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Constitution in Crisis

January 2012, Vol. 11, No. 1

In this issue:

NDAA authorizes military detention without trial: Where do we go from here?


Grassroots News

Law and Policy

New Resources and Opportunities


NDAA authorizes military detention without trial: Where do we go from here?

NDAA (National Defense Authorization Act)Ten years ago, Congress enacted a draconian law with no transparency, regard for process, or even awareness of the profound erosion of constitutional rights that it—the PATRIOT Act—would entail. Congress did it again this holiday season, abandoning its constitutional role by authorizing, in the National Defense Authorization Act (NDAA), indefinite military detention of even US citizens without trial.

Q: Does the NDAA authorize political repression? A: It certainly could.

Ignore the self-assured claims by the bill’s apologists downplaying what it means. Concerns about the NDAA’s potential abuse stem from beyond the NDAA itself.

The key is the PATRIOT Act’s extension of “material support for terrorism” to include associational and speech crimes, even where the defendants had no intention of supporting violence. In Humanitarian Law Project v. Holder (2010), the Supreme Court upheld material support charges against a charity that funded workshops encouraging non-violence in Turkey, rejecting the defendant’s argument that those workshops were protected by the First Amendment. As BORDC Executive Director Shahid Buttar wrote recently, under the Humanitarian Law Project ruling,

The PATRIOT Act’s material support provisions allow our government to criminalize speech and repress political dissent, a frontal assault on the First Amendment. And with material support cases grounded in associational guilt, the First Amendment is also eroding from its figurative sides.

The NDAA would expand those assaults by eliminating the need to prosecute. In the hands of a president, attorney general, US attorney, or even, potentially, state or local prosecutors willing to use their powers for political purposes, it offers the legal authority for severe repression.

Ironically, groups most likely at risk for military detention represent diverse interests: the Occupy movement has been addressed as a terror threat by London police and various critics in the United States, and Tea Party groups have raised concerns about counterterrorism scrutiny of militia movements[and Ron Paul supporters].

If Occupy and Tea Party groups are treated as terrorists, does that render them among the “associated forces” of groups “engaged in hostilities against the United States” for whom the NDAA authorizes military detention without trial? No one has a good answer here, which is precisely the problem.

Even within the NDAA itself, section 1031(b)(2) includes among “covered persons” subject to potential military detention “any person who has committed a belligerent act….” What, exactly, is a belligerent act? “Hostile” and “aggressive” are synonyms, and while the term has an established (though not entirely defined) meaning in the context of international war, its precise meaning in the context of the NDAA remains unspecified.

Q: How did this happen? A: Obama’s choice to look “forward, not backward.”

Dick Cheney worked Capitol Hill in the days preceding the NDAA votes, and quite likely well before that. Why was he able to leverage his (apparently still overwhelming) influence? Because the Obama administration never prosecuted him for his role in the torture of detainees.

The NDAA’s detention provisions passed Congress only because former officials complicit in human rights abuses (e.g., Cheney, Addington, Bybee, Yoo), who actively lobbied in favor of the NDAA and its detention provisions, continue to evade the investigation and prosecution required under international law for their crimes. When architects of human rights abuses receive continued power and prestige rather than prison sentences (which the rest of us face for vastly less heinous crimes), their continued influence is predictable. Fear mongering apparently still sells, at least among timid members of Congress eager to appear muscular to voters.

Q: Torture? I thought we were done with that. A: Think again.

Torture is more than merely a human rights abuse. It’s a way to coerce confessions, even if they’re false. That’s why observers from military interrogators to Republican senators and other former senior government officials have rejected it as a useless, if not counter-productive, tactic when applied to enemy combatants.

But what if the goal of torture is not to ascertain intelligence, but rather to produce confessions? In a system of preventive detention, in which torture is available to future administrations as an option, what will constrain torture from recurring? Even with a policy discouraging torture, the established lack of accountability ensures that it will inevitably recur.

