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Constitution in Crisis

December 2011, Vol. 10, No. 12

In this issue:

This Bill of Rights Day, stand with us to stop the NDAA


Grassroots News

Law and Policy

New Resources and Opportunities


This Bill of Rights Day, stand with us to stop the NDAA

Stop NDAAToday and every December 15, our nation celebrates Bill of Rights Day, the anniversary of the ratification of the first ten amendments to the Constitution.

But this year, on December 1—just two weeks before Bill of Rights Day—Congress passed the National Defense Authorization Act (NDAA). The NDAA allows the indefinite military detention of US citizens without trial. It contains the most potentially oppressive national security powers we’ve seen in our lifetimes, easily worse than any Bush administration policy.

The president, the Department of Defense, the FBI, military leaders, and a bipartisan block of senators oppose this dangerous bill. And yet it passed with flying colors in a Senate vote of 93-7. BORDC Executive Director Shahid Buttar wrote about the NDAA in Truthout just before the bill was passed:

Ironically opposed by both the White House and the Pentagon, it would expand preventive and arbitrary detention beyond Guantánamo Bay and the CIA’s shuttered black sites, importing it into the domestic United States.

The Senate Armed Services Committee, led by Senators Carl Levin (D-Michigan) and John McCain (R-Arizona), approved the bill despite its provisions for military detention of any suspect (even those apprehended within the United States) accused (not proven) of involvement in any terror-related offense. Presumably, military detention would include those accused of offenses as innocuous as “lying to a federal agent,” unrelated to actual terrorism yet classified as terror-related.

The most glaring problem with the committee’s legislation is its violation of our nation’s most fundamental values shared across our political spectrum.

In the days preceding the vote, Senators Rand Paul (R-KY) and Mark Udall (D-CO) both spoke out against its dangerous powers, with Udall introducing an amendment—which his colleagues voted down with a nearly veto-proof majority—that would have removed the most troubling provisions of the law.

While President Obama initially promised to veto the NDAA, the White House backtracked on December 14, announcing that changes accepted by the congressional leadership sufficiently addressed the president's concerns. While those changes included removing a mandatory requirement for military detention of even US citizens accused of terror-related offenses, they still give the president the power to put US citizens in military detention indefinitely—leaving the right to trial, due process, and First Amendment rights subject to the president's whims.

First, sign BORDC’s petition to stop the NDAA. We will also submit a special petition for military service members, veterans, and retired officers, whose voices are particularly important on this issue.

Then, raise your voice in your community. What better way to celebrate Bill of Rights Day than to stand up for your rights? Events are happening across the country today and through this weekend, so find the one nearest you and join in, or organize a new action and add it to the map. It’s never been more important to defend our Bill of Rights.


Please give generously this holiday season

For ten years, BORDC has been working day in and day out to protect, defend, and restore the rights and liberties promised in our Constitution. And, as you know all too well, the need for our work mobilizing the grassroots movement for civil liberties is only growing.

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

Please help us build the movement to restore civil liberties by making a tax-deductible donation today.

Thanks to a generous matching grant, BORDC earns an additional $1 for every $2 you contribute. This holiday season is a great time to invest in liberty and democracy in America.

Spring internship opportunities available

As we move into 2012, we at the Bill of Rights Defense Committee are seeking new interns to join our team. Opportunities are available at our national office in Northampton, MA, as well as in Washington, DC. We also offer remote internships open to candidates with reliable Internet and phone access located anywhere in the US. Candidates need not be current students to be considered.

If you or someone you know would be interested in becoming a BORDC intern, please see our internship posting.

BORDC in the news

As the National Defense Authorization Act (NDAA) made headlines this month, BORDC Executive Director Shahid Buttar had several opportunities to educate the public about this troubling law. Radio shows including Air Cascadia and Wake-Up Call with Esther Armah featured his commentary on the NDAA. Shahid also appeared on a Coffee Party podcast titled “Is the US a battlefield?”, Radio Islam, and Voice of Russia this month to discuss how the NDAA threatens democracy in America and could create a police state.

Shahid also spoke about the NDAA on the Al Jazeera English program Inside Story:

On a different note, one of BORDC’s recent Patriot Award honorees, former Salt Lake City mayor Rocky Anderson, announced that he is running for president on the newly formed Justice Party ticket.

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

Get the latest news and analysis on our blog

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

Grassroots News

Patriot Award: Nancy Talanian

Nancy TalanianEach month, BORDC recognizes an individual who has done outstanding work in support of civil liberties and the rule of law by honoring that person with our Patriot Award. This month, as we celebrate BORDC’s tenth anniversary, we honor our founding director, Nancy Talanian.

