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Constitution in Crisis

October 2012, Vol. 11, No. 10


In this issue:

US Supreme Court slated to tackle civil liberties in 2012

BORDC News

Grassroots News

Law and Policy


US Supreme Court slated to tackle civil liberties in 2012

U.S. Supreme CourtUnlike the major parties’ presidential candidates, the Supreme Court has committed to address civil liberties this year. The remaining 2012 Supreme Court Term includes cases on issues from warrantless surveillance and warrantless searches involving drug-sniffing dogs or recent departures from a house about to be searched, to the ability to try severe human rights abuses in federal court.

Clapper v. Amnesty Internationalholds tremendous importance. The Bill of Rights Defense Committee (BORDC), along with privacy groups such as the Electronic Privacy Information Center (EPIC), recently submitted a friend of the court brief in the case, which will decide whether affected citizens have the right to challenge warrantless spying.

In 1978, responding to widespread domestic spying by the US Government without warrants, Congress passed the Foreign Intelligence Surveillance Act (FISA). FISA created more permissive rules for foreign intelligence, versus more robust limits on domestic surveillance, and also created a secret FISA court to oversee intelligence investigations.

In 2005, a pair of journalists revealed that, in violation of FISA, the Bush had created a program of mass warrantless surveillance so extreme that it almost triggered a mass resignation  by officials including FBI Director Robert Mueller and his deputies.

After years of lobbying by telecom companies, Congress passed the FISA Amendments Act of 2008 (FAA) to allow precisely what the original FISA prohibited, such as "the mass acquisition, without individualized judicial oversight or supervision, of Americans’ international communications."

In response to the FAA, a coalition of humanitarian, media and labor organizations that communicate with contacts and clients abroad immediately challenged the FAA in federal court. The government disputed the individuals’ right to even bring the lawsuit, and while a District Court agreed, the Second Circuit Court of Appeals ruled that the plaintiffs do have the right to challenge the FAA in court. The Obama administration appealed this decision to the Supreme Court.

On October 29th, the Supreme Court will hear oral argument in Clapper v. Amnesty, before deciding whether the plaintiffs should be allowed to challenge warrantless spying that directly impacts them, or whether the National Security Agency may instead continue mass warrantless spying on law-abiding Americans, immune from judicial review.

The House of Representatives recently voted to reauthorize the FAA for another five years, and the Senate is expected to vote later this year. Both the Supreme Court's decision in Clapper and the Senate vote will represent crucial points in the ongoing struggle over government surveillance.

BORDC News

BORDC welcomes new Communications and Development Assistant

Corina LeuThis month, BORDC welcomes Corina Leu to the Northampton, MA headquarters as our Communications and Development Assistant.

Corina was born in the Republic of Moldova and grew up during the country's most volatile years. At thirteen, she moved to New York City, and since her arrival in the US, she has channeled her early exposure to injustice into a passionate activism for American causes.

In New York City, she worked with Global Action Project, where she has produced films, designed curriculum and facilitated workshops on various social justice issues. Corina has also worked with the New York Civil Liberties Union’s Teen Health Initiative to provide training for health providers concerning teen rights and access to health care. She also designed a college readiness program for undocumented high school students, with the help of a fellowship award from the Sadie Nash Leadership Project.

Corina is a 2012 graduate of Mount Holyoke College, where she studied International Relations with a focus on International Development. Throughout her studies, Corina continued to gain experience as a media educator, to organize communities, and to encourage college students to appreciate the importance of community-based learning.

BORDC in the news

In the last month, BORDC staff and coalitions we support across the nation have been featured in various press outlets as they work to restore civil liberties one community at a time.

Buttar also made recent appearances on radio outlets across the nation. Last week, Buttar was a guest on KBOO’s Air Cascadia in Portland, OR, where he discussed the recent Senate report on fusion centers and opportunies to address its concerns through local reforms. Buttar visited the KPFK studio in Los Angeles, CA, where he recorded an interview slated to airlater this month covering fusion centers and the NDAA.

