Tuesday, July 31, 2007

Op-Ed: Privilege's limits

Amid the increasingly, um, elaborate strategies being used by Bush administration officials such as Attorney General Alberto Gonzales to avoid answering questions posed by Congressional investigators, ACLU of Massachusetts board member Harvey Silverglate offers a refreshing reminder in today's Boston Globe: the claim of "executive privilege" shouldn't be taken for granted, and the U.S. Senate isn't powerless.

Though seldom used, the Senate has the power to direct its sergeant-at-arms to arrest anyone who defies Senate rules -- up to and including the President of the United States.

Friday, July 27, 2007

Press Release: ACLU of Massachusetts Applauds Federal Court's Affirmation of Immigrant Rights: Decision highlights issues for impending Mass. case

BOSTON - With the First Circuit Court of Appeals set to hear a Massachusetts case involving the rights of immigrants next week, the American Civil Liberties Union of Massachusetts welcomed yesterday's federal court decision in Pennsylvania affirming that key protections set forth in the U.S. Constitution apply to everyone in the country, citizens and non-citizens.

Oral arguments will be heard on Wednesday, August 1, at 9:30 a.m., in the U.S. Court of Appeals for the First Circuit in Aguilar v. ICE, a case deciding the fate of immigrants detained in March after a raid on a New Bedford factory.

Yesterday's federal court decision in Pennsylvania declared unconstitutional a local ordinance in Hazleton, Pennsylvania, that sought to punish landlords and employers for doing business with undocumented immigrants. The landmark decision in the closely-watched challenge to Hazleton's anti-immigrant ordinance held that the ordinance cannot be enforced. More information on the case, Lozano v. Hazleton, is available online at www.aclu.org/hazleton.

Writing for the court, Judge James M. Munley said, "We cannot say clearly enough that persons who enter this country without legal authorization are not stripped immediately of all their rights because of this single act ... The United States Supreme Court has consistently interpreted [the 14th Amendment] to apply to all people present in the United States, whether they were born here, immigrated here through legal means, or violated federal law to enter the country."

"Yesterday's decision on the Hazleton ordinance helps makes it clear that citizens and non-citizens have Constitutional rights that should not be trampled or ignored by overzealous public officials," said Carol Rose, Executive Director for the ACLU of Massachusetts. "In New Bedford, the raid conducted by government officials made it impossible for people to exercise their fundamental due process rights. Instead, they were transferred across the country before most of them could speak to their families or their lawyers. From this remote detention center in Texas, we have reports that conditions are harsh and immigrants have been mistreated, misinformed and coerced into waiving their rights."

The ACLU of Massachusetts has worked since the raid with attorneys from Greater Boston Legal Services, the Massachusetts Law Reform Institute, Catholic Social Services, and Dechert, LLP to argue that immigrants were denied their constitutional right to due process, the right to attorneys of their choice, and to fair bond hearings because government officials intentionally separated them from their families and communities, denied them access to counsel, and coerced them into waiving their rights.

Oral arguments in Aguilar v. ICE will be heard in U.S. Circuit Court on Wednesday, Aug. 1, at 9:30 a.m. at the Moakley Court House in the Court of Appeals Panel Room on the 7th floor. The argument is open to the public.

News: Experts say gay marriage may cost [Vermont] Dems

The Vermont Rutland-Herald quotes Norma Shapiro, Legislative Director for the ACLU of Massachusetts, and Chris Ott, Communications Manager, in a story on how the gay marriage debate is playing out in Vermont. Leaders in Vermont, which pioneered civil unions in 2000, are now considering a move toward equal marriage rights.

Shapiro responds to the question of whether the move will hurt pro-equality legislators:

"Over the last few years we have actually built up our coalition of supporters," she said. "New legislators supporting gay marriage were elected and the only ones who lost their seats were the ones who opposed gay marriage."

News: Placating the GOP base or protecting the workplace?

This terrific, in-depth story is the lead today on Salon.com, quoting Laura Rótolo, Human Rights Fellow at the ACLU of Massachusetts.

From the article:

[A] growing number of critics on both sides of the immigration issue... view the raids -- which have proven especially costly in terms of taxpayer dollars and human suffering -- as a political maneuver designed primarily to make the administration appear tough on enforcement...