In November 2001, the PATRIOT Act had only just been passed, and many people had barely noticed. The US was still reeling from the September 11th attacks just two months earlier, and while people spoke about unity and coming together, fear remained the dominant emotion.

Enter Nancy Talanian: a dedicated anti-war and international civil rights activist, Nancy saw parallels between regimes she had previously protested (including apartheid in South Africa and dictatorship in Nigeria) and the direction she saw our country heading. She knew concerned Americans needed to step up and raise their voices.

At the Women’s Conference for Peace, held in Northampton, MA, in November 2001, Nancy met like-minded women in a breakout session on the PATRIOT Act. Recognizing that the national policy would be enforced on a local level, she pulled together local allies to join her in drafting a municipal resolution against the PATRIOT Act for the Northampton City Council. Working with organizers in two other Western Massachusetts towns, Amherst and Leverett, Nancy led the charge as all three communities passed anti-PATRIOT Act resolutions within a ten-day period in April and May 2002. Soon, supporters began pursuing state resolutions as well.

Nancy soon realized only a national organization could provide the coordination required for this growing movement, and so she transformed the Northampton Bill of Rights Defense Committee into a national organization. The new national BORDC created a toolkit to help activists build local campaigns. Nancy hired BORDC’s first staff person in 2003 and organized a conference that same year. People came from all across the country to learn from each other about effective ways to do national work on the local level.

But the work didn’t stop at the local level—the actions in cities and towns across the country started to make an impact in Washington. While Congress had passed the PATRIOT Act without debate or controversy only a year before, suddenly Washington was on the defensive.

Attorney General John Ashcroft went on tour to defend the PATRIOT Act, and local BORDC supporters mobilized people to protest at every stop—despite the fact that each tour stop’s location and time was only released one day in advance. More than 1,500 people showed up in Boston and 1,500 more in New York when Ashcroft visited both cities on the same day. More than 20 resolutions rejecting the PATRIOT Act passed during the course of his tour alone.

Politicians opposing the PATRIOT Act used BORDC materials to bolster their arguments. In 2006, when the PATRIOT Act was up for re-authorization, BORDC supporters held in-district meetings with members of Congress during the Independence Day recess, and 12 of those members of Congress referenced BORDC’s materials during congressional debates. Senator Russ Feingold (D-WI) held up a book of BORDC resolutions and read it aloud during his filibuster. Senator Larry Craig (R-ID) read Idaho’s state resolution on the floor of the Senate.

While the PATRIOT Act was ultimately reauthorized that year, the final version of the legislation included changes that no member of Congress had originally thought possible. BORDC’s work on the ground shifted the national conversation. And it continued to do so: by 2007, more than 400 local resolutions and eight state resolutions had passed across the country.

After leaving BORDC in 2008, Nancy went on to found No More Guantánamos. This organization addresses years of wrongdoing by the US government by working to educate the public about the people held at Guantánamo Bay detention center. No More Guantánamos also carries forward Nancy’s powerful strategy of mobilizing local coalitions to support municipal resolutions—in this case, welcoming into their communities Guantánamo detainees who have been cleared for release. Resolutions have already passed in Massachusetts and California, and more campaigns are underway.

As we mark BORDC’s tenth anniversary, we salute Nancy Talanian and all her hard work creating a visionary organization that continues to fulfill her legacy by pushing the national conversation forward. All Americans owe her our thanks.

Los Angeles, CA: Local activists take action on NDAA and gang injunctions

On Saturday, December 10, Occupy LA mobilized to resist the National Defense Authorization Act (NDAA) and its provisions authorizing indefinite detention without trial. The group organized a march and rally outside the CNN building in Hollywood to protest the network’s failure to cover the NDAA. BORDC supporter Simone Schulz eloquently spoke out against the NDAA, explaining how similar powers in other countries have been tragically misused.

In addition, leaders of the Youth Justice Coalition at Chuco’s Justice Center in South Central Los Angeles have held a week of action as part of their “Free LA” campaign. One of the key issues they addressed was the use of gang injunctions. Gang injunctions subject young people—regardless of whether they are gang members or not—to constant stops, searches, and interrogations. They can also result in permanent criminal records, preventing these young people from getting jobs, housing, or access to education that could change their lives. And because the misleadingly named Secure Communities program requires police to share biometric data on anyone arrested with Immigration and Customs Enforcement, regardless of whether the person actually committed a crime, gang injunctions also put undocumented immigrants and their families at risk.