BORDC legal fellow Michael Figura was recently quoted by Huffington Post regarding the double standard pervading material support prosecutions. His article, originally posted on The People’s Blog for the Constitution, outlined how Iranian terror group Mujahedin-e Khalq (MEK) built relationships with US politicians in order to secure its removal from our government’s list of foreign terrorist organizations (FTO):

The terrorist status of the group has proved an uncomfortable situation for many of these politicians, who may have committed material support of terrorism by accepting fees and travel reimbursements to speak at rallies on behalf of the MEK when it was designated as a terrorist organization.

View other media appearances in BORDC’s news archives.

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

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

Highlights from the past month include:

Recent Events

In the last month, BORDC has appeared at various events to educate community members about civil liberties abuses and mobilize them to take action.

BORDC celebrates 10th anniversary at reception in Northampton, MA

patriot galleryOn Thursday, September 20, BORDC held a reception in Northampton, MA to celebrate ten years of standing for liberty when our government won’t. The event featured inspiring presentations from Atlantic columnist Wendy Kaminer; BORDC’s founder and hometown hero, Nancy Talanian; and Chris Pyle, Mount Holyoke Professor, renowned Vietnam-era whistleblower, and former counsel to the Church Committee. Attendees also saw a video message from Bill Newman, legal director of the ACLU of Western Massachusetts and host of a daily radio program.

Supporters attended from across the region, taking advantage of an opportunity to learn more about civil liberties, and to meet others in the Northeast working to restore our rights. In addition to hearing from our tremendous speakers, guests perused photos and profiles of previous Patriot Award winners in an open gallery at the Northampton Center for the Arts, and watched a screening of BORDC’s "COINTELPRO 2.0," a short film about the expansion of surveillance over the past decade.

BORDC thanks everyone who attended for making the reception a great success, as well as vendors including the Lone Wolf Restaurant, Paradise Copies, and the Northampton Center for the Arts, and supporting local businesses, including Shop Therapy, Herrell’s Ice Cream, Peacekeeper Cause-metics, and Happy Valley Arts & Crafts .

BORDC at FBI HQ on anniversary of peace & justice raids

On September 24, the Montgomery County Civil Rights Coalition organized a rally to commemorate the second anniversary of the FBI’s raid and seizure of computers, personal records, and books belonging to 23 peace & justice activists from the Midwest. BORDC’s Shahid Buttar spoke at the rally, concluding with a hip-hop history of the FBI and its recurring abuses of civil liberties.

The activists raided in 2010 were subpoenaed to testify before a grand jury, but refused to do so. Two years later, despite the lack of any indictments, they linger with a legal cloud over their heads. Meanwhile, the legal powers allowing the government to prosecute First Amendment activity as material support for terrorism--upheld by the Supreme Court in the 2010 Humanitarian Law Project v. Holder case--remain available for further abuses.

BORDC continues to raise awareness about the JUSTICE Act, authored by former Senator Feingold (D-WI) to extend his resistance to the USA PATRIOT Act. Among its various provisions, several of which would restrict the NSA’s warrantless spying program, the JUSTICE Act would also amend the material support statute to prevent similar raids in the future based on First Amendment protected speech and advocacy.

Shahid Buttar speaks at Houston, TX, CAIR banquet

BORDC’s Shahid Buttar was the keynote speaker on September 28, in Houston, TX, at the CAIR Texas 10th Annual Banquet. Buttar discussed Fagaza v. FBI, a case addressing claims by a series of southern Californians challenging a long running secret infiltration of their faith institutions by an ex-convict and undercover FBI informant Craig Monteilh. Buttar also highlighted recent developments with the reauthorization of the Foreign Intelligence Surveillance Act 2008 Amendments, among other examples of congressional and presidential failure to uphold civil liberties and the Bill of Rights.

 

Legal Fellow Nadia Kayyali speaks in Oakland, CA

On October 3-4, Legal Fellow Nadia Kayyali spoke at Laney College in Oakland, CA as part of "The War at Home and the War Abroad: an antiwar and Civil Liberties Teach-in.” She spoke about surveillance and racial profiling, focusing specifically on recent policy models established in Berkeley, CA as part of BORDC’s Local Civil Rights Restoration Campaign.