And when it does, there will be no meaningful possibility of ever finding detainees innocent. When people (whether US citizens or not) in military custody start declaring confessions, few observers will care whether or not they were coerced. “They must have done something wrong. They did confess, after all.”

Q: Is democracy doomed? A: Not yet.

Hope, like opportunities for grassroots action, springs eternal. Bills have already been introduced in the House and Senate that would narrow the NDAA’s detention provisions. Voters in Montana have started a recall campaign to remove the senators who voted for the NDAA. And the Colorado county that houses the Air Force academy passed a resolution declaring its opposition to detention without trial. These examples indicate opportunities for concerned Americans to raise our voices.

In turning the tide to repeal the expansion of military detention, We the People of the United States may yet rediscover the principles that once made our country the Land of the Free.

This article was adapted from BORDC Executive Director Shahid Buttar’s recent three-part FAQ on the NDAA:



Bill of Rights Day actions across the country oppose NDAA

Driven by concerns about the National Defense Authorization Act’s military detention provisions, the Bill of Rights Defense Committee coordinated actions around the country marked Bill of Rights Day on December 15—the 220th anniversary of the ratification of the first ten amendments to the US Constitution, and the day the Senate voted to approve the NDAA. But most Americans heard little about them.

Though when signing the bill on New Year’s Eve, the president claimed that his administration will not interpret the NDAA as many fear—to imprison US citizens indefinitely and without trial—the power to do precisely that will remain available to future administrations. Understanding how dangerous that power will inevitably become, diverse supporters including Occupy sites and libertarian groups around the country mobilized in resistance.

Several among the dozens of Bill of Rights Day “celebrations” were deliberately funereal, in recognition of a decade of rights violations under the PATRIOT Act that can only be worsened by the NDAA.

A range of activities, from vigils and street theater to rallies and marches, drew considerable numbers of supporters in all corners of the country, in San Francisco, Los Angeles, Chicago, New York, and beyond.

For instance, Occupy Atlanta organized a rally and march against the NDAA at Woodruff Park (rechristened Troy Davis Park by the Occupiers). Occupy Nashville organized a “Funeral for the Bill of Rights” on December 21 The epitaph read, “Mr. Bill O.F. Rights, born Aug. 21, 1789, was brutally murdered Dec. 14, 2011, in the line of duty.”

Similar events were held in well over thirty cities around the country, including Fort Collins on December 17 and Orlando on December 19.

Remarkably, barely any news outlets have reported on these events and actions; even online searches yield little information. Yet there was no shortage of activity—just a lack of media attention. On Bill of Rights Day 2011, Americans from all walks of life mobilized to defend what we once considered inalienable freedoms. And while the NDAA is now law, there are still opportunities to repeal its detention provisions and restore due process and the right to trial.

CREDO Mobile selects BORDC as one of its 2012 charities

Each year, CREDO members and CREDO Action activists help decide where their donations go. They nominate groups to receive funding, and then vote on how much money to give each group. Since 1985, CREDO has donated more than $70 million to selected organizations, and the Bill of Rights Defense Committee has been selected as one of CREDO’s charities to receive funding in 2012.

The telecommunications company selects 40 charities per year in five categories, and BORDC is the smallest of the eight charities in the Civil Rights category. Voting to distribute CREDO’s funds will begin in a few months, so stay tuned for information on how to cast your vote for BORDC!

BORDC in the news

This month has been a devastating one for civil liberties. On New Year’s Eve, President Obama signed the National Defense Authorization Act, less than two weeks before the 10th anniversary of the Guantánamo Bay detention center on January 11. While disappointing, these events did at least offer BORDC many opportunities to educate the public about what’s happening in Washington, and how concerned Americans can stand up for the Constitution.

BORDC’s Shahid Buttar discussed these issues in dozens of news outlets. Radio programs including KPFK's Uprising Radio in Los Angeles, WZAB's Let's Talk About It in Miami, and WPFW's Voices with Vision in Washington, DC, and KGAB in Cheyenne, WY, featured BORDC’s concerns and calls to action. Shahid also published a three-part FAQ on the NDAA on FireDogLake over the holidays.

