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Constitution in Crisis

August 2010, Vol. 9, No. 8

In this issue:

Senate questions FBI abuses as bureau seeks to further expand powers

In a hearing before the Senate Judiciary Committee last month, FBI Director Robert Mueller revealed that the FBI currently conducts surveillance operations supported neither by evidence nor even suspicion of wrongdoing. BORDC informed the hearing through a letter on behalf of a diverse coalition of nearly 50 organizations requesting further congressional oversight.

The FBI has a long and sordid history of overstepping its bounds and violating the limits of its legal authorities. For instance, during the COINTELPRO (Counter Intelligence Program) era of the 1950s through 1970s, the FBI covertly and illegally infiltrated various law-abiding activist groups—including the leadership of the civil rights, anti-war, and women’s rights movements. Before that, the Palmer Raids of 1919 and 1920 presumed guilt by association and similarly offended fundamental civil liberties.

Unfortunately, the FBI has engaged in yet another round of abuses. On July 28, FBI Director Robert Mueller testified before the Senate Judiciary Committee. Under questioning from Senator Patrick Leahy (D-VT), Mueller admitted that, according to the Associated Press, “he doesn't know how many of his agents cheated on an important test about the limitations of the bureau's powers to conduct surveillance and open cases without evidence that a crime has been committed.”

And in an even more disturbing revelation, Mueller himself erred when discussing the FBI’s limits during the hearing, claiming that suspicion of wrongdoing is required before the FBI can begin surveillance—before later correcting himself in a note to the committee, confirming that, in fact, “[t]he FBI must have a proper purpose before conducting surveillance, but suspicion of wrongdoing is not required” [Emphasis added].

The day before the hearing, the Bill of Rights Defense Committee led a coalition of nearly 50 organizations in submitting a letter to the Senate Judiciary Committee calling for additional FBI oversight. The letter reads, in part,

We write to request further congressional oversight of the Federal Bureau of Investigation’s... operations pursuant to the 2008 Attorney General’s Guidelines, which were implemented over congressional objections and threaten the constitutional rights of all Americans....

[A]udits by the Inspector General (“IG”) of the Justice Department—in 2007, 2008 and again in 2010—revealed rampant FBI abuses of National Security Letters expanded by the PATRIOT Act. The IG also uncovered separate violations of the FBI Guidelines in 2005. Yet in 2008, then-Attorney General Michael Mukasey issued a new set of Guidelines, prompting concerns from Senator Richard Durbin (D-IL) even before their implementation....

In considering the potential necessity of legislation to protect civil rights and civil liberties, Congress should not grant the FBI guidelines artificial legitimacy, nor should the Bureau be afforded credibility that it has not only failed to earn, but actively undermined. Just this year, the Chairman of the House Judiciary Committee called for the FBI’s General Counsel to be replaced given the wanton abuse of not just National Security Letters (NSLs) uncovered by Inspector General reports in 2006 and 2008, but also the further abuse of an entirely new investigative authority (known as “exigent letters,” promising NSLs that often never arrived) invented by the FBI. As a repeat offender, the Bureau is long overdue for intervention by Congress.

While the Senate hearing did include discussion of oversight and individual rights and liberties, what changes will be made to the FBI’s powers, if any, remain to be seen. Unfortunately, the proposal most discussed in Washington entails not the accountability sought by BORDC and our allies, but rather a further expansion of the Bureau’s national security letter powers—beyond those expanded by the PATRIOT Act. Despite its repeated abuses, the FBI now seeks the authority to access electronic transaction data, such as web browsing history and email meta-data, without a judicial warrant.


Hartford city council considers groundbreaking civil rights reforms

On August 9, Hartford City Councilor Luis Cotto introduced legislation to restore civil rights and liberties in Connecticut's capital. With the support of a diverse local coalition, Cotto's bill—based on proposed reforms developed by BORDC to stop local police participation in racial profiling, federal immigration enforcement, and surveillance—is the first of its kind in the country.

"There’s no doubt there is racial profiling within police departments everywhere in the state, including Hartford," said Cotto in an interview with the Hartford Advocate. "We're not out to get anybody. We just want to end up with a really good police force." 

Proponents of Cotto’s legislation point out that when local police officers are free from the burdens of federal duties such as immigration enforcement, they are better able to focus on their core public safety mission. As a result, policing becomes smarter and more effective. As one Hartford organizer put it, "This is about restoring trust between the police force and the community. If [the police] have nothing to hide, this ordinance shouldn't threaten them."