Executive Director Shahid Buttar speaks in Los Angeles, CA

On Wednesday, October 10, BORDC’s Shahid Buttar spoke to the American Constitution Society (ACS) student chapter at Loyola Law School. This Tuesday, October 16, Shahid will speak at UCLA Law School, at an event co-sponsored by the ACS chapter, the National Lawyers Guild, SALSA, and the Muslim Law Students Association. At both events, he discussed the recent Fazaga case, in which federal courts turned a blind eye to FBI infiltration of First Amendment protected organizations, and provided action opportunities for concerned students to get involved.

Grassroots News

October 2012 Patriot Award: Loan Tran

Loan TranEvery month, BORDC honors an individual who has done outstanding work in support of civil liberties and the rule of law in his or her community. This month, the Patriot Award goes to Loan Tran from North Carolina for her courageous work defending civil rights and civil liberties.

Loan has emerged as a leading youth organizer, and a strong advocate for immigrant rights and migrant justice. Her passion and enthusiasm are endless, and visibly demonstrated across several social justice movements.

 

Loan is a Vietnamese-American high school student based in North Carolina, where she works with several organizations, including United 4 the Dream (U4TD), a youth-advocacy and community partnership focused on supporting immigrants who are DREAM Act eligible. She also launched a campaign called “Drop the I-word,” which advocates against the prevalent and misleading use in the media of “illegal” to describe undocumented migrants. Beyond her further work with “Familias Unidas”, an organization that strives to keep immigrant families united despite the threat of deportation, Loan also aspires to launch a tuition equity campaign.

Much of Loan’s passion for advocacy stems from her personal history, as a member of a Vietnamese immigrant family that lived through forced migration from their homeland. With intimate knowledge of the challenges that affect new immigrants, she began connecting with people from different migrant backgrounds, educating herself about their vastly different stories and experiences.

Personally familiar with the cultural and linguistic barriers that immigrants must overcome, Loan stresses the importance of building a sense of community among allies. She helps build a safe space, where immigrants are allowed to share their experiences without fear of negative repercussions. Loan emphasizes the intangible rewards of organizing, such as knowing that her efforts strengthen her community and others.

For individuals who may be interested in advocating for similar issues, Loan emphasizes the importance of discovering your own history and narrative. She says this is essential in effectively advocating for any issue. She also urges fellow activists to take advantage of available information resources, such as blogs (like the People’s Blog for the Constitution) and independent media, to gain information about their concerns and sharpen their advocacy.

Grassroots Updates

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

Berkeley, CA: Coalition celebrates groundbreaking policy victory, plans for more

On Tuesday, September 18, prompted by the Coalition for a Safe Berkeley, the Berkeley City Council approved significant revisions to Police Department policies to protect privacy and dissent. The measures address surveillance and intelligence collection, inter-agency agreements with federal or state agencies, mutual aid to nearby jurisdictions when suppressing dissent, and limits on purchasing military equipment.

Included in the changes were pioneering limitations on so-called “Suspicious Activity Reports (SARS),” routinely collected by local and state police agencies to track Americans’ legal activities. SARs are often recorded in databases coordinated by fusion centers, regional intelligence agencies recently criticized by the US Senate for wasting taxpayer funds while also abusing constitutional rights.

Berkeley’s new policy requires that police justify any SAR by first establishing reasonable suspicion of criminal behavior, and provides that the City Manager will review all SARs to ensure compliance. By contrast, in other jurisdictions, SARs can be collected with no criminal predicate, for activities as innocuous as taking photos that “lack artistic merit,” or even just taking notes.

The Council also approved a resolution that will require City Council review of all Urban Area Security Initiative (UASI) grant requests, and heightened the standards for when the Berkeley Police Department may engage in criminal intelligence gathering.

The Council held over a vote on how the Berkeley Police Department will handle detainer requests from Immigration and Customs Enforcement (ICE). Community members expressed compelling concerns about the jail detainer policy suggested by the City Manager, which did not mirror a stronger policy previously adopted in nearby Santa Clara County. While the Coalition continues to prepare for a vote on the detainer policy, their advocacy has already set an important example for the growing national movement to challenge domestic intelligence, fusion centers, and Suspicious Activity Reporting.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Tacoma, WA: Occupy Tacoma wins Bill of Rights award on one year anniversary

BORDC Tacoma (WA) recently awarded Occupy Tacoma with the annual Bill of Rights Award, as organizers celebrated the one year anniversary of the Occupy movement in Tacoma. Occupy Tacoma has planned activities on October 14th and 15th, including a march in honor of the spirit of the movement and its successes.