In addition, Lindsey Needham, a BORDC intern based in Washington, DC, also recently appeared on Al Jazeera to discuss the trial of Wikileaks whistleblower Bradley Manning.

Finally, a December story in the San Francisco Bay Guardian featured BORDC, and prominently quoted several local allies we’ve been supporting on a Local Civil Rights Restoration campaign. The story notes how BORDC “reached out to a wide variety of groups, including the NAACP, the ACLU, Asian Law Caucus, National Lawyers Guild, the Coalition for a Safe Berkeley, and the city's Peace and Justice Commission.” It also highlights a noteworthy success by the coalition:

Councilmembers Jesse Arreguin and Kriss Worthington led an effort to suspend mutual aid agreements the Berkeley Police Department has with the University of California police and two other police agencies — as well as two city policy documents — over concerns about the use of force against peaceful protesters and domestic surveillance activities.

The council approved the proposal unanimously. Ironically, on the day after the vote, the university launched a violent and controversial crackdown on the OccupyCal encampment — without the help of Berkeley Police.

"It sends the message that we're not going to try to suppress people's rights to demonstrate and express themselves," Arreguin told the Guardian.

Peace and Justice Commission member George Lippman agreed… ‘To me, it comes down to what are our values.’

With 60 percent more media appearances in 2011 than in 2010, BORDC's work to restore constitutional rights is garnering ever more attention, even as the government continues to undermine our fundamental liberties. We at BORDC work every day to shift the public conversation about civil liberties and constitutional rights, and you can find evidence of that work in 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: Occupy Tampa

Occupy TampaEach month, BORDC’s Patriot Award honors someone whose outstanding work in support of civil liberties and the rule of law sets an example for others. This month, for the first time, we honor a group rather than an individual: Occupy Tampa.

Occupier Michael Fernandez reached out to BORDC after hearing a radio interview with Executive Director Shahid Buttar, who offered support to groups opposing the NDAA. Occupy Tampa had already been protesting against the NDAA but wanted to solidify support from a national organization and further develop its campaign. With Tampa hosting the Republican National Convention later this year, the group is poised to project its civil liberties concerns onto the national stage.

In contrast to media reports depicting Occupy as a homogeneous, aimless entity, Fernandez explains that each occupation is unique and spotlights issues specific to its community. Occupy Tampa, for instance, focuses on local governance and community involvement, rather than national politics. While our nation’s leaders operate in the Washington bubble, far removed from We the People, Occupy Tampa has worked to localize civic participation and increase awareness of issues affecting Tampa residents.

Last month, Florida became the first to host a statewide Occupy gathering. Occupations from across the state met to create "The People's Plan," addressing local issues to empower the people of Florida. After two days of nonstop debate, participating occupations hammered out 100 proposals to deliver to the speaker of the Florida House of Representatives on the first day of the legislature's session.

Members of Occupy Tampa embody their political philosophy on a daily basis. They provide for each other, making sure everyone in the group has an equal share of available resources. Representatives of the group attend every city council meeting to air their grievances and offer alternatives. At those meetings, Occupy Tampa has proposed that the council redirect police department funds to invest in transportation and schools.

As the Republican National Convention nears, Occupy Tampa anticipates government repression. Despite incidents of police brutality in Oakland and attempts to limit the right to protest throughout the country, Occupy Tampa is determined to raise awareness of the civil liberties issues and constitutional rights that affect everyday Americans.

BORDC salutes Occupy Tampa for exercising its First Amendment right to peacefully protest, and for championing the civil liberties of all Americans, even beyond the 99 percent.

Western Massachusetts: Local coalition takes on the NDAA

Preserving Our Civil Rights CampaignThe Preserving Our Civil Rights Campaign of Western Massachusetts is working hard to collect signatures to introduce a version of the Local Civil Rights Restoration Act to the Northampton City Council. At the same time, the campaign has started a new initiative: organizing support for a resolution condemning the detention provisions of the National Defense Authorization Act (NDAA).