This bill's introduction represents a major milestone for our Constitution, for both Connecticut and the rest of our country. As some politicians seek political opportunity in denigrating the rights of others, Councilor Cotto is standing up to demand the restoration of civil rights for all.

Here are some things you can do to help support constitutional rights in your community:

  • If you live in or near Hartford: Please attend a public hearing on Monday, August 16, at 7 p.m. Let's pack City Hall with supporters of civil liberties in Connecticut. If you can attend the hearing, bring as many friends as you can! You need not be a Hartford resident to speak in favor of the bill. Email Emma Roderick for details.
  • If you live elsewhere: Follow Hartford's lead. Sign up today to lead a campaign to restore civil rights and liberties in your community. You can also email Emma or give the office a call at (413) 582-0110. We're standing by to support you every step of the way. 

This legislation presents a historic opportunity for local activists to shift the federal landscape. If you want to help restore respect for constitutional rights, we’d like to support your efforts where you live.

BORDC events highlight government assaults on civil liberties and communities of color

Shahid Buttar participates in panel discussion at National Peace Conference. Photo by Jon Flanders.Over the past month, BORDC participated in the National Peace Conference in Albany, NY, and co-sponsored a forum on immigrant rights in Northampton, MA.

During the weekend of July 23, activists from around the country gathered in Albany, NY, for the National Peace Conference. BORDC Executive Director Shahid Buttar attended the conference along with intern Christine Monska. Buttar also participated in a panel discussion on "War, Militarization, and the Assaults on Civil Liberties and Communities of Color," as well as the Saturday evening plenary. 

Then, on July 29, BORDC co-sponsored a forum in Northampton, MA, to discuss “Should We Boycott Arizona? Next Steps for Our Community.” Buttar spoke on the panel, along with attorney Bill Newman from the American Civil Liberties Union and two local organizers. Other sponsors of the event included the American Friends Service Committee and the Western Massachusetts Immigrant and Worker Rights Coalition. 

At the forum, Buttar argued that while movements to boycott Arizona can offer a rhetorically compelling organizing vehicle, they overlook opportunities to actually stop profiling in the cities and towns considering those boycotts.

Steve Abrams joins BORDC board of directors

Stephen (Steve) Abrams, a CPA practicing in New York, is the newest addition to BORDC’s board of directors. He has served as an accountant for nonprofit organizations and foundations, but his primary passion for many years has been service on boards and management committees of national and international human rights organizations. We welcome Steve and look forward to his infusion of energy and expertise.

BORDC seeks school-year interns

With the school year starting up soon, BORDC is looking for interns interested in writing, research, and outreach opportunities. Internships are available in both Northampton, MA, and Washington, DC. Full details of school-year internships, including responsibilities, hours, and information on how to apply, are available on our website.

Grassroots News

Patriot Award: Zeenaz Ali

Zeenaz AliEach month, BORDC recognizes an individual who has done outstanding work in support of civil liberties and the rule of law by honoring her with our Patriot Award. This month, we highlight the excellent work of recent law school graduate Zeenaz Ali.

Zeenaz, who is from New Jersey, has volunteered her time to help BORDC on several projects, including a FOIA request exploring FBI infiltrations and legal research supporting our organizing efforts across the State of New York.

The FOIA request seeks information about the FBI’s use of “undisclosed participation” as a surveillance technique and the groups around the country affected by it. Undercover infiltration by the FBI has prompted concerns among many civil rights groups and religious organizations because of its chilling effect on the exercise of First Amendment rights. When asked about the importance of this FOIA request and others similar to it, Zeenaz said, “I would hope that...such requests would encourage the government to consider...more oversight and accountability from the FBI.”

In the coming months, Zeenaz will also be pursuing legal research about the extent to which municipalities in New York hold the power to create private rights of action under state law. Her work will impact local campaigns across that state aiming to secure reforms stopping and preventing local police participation in federal immigration enforcement, intelligence collection, and profiling according to race, religion, or point of view. With the immigration debate sweeping the nation, Zeenaz’s work on this project is vitally important.

 “Volunteering with...BORDC has given me the opportunity to do what I went to law school for...helping people,” Zeenaz says. “I hope, even if it's in the smallest way, that the work I'm doing will be a means to achieving that goal.”

All of us at BORDC thank Zeenaz for her dedication and hard work! 

