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Constitution in Crisis

November 2012, Vol. 11, No. 11

In this issue:

Will President Obama's second term finally fulfill his 2008 promises?


Grassroots News

Law and Policy

New Resources and Opportunities

Will President Obama's second term finally fulfill his 2008 promises?

The following was excerpted from a 3-part series by BORDC’s Shahid Buttar available on the People’s Blog for the Constitution (Part I, Part II, Part III).

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

In broad strokes, the most enduring part of President Obama’s legacy will be the entrenchment of the national security state on his watch. Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Eisenhower and ObamaA former President’s warning

50 years ago, President Dwight “Ike” Eisenhower, the Supreme Allied Commander during World War II, issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.”

Ike observed a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Eisenhower proved prescient. True to his prediction, the contemporary national security racket offends all Americans, regardless of ideology.

Transparency, accountability, and legitimacy

First, it has erected such pervasive secrecy that it threatens the basis for democratic accountability, subverting the consent of the governed on which democratic legitimacy depends. For years, the NSA operated its dragnet warrantless wiretapping scheme in total secrecy, in direct violation of the Foreign Intelligence Surveillance Act (FISA) enacted by Congress in the 1970s to stop domestic spying.

Every federal court ever to review the program on the merits has struck it down as unconstitutional, yet it persists unabated. Congress bent over backward to rewrite the FISA law in 2008, and appellate courts have thrown out numerous lawsuits challenging it based on the perverse reasoning that, because the NSA’s program is secret, no plaintiffs can prove that they…have been monitored.

Officials have admitted to violating even the permissive new law. Members of Congress have asked tough questions and received only silence in response. Yet, reflecting a disturbing pattern of bipartisan abdication, the House recently voted to reauthorize the 2008 FISA amendments for another five years.

Secret programs violating contrived statutes, especially with the blessing of (supposedly) independent courts, make a mockery of our claim to live in “a land of the free.”

The federal budget

The national security boondoggle is also a hole in the bottom of our budgetary bucket, bleeding our national treasury and largely prompting the budget crisis that has gripped Washington since 2010. Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

The NSA’s $2 billion data centerin Utah, the $1.5 billion that DHS has thrown at fusion centers, or the FBI’s billion dollar facial recognition database, are mere tips of an iceberg.

Especially in light of the looming fiscal cliff, ending the era of blank checks for redundant national security agencies could enable solutions to any number of pressing social crises, from climate change and education to the housing crisis.

Your constitutional rights

Democracy Has Taken a HitStretching beyond counter-terrorism to also include border integrity and immigration enforcement agencies, increasingly militarized local police, and networks of publicly-funded fusion centers around the country, our nation’s internal security agencies pour budgetary salt on constitutional wounds, assaulting constitutional rights and liberties of which we were once justifiably proud.

National security efforts also often offend free speech. Crowd control technologies developed for military use have been used around the country to suppress various non-violent social movements, including those focused on peace, climate change, economics, and international trade. The surveillance and infiltration of Occupy sites, reflecting the same kind of “sophisticated vigilante operation” decried by Congress in the 1970s, extended around the country and has grown well established.

Muslim Americans from more or less every ethnic group have been monitored within faith institutions, Sikh Americans have been consistently profiled in airports, and Latinos – or anyone perceived as Latino – are forced by “papers, please” requirements in many states to provide documentation on demand. Nor are they the only ones impacted: even US citizens are regularly deported due to inaccuracies in federal records. And longstanding racial profiling in the drug war continues unabated, exemplified by the NYPD’s blatantly discriminatory stop & frisk practices.

No sector of our society has been safe: groups targeted for counter-terror scrutiny have addressed social causes as diverse as civil rights, environmentalism, animal rights, feeding the homeless, promoting bike lanes, international peace, domestic labor organizing, and the Republican presidential campaign of Ron Paul.

Even veterans returning from armed service abroad have been stained with the brush of suspicion, viciously attacked by local police while peacefully exercising their rights, and monitored by domestic agencies participating in the surveillance racket.

A new President’s forgotten promises

The dire need to restore legitimacy to our national security efforts was a defining element of the 2008 election. Obama repeatedly pledged to reverse the course set by the Bush-Cheney administration, only to resign that mandate soon after taking office.

Fortunately, the administration enjoys several opportunities to advance liberty and restore legitimacy to our national security efforts, even without congressional consensus. There has never been a better time to act on the president’s longstanding promises to restore liberty and security.

Transparency: a transpartisan value for a conciliatory second term

No issue offers the chance to build goodwill from as many political corners as supporting long-overdue transparency. Indeed, transparency is favored by the most active elements of each of the major parties, with the digital privacy community joining civil rights advocates alongside libertarian critics of the president.

Advancing transparency would not only gain the enthusiastic support of observers from across the political spectrum, it would also ensure future opportunities to engage underlying issues such as surveillance, torture, and profiling, by enabling public discussion of news cycles that would otherwise remain entirely secret. Have officials learned the value of enabling independent institutions, such as the press, to do their jobs?

With the intelligence community in disarray following the fall from grace of CIA Director Petraeus, and a looming struggle over the allocation of inevitable budget cuts in the face of the “fiscal cliff,” the time is ripe to rationalize our nation’s intelligence activities, and ensure their exposure to the disinfectant light of day.

Opportunities to advance transparency

Administration officials enjoy several chances to do so even before the second term begins. 