BORDC’s Vice President and November 2010 Patriot award winner Tim Smith has worked closely with organizers as they look forward to celebrating their victories over the last year. Tim’s efforts were also crucial in prompting a five-part investigative news series by the Tacoma News Tribune, which recently uncovered serial violations by a corporate-run immigrant detention center in Tacoma.

 

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Seattle, WA: Working Rights Group to hold two-day seminar  

The Rights Working Group membership meeting will be held on November 12-13 in Seattle, WA. BORDC will join local organizers from Los Angeles and Tacoma to hold a caucus on Monday afternoon and a workshop on Tuesday afternoon.

The “F” Word caucus will address creeping fascism in the US. Fascism is a strong and jarring word, but one dangerously descriptive of emerging trends in the US. Consider Benito Mussolini’s famous definition: "Fascism should more properly be called corporatism because it is the merger of state and corporate power." Current conditions in the United States increasingly reflect this merger, including militarism of domestic policing, suppression of dissent, pervasive surveillance, disdain for basic human rights, and scapegoating of immigrants. During the caucus, attendees will discuss the intersections between stripping individuals and communities of constitutional rights, while expanding the rights of corporations. The caucus will also explore effective action opportunities, such as the local grassroots campaigns mobilized by BORDC.

The Tuesday afternoon workshop, See Something, Say Something?, reveals how coalitions can counter profiling. Prejudice and suspicion underlie programs that encourage neighbors to spy on each other. Programs like “See Something, Say Something” (like the one known as iwatch in Los Angeles) create an atmosphere that keeps communities vulnerable to profiling from building effective relationships with each other. They also fuel cultural misconceptions that can lead these same communities to view each other with suspicion. Hamid Kahn with the Stop LAPD Spying and BORDC’s Nadia Kayyali will share best practices in coalition building, emphasizing relationship building to form alliances and bring various fronts of struggle together in local movements. This workshop will explore processes, practices and outline skills that can result in strong, effective coalitions.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Los Angeles, LA: Coalitions challenging NDAA, and LAPD spying, convene to plan next steps

On Thursday, October 11, the Stop LAPD Spying coalition won the Daniel Levy award for progressive community activism from the National Lawyers Guild. The coalition, which reflects a diverse cross-section of Los Angeles, meets on Tuesday, October 16 at the LA Community Action Network. The agenda will include reviewing a draft of the proposed People’s Audit of local surveillance efforts.

On Friday, October 12, another coalition in Los Angeles convened to discussed next steps in its campaign to challenge the NDAA’s domestic detention provisions. Participants included representatives from BORDC, the ACLU of Southern California, Interfaith Communities United for Justice & Peace, and Young Americans for Liberty. The coalition’s next meeting will be in November.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Fayetteville, AR: Community partners building coalition against racial profiling

On October 4, the Northwest Arkansas Workers Justice Center (NWAWJC) in Fayetteville, Arkansas, hosted BORDC’s George Friday as community partners convened to discuss working in coalition to address racial profiling of immigrant communities and other communities of color. Civil rights have withered in Northwest Arkansas under criticism by local leaders, and a rise in racial profiling as the immigrant population in the area has expanded.

Groups attending the October 4 coalition meeting included the Omni Center for Peace, Justice, Ecology; Arkansas United Community Coalition; and Citizens First Congress, along with students and faculty from the University of Arkansas, and members of local Marshallese and Latino communities. NWAWJC volunteers and staff plan to conduct educational forums, while reaching out to students, residents, labor and faith groups to come together again in November.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Chicago, IL: Diverse communities convene to discuss coalition opportunities

Last month, leaders and activists in Chicago received a provocative message from Andrew Bashi at the Chicago Committee to Defend the Bill of Rights.  He remarked that “with assaults coming from all directions and becoming more numerous by the day, the time has come to imagine and create a new force for social change in our community,” to bring together the various communities enduring civil rights abuses.