Early next year Chuco’s Justice Center will host a community forum with BORDC and other LA civil rights partners as the next part of the Local Civil Rights Restoration campaign in Los Angeles.

To get involved in the LA campaign, contact National Field Organizer George Friday.

Cleveland, OH: City gets “A Wake-Up Call for Civil Rights”

On November 18 and 19, the Islamic Center of Cleveland hosted civil rights forums attended by nearly 200 people. Presenters included authors Thomas Cincotta and Stephan Salisbury; activists from the National Coalition to Protect Civil Freedoms including Steve Downs, Shamshad Ahmad, and Mel Underbakke; and organizers Sharmin Sadequee and BORDC’s own George Friday.

The theme for the forums was “A Wake Up Call for Civil Rights,” and it certainly lived up to its name for the crowd, many of whom reacted with surprise that conditions have become so dire. Shamshad, who held his ground after 9/11 when rumors and accusations caused many of his peers to remain silent, challenged the audience to confront the conditions that undermine security, community, and culture by educating themselves and building relationships across and between affected communities.

Cleveland is also home to a Local Civil Rights Restoration campaign, and the forum was a vital opportunity to build the coalition.

To get involved in the Cleveland campaign, contact National Field Organizer George Friday.

Northampton, MA: Coalition celebrates Human Rights Day

Preserving Our Civil Rights Campaign actionIn celebration of Human Rights Day on December 10, the Preserving Our Civil Rights Campaign hosted a morning of street theater and canvassing for the Northampton Civil Liberties Ordinance. First, activists put hand-painted drawings of eyes all around Main Street, signifying warrantless domestic surveillance of peaceful city residents. Next, campaign members participated in street theater and collected several sheets of signatures in support of their version of the Local Civil Rights Restoration Act.

The campaign celebrated their first victory this summer, when the city council unanimously passed a resolution against the misleadingly named Secure Communities program. They’re now working on the second phase of the campaign which will focus on illegal surveillance. In addition to their Human Rights Day event, the campaign is planning several events for the new year.

To get involved in the Western Massachusetts campaign, contact Grassroots Campaign Coordinator Emma Roderick.

Law and Policy

Military leaders against military abuses

Each year, Congress approves the National Defense Authorization Act (NDAA) for the coming fiscal year. This year’s bill has raised concerns because it authorizes the military to imprison US citizens indefinitely and without trial. Such measures violate due process, the right to trial, and would give the military domestic authority it is prohibited from wielding—and does not even want.

But the detention provisions aren’t the only troubling part of the NDAA. Not only civil liberties groups, but also retired military leaders spoke out against an amendment to the defense funding bill that would have repealed key aspects of the Detainee Treatment Act (DTA) and made torture techniques legal.

“Policy and practice should be based on evidence, not fear,” stated 40 retired and esteemed US military generals and admirals in a letter addressed to the Senate urging them to vote against the amendment introduced by Senator Kelly Ayotte (R-NH). Thirty prominent rights groups, including the ACLU and the Bill of Rights Defense Committee, also signed a separate letter opposing the amendment.

That amendment, which was ultimately removed from the bill, would have revoked a prior amendment that codified adherence to the Army Manual and prohibited the use of “cruel, inhumane or degrading treatment or punishment.” The military officials continued in their letter to explain the gravity of the use of torture:

Torture is unreliable because anyone who is tortured will lie to make the torture stop, or will provide false and misleading information which can lead investigators to waste crucial time.

Torture is counterproductive because our enemies use the indelible images of torture to recruit more terrorists, and our allies refuse to extradite terror suspects to the United States when we do not uphold the law, letting terror suspects escape U.S. justice.

While the Ayotte amendment was defeated, the NDAA—and its draconian powers authorizing military detention for US citizens—is proceeding and could become law by the end of this week.

Active military service members, veterans, and retired officers who oppose the NDAA can raise their voices by signing our petition to stop the troubling bill. With today’s anniversary of the ratification of the Bill of Rights, there has never been a better time to take a stand.

Bush and Blair found guilty of war crimes in Malaysia

Bush and BlairFormer President George W. Bush and former British Prime Minister Tony Blair were found guilty of war crimes for their roles in the 2003 invasion of Iraq by a war crimes tribunal in Malaysia. The two former leaders were tried in absentia.

Few, if any, major media outlets reported the verdict. While the court has little power to follow through on its finding, the importance of the conviction cannot be overlooked.