The campaign will hold a teach-in about the NDAA’s detention provisions on January 26 and hopes to introduce the resolution in early February. The coalition of organizations involved in the campaign is also launching a campaign for local civil rights legislation in Amherst, and will host a community meeting there on January 24.

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

Hartford, CT: Civil Rights Coalition heading to neighborhoods throughout the city

Members of the Hartford Civil Rights Coalition will appear at Neighborhood Revitalization Committee meetings across the city next month, informing Hartford residents about their campaign to impose limits on local surveillance and intelligence collection.

At the same time, the coalition remains active on strengthening the state's existing racial profiling law. During the upcoming legislative session, it plans to highlight recent discoveries of rampant profiling in nearby East Haven. And in February, Coalition members will attend a statewide meeting of groups working against the NDAA’s indefinite detention provisions.

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

Asheville, NC: Monthly civil liberties nights bring community together

On January 2, Asheville leaders and community members gathered at Firestorm Café for a presentation and discussion about the  National Defense Authorization Act (NDAA). The discussion was part of a civil liberties night, a monthly gathering to raise awareness about threats to civil liberties and build support for local reforms to restore them.

The president signed the NDAA into law on New Year’s Eve, just a week before the most recent civil liberties night, at which many attendees questioned the government’s timing and noted the lack of media attention to so dramatic a legislative event. The group plans to host a civil liberties trivia game at next month’s civil liberties night, February 13, modeled on a successful event hosted by the Preserving Our Civil Rights campaign in Western Massachusetts last August.

To get involved in the Asheville civil liberties coalition, contact National Field Organizer George Friday.

Los Angeles, CA: Grassroots actions across Southern California

#Occupy LA, Dec 15Over the last month, Los Angeles has been a hotbed of assertive organizing and activism.

Occupy LA began public events opposing the detention provisions of the National Defense Authorization Act (NDAA) as early as December 10, and continued further actions over the course of the month. On January 11, Occupy LA joined a broad coalition of groups, including BORDC, co-sponsoring events to mark the 10th anniversary of Guantánamo Bay and oppose the authorization of expanded military detention in the NDAA.

Separately, members of the LA Community Action Network mobilized in December to occupy the abandoned Rampart police station, an infamous site at which LAPD officers established a rogue unit responsible for torturing residents of color into false confessions. Meanwhile, the Youth Justice Coalition hosted an event to address bloated law enforcement budgets and their connection to civil rights crises affecting South Central LA residents.

To get involved in the LA civil liberties coalition, contact National Field Organizer George Friday.

Chicago, IL: Local organizers fight back against limitations on free speech

In recent weeks, Chicago has witnessed an escalation of grassroots resistance to violations of civil rights and civil liberties.

Prompted by the G8 and NATO summits planned in Chicago this spring, Mayor Rahm Emanuel announced a series of restrictions on public assembly. While officials initially claimed the restrictions would be temporary and limited to protests of the NATO and G8 summits, they could become permanent limits on any type of public protest in any part of the city. The City Council votes on January 18, and Chicago activists are calling supporters to attend the committee hearing on January 17 to voice their support for First Amendment rights.

Chicago also mobilized on January 11 to mark the 10th anniversary of Guantánamo Bay and oppose the detention provisions of the National Defense Authorization Act (NDAA). The mobilization in Chicago was especially timely, as the City Council’s Committee on Human Relations approved a resolution the same day that, if adopted by the full council, would make Chicago the nation’s first “torture-free zone.”

To get involved in the Chicago civil liberties coalition, contact National Field Organizer George Friday.

Cities across the country participate in day of action on Guantánamo anniversary

January 11, 2012, marked 10 years since President George W. Bush opened the Guantánamo Bay detention center. A coalition of civil rights groups including BORDC organized a day of action on the anniversary, while also addressing emerging concerns about future abuses under the detention provisions of the National Defense Authorization Act (NDAA). Participating cities included Chicago, Dallas, Los Angeles, Miami, San Francisco, Seattle, and Washington, DC.