On Thursday, October 18, a diverse group of organizations will convene to discuss their overlapping concerns and how to address them. Hosted by the Chicago Committee to Defend the Bill of Rights, the meeting will be facilitated by BORDC’s George Friday. George will share BORDC’s models for coalition-building and organizing.

Chicago has a long history of civil rights abuses and recent successes in combating these issues. In September 2011, Cook County voted to stop complying with ICE detainer requests and in another civil rights victory this January, the City Council unanimously voted to make Chicago the first “torture free” city in the country.  In the face of new measures enacted earlier this year to restrict dissent, the group may ultimately choose to champion further proposals to address all forms of profiling and restore privacy and dissent from suppression by local police departments.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Charlotte, NC: Local activists challenge police abuses

Police LightbarResidents of Charlotte, NC have endured decades of race-based profiling, especially as immigration has increased over the last decade. The recent Democratic National Convention (DNC) also prompted the Charlotte City Council to enact anti-dissent ordinances earlier this year.

Along with allied organizations and grassroots activists, BORDC worked to protect rights to dissent leading up to the DNC, and was pleased when students at Charlotte School of Law joined the struggle by hosting law clinics and educating the public about police suppression of dissent.

Community leaders met last month to plan next steps, which include building relationships across communities that share concerns about police practices. The group decided to promote People’s Power Assemblies in two areas, to offer chances for community dialog in neighborhoods that have most endured the “wars” on drugs, terror and immigration. An advisory committee has been established, with local organizers including Yen Acala and Loan Tran poised to guide this work moving forward.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

New York, NY: City Council hearings underway on proposed Community Safety Act

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

The coalition then organized a large rally on September 27 in support of its proposed Community Safety Act, before packing a city council hearing on October 10 where the legislation was debated. For over six hours, concerned community members testified about the impact of biased policing and the need for legislative reform, prompting strong reactions from Council members:

 

The council will also hold additional hearings on October 23 in Brooklyn and October 24 in Queens, where members of the public can testify about their experiences with stop and frisk. For the most current updates on the progress of the legislation and the coalition, search Twitter on hashtags #changetheNYPD and #CommunitySafetyAct.

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

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Albany, NY: Event planned to launch report on “the New Jim Crow”

Grassroots groups in Albany, along with BORDC, are working together to host an event on October 25 to address the effects of "the New Jim Crow" and promote broad efforts to address police abuses. The event will mark the release of a new report by the Center for Law and Justice on the disparate impact of the drug war on African-American men in Albany.

The report highlights outrageous sentences imposed on young men in Albany for non-violent crimes. The Center for Law and Justice will discuss measures to address the impact of mass incarceration on communities of color, and rally communities in Albany and New York to oppose "The New Jim Crow." The event, suggested by BORDC, will bring together communities targeted in the war on drugs with those targeted for their religious and political beliefs, after a press conference promoting collaborative solutions to resolve these pressing problems.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Hartford, CT: Coalition to Stop Indefinite Detention to host northeast regional conference

The CT Coalition to Stop Indefinite Detention will host a Northeast regional conference on December 8th to mobilize resistance against domestic military detention and other aspects of the national security state. Keynote speakers will include civil rights litigator and popular blogger Glenn Greenwald, as well as BORDC’s Shahid Buttar.

The conference will bring together diverse organizers across the Northeast who are building grassroots resistance to provisions of the NDAA and AUMF that could authorize the indefinite domestic military detention of Americans, as well as organizers working against stop & frisk or traffic stop policies enabling racial profiling, immigration enforcement programs such as Secure Communities, and intelligence collection by local police departments and their collaboration with wasteful federal fusion centers.

To get involved, email the BORDC Organizing Team at organizing@bordc.org.

Law and Policy

Fusion centers: a federal assault on privacy vs. a local reform model

(Ed Andrieski/AP)Just last week, Congress issued a report critical of fusion centers: duplicative regional networks that promote information sharing between local and federal law enforcement. Civil liberties advocates including BORDC have long recognized the threats that fusion centers pose to civil rights. The US Senate recently joined them in expressing concern.