At the very least, the administration should resign its war on federal whistleblowers. The unprecedented number currently facing prosecution exceeds the total number previously prosecuted over the entire history of the United States.  President Obama could place a moratorium on further cases, and suggest prosecution only where the disclosure actually harms national security, rather than merely the reputations of intelligence agencies indulging fraud and waste.

If protecting whistleblowers seems too demanding, the administration could alternatively direct the NSA to answer tough questions from Senator Wyden (D-OR), whose hold on the reauthorization of the 2008 FISA Amendments aims to help advance transparency that the NSA has continued to evade.

Having already admitted to violating the law—even under powers granted in 2008 to legalize plainly unconstitutional spying initiated in secret by the Bush administration—the agency has refused to disclose how many Americans have been impacted, hiding instead behind a wall of secrecy supported thus far by the Obama administration.

Every time the NSA has faced judicial review for systematic violations of the Fourth Amendment, the Obama administration has supported the Bush era tactic of seeking immunity by asserting the state secrets privilege. The wall of secrecy has also expanded to protect not only the NSA, but also the FBI, and even private corporations complicit in torture.

To the extent administration officials claim a mandate from the election, even bolder options emerge to reign in the abuses of the national security state. For instance, the administration could throw its political weight behind the state secrets protection act, which was among the president’s clearest priorities during the forgotten 2008 campaign.

The boldest thing the administration could do to advance transparency would be to instruct the Defense Department to release the thousands of photos and videos it continues to hold secret documenting a policy of torture under the Bush administration that ranged well beyond the behavior of “a few bad apples.”



BORDC seeks spring 2013 interns

As the New Year approaches, BORDC seeks enthusiastic interns to join our team. If you—or anyone you know—would be interested in a volunteer or academic internship focused on civil liberties, constitutional rights, and cultivating grassroots activism, please review the position description online and follow the application instructions.

Opportunities are available throughout the US, with applications welcome through January 11. While interns must agree to dedicate at least 15 hours per week to BORDC for at least three months, applicants need not be students to be considered—so please share this information with current students, as well as recent graduates, those embarking on a new career path, and anyone else seeking to expand their skills and support the struggle to restore constitutional rights.

For those interested in volunteering with BORDC with a lower level of commitment, a variety of other opportunities includes research, outreach, and writing projects. For example, writing for our blog is a great way to build your skills, gain subject matter exposure, and begin promoting your work under your own byline.

BORDC in the news

BORDC legal fellow Nadia Kayyali appeared in several local and regional press outlets after the Berkeley City Council unanimously voted to impose a series of policies restraining Berkeley Police Department (BPD) practices. After voting last month to limit intelligence collection, suppression of dissent, and purchases of military equipment, the Council’s latest decision prohibits the BPD from holding undocumented persons in the local jail at the request of federal authorities.

Each of Berkeley’s recent policies are among the country’s most assertive attempts to push back against federal co-optation of local police. Both the Daily Californian and the Mercury News quoted Kayyali's address to the city council about police holding suspected immigration violators for federal authorities. The Daily Californian quoted Kayyali:

We are basically throwing out the idea that someone is innocent until proven guilty. We are holding them on their immigration status.

The Mercury News also quoted Kayyali’s comments about the presumption of innocence. Explaining the importance of the vote, Kayyali was quoted by the independent online news site Berkeleyside:

This is probably the best policy in the country,” she said. “It really sends a message about S-Comm, and makes council’s statements in the past, about not supporting the program, a reality.

Earlier in the month, Nadia lent her insights to The Daily Californian regarding the potential purchase of drones by the Alameda County (CA) sheriff’s department. In light of local protests over the heavy-handed tactics employed to suppress the Occupy movement last year, Kayyali questioned the boundaries of local power to protect privacy:

If Berkeley City Council or Berkeley as a community doesn’t want drones, it isn’t clear they could do anything about it,” said Nadia Kayyali, a legal fellow at the Bill of Rights Defense Committee, which operates as a part of Coalition for a Safe Berkeley.

On October 18, BORDC executive director Shahid Buttar was quoted by The Spokesman-Review in a story about a Spokane-area psychologist who helped the CIA develop it's “enhanced interrogation” techniques and was recently nominated by a faith institution to a leadership position. While declining to criticize the church, Buttar said:

I can think of no one less qualified for a position of moral and spiritual leadership.

Most recently, Buttar appeared on Robert Scott-Bell’s podcast, Natural News, on November 15. Buttar also appeared alongside host Sonali Kolhatkar on KPFK 90.7FM Los Angeles on October 25, discussing the local dimensions of our government's surveillance regime and how local jurisdictions can take action to stop their law enforcement agencies from pouring budgetary salt on constitutional wounds.

BORDC also helped draw attention to the Supreme Court’s forthcoming decisions impacting civil liberties. Sudha Setty, a law professor at Western New England University School of Law in Springfield, MA, wrote an op-ed on the right to challenge national security policies in federal courts when they violate civil liberties. BORDC helped place Setty's piece, "A day in court? Maybe not in America," in The Herald News and also on Truthout. Addressing Clapper vs. Amnesty Int’l, challenging the interception of communications of US persons under laws authorizing foreign surveillance, she wrote:

In the Clapper case, the Obama administration won’t disclose whether the plaintiffs were actually under surveillance, but will paradoxically argue before the Court that the plaintiffs don’t deserve a day in court because they can’t prove (due to government secrecy) that they, in particular, were actually monitored.