"I believe that [ICE] conducts these raids in a way that people are purposefully unable to exercise their rights," says Laura Rotolo, an attorney with the ACLU of Massachusetts who interviewed some detainees at Fort Devens. "They transfer people across the country before they can speak to anybody, and then when they are given a bond hearing in Texas, asking to be released before trial, they must prove they are not a flight risk and that they have ties to the community. Of course they have no ties to the community in Texas."

Meanwhile, this compelling YouTube video has been circulating online. In it, a worker from the Michael Bianco factory in New Bedford gives a graphic firsthand account of the March raid by ICE agents and demeaning tactics used. It's in Spanish with English subtitles.

Wednesday, July 25, 2007

News: "Cameras are becoming as common as street lights"

With papers like BostonNOW and Metro running front-page coverage on the MBTA's use of surveillance cameras to spot fare cheats, NECN gave the ACLU a chance to weigh in on our concerns. Reporter Josh McElveen notes, "Cameras are becoming as common as street lights," and we told him:
The ACLU is actually not against the use of surveillance cameras in places where they're appropriate for enforcing the law or keeping people safe, but what we want people to understand is that they're not a magic solution... There are concerns about how the information that's gathered by these cameras is going to be used, and then there's the larger question of do we want to live in a society where everybody is under surveillance all the time.

Tuesday, July 24, 2007

Are Passports Becoming National IDs?

As I was waiting in line at the CVS in Porter Square, I saw the following alarming sign:

It seemed to me that the pharmaceutical giant is trying to cash in on the Department of Homeland Security’s new passport requirements. Since January, “U.S. citizens and citizens of Canada, Mexico and Bermuda traveling by air between the U.S. and Canada, Mexico, Central and South America, the Caribbean, and Bermuda [have been] required to present a valid passport to enter (or re-enter) the U.S.”

Not surprisingly, this new policy has resulted in a “flood of passport applications” and “long delays”. In response to this holdup, the government agreed to allow citizens who have completed passport applications, but have not received passports, to travel to certain countries until September 30. But do Americans need passports for trips within the United States? Nope—and according to the Bureau of Transportation Statistics, the majority of flights are domestic, not international. Of course, this flight data refutes the notion that “most travel” requires a passport.

Nevertheless, these new requirements may be baby steps in the federal government’s move toward a national ID card. Under the Real ID Act, which is scheduled to take effect next year, states must adopt stringent new requirements for their state licenses and other IDs. The new IDs would be used to “track and control individuals’ movements and activities,” would result in costly administrative burdens for state motor vehicle departments, and would be ineffective against terrorism, among other problems.

If a state refused to change its identification laws to comply with the Act, the state’s IDs would not be accepted for domestic flights; its residents would need to obtain passports or remain on the ground. In other words, the Act is a backdoor way for the government to create a national database of all plane travelers. The ACLU has warned that the record system developed for these IDs:

will inevitably, over time, become the repository for more and more data on individuals, and will be drawn on for an ever-wider set of purposes. Its standardized machine-readable interface will drive its integration into an ever-growing network of identity checks and access control points – each of which will create new data trails that will in turn be linked to that central database or its private-sector shadow equivalent.

Seventeen states have already refused to adopt the Real ID Act’s provisions. Massachusetts should join them in their stand against this expensive and unwarranted law. Even better, the U.S. Congress should repeal the Act to avoid the dangers noted above and another flood of passport applications.

Big Brother isn’t watching every move you make—yet.

Monday, July 23, 2007

Op-Ed: Real ID: Real Nightmare

In advance of an expected US Senate vote this week on Real ID, an op-ed by Carol Rose, ACLUM's Executive Director, appears in today's Patriot Ledger.

Photo: Rights Matter workshop

Teachers at the June 23rd Rights Matter workshop with Ellery Schempp (front row, second from left), whose challenge to prayer in schools was victorious before the Supreme Court in 1963. Rights Matter is a curriculum on the Bill of Rights developed by Nancy Murray (back row, second from right), Director of Education for the ACLU of Massachusetts. You can read her thoughts on the timeliness of the Rights Matter curriculum in her blog entry, "Justice in Jena."