Fusion centers sprung up as early as 2002 in many incarnations, though the Department of Justice (DOJ) official fusion center guidelines were not published until August 2005. Since then, coordinated by the Department of Homeland Security (DHS), fusion centers have proliferated across the country. There are now over 70.

The Senate’s September report highlighted the extreme waste of spending on fusion centers, as well as the impacts of their intelligence activities on civil liberties.

First, the Senate found that fusion centers routinely waste money on superfluous equipment, such as “hidden ‘shirt button’ cameras, cell phone tracking devices, and other surveillance equipment unrelated to the analytical mission of a fusion center.”

The Senate also found that fusion centers produce “uninformative” and outdated data. At times, investigators found that intelligence from fusion centers even undermined counterterrorism efforts. Finally, the report found privacy violations such as inappropriate retention of information about innocuous--or even constitutionally protected--activities.

Civil liberties organizations, including BORDC, have recognized the dangers presented by involving local police in domestic intelligence efforts, especially given inadequate training or supervision on civil liberties. These dangers have already been realized. For instance, in February 2009, the North Central Texas Fusion System issued a bulletin citing political speech, clearly protected under the First Amendment, as a basis for legitimate monitoring by law enforcement agents. The targets of this unconstitutional recommendation included political groups, such as the International Action Center and ANSWER: Act Now to Stop War and End Racism, as well as various Muslim organizations.

As discussed on the BORDC blog last week, fusion centers collect data without any of the constitutional safeguards normally associated with criminal investigations. This problem is compounded by the fact that fusion centers often fall through supervisory cracks. Because they are collaborations between federal, state, county, and municipal agencies, as well as private entities, it is often unclear who really has ultimate control.

This very confusion, however, creates an opportunity for concerned community members. While Congress will likely ignore mounting concerns about fusion centers and the threat they pose to both privacy and the federal budget, change is possible--especially at the local level.

Just last month, the Coalition for a Safe Berkeley successfully secured revisions to local policies requiring reasonable suspicion of criminal behavior to justify the submission of any SARs to the Northern California Regional Intelligence Center, and also subsequent oversight by elected local officials. Any city government could adopt similar measures if approached by a local coalition uniting diverse grassroots voices.

Due process under assault on all sides: the NDAA, Omar Khadr, Abdullah al-Kidd, and you

al-kidd“The affidavit evidences a reckless disregard for the truth.” These words, penned by United States Magistrate Mikel Williams on September 28th, reflect a scathing indictment of the FBI’s deceitful misuse of the law in the case of Abdullah al-Kidd.

An American citizen whose original name was Lavoni Kidd, al-Kidd was detained in 2003 under the auspice of the federal material witness law, a tool originally intended to prevent witnesses from fleeing before trial. In its post 9/11 fervor, however, the federal government instead contorted the law into a pretext for long-term preventive detention for suspects they never intended to call to testify. Al-Kidd, whose only crime was being friends with fellow University of Idaho student Sami Omar al-Hussayen, spent 16 days in federal detention, sometimes naked and sometimes shackled, often freezing and in cells lit for 24 hours a day.

By ruling last month that Al-Kidd’s wrongful detainment case against the FBI can move forward, Judge Williams acknowledged, in effect, that a federal agency had deceived a federal judge. The ruling also vindicated concerns about due process, which has suffered an assault not just from abuses of the material witness statute, but also the NDAA.

Last month, after Judge Katherine Forrest enjoined the military detention provisions of the National Defense Authorization Act (NDAA), the US Court of Appeals for the Second Circuit stayed her injunction. The stay essentially allows the government to proceed with enforcing the law, including section 1021, which allows the armed forces to indefinitely detain any person, including US citizens, accused (whether or not proven) of “substantially support[ing] al-Qaeda, the Taliban, or associated forces…including any person who has committed a belligerent act….in aid of such enemy forces.”

Unlike the federal material witness law, which requires convincing a judge to issue a warrant prior to detention, the NDAA’s generality makes it easy to abuse. As BORDC executive director Shahid Buttar notes:

 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, [the NDAA] offers the legal authority for severe repression.