Finally, on September 24, BORDC joined the Electronic Privacy Information Center and several other allied organizations in filing a amicus curiae, or "friend of the court," brief with the Supreme Court regarding Clapper and the importance of the court's ruling for civil liberties in America.

View BORDC’s most recent media appearances on the People’s Blog for the Constitution and our news archive.

Support BORDC—without opening your wallet

BORDC works across the nation to build the grassroots movement necessary to restore civil liberties. Can you spare three minutes to help expand our efforts, without needing to open your wallet or checkbook?

credo mobileFirst, vote for BORDC on the CREDO ballot. CREDO Mobile is a cell phone service provider run off of the Sprint network, committed to supporting non-profits. BORDC is one of eight civil rights charities to which CREDO Mobile has committed a share of its 2012 profits. Because the size of our award is determined by popular vote—and anyone, whether a CREDO customer or not, can participate—please take a moment to cast your vote for BORDC on the CREDO ballot.

Second, use GoodSearch to support BORDC every time you search the web. GoodSearch is a search engine run by Yahoo, which donates 50 percent of its sponsored search revenue to charities and schools designated by its users. You can use GoodSearch exactly as you would any other search engine, while easily designating BORDC as the organization of your choice.

great non profitsBORDC was recently named one of the top rated non-profits of 2012 by Great Nonprofits, a leading provider of reviews and ratings of nonprofit organizations throughout the US. Its website includes reviews of over 1.2 million organizations, all generated by individuals sharing their respective experiences. Visit BORDC's profile to see the experiences shared by grassroots organizers, volunteers and others who have worked with BORDC.

CREDO Mobile and Goodsearch each offer a way to help expand BORDC’s efforts without having to open your wallet. Please take a moment today to participate!

Happy Thanksgiving from BORDC

2012 has been a monumental anniversary year for the Bill of Rights Defense Committee (BORDC). It was a decade ago that a small group of committed activists gathered in Northampton, MA, to organize resistance to the USA PATRIOT Act. They secured a resolution in their city council upholding the Bill of Rights, and founded BORDC.

Since 2001, BORDC has grown into a national grassroots network working across the country to protect the rule of law and restore civil liberties. We’ve worked with grassroots networks in hundreds of cities to mobilize support for civil rights and civil liberties.

Every day, concerned grassroots organizers engage their local communities with our toolkits, read updates from our blog and newsletter, and build local coalitions with our advice, to make sure that your voice is heard on issues like torture, surveillance, and racial profiling,

And you’ve been a big part of our success. Your support means the world to us — and to our nation’s future. Thank you for supporting the Bill of Rights and BORDC’s efforts to defend it over our first decade.


Happy Thanksgiving from everyone at BORDC!

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 up-to-date and informed.


Grassroots News

Patriot Award: Arthur Persyko

Art PersykoEvery 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 Arthur Persyko for his unwavering dedication to the labor movement and courageous advocacy in California against indefinite military detention under the NDAA.

The son of Polish-Jewish immigrants who faced dire deprivations in Hitler’s Europe, Arthur’s personal history informs his perspective on the preservation of civil liberties.  He recognizes how acquiescing to government intrusions can enable further encroachment, and understands the value of communities organizing against injustice.

At 62-years-old, Arthur has long been a stalwart in the labor movement’s struggle for fairness.  While working as a truck driver, he joined the International Brotherhood of Teamsters. Art’s activism in the Labor movement loudly defies impressions of unions as self-serving entities, and his efforts have advanced crucial causes for all workers. 

As a Volunteer Political Coordinator for the Teamsters, Art worked to help improve work conditions for himself and his colleagues. Victories such as compelling an employer to furnish ergonomic equipment proved for him that marginalized groups can secure meaningful change. 

His vision of people power is also apparent in Art’s recent advocacy in California against indefinite detention.  The 2012 National Defense Authorization Act (NDAA) could authorize the indefinite detention of Americans in military custody.  Since October 2011, Arthur and the San Francisco 99% Coalition (SF99%) have worked to cultivate momentum against the NDAA’s profound civil liberties implications

Even before President Obama signed the NDAA into law, SF99% joined the “Occupy Your Rights” forum to demonstrate against indefinite detention, and rallied at City Hall to protest the erosion of due process.  After the bill became law, SF99% initiated a comprehensive campaign, coordinating public presentations in Oakland and San Francisco, participating in other organizations’ events, and creating a weekly public radio show exploring how the NDAA threatens all Americans. 

Art and the SF99%’s NDAA sub-committee also engaged federal officials.  Under the advice of BORDC, Art and his local allies met with Senator Dianne Feinstein (D-CA) to request that she strengthen her response to the NDAA, which ensures due process protections for American citizens but leaves other Americans vulnerable to indefinite military detention within the US. 

Art’s personal narrative, activism in the labor movement, and efforts against indefinite detention demonstrate the importance of coordinated activism.  His family’s experience reinforces his vision, organizing across diverse communities to build a shared voice against oppression.  In raising his voice, Arthur Persyko provides a compelling example for other retirees and labor organizers, imploring all activists to organize, raise awareness, and take action on as many levels as possible.

BORDC proudly thanks Art and his allies at SF99% for their dedication to preserving civil liberties, and to building a movement in the Bay Area to stop indefinite military detention.

Grassroots updates

To get involved in any of these efforts, please email the BORDC Organizing Team at We’re eager help support your activism!