Chicago activists seek support for anti-torture legislation

The Illinois Coalition Against Torture (ICAT) recently secured the introduction of a bill in Congress by Representative Daniel Davis (D-IL). The Law Enforcement Torture Prevention Act of 2010, H.R. 5688, seeks to end torture at all levels of government by eliminating a statute of limitations that has previously constrained torture prosecutions. ICAT seeks national partners to support efforts to pass this bill. If your organization is interested in joining this exciting effort, contact ICAT’s Kali Cohn

Get involved in the People’s Campaign for the Constitution

Develop Lesson Plans for K-12 Classrooms

Are you a K-12 educator? We’re expanding our K-12 resources and lesson plans and looking for educators to develop more teaching tools this summer. If you teach (or have taught) a class on civil liberties issues that you’d be willing to share with other teachers, or if you’re interested in developing lesson plans for use by other educators across the country, contact Emma Roderick.

In the meantime, please share the resources that BORDC has already compiled with teachers you know, and introduce BORDC to other educators who might be interested in participating.

Refer volunteers to BORDC

BORDC relies on volunteers for crucial research, writing, and outreach support. We cultivate leadership among volunteers, rather than using them for cheap labor. If you know of individuals seeking opportunities, please refer them to us.

We have numerous projects available for volunteers, such as identifying and researching potential local allies, researching civil liberties issues and writing for our blog, or participating in outreach and organizing activities, and can take on volunteers anywhere in the country. If you would like to volunteer or know someone who might, contact Emma Roderick.

Participate in the "Face the Truth" campaign’s week of national action

The week of September 26, the Face the Truth campaign will hold actions around the country to highlight the destructive effects of racial profiling. As the culmination of “Face the Truth” hearings recently hosted in cities around the country, the week of action will include a report of testimonies from affected individuals, as well as national and local events.

Consider hosting a Face the Truth town hall in your community or a "Night of 1,000 Conversations" to learn about how profiling impacts communities in your area. For more information, please contact Pabitra Benjamin.

Join an affinity network

The People’s Campaign for the Constitution has organized networks of legal professionals and educators from across the country. We are also developing groups for military service members and their families, health professionals, clergy and religious lay-leaders of all faiths, graphic and web designers, and software engineers. Browse our full list of groups and opportunities and contact Emma Roderick if you'd like to join one of the existing groups or start one of your own.

Update us about your local activities

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

We can also offer organizing and outreach support. Let us know about your group’s organizing needs.

Law and Policy

Eight years after the torture memos: an unhappy anniversary

Eight years ago on August 1, John Yoo and Jay Bybee signed memos in which they articulated a “legal” justification torture. They wrote that stripping a detainee naked, throwing water on him, not letting him sleep for more than eleven days, simulating drowning, using stress positions, and exposing the detainee to extreme temperatures did not constitute torture. The CIA relied on these opinions in its interrogations—including those for which the agency destroyed videotape evidence, prompting a pending investigation by the Justice Department.

Neither Yoo nor Bybee has been held accountable for his actions while working for the Office of Legal Council under the Bush administration. In July 2009, the Justice Department’s Office of Professional Responsibility (OPR) issued a report on the torture memos concluding that neither Yoo nor Bybee committed professional misconduct. No other senior officials have faced justice for the torture that took place at Abu Ghraib, Guantánamo Bay, or other secret US prisons.

The eighth anniversary of the memos is important for several reasons. First, it marks a ticking clock: under US law, crimes of torture and conspiracy to commit torture have a statute of limitations of eight years. So the longer we wait to hold these individuals accountable, the less likely they are to face any consequences for their actions. Second, these memos represent a historical moment when our government’s national security establishment eviscerated our nation’s longstanding values.

In a Huffington Post article published on August 9, BORDC’s Shahid Buttar observed:

Our nation fought a World War, sacrificing the lives of millions, in part to establish human rights norms that we have eroded in the past decade: from Nuremberg’s principle that “just following orders” offers no defense to prosecution, we have fallen to conferring prestige, wealth, and power on those who “just write orders” that violate human rights. Impunity negates the tremendous sacrifices of WWII veterans and those who gave their lives to enshrine the human rights we now disregard.... Americans of conscience—and public officials at every level of government—should celebrate this unhappy anniversary by demanding transparency and accountability in Washington.

Portions of Arizona’s controversial immigration law are enjoined before taking effect

On July 28, US District Court Judge Susan Bolton granted a temporary injunction preventing the enforcement of certain portions of Arizona’s controversial SB 1070 just hours before the law went into effect. As Judge Bolton prepared to continue deliberating on the seven lawsuits against SB 1070 that are pending before her court, she stayed enforcement of many of the bill’s most offensive provisions.

Many civil rights groups celebrated the ruling, while others shared concerns that some troublesome provisions of SB 1070 were allowed to go into effect. Moreover, while reports have been released documenting the extensive economic damage endured by the state of Arizona as a result of boycott campaigns across the country, Phoenix Sheriff Joe Arpaio—who remains the subject of a Justice Department investigation—has continued to launch new anti-immigrant sweeps following the announcement of Judge Bolton’s injunction.