While plans for the January 11 mobilizations against detention abuses at Guantánamo began months ago, the passage of the NDAA, which could expand indefinite detention without trial well beyond Guantánamo, lent a sense of urgency to the actions.

In Washington, DC, more than 700 people marched from the White House to the Supreme Court, many wearing orange jumpsuits and black hoods reminiscent of the prison's uniforms.

In San Francisco, a line of similarly dressed protestors stretched out in front of that city's federal building, with signs reading "No Guantanamo, No Torture, No Excuses," and "The America I believe in would close Guantánamo Bay now!" And in Dallas, protestors met at Rosa Parks Plaza, standing alongside a monument bearing a quote by Martin Luther King Jr.

Law and Policy

Army recommends court-martial for Wikileaks whistleblower Bradley Manning

American TransparencyIn December, Private First Class Bradley Manning was finally granted a pre-trial hearing to determine whether a full military trial is warranted for the 22 charges against him for his alleged role in the disclosure of US government documents to WikiLeaks. The most serious charge, “giving intelligence to the enemy,” makes him eligible for the death penalty, though prosecutors say they will pursue a life sentence instead. On January 12, an Army investigating officer recommended that Manning face a court-martial.

When Wikileaks first released the cables and the country witnessed the atrocities of a US helicopter gunning down journalists, Bradley Manning was hailed as a conscientious whistleblower. He was then detained without charge for a year and a half.

Last month’s hearing lasted seven days, during which the military enforced strict security precautions and restrictions on the media. Live coverage was not permitted, including updates via Twitter, and electronic devices were not allowed in court.

At the conclusion of the hearing, the public knew very little about the case itself, or that Manning had carried out his duty as a soldier to disobey illegal orders as required by the precedent set at the Nuremberg trials. Instead, the media focused on Manning’s gender identity and disposition while stationed in Iraq.

Throughout the hearing, the prosecution depicted Manning as a traitor who risked the security of the nation, while the defense sought to portray him as a troubled and confused soldier. Despite clear motivations for the government to present an exaggerated picture of Manning and his actions, media sources have repeatedly chosen to defer to these versions of the events rather than conducting independent investigations.

Thursday’s recommendation for a full court-martial by Lt. Col. Paul Almanza reflects his finding that the preliminary hearing established reasonable evidence that Manning committed the offenses with which he is charged. A separate authority is responsible for the final decision about whether to refer the case to a court-martial.

Manning’s advancing prosecution comes at a time of great relevance to all Americans. With the recent passage of the National Defense Authorization Act, Congress has authorized indefinite detention for anyone, including US citizens, accused of supporting terrorism. Given the government's crackdown on whistleblowers, the military's challenges with ensuring due process, and the media's pattern of reporting sensationalist stories while ignoring key facts, this case has dire implications for other government employees who aim to expose official crime or misconduct.

FBI says activists who investigate factory farms can be prosecuted as terrorists

The FBI tracked animal rights activists who exposed factory farm abuses and recommended they be prosecuted as terrorists for causing corporate economic losses, according to a recently released FBI file.

Activist Ryan Shapiro submitted a Freedom of Information Act request for the 2003 FBI documents, which track the work of activists who worked undercover to expose animal welfare abuses. The activists trespassed onto factory farms to videotape and photograph animal rights abuses, and some activists also released abused animals.

Animal and environmental advocates were singled out by the FBI because they pose a risk not to human life, but rather to corporate profits.

FBI agents initiated their investigations under the pretense that the activists "disrupt the normal business and cause economic loss" to the corporations they examined. The FBI reasoned this was a violation of the Animal Enterprise Terrorism Act (AETA), a bill that targets environmental and animal rights activists, labeling them “eco-terrorists.”

AETA instills fear among activists and constitutional experts because the law criminalizes First Amendment-protected activity. Furthermore, the law unfairly penalizes animal welfare activists by designating them as terrorists, despite the fact that their activities would not be considered terrorism if they were instead advocating a different belief or interested solely in personal gain.