Albany, NY: Coalition fights racial profiling in policing

On October 25, about 75 residents of Albany, NY gathered to discuss the profiling of African-American males in federal and state drug sweeps, and how various communities suffer from profiling in other contexts. Co-sponsored by The Center for Law and Justice (CFLJ), BORDC, NYCLU of the Capital Region, Project Salam, Urban Arts Experience, Masjid as-Salam, and A Village, the event attracted a diverse cross-section of the community.

CFLJ Director Dr. Alice Green presented the findings of her organization’s report, What Have We Done?: Mass Incarceration and the Targeting of Albany’s Black Males by Federal, State, and Local Authorities emphasizing the “modern-day oppression” of the “new Jim Crow.”  BORDC legal fellow Michael Figura drew connections between law enforcement tactics targeting African-American and Latino communities in the drug war, and the targeting of Muslims and political activists in the war on terror. Lynne Jackson from Project Salam highlighted some of the many examples of FBI “investigations” using informants to instigate fake plots.

Covered extensively by the city’s daily newspaper, the Albany Times-Union, the event focused on a discussion among the attendees moderated by Mark Bobb-Semple. One audience member noted that the discussion helped him to understand how the government unjustly prosecuted Muslims, and to see parallels with mass incarceration of African-Americans. Many observed how policing practices largely determine who ultimately becomes incarcerated.

Attendees also discussed how to build a movement to stop racial profiling of other communities. Family members of those convicted in the Albany sweeps proposed a return to 60′s style protests. Others noted the success of the civil rights movement owing in large part to the diversity of tactics and philosophies exemplified by Martin Luther King and Malcolm X.

On December 6, professor Michelle Alexander will visit the Albany Law School to discuss her analysis of the New Jim Crow. Organizers from last month’s event eagerly anticipate her visit, and plan to remain active in its wake to continue building a local movement to end of mass incarceration and biased policing. The event will begin at 7:00PM. Contact the Albany Social Justice Center for additional information.

Charlotte, NC: People’s Power Assembly brings communities together

Grassroots momentum surrounding the DNC built energy for a diverse coalition promoting civil rights and civil liberties in Charlotte. On November 10, a People’s Power Assembly pulled together activists working across various struggles and communities. City workers, those resisting housing authority and gentrification, those organizing around immigrant justice and against racial profiling, and allies struggling against anti-LGBT violence came together for a few hours to talk about what community and unity looks like in Charlotte, NC.

All left the event knowing that each other’s struggles are connected which was illustrated with the statement of commitment:

We commit to leave this assembly more resolved in our pursuit to build people’s power, unite the many struggles on our communities, & act in solidarity with one another.  Only through organizing and acting together will we win justice, live and work with dignity, and liberate ourselves and our community.

And best of all there are concrete actions set to ensure that the new coalition will move forward together. There was agreement to acknowledge November 17th as the Transgender Day of Remembrance to memorialize those who were killed due to anti-transgender hatred or prejudice, to support the Workers Bill of Rights for city employees, to attend the November 26th City Council meeting to voice concerns about upcoming hiring decisions, share issues with like-minded City Council representatives and enlist their support going forward, seek information about possible federal grant funds, and identify opportunities for coalition partners to hold public hearings in the first quarter of the 2013. 

Cleveland, OH: Building connections between mass incarceration and immigrant rights

On September 5th the Greater Cleveland Immigrant Support Network sponsored a reception for the national caravan to reverse the drug war and mass incarceration. Sponsoring organizations included the Oppressed People's Nation, Black on Black Crime Inc., the Coalition for a Better Life (AKA Peace in the Hood), and the Carl Stokes Brigade. The event was well received and drew over 150 guests.

A few weeks later, immigrant's rights groups came together again to address the USCIS deferred action plan, which allows undocumented young people to pursue their education. While many chose to apply for deferred action, others fear negative consequences for themselves or their undocumented family members if they seek deferred action.  Options for addressing and resolving these concerns and conflicts are priories for the coalition, and the plan to address them moving forward.

Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, delivered an inspirational lecture to hundreds on October 25th at John Hay High School.  The event was cosponsored by the Olivet Institutional Baptist Church, the Cleveland Urban Minority Alcoholism and Drug Abuse Outreach Program, Case Western University's Office of Inclusion, Diversity and Equal Opportunity, the Social Justice Institute and the Mandel School of Applied Social Sciences Black Students Association.  A follow-up discussion strategy meeting is planned for November 13th.  And there are plans to coordinate the efforts that emerge from that meeting into the upcoming planning and coalition development strategy session with the Bill of Rights Defense Committee on December 4th.

Chicago, IL: Art exhibit addresses torture

Earlier this year, Chicago became the nation's first torture-free zone. The city continues its important work highlighting human rights abuses within the US.

On November 9, the Sullivan Gallery hosted a tour of participating artists and torture Survivors titled “Opening The Black Box.” Featuring art and personal stories, the eveningraised troubling questions about our country’s use of solitary confinement. Heather Rice with the National Religious Campaign Against Torture opened the event, before Tessa Murphy with Amnesty International introduced former prisoner Robert King

The exhibit, which opened on October 5 and will run until December 21, was organized by the Chicago Torture Justice Memorials.  Over 70 perspectives on how to document and memorialize the history and stories of torture cases are presented.  Following the tour was a screening of “Solitary Confinement & Human Rights: An evening of American stories.”