The verdict was more than just symbolic. The Kuala Lumpur War Crimes Tribunal, modeled after the Nuremburg Trials, is the brainchild of former Malaysian Premier Mahathir Mohamad, a long-time outspoken critic of the Iraq War. Following a two-year investigation, the tribunal found both Bush and Blair guilty of war crimes and is recommending that other nation states do the same. In the aftermath of the verdict, Mahathir’s Global Peace Foundation said, “A guilty verdict will serve as a notice to the world that war criminals may run but can never ultimately hide from truth and justice.”

Jurisdiction is the single greatest barrier to meaningful prosecutions of US officials complicit in war crimes. The Kuala Lumpur Tribunal asserted universal jurisdiction (which we have previously discussed on the People’s Blog for the Constitution) as their grounds for trying Bush and Blair. Universal jurisdiction allows any nation, regardless of whether it has ties to the particular crime, to prosecute offenders under a theory that certain crimes are an “offen[s]e against the whole of humanity and therefore all states have a responsibility to bring those responsible to justice.”

Others have at least explored the possibility of trying US officials. In 2009, Spain opened an investigation into accusations of torture at Guantánamo Bay. The targets of that investigation were lawyers from the Office of Legal Counsel and the White House, accused of authorizing the use of torture through the so-called “torture memos.” This investigation appears to have stalled as Spain has succumbed to pressure from the Department of Justice (DOJ) to drop their probe. The Spanish Penal Code requires a “relevant connection” to Spain for purposes of hearing international cases. Three men, claiming Spanish nationality, filed suit in Spanish courts asserting that they were the victims of torture. Spanish Judge Eloy Velasco has discarded the suits and handed over all relevant material to the DOJ. The DOJ has assured the Spanish courts that they are investigating the claims.

While the Malaysian tribunal’s efforts probably will have little practical effect, they serve as an important step in providing justice for victims of crimes against humanity whose perpetrators rank as the most powerful among us.

FBI secretly recording personal data on Muslims

The American Civil Liberties Union has acquired documents indicating that the FBI has run background checks were run on people attending Muslim community outreach events—without those individuals’ prior knowledge. These documents, which were obtained through the Freedom of Information Act, illuminate the FBI’s abuse of local outreach programs in order to obtain personal information about participants.

Ironically, these programs, which existed before 9/11, were created to strengthen communication and understanding between the FBI and Muslims. The FBI’s use of the programs to covertly and illegally spy on law-abiding individuals flies in the face of those supposed goals and undermines the vital trust of communities vulnerable to hate crimes and ethnic profiling.

According to the Washington Post,

Some of the papers describe agents speaking at career days, briefing community members on FBI programs and helping them work with police to fight drug abuse. But the files also depict agents recording Social Security numbers and other identifying information after they meet people at the events and, in at least one instance, noting their political views. It appears that the agents are conducting follow-up investigations in some instances, but heavy redactions in the documents make it impossible to determine how far any examination might have gone.

This information comes at a time when the FBI has been accused of multiple instances of surveillance based solely on individuals’ religious affiliation.

DOJ refuses to disclose memo authorizing extrajudicial assassination of US citizen

In October, the New York Times reported that the Justice Department’s Office of Legal Counsel produced a 50-page secret memo in June 2010 authorizing the killing without trial of Anwar al-Awlaki, a US citizen. The New York Times report was based on comments made by people who have read the memo.

Alwaki’s killing was permitted, the memo found, despite an executive order banning assassinations, a federal law against murder, the protections of the Bill of Rights, and various principles of international laws of war.

Awlaki was targeted in a US drone strike in September. He was killed along with another US citizen while they were in Yemen. The Obama administration has refused to even admit that it ordered the killing. And at a recent Senate Judiciary Committee oversight hearing, Attorney General Eric Holder also refused to address the existence of the memo.

In response to a Freedom of Information Act request from the New York Times, the Project on Government Oversight, and the American Civil Liberties Union, the Department of Justice said it “neither confirms nor denies the existence of the document.” Blogger Andrew Rosenthal points out that such secrecy violates the Obama administration’s promise for greater transparency. Meanwhile, prominent national security and constitutional law scholar (and Bill of Rights Defense Committee Advisory Board member) David Cole notes that there is something fundamentally wrong with a democracy that allows its leader to order the execution of citizens and non-citizens without having to defend such action in public.

Had Awlaki been found on the battlefield, Cole explains, neither the laws of war nor the Constitution would have prevented the US military from shooting him. Awlaki, however, was in Yemem and did not belong to al-Qaeda or the Taliban, the two organizations against which Congress authorized the use of military force.

