to meet, consistent with the Burger Court's steady evisceration of the rights of criminal defendants.

Today, all 50 states allow some type of camera coverage; 38 permit cameras in criminal courts. Federal courts, however, have forbidden courtroom cameras since Rule of Criminal Procedure 53 was enacted in 1946. Although there have been limited experiments with televising civil proceedings, federal judges, like Brinkema, have held fast to the ban in criminal cases.

Jury pools and evening news

Moussaoui's lawyers favor broadcasting the trial but not the pretrial proceedings. They rightly fear that the jury pool might be tainted by exposure to evidence that may be ruled inadmissible later at trial. They're also concerned that snippets from the trial could be played and replayed on the evening news, which would distort the proceedings in the eyes of the viewing public. But the defense wants Moussaoui's trial broadcast in order to show the world-and indeed to ensure-that his trial is being conducted fairly.

The brutality of the Sept. 11 attacks has shaken our country and the world. Although a strong response is warranted, the government has overreacted with an alarming erosion of civil liberties.

With almost no dissent, Congress enacted Attorney General John Ashcroft's USA Patriot Act, which makes it easier for the government to read our e-mail and see the Web sites we've visited. Ashcroft has announced the return of government surveillance of political and religious organizations. And President Bush has established a mechanism for military tribunals that doesn't comply with basic standards of due process.

In our haste to bring the culprits to justice, we must ensure that we do not sacrifice our basic constitutional rights. Anyone who comes before our courts is entitled to the presumption of innocence and the right to a fair trial, which is enshrined in the Constitution.

The Sunshine in the Courtroom Act was approved by the Senate Judiciary Committee late last year and is pending in the Senate. The bill would give judges in federal trials and appeals discretion to permit cameras in their courtrooms, but it would require them to accord witnesses the option of having their faces and voices obscured.

Security could be protected by broadcasting the trial without showing the faces of the jurors, so as to shield them from possible retaliation. Witnesses' faces could be obscured by covering them with blue dots.

Because of the overwhelming public interest in Moussaoui's trial, millions of people would watch it on television. The defense motion to broadcast only the trial should have been granted, in order to protect the impartiality of the jury panel.

The Supreme Court has upheld the public's right of access to the judicial system, but has stopped short of saying the right to a public trial means the right to a televised one. It has also refused to prioritize between the defendant's Sixth Amendment right to a fair trial and the public's First Amendment right to access to the criminal system. Whether these rights can be protected involves a case-by-case determination. In Zacarias Moussaoui's case, both rights could be safeguarded by televising it.

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