Los Angeles, CA: Collecting their own data in the fight against LAPD spying

After months of ignored requests for the LAPD to release information about the extent and potential impacts of controversial Special Order 1, earlier this month the Stop LAPD Spying Coalition distributed community surveys to enable a “people’s audit” of LAPD spying and the collection of Suspicious Activity Reports (SARs).

SARs document innocent (and even constitutionaly-protected) activities, including taking pictures, using video cameras, drawing diagrams, taking notes, and many other routine activities.  Since individuals have no right to know whether a Suspicious Activity Report has been filed about their activities, the Stop LAPD Spying Coalition’s people’s audit aims to collect 400 surveys to fill the transparency gap.

Alameda County, CA: Coalition challenges Sheriff's efforts to purchase drones

A new coalition has formed in response to the Alameda County Sheriff’s plan to purchase unmanned aerial surveillance drones.  Alameda County Against Drones, along with allies, attended the Alameda County Board of Supervisors meeting on November 6th to testify about the privacy, civil liberties, and safety concerns presented by drones.

In response, President of the Board Nate Miley referred the matter to the Board of Supervisor’s Public Protection Committee. The Coalition will be meeting with the Committee members over the next 4-6 weeks, and welcomes support from others in the San Francisco Bay area.  Find Alameda County Against Drones on Twitter and Facebook, and take a moment to sign the coalition’s online petition.

Berkeley, CA: City Council votes to refuse cooperation with federal immigration officials

 On Tuesday, October 30, after months of pressure from the Coalition for a Safe Berkeley and BORDC, the Berkeley City Council voted to end all cooperation with deeply flawed and nationally controversial federal immigration policies. This comes after the Coalition made significant strides in shifting other Berkeley Police Department (BPD) policies, such as requiring the BPD to no longer submit SARs without reasonable suspicion of criminal activity, declaring that taking photographs is not a basis for reasonable suspicion, and submitting an annual audit of SARs to the city manager.

The latest vote reacted to the Secure Communities Initiative (S-Comm), a controversial federal program aiming to build a comprehensive biometric database of all Americans ostensibly justified by immigration enforcement. 

The Council engaged in a long discussion about S-Comm, noting that it has essentially forced local police departments to submit fingerprints to Immigration and Customs Enforcement (ICE), even in cities that have refused to cooperate with federal immigration officials to protest the broken federal immigration system.Upon understanding that S-Comm denies constitutional rights to undocumented individuals and US citizens alike, and treats people as guilty until proven innocent, the Council voted to adopt a policy requiring the BPD to refuse to comply with detainer requests from ICE.

Berkeley’s latest police reform is a huge step forward for civil rights, civil liberties, privacy, and immigrant rights.  Individuals arrested by BPD will no longer face deportation and separation from their families until after they are found guilty of a criminal offense.  Advocates in the Coalition have now set their sights on implementation, as well as further changes at the County level and beyond.

Seattle, WA: Rights Working Group holds conference to unite coalitions in protecting civil liberties

Staff members from the Bill of Rights Defense Committee and local coalition partners attended the Rights Working Group membership meeting in Seattle, Washington from November 12-13th.  The Rights Working Group is a coalition whose goal is to “protect the civil liberties and human rights of everyone irrespective or race, ethnicity, religion or national origin.”

At the Seattle convening, BORDC presented on two panels: "The 'F' Word: Creeping Fascism in the US"  and  "See Something, Say Something: How Coalitions Can Counter Profiling." The keynote address was given by Hasan Elahi, an artist who, catalyzed by a baseless and invasive FBI investigation, crafted an interactive exhibit based on monitoring his own life and travels.

Upcoming events

Oak Brook, IL: MLFA Legal Fellow Michael Figura to address conference outside Chicago

On November 24, BORDC’s Muslim Legal Fund of America (MLFA) Legal Fellow,, Michael Figura, will speak in Oak Brook, IL at the American Muslims for Palestine (AMP) Conference, held outside of Chicago, Illinois.  Michael will be part of a panel entitled "Defending Our Civil Liberties," where he will discuss the domestic criminalization of dissent, and the particular impact on peace and Palestine solidarity activists across the Midwest.

New Britain, CT: December 8 statewide convening, “An Injury to One is an Injury to All”

fbi raidsThe CT Coalition Against Indefinite Detention is gearing up for its northeast conference, this December 8th at Central Connecticut State University in New Britain. “An Injury to One is an Injury to All,” will feature Glenn Greenwald, law professor Sahar Aziz, and BORDC’s Shahid Buttar as keynote speakers. The conference will also include workshops facilitate by many BORDC allies from across the region, on topics from challenging “stop & frisk” policies to unwinding mass incarceration, from fighting back against federal immigration programs to restoring civil liberties in the war on terror.

The conference will be an important opportunity for grassroots activists from across the northeast interested in building the movement to stop indefinite detention and restore our civil liberties and rights. “An Injury to One is an Injury to All” will begin at 9am on December 8, at Semesters Hall in the Student Center of Central Connecticut State University in New Britain, CT. Volunteers are needed; for more information, contact the organizers.

San Francisco, CA: NLG Legal Fellow Nadia Kayyali to speak at conference in Bay Area

On December 10, National Lawyers Guild (NLG) Legal Fellow Nadia Kayyali will be speaking at the California Immigrant Policy Center’s conference, “Liberty and Justice for All.” The conference will take place at San Francisco State University at 7 Hills & Tower Conference Centers, San Francisco, CA.  Nadia will speak about “Unjust Patterns: Racial and Religious Profiling in our Communities.”