Coupled with the ambiguous nature of the NDAA and the example of al-Kidd’s illegitimate and arbitrary detention, an increased focus on domestic extremism presages the possibility of detaining people indefinitely based on their views critical of US policy.

Americans have rarely been subjected to indefinite domestic military detention, though Jose Padilla illustrates how due process suffered even before the NDAA became law. In any case, our government has demonstrated its willingness to bend traditional lines of legal categorization to justify detention. Omar Khadr Event

This week saw the return of Omar Khadr to hisnative Canada after almost ten years at Guantanamo Bay. An accused child soldier, he was just 15 when originally sent to the notorious Caribbean outpost, where he was subjected to conditions described by the United Nations as torture. It was only after Khadr entered into a controversial plea with military prosecutors that they removed the threat of indefinite detention.

Critics of the NDAA point to Khadr’s story as a precautionary tale about the dangers of indefinite military detention, and al-Kidd’s
experience as a reminder of the importance of
judicial independence from executive agencies.

What's really at stake in the cybersecurity debate

Cybersecurity has drawn recent attention from the National Security Council, Congress and Obama administration. Pending legislation, and recent and forthcoming executive acts, all hold crucial implications for your rights online, and checks & balances on executive power going forward.

The Washington Post reported on a major speech on cybersecurity by the US State Department’s legal advisor, Harold Koh, hosted by the US Cyber Command. Koh claimed that the US abides by international law in cyberspace, and also reserved broad retaliatory powers in the event of armed attacks. His speech was the first time a senior administration legal official addressed cybersecurity.

Koh explained the administration’s position, that “there is no threshold for a use of deadly force to qualify as an ‘armed attack’ that may warrant a forcible response.” Koh not only implied that any illegal use of force could trigger a national right to use armed self-defense, but also went on to reserve the right to use armed self-defense to respond to potential cyberattacks.

Elsewhere in the administration, a recent review of efforts to defend information infrastructure led to the Cyberspace Policy Review, and the creation of a Cybersecurity Office within the White House national security staff. Finally, the administration has reportedly begun drafting an executive order to address cybersecurity.The order would order federal agencies to develop voluntary (rather than mandatory) guidelines for private or corporate owners of critical infrastructure utilities, such as power plants, electric regulators, or water treatment facilities.

Not everyone is pleased with cybersecurity justifying further extensions of executive power.SenatorsSusan Collins (R-ME), Olympia Snowe (R-ME), and Richard Lugar (R-IN), for instance, recently wrote to the president that, “We share your frustration that Congress has not yet completed its work on this legislation, but we…urge you to continue to work with Congress, rather than acting unilaterally through an executive order.”

Congress has not been entirely silent on cybersecurity, however. In April, the House voted 248-168 to send the Cyber Intelligence Sharing and Protection Act (CISPA) to the Senate, over a White House veto threat and vocal opposition from civil liberties advocates. Several major companies support the bill, including Facebook, Microsoft, Intel, Verizon, and AT&T.

CISPA would allow internet information sharing between the government and private companies to safeguard against cyberattacks. Though the bill, introduced late last year by Rep. Michael Rogers (R-MI), received support in the House, the Obama administration recognizes its lack of civil liberties and privacy protections. The ACLU wrote in December 2011, urging Rogers and his colleagues “to amend the bill to include explicit collection and use limitations and rigorous oversight mechanisms.”

The ACLU explains that CISPA would “would create a cybersecurity exception to all privacy laws and allow companies to share the private and personal data they hold on their American customers with the government….” The bill limits neither the types of individual information to be shared between corporations and the government, nor what purposes that information is used for.

Stop and frisk, and beyond

The modern era of stop & frisk policing can be traced to 1968, when the Supreme Court declared in Terry v. Ohio that police officers may stop people on the street and pat them down for weapons based on reasonable suspicion of criminal activity, a standard less stringent than the probable cause required by the Constitution to obtain a warrant. Justice Douglas, the lone dissenter, presciently noted that the decision was "a long step down the totalitarian path."  