The memo authorized Awlaki’s execution because it found that the organization to which he belonged, al-Qaeda in the Arabian Peninsula, was a “co-belligerent,” and because he himself posed an imminent threat to the US and his capture was not feasible. If true, these assertions may provide sufficient ground for Awlaki’s execution. However, Cole points out, they were never tested in any forum. He writes:

As American citizens we have a right to know when our own government believes it may execute us (and others) without a trial. In a democracy the state’s power to take the lives of its own citizens, and indeed of any human being, must be subject to democratic deliberation and debate. War of course necessarily involves killing, but it is essential that the state’s power to kill be clearly defined and stated in public—particularly when the definition of the enemy and the lines demarcating war and peace are as murky as they are in the current conflict.

New Resources and Opportunities

Book Review: Top Secret America by Dana Priest and William Arkin

Top Secret AmericaTop Secret America, by two-time Pulitzer Prize winning journalist Dana Priest and William Arkin, stands in stark contrast to Hollywood’s often glamorous look at espionage and covert operations. Their exposé of America’s intelligence operations throws open the doors on a multi-billion dollar government labyrinth nestled in nooks and crannies throughout the nation. From the opening pages, it is apparent that fighting the so-called “war on terror” has been an inefficient and duplicative waste of resources.

Following the devastation of 9/11, Congress wrote the Executive Branch a blank check that led to, among other things, “wasteful duplication . . . cultivated by [a] bureaucratic instinct that bigger is always better.” From the Central Intelligence Agency (CIA) to the National Security Agency (NSA), the Federal Bureau of Investigation (FBI) to the Defense Intelligence Agency (DIA), the National Counterterrorism Center (NCTC) to local law enforcement and private contractors, the sheer volume of agencies and acronyms is staggering.

One of the points of emphasis for Priest and Arkin is that this unprecedented growth in the defense and intelligence communities has operated to produce redundancy, disorganization, and incredible waste. Newly recruited “analysts” are given broad autonomy but insufficient training, resulting in overlap and confusion.

Who holds this brave new world’s operatives accountable? Not the military, and certainly not the American people, but rather our politicians (in the case of government agencies), and in the case of private contractors, shareholders.

The book also sheds light on previously secret activities that should give every American pause. Perhaps the most frightening revelation is that our government, the one that we pay for with our tax dollars, is perfecting technology that would make it possible to peer into private homes with high-resolution data imaging. The goal is to be able to keep tabs on and map people everywhere.

For example, a man taking pictures of a ferry is surveilled for hours and the information collected is sent to a database where it is stored, likely forever. The justification for such surveillance is that law enforcement does not necessarily know whether the “suspect” is plotting an attack or whether he is simply interested in ferries. Information is retained because, as several high-level government officials indicated, dots cannot be connected and patterns cannot be detected unless everything is saved.

Secretary of State Janet Napolitano testified earlier this year that we are not safer from threat of a terrorist attack. For nearly a decade, intelligence analysts and operatives focused on threats from abroad. But not anymore: the shift to looking at homegrown terrorism has only increased the amount of government intrusion in our lives.

States and local law enforcement are increasingly involved in fighting the “war on terror,” but since terrorism is so rare, the tools allocated for detecting and preventing terrorists are overwhelmingly used to fight ordinary crime. This leads to abuses, such as a story the authors recount involving the Memphis police. Officers pulled over a woman who was operating a vehicle that fit the description of one they were looking for. Once police realized that she was not the person they were looking for, the woman, who was African American, received a bogus ticket.

Priest and Arkin have uncovered an underground and hidden world where billions of dollars are spent to keep us safe, but no one is monitoring the results. Those charged with our security see America as a battleground where civil liberties must take a back seat to the so-called “war on terror.” And, in the case of ubiquitous private contractors, their duty is to corporate shareholders, not the public.

This is an extremely important piece of non-fiction, written by highly respected journalists following two years of intense investigations. Especially given the budget debate, in which both parties talk of reigning in spending, Priest and Arkin explain the vast waste expended on a war that exists completely in the shadows, free from oversight. Couple with voluminous evidence of rampant civil liberties abuses, the picture that emerges is one of a government severely out of control.

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Contributors: Adam Arnold, Shahid Buttar, Amy Ferrer, George Friday, Gigi Macaluso, Emily Odgers, Mike Prasad, Emma Roderick, and Farid Zakaria

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