The session will enable participants to better understand racial and religious profiling.  Topics include racial profiling in detention and deportation programs, as well as local campaigns to protect rights challenged by overbroad national security policies. There will be an opportunity for those advancing or interested in campaigns to share strategies.

Law and Policy

Drones and the Obama Administration

Drone State?The Obama administration has taken further steps toward the institutionalization of extrajudicial assassination, drawing continued concerns about a lack of transparency, accountability, and due process. Until recently, officials denied the very existence of the CIA’s drone program, and while several have alluded to it in public remarks, its details remain hidden behind a wall of secrecy. Unfortunately, the era of robotic war will outlast the CIA Director who helped pioneer it, and may come soon to a city near you.

Over the past month, reports emerged that the administration has developed a “disposition matrix” to help track suspected militants wanted dead or alive. Assassinating suspected militants with unmanned aerial drones has increasingly become the preferred counter-terrorism strategy of the Obama administration. Advisor John Brennan, described by journalist Jeremy Scahill as the administration’s “assassin-in-chief,” has been a key proponent of drone strikes.

Ignored by the administration are widespread reports documenting collateral damage, both in the form of civilian casualties, as well as rising anti-American sentiment in countries targeted by drone strikes. Drones were never a prominent topic during the presidential election campaign, although several minor party candidates did raise concerns about the lack of transparency and accountability surrounding their use. 

The use of drones “places the Obama Administration in a similar position to the Bush Administration after its first term — a growing international unease towards aggressive U.S. counter-terrorism policies,” according to former State Department Legal Advisor John Bellinger. Bellinger believes that drones will become Obama’s Guantánamo, a lasting symbol of executive overreach and a diplomatic yoke around America’s neck. He wrote:

When they entered office in January 2009, I am sure the last thing that senior officials in this Administration expected was to be accused – like their predecessors in the Bush Administration – of extrajudicial killings, murder, and war crimes; to be sued by human rights groups for constitutional violations; to be picketed by the Pink Ladies [of Code Pink]; to have their classified OLC opinions FOIAed; and to be investigated by UN Rapporteurs and the UN Human Rights Council.

In addition to their plain illegality, and disregard for international and constitutional law, drones are also dubious in terms of their effectiveness. When the chairman of the Joint Chiefs of Staff, Admiral Mike Mullen, traveled to Pakistan, his counterparts there prompted “a heated confrontation” over what The Washington Post called “a seemingly reasonable question: After hundreds of drone strikes, how could the United States possibly still be working its way through a ‘top 20’ list?.”

And of course, the use of drones—or any other instrument—to kill US citizens without charge or trial is flatly illegal and unconstitutional. While advancing claims of supposedly limiting principles, the Obama administration has refused to announce a legal foundation for extrajudicial assassination. According to  Micah Zenko from the Council on Foreign Relations, the defense to date has amounted to, “Trust us.”

All is fair in love and e-mail: the Petraeus scandal’s case for electronic privacy reform

Petraeus Bobble HeadAs news media gossips on a sex scandal that transformed Pentagon corridors into high school hallways, their chatter belies a critical discourse surrounding the investigation of former CIA director David Petraeus.  Besides gratifying a cultural fixation with the salacious, the Petraeus scandal invokes inquiry into how the FBI could observe his correspondence with Paula Broadwell.

It also illustrates the necessity for broader protections from state surveillance: if the nation's top intelligence official can so whimsically come under the federal government's watchful eye, what security do "We, the people" have against government intrusion?

While the Electronic Communications Privacy Act of 1986 (ECPA) once furnished such insulation, its outmoded provisions and obsolete restrictions fail to address contemporary threats to privacy and free speech. Reforming ECPA to require a judicial warrant to justify searches and seizures of the content of electronic communications will minimize civil liberties violations in the course of federal investigations.

The circumstances of Petraeus' well-publicized scandal demonstrate how our government may casually obtain private information under the current legislative framework.  As reported by various news outlets, the FBI investigation of Petraeus began after socialite Jill Kelly complained to an acquaintance at the FBI about receiving anonymous, harassing emails.  Jill Kelly's federal friend suggested an investigation to his superiors, and a superfluous cyber-stalking investigation revealed that Paula Broadwell, Petraeus' biographer and mistress, had sent Kelly incendiary emails to discourage her friendship with Petraeus.

The FBI subsequently achieved access to Broadwell's Gmail account and discovered her relationship with Petraeus through unsent messages in a drafts folder.  Though the saga continues on, these details alone suggest a lack of privacy in one of our most prominent means of personal communication. ECPA insulates the content of some electronic communications from unreasonable search and seizure, it fails to afford the protection necessary to preserve modern privacy rights.  The Stored Communications Act (SCA) requires merely an administrative subpoena for government entities to ascertain the identity, address, bank account number, and other "information pertaining to a subscriber...or customer" of telecommunications services like Verizon or Google.

Administrative subpoenas allow interested agencies to act as arbiters of their own cause, creating conflicts of interest and increasing the potential for misguided investigations such as the Broadwell probe.  The FBI's extensive investigation of a minimal threat indicates both the agency's imprudence and its capacity to collect information it should not possess.  The questionable conduct of such a high-profile investigation signifies the importance of independent review and broader electronic privacy protection.