Stop-and-friskIn New York City, the practice of racial profiling by the NYPD came to a head in 1999, with the brutal shooting of Amadou Diallo, an unarmed man in the Bronx shot 41 times. In the wake of his killing, community activism and a federal lawsuit forced the NYPD to disband the unit that shot Diallo and disclose data about who they stop and frisk.

Since 2003, when the disclosure requirement was put in place, the number of stops has risen dramatically. Last year, the NYPD stopped and frisked nearly 700,000 people in New York, 90% of whom were people of color and 88% of whom the police did not even accuse of any wrongdoing. The bias is most prevalent in the City's poorest neighborhoods, not only harassing and humiliating individuals, but also tearing at the fabric of communities, making them less safe and less prosperous.

Biased NYPD practices, however, are not limited to street encounters. The Associated Press won a Pulitzer Prize for its stories about the NYPD’s program of spying on Muslim communities well beyond New York. Monitoring residents of the tri-state area and beyond, solely because of their religious beliefs--or the beliefs of their classmates or customers--is patently unconstitutional. It is also, like the fusion centers recently criticized by the Senate, a waste: the NYPD has admitted that its spying program has not produced a single lead.

As the NYPD has doubled down on its methods of discriminatory policing, a diverse movement has emerged to challenge its practices. Communities United for Police Reform (CPR), is made up of many diverse member organizations representing youth, people of color, the LGTBQ community, Muslims, the homeless and supporters of civil rights and liberties, including BORDC.

CPR supports passage of the Community Safety Act, a package of reforms to reign in the NYPD. It would require the NYPD to stop profiling people based on race, sexuality, religion, immigration status and other categories; mandate that officers get written or recorded consent before searching someone without legal cause; require officers to identify and explain themselves; and appoint an Inspector General to oversee the department.

Several elements of the Community Safety Act are novel, and worth replicating in other cities. For instance, its consent provision assures that people in New York are aware of their right to refuse warrantless searches lacking reasonable suspicion, and that police do not trick or coerce them into resigning that right. And the Inspector General it would create would help identify NYPD abuses in the future.

Judge dismisses ACLU lawsuit seeking information about ethnic profiling mandated by FBI

The ACLU’s attempt to investigate the FBI’s “domain management” efforts in New Jersey has been dismissed by US District Judge Ester Salas. The domain management program was part of FBI’s regulations implementing the 2008 Attorney General’s Guidelines, which BORDC has criticized since their adoption, and has yet to draw the attention warranted by mandated ethnic profiling.

In 2008, the Justice Department announced a revised set of guidelines for FBI operations, prompting unanswered concerns from Congress and widespread concerns from civil liberties organizations. Most criticisms of the 2008 Guidelines focused on their provisions relaxing requirements for surveillance, but another facet of the Guidelines entailed what the FBI calls “domain management,” or ethnic mapping.

Judge Salas favored the government’s position, allowing it to withhold information requested under the Freedom of Information Act (FOIA). The ACLU of New Jersey sued the Department of Justice and FBI in May 2011, after inquiring about the use of race and ethnicity to track communities targeted under the Domestic Intelligence Operations Guide (DIOG). The DIOG was originally disclosed in response to a 2009 FOIA request by BORDC’s Shahid Buttar.

While much of the DIOG was redacted, one provision disclosed by the government related to a “domain management” program to identify and map concentrations of any ethnic minorities living within the domain of each of the FBI’s field offices.

The ACLU claims that even though three hundred pages of the documents were released, the FBI unjustly removed vital information as well as totally failed to give certain documents. Judge Salas wrote in her opinion that the FBI had responded to the ACLU’s requests satisfactorily because the FBI is allowed to withhold classified records. ACLU lawyer Nursat Choudhury confirmed that the ACLU is ACLU lawyer Nursat Choudhury said that the ACLU is “disappointed by the decision and we disagree with it.” The ACLU is currently planning an appeal.


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Contributors: Shahid Buttar, George Friday, Annette G. Macaluso, Samantha A. Peetros, Emma Roderick, Nadia Kayyali, Michael Figura, Ash Kernen,Yiqian Wang, and Fracisco White

Banner Photo Credit: Storm Front by Matthew Johnston
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