Friday, July 20, 2007

News: ACLU backs group fighting alleged police brutality

The Lawrence Eagle Tribune cites ACLU of Massachusetts work on alleged police brutality in this article. One of our attorneys and our field organizer have been meeting with community leaders in Lawrence for several months to try to help.

Wednesday, July 18, 2007

Justice in Jena

The Supreme Court session that just ended underscores the importance and timeliness of our curriculum for schools, Rights Matter: The Story of the Bill of Rights.

Rights Matter traces the long struggle, with repeated setbacks, to make this country live up to the promise of its founding documents. Among other things, it describes the role played by the Supreme Court in rolling back the gains of the post Civil War Reconstruction period. And now the Court is at it again, invoking Brown v. Board of Education as it accelerates the re-segregation of schools.

"The past is not dead," William Faulkner had written in 1951. "In fact, it's not even past."

More than a half century later, these words still ring true. What is happening in the mainly white town of Jena, Louisiana, population 2,500, reveals just how much work needs to be done to overcome this nation's deep racial divisions.

Nooses hung from tree
On August 31, 2006 a group of African-American students asked the vice-principal of the high school if they could sit under "the white tree." Traditionally, it was the hang-out spot for white students, who made up 80 percent of the school. The following day there were three nooses hanging from the tree.

The next week, Black students staged a sit-in protest under the tree. At a school assembly soon after, La Salle Parish district attorney Reed Walters, appearing with local police officers, warned Black students to stop making a fuss about an "innocent prank." He told them, "I can make your lives disappear with a stroke of my pen."

Throughout the fall, tensions simmered, occasionally leading to fights and other incidents, including an arson attack on November 30, which damaged a school building. No white students were charged with serious offenses. The students who were found to have been responsible for hanging the nooses—which the superintendent said was a silly prank—were given a three-day suspension.

Incident that leads to attempted murder charges
Early in December, a Black student was assaulted by a group of white students, and a white graduate of Jena High School threatened several Black students with a shotgun. On Monday, December 4, white students taunted the Black student who had been assaulted over the weekend. A fight broke out in a crowded area of the school and one of the white students was beaten up and kicked. He was treated in the hospital, and appeared at a social function that night.

Six Black students were immediately arrested, charged with attempted second-degree murder and conspiracy to commit second-degree murder, and expelled from school. The charges could bring them 20-100 years in prison. Their bails were set at $70,000 and higher and because their families could not raise these amounts, two of the defendants have remained in jail.

An all-white jury convicts
In late June, 2007, an all-white jury took only a few hours to convict Mychal Bell, who was 16 years old at the time of his arrest, of "lesser" charges of aggravated battery and conspiracy to commit aggravated battery. The prosecutor had called only white witnesses, some of whom said they didn't see anything. The victim testified that he did not know if Bell hit him or not. Bell's public defender called no witnesses and offered no evidence.

Bell faces up to 22 years in prison when he is sentenced on July 31. The trials of 17-year–old Robert Bailey, Jr., 17-year-old Theo Shaw, 18-year-old Carwin Jones, 17-year-old Bryant Purvis and a still unidentified minor are yet to come.

What we can do
There are two things we can immediately do to confront this injustice: we can call the District Attorney of La Salle Parish, J. Reed Walters, and voice our outrage: telephone (318) 992 8282.

And we can send funds to the Jena Six Defense Committee: PO Box 2798, Jena, LA 71342. Donations can also be made through the Friends of Justice website: http://friendsofjustice.wordpress.com/

Nancy Murray
Director of Education
ACLU of Massachusetts

To view the Rights Matter curriculum and order copies, visit www.rightsmatter.org.

Tuesday, July 17, 2007

I Want Another Watergate Summer

It was the summer of ’73. My parents announced that the kids (there were six of us) were going to paint the house. They issued each of us a paint brush, a can of paint, and a transistor radio—which we promptly tuned to the Senate Watergate hearings.

Richard Nixon had been re-elected in a landslide over George McGovern just six months before. Two cub reporters, Woodward and Bernstein, had picked up a story off a local police scanner about a botched burglary at the Democratic National Committee headquarters at the Watergate building in Washington D.C. By summertime, stories about presidential abuses of power dominated the airwaves and captivated the American public. Congress convened the Senate Select Committee on Campaign Presidential Campaign Activities to investigate the White House.