Stuck in the WebWhile the SCA provides protection for the content of electronic communications, even these provisions fail to deter government intrusion.  The SCA requires a warrant to search the content of electronic communications "in electronic storage...for one hundred and eighty days or less".  However, the Department of Justice (DOJ) interpretation of the SCA permits the search and seizure of opened electronic files and messages.

Furthermore, as in the Broadwell investigation, the DOJ claims that a mere subpoena authorizes access to a subject's draft folder, which may include complete messages and other data that would otherwise be classified as protected "content."  DOJ also implausibly reasons that we lose the reasonable expectation of privacy to our electronic messages as soon as we access them.

Yet the sheer prevalence of electronic correspondence in our private and professional lives merits greater protections for these communications.  How can we be secure when the organization of our email determines the extent of our privacy? In compliance with the Constitution and modern notions of privacy, the secret surveillance of persons within the US must remain subject to judicial review.

Considering the  implications of Petraeus scandal for domestic surveillance policy, it seems crucial for the future of privacy rights that we each voice support for all peoples' privacy rights.  Also, visit BORDC's action menu for information about how you can join the struggle to restore privacy.

CO and WA take steps to fight mass incarceration by legalizing marijuana

In the recent November election, Colorado and Washington became the first two states to legalize marijuana for recreational use, responding to prevailing trends in public opinion. In Colorado, the initiative to decriminalize marijuana was passed by an 8 point margin; in Washington, a similar initiative was passed by an even larger 11 point margin.

Despite being presented as a victim-less crime, marijuana possession is a significant contributor to mass incarceration. An estimated 850,000 Americans were arrested on marijuana charges in 2010 alone, representing the second leading cause of arrest.

While ending prohibition in these two states will benefit many constituencies, minority communities confronting biased policing and sentencing in the war on drugs will be among the primary beneficiaries. Within a week of the election, prosecutors in King and Pierce counties alone dismissed over two hundred pending criminal cases based on possession charges.

 war on drugs

Carnegie Mellon professor Alfred Blumstein has documented pervasive racial discrepancies in the war on drugs, buttressed by a study from the National Organization for the Reform of Marijuana Laws (NORML). In Colorado, a 2012 study by the Marijuana Arrest Research Project concluded that, despite lower reported instances of marijuana usage in minority groups, black individuals were three times more likely to be arrested, while Latinos were nearly two times more likely to be arrested, in comparison to white individuals. A similar pattern has also emerged from Washington, where, although blacks and Latinos also used marijuana at lower rates than whites, they were arrested at rates two to three times higher than whites.

With the legalization of marijuana in these two states, it will be interesting to observe how such changes will alter the composition of their state prison populations, as well as how other states respond to Washington's and Colorado's leadership in resisting federal civil rights abuses.

What will the lameduck session hold for the 2013 NDAA amendments?

"NDAA Lawsuit HEDGES v OBAMA in NYC Court TODAY"The 2013 National Defense Authorization Act (NDAA) will be debated in the Senate during the lameduck congressional session, likely after Senators return from their Thanksgiving break. Last year's NDAA contained provisions that could authorize indefinite detention, and will remain in place unless the Senate specifically removes them.

Sections 1021 and 1022 of the NDAA of 2012 could allow indefinite and arbitrary military detention without a trial or day in court, of anyone accused of any “belligerent act” or terror-related offense—including "substantial support" allegations based strictly on speech or association. 

By predicating indefinite military detention on such vague concepts, the NDAA runs roughshod over fundamental constitutional principles including due process and the presumption of innocence. The law essentially subjects everyone within the US (including citizens, legal residents, and visitors) to the same lawless standards long visible in Guantánamo Bay.  At the same time, the NDAA also effectively prevents the release or transfer of prisoners at Guantánamo Bay, even after they convince the military of their innocence and receive government approval of their release.

The indefinite detention provisions of the NDAA have caused concerned activists from around the country to raise their voices and call for the restoration of due process

Section 1021 is also currently being challenged in a lawsuit, Hedges v. Obama, brought by journalists, activists and academics, including Chris Hedges, Noam Chomsky, and BORDC advisor Daniel Ellsberg, who fear the threat of indefinite military detention if the government decides that their journalism could in some way "substantially support" a terrorist group.

US District Judge Katherine Forrest in New York agreed with the plaintiffs and permanently enjoined the government from using the law to support military detention.  However, this ruling is currently on appeal by the government to the Second Circuit Court of Appeals. BORDC filed an amicus brief and has recruited other amici, including the Korematsu Center at Seattle University Law School and the Government Accountability Project.

BORDC has also galvanized local coalitions around their country to raise awareness about the threats to due process and opportunities to restore the right to trial. Contact the BORDC organizing team for more information.

Senate prepares to extend FISA amendments during the lameduck session

Unlike the USA PATRIOT Act, the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA) now before the US Senate have received relatively little public attention, despite authorizing the National Security Agency (NSA) to monitor everyone’s email and phone calls in secret, and without any basis for suspicion. No federal statute pending before the Senate (with the possible exception of the NDAA) presents equally grave constitutional risks. Will you raise your voice today?

FISA was initially passed in 1978, with dramatic amendments enacted in 2008 but scheduled to expire this year.  It created a procedure for judicial review in a special court dedicated to reviewing surveillance of individuals suspected of espionage or terror. FISA thus creates a different legal regime for authorizing surveillance of espionage individuals.