Further limiting Judge Bolton’s ruling are reports this week that the FBI has vigorously sought to establish a DNA database including anyone who is charged with a federal crime (even prior to any conviction for that crime), anyone found guilty of a felony, and any non-citizens in the US detained for any reason (regardless of their legal status). Efforts to build this database have created an extensive backlog of DNA for the FBI forensics lab to analyze, severely restricting the ability of local law enforcement agencies to investigate and prosecute criminal cases.

Further hampering local law enforcement is the FBI’s and Immigration and Customs Enforcement (ICE)’s insistence, under the 287(g) and Secure Communities initiatives, that local law enforcement sift through millions of fingerprint records to locate undocumented individuals in the US. This effort has resulted in the deportation of thousands of individuals without criminal records or evidence of criminal behavior. Many have noted how these efforts not only fail to make communities safer, but also divert precious local law enforcement personnel and resources from efforts that would make communities safer.

In spite of its rhetoric condemning SB 1070 and the Department of Justice’s lawsuit seeking to limit the law, the Obama administration has proven much more aggressive than its predecessor in the deportation of undocumented individuals. 

En Español

El 28 de Julio, la jueza de la corte distrito Susan Bolton concedido un mandamiento judicial temporario que previene la aplicación de algunas de las clausulas de la ley SB 1070 de Arizona, solo horas antes de que estaba listo de entrar en vigor.  Mientras la jueza Bolton se preparaba a continuar a deliberar sobre las siete demandas contra la SB 1070 que tiene delante de ella, ella decidió impedir la aplicación de las provisiones más ofensivas de la ley.

Ambos grupos celebraron el mandamiento, mientras otros reconocieron que algunas provisiones problemáticas iban a entrar en vigor.  Que es más, mientras nuevos reportes han salido que documentan el daño económico extensivo sufrido por el estado de Arizona resulto a los boicots alrededor del país, el sheriff de Phoenix Joe Arpaio—que sigue siendo investigado por el Departamento de la Justicia—ha continuado a iniciar redadas de inmigrantes siguiente al anunciamiento del mandamiento de la jueza Bolton.

También limitando el mandamiento de la jueza Bolton son reportes esta semana de que la FBI ha estado persiguiendo con vigor intentos de establecer un base de datos de ADN de todos que son acusados de un crimen federal (antes de ser condenado por ese crimen), todos que han sido encontrado culpable de un crimen federal, y todos que han sido detenido por cualquiera razón y no son ciudadanos americanos (a pesar de su estatus legal).  Estos esfuerzos para construir un base de datos ha creado un atraso extensivo de ADN listo para analizar por el laboratorio forense de la FBI, severamente restringiendo la habilidad de agencias de policía local de investigar y proseguir casos criminales.

Dificultando agencias de policía local aun mas son las insistencias por la FBI y la ICE, debajo de las iniciativas 287 (g) y ‘Comunidades Protegidas,’ que la policía local analice millones de registros de huellas para poder colocar personas sin documentación en los EE.UU.  Este esfuerzo ha resultado en la deportación de miles de individuales sin récord criminal o evidencia de comportamiento criminal.  Muchos han notado de la manera en cual estos esfuerzos no solo han fallado en asegurar nuestras comunidades, pero también desvían recursos e individuales cruciales de la policía de esfuerzos que asegurarían nuestras comunidades.

A pesar de la retórica condenando SB 1070 y la demanda del Departamento de la Justicia procurando limites a la ley, la administración del Presidente Obama ha probada ser mucho más agresiva que la de su predecesor en la deportación de individuales sin documentación.

Read the latest news and analysis on our blog

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


New Resources and Opportunities

Materiales en Español están disponibles

Empezando este mes, el sitio web de La Campana de la Gente por la Constitución ha añadido materiales en espaol de nuestros recursos más críticos.  Puntos destacados perteneciendo a nuestra ordenanza de modelo sobre límites de agencias del orden público y la resolución de modelo sobre responsabilidad ejecutiva por la tortura ahora están dispuestos en nuestro sitio web en español.  También estamos ofreciendo folletos en español para promocionar eventos próximos, y también marcadores de libros que tienen la Carta de Derechos listados en español.  Esperamos que estos recursos ayudaran esfuerzos organizadores y formación de coaliciones dentro y entre comunidades hispanohablantes.