AETA supporters claim it only targets people who "burn down buildings." Yet the law has a much larger purview; it has been used to punish activists for causing a business "loss of profits." The Center for Constitutional Rights filed a lawsuit against the AETA in December because of its breach of civil liberties.

The disclosed documents show definitively that the FBI opens investigations in order to defend corporate profits, a revelation that furthers longstanding concerns about corporate cooptation of terrorism policy. The danger of corporate influence can be seen in recent policies ranging from the TSA’s body scanners to the NSA’s warrantless wiretapping program to ongoing national security letter abuses under the PATRIOT Act—none of which effectively protect national security, but all of which are quite lucrative for private contractors.

Targeting animal rights activists is also disturbing because of it precedent it sets. By laying a foundation for government targeting of advocates who threaten corporate profits, treating radical environmental activists as terrorists could help justify similar crackdowns on Occupy sites, Tea Party groups, or other grassroots advocates exercising their First Amendment rights.

Federal court allows surveillance case to proceed against government, but not against telecom companies

20091027 - kitchen - GEDC0449 - wiretappingOn December 29, the Ninth Circuit Court of Appeals allowed Jewel v. NSA, a lawsuit challenging a government surveillance program, to proceed. In an accompanying case called Hepting v. AT&T, however, the Ninth Circuit dismissed the plaintiffs’ claims against telecommunication companies that participated in the same surveillance program.

In 2008, Congress passed the FISA Amendments Act (with then-Senator Obama voting in favor), granting retroactive immunity to telecommunication companies involved in the warrantless surveillance program. Jewel involves claims that the federal government engaged in widespread and illegal eavesdropping in the United States following the attacks of 9/11, well before the 2008 FISA Amendments Act became law.

Specifically, the plaintiffs contend that the NSA intercepted telephone, Internet, and other electronic communications with the assistance of major telecommunication companies. In addition, they claim that the government operated a “dragnet collection” of communications and gained access to AT&T’s major databases of stored telephone and Internet records.

At issue was whether the plaintiffs met the constitutional requirements to sue. In order to sue, the plaintiff must establish a concrete injury traceable to the defendant’s conduct, which is challenging given the secrecy surrounding surveillance. The court ruled that the named plaintiff met this requirement, allowing the case to proceed.

The court also ruled that the case implicated no “political question” that would have required dismissal. It explained that “although the claims arise from political conduct and in context that has been highly politicized, they present straightforward claims of statutory and constitutional rights, not political questions.”

In the wake of the ruling, Jewel will be sent back to the district court, where the government is expected to argue that the case should be dismissed on the alternative ground of the state secrets privilege, which the government has historically and regularly used to block lawsuits that would potentially expose government errors and misconduct, or to prevent the courts from reviewing controversial government programs.

New Resources and Opportunities

January 15: Candlelight vigils to honor Martin Luther King Jr.

MLK MemorialThe Occupy movement is leading vigils across the nation to honor Dr. Martin Luther King Jr. and his fight for racial, social, and economic justice. In every Occupy location, candlelight vigils will be held at 7 pm local time on January 15. The family of Martin Luther King Jr., through their charitable foundation, has endorsed this call to action. For more information, contact your local Occupy site’s general assembly.

February 3: Day of action against the NDAA

After mobilizing in dozens of cities on December 15 and then again on January 11, Americans across the country will gather outside congressional offices on February 3 from 12 noon to 7 p.m. to protest the NDAA. Protests will be held at the local offices of all members of Congress (in both the House and the Senate) who voted in favor of the NDAA. To find out how your senators and representative voted, review the House record or Senate record.

If you’d like to join BORDC’s campaign to restore due process and the right to trial, sign up today.

Help BORDC restore the rule of law

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Contributors: Adam Arnold, Shahid Buttar, Amy Ferrer, George Friday, Lindsey Needham, Emily Odgers, 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