For decades, FISA provided at least some minimal judicial review of domestic surveillance. For example, “if the target is a 'US person,' the agency must establish probable cause to believe that the US person's activities could involve espionage. Nor may a U.S. person be determined to be an agent of a foreign power 'solely upon the basis of activities protected by the first amendment to the Constitution'….”

These standards were weakened in the 2008 FISA Amendments Act, which allows the National Security Agency (NSA) to conduct surveillance of a foreign person even when communicating with an American within the US, and immunized the telecom industry from lawsuits challenging their facilitation of civil rights abuses.

Surveillance: America's PastimeThese changes made it easier to spy on Americans without oversight, prompting a widespread outcry as the NSA builds billion-dollar mega-facilities and NSA whistleblowers—the very architects of the agency’s surveillance programs—faced prosecution for revealing fraud and abuse.

Earlier this month, the Supreme Court heard a challenge to the NSA’s program in Clapper v. Amnesty International, in which BORDC submitted an amicus brief in conjunction with the Electronic Privacy Information Center. The challengers in Clapper are international humanitarian organizations, reporters, and attorneys who regularly communicate with individuals located overseas. They argue that the FISA amendments allow “the mass acquisition, without individualized judicial oversight or supervision, of Americans’ international communications.” Unfortunately, the Clapper case presents only the question of whether the agency may face a suit in court, or whether it instead stands above the law.

With the 2008 amendments up for renewal this year, the House voted in September to reauthorize them without any changes at all. The issue is now facing the Senate in this lameduck session, where senators whose successors have been reelected remain in the Legislature. An aide to the Senate Intelligence Committee has reported that “this is must-pass legislation in the lame duck and [that] it may require some floor time. We’re arranging the details of how we’ll get it.” Fortunately, Senator Ron Wyden (D-OR) has pledged to block passage of the bill unless the forthcoming Senate process allows debate over amendments.

In the meantime, civil liberties advocates have a few remaining days to make sure this sweeping legislation receives the careful consideration it deserves. Would you contact your senator today to tell them not to support reauthorization of the 2008 FISA Amendments, at least until the NSA answers Wyden's questions?

New Resources and Opportunities

Raise your voice now to stop FISA and the NDAA

In the wake of the 2012 presidential election, Congress and the Obama administration enjoy several opportunities to advance civil rights and civil liberties. Constitutional rights and principles are important to all Americans, yet leaders from each of the major political parties, in spite of their oaths of office, remain committed to assaulting them.

Raise your voice today! 

First, add your name to our online petition, to join the legions of other Americans who share your concerns about warrantless wiretapping, indefinite and arbitrary military detention within the United States, and outdated protections for electronic privacy. 

Second, look up your members of Congress and call their offices to reinforce your concerns. If Congress proceeds on its current trajectory, it will address none of these concerns this year. Only if members hear a groundswell can we hope for our constitutional rights to gain ground during this year’s lameduck period.

The petition calls on your representatives to:

  1. Vote against the proposed extension of the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA) until the National Security Agency finally answers congressional questions about how many Americans have been impacted by the agency’s admitted violations of FISA’s permissive boundaries.
  2. Co-sponsor the JUSTICE Act to (a) prohibit the NSA’s bulk intelligence collection without individualized suspicion of criminal activity, as the Constitution requires, and (b) overrule the Supreme Court’s decision in Holder v. Humanitarian Law Project and reinstate an intent requirement to justify convictions for “material support” of terror.
  3. Vote against the proposed re-authorization of the National Defense Authorization Act (NDAA) until it is amended to strike sections 1021 and 1022 from the NDAA of 2012. Those sections could potentially authorize indefinite and arbitrary military detention within the United States, with all the historical horrors that have accompanied such disturbing and unconstitutional executive power.
  4. Co-sponsor, and vote in favor of, proposed amendments to the Electronic Communications Privacy Act (ECPA) of 1986 to protect Fourth Amendment rights and uphold the integrity of law enforcement in the digital age. With our nation’s privacy laws now profoundly out of date, it is important that emails, online documents, and text messages finally gain the same protections from unreasonable search and seizure as phone calls, postal mail, and paper documents.

For more information on the various legislation mentioned and the latest news on the issues, view our recent blog post that dives deeper into these assaults on your rights.

Inspire students in conversations about civil liberties

Are you a teacher near New York, Washington DC, Hartford, Chicago, San Francisco, or Los Angeles? If so, we may have a compelling guest speaker for your classroom!

Let us know if you are looking for an expert to share a guest presentation on civil liberties. We can match you with a qualified speaker in your area, for any grade level, who shares your excitement about sharing these important ideas with young people.

Email the BORDC organizing team if you are interested in inviting a guest speaker to your classroom, or if you know a teacher in any of those areas who might be.

Also consider the civil rights trivia game developed by BORDC to help explain the civil liberties crisis in a fun format. BORDC is continuing to expand our set of resources for educators to better meet the needs of teachers across the country engaging students in critical civil liberties issues.

Help BORDC restore the rule of law

  • Take action! Volunteer, organize, raise your voice—we have an opportunity that's right for everyone.
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    Bill of Rights Defense Committee 8 Bridge St., Suite A
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Contributors: Shahid Buttar, George Friday, Annette G. Macaluso, Samantha A. Peetros, Emma Roderick, Nadia Kayyali, Michael Figura, Alok Bhatt, Yiqian Wang, and Corina Leu

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

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