En adición a la legislación de modelo y los recursos organizadores, hemos empezado a ofrecer entradas de blog cada domingo en inglés y español por nuestro voluntario del verano, Christopher Montero.  La versión en español de cada entrada está colocada debajo de la versión en inglés, después de la enlace.  Les sugerimos que vayan para atrás y leen las entradas de blog previas de Chris y que permanezcan atentos para más recursos en las semanas que vienen. Si quisieran que les ofrezcan una traducción en español de un recurso en particular, por favor mándele un email a Amy Ferrer.

Tools for activists now available in Spanish

This month, the People’s Campaign for the Constitution website posted Spanish language materials for our most critical resources. Talking points relating to our model ordinance limiting local law enforcement agencies, as well as our model resolution on executive accountability for torture, are now available on our website in Spanish. We have also posted fliers in Spanish for advertising upcoming events, as well as Spanish language Bill of Rights bookmarks. We hope these resources will aid organizing and coalition-building within and among Spanish-speaking communities.

In addition to our model legislation and the organizing toolkits, BORDC has also begun featuring blog posts each Sunday in English and Spanish by intern Christopher Montero. The Spanish version of each post is located below the English version, just after the jump. We encourage you to go back and read Chris’s previous blog posts and stay tuned for more in the coming weeks. If you’d like us to offer Spanish translation of a particular resource, please email Amy Ferrer.

Film: The Response

The ResponseThe Response is a courtroom drama based on a composite of actual transcripts from military tribunals at Guantánamo Bay. In the vein of Twelve Angry Men, the film revolves around the trial of a suspected enemy combatant and the three military officers who must decide his fate. The 30-minute film features Aasif Mandvi (The Daily Show), Kate Mulgrew (Captain Janeway of Star Trek: Voyager), and Peter Riegert (Animal House, The Sopranos).

The Response was shortlisted for the 2010 Academy Awards® (one of only ten films selected worldwide) and named the 2009 ABA Silver Gavel Award winner as best of the year in Drama & Literature. (Past award winners include Judgment at Nuremberg and To Kill a Mockingbird). The film has screened at the Pentagon, the US House of Representatives, the Department of Justice, West Point, Harvard, the French Embassy, the New York State Bar and UCLA, among others.

We recommend The Response to both educators and local organizers. It would make an excellent classroom film, or feature around which to organize a local forum or discussion.

Book Review: The Body in Pain by Elaine Scarry

Harvard English Professor Elaine Scarry’s The Body in Pain makes us understand torture as the “unmaking” of the victim’s world. She does this by closely examining the politics of pain in letters and testimony from torture victims, medical case histories and questionnaires, soldiers’ diaries, transcripts from personal injury trials, and literature. Although The Body in Pain was written more than 20 years ago, it is still relevant to the current “war on terror” and post-9/11 human rights abuses, and particularly to the eighth anniversary of the torture memos. The Body in Pain still remains a standard work on torture well respected by academics and human rights organizations alike.

Scarry highlights three major themes in her work: the inexpressibility of pain, the political consequences of pain’s inexpressibility, and the nature of human creation as it pertains to the structure of verbal and material artifacts.

Scarry argues that a torturer “unmakes” the world of the prisoner by taking away the prisoner’s voice and sense of self. Consequently, the “making” process occurs when prisoners are finally able to tell their stories, either in a support group or in court. If a torture victim speaks during the interrogation process, Scarry argues that this is actually an extension of the torturer’s voice because now the victim is speaking the language of the regime. How then can tortured confessions be accepted as fact? As Scarry rightly argues,

Intense pain is world destroying. In compelling confession, the torturers compel the prisoner to record and objectify the fact that intense pain is world destroying. It is for this reason that while the content of the prisoner’s answer is only sometimes important to the regime, the form of the answer, the fact of answering, is always crucial. [Emphasis added.]

Although the regime claims it applies torture techniques in order to obtain information to safeguard national security, Scarry says that in reality, the information obtained actually has little factual value because most victims will say anything to make torture stop. Rather, the aim is to demonstrate power over the victim, who is forced to repudiate his or her own reality and affirm the new reality imposed by the torturers. This is how a regime can instill fear in any who would oppose it, whether its own citizens or those from without.

Reading The Body in Pain today—perhaps even more than when it was first published in 1987—reveals just how much is at stake in the movement to restore the civil rights and liberties guaranteed by the Bill of Rights.

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

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

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

Editor: Amy Ferrer
Managing Editor: Barbara Haugen
Contributing Authors: Kelsey Genevich, Sigmund G. Libowitz, Christine Monska, Christopher Montero, and Emma Roderick

Banner Photo Credit: Storm Front by Matthew Johnston

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