As we painted and listened to the hearings, so did the rest of America. It was something of a national media phenomenon. Some 85 percent of U.S. households watched some portion of them. On painting breaks, we’d gather around the television to watch the hearings in living color—broadcast live all day long on all three commercial network stations.

My heroes that summer became people like Senator Sam Ervin, the folksy conservative Democrat from North Carolina whose knowledge of law and respect for the Constitution made the process (and all of us who were watching it) feel deeply patriotic. I loved watching Howard Baker, the handsome blow-dried Republican Senator from Tennessee, who led what turned out to be crucial opposition from the president’s own party, as he asked witness after witness,“What did the president know and when did he know it?”

I was fascinated as White House counsel John Dean delivered devastating testimony about President Nixon’s attempts to undermine the Constitution through petty burglary, dirty tricks and lying. I was outraged when it was announced that Nixon’s secretary, Rosemary Woods, had erased 18 minutes of a wiretap that many people believed would have shown President Nixon was complicit in the cover-up.

In the end, the Senate Watergate Committee gathered enough evidence to lead to the indictment of 40 administration officials and the conviction of several of Nixon's aides for obstruction of justice and other crimes, and prompted the introduction of articles of impeachment against the President in the House of Representatives.

Now, some 30 years later, I am watching another Senate Committee in action vis-à-vis the White House. Now, as then, the battle is matched over an arguably third-rate abuse of power (the firing of US attorneys for political reasons) rather than over an increasingly unpopular and unwinnable war. Once again, the White House is resisting Congressional subpoenas with claims of executive privilege, and covering its tracks by erasing the evidence (compare Karl Rove’s email to Rosemary Wood’s tapes). I even heard a faint echo of Sam Ervin when Senate Judiciary Committee Chairman Patrick J. Leahy dismissed White House efforts to hide their misdeeds behind claims of executive privilege, as “more stonewalling from a White House that believes it can control the other coequal branches of government.”

Of course, the Bush/Cheney/Rove White House is far more brazen even than the Nixon White House when it comes to grabbing and abusing executive branch power. Nixon wiretapped his enemies; Bush wants to wiretap the whole country. And even Nixon didn’t openly embrace a policy of torture and indefinite detention without trials.

But perhaps the Bush administration’s assumption that the American people don’t care about the White House’s disregard for the law will be proven wrong. After all, the electorate overwhelmingly re-elected Richard Nixon in November 1972, just six months before a sleepy American public finally woke up and demanded that Congress restore the rule of law.

Watching the current showdown between the White House and the Senate Judiciary Committee, I can’t help but hope that the American public will once again wake up and demand that Congress put a check on executive branch abuses of power.

Who wouldn’t want to experience again the patriotic thrill of watching our system of checks and balances assert itself in the face of presidential abuse? I want another Watergate summer.

Sunday, July 15, 2007

News: New council will revisit altered sex offender bylaw

The Worcester Telegram quotes Ron Madnick, Director of the Worcester County chapter of the ACLU of Massachusetts, in its story on the ongoing controversy over sex offender residency restrictions.

Friday, July 13, 2007

Before we reach the point of no return

That hollow feeling in the pit of the stomach is back—that feeling of sliding out of control down a slippery slope. I get it every month or two when I compile our civil liberties updates.

I started putting the updates together early in 2002. I assumed that this would be an exercise of a year or two, and that they would get shorter as time went by and fears of terrorism subsided.

The opposite has happened. The updates have got longer with the passing years, as 9/11 has loomed ever larger in our national consciousness. Taken together, they present an unsettling picture of how, month by month, our democracy is being transformed into a national security surveillance state in which secrecy trumps accountability. Our economy too is coming to depend more and more on the new "gold rush, a national security bubble," as Patrick Radden Keefe put it in his piece about the "huge espionage-industrial complex" in the June 25 New York Times.

At home, too few of us seem to be paying attention these developments. Many seem to believe that everything the government is doing is aimed at "them"—the terrorists—to keep "us" safe.

They may have too many other things to worry about to be concerned about certain issues highlighted in this and previous updates—the fact that that an executive power grab is ongoing, that the FBI has repeatedly violated the law in national security investigations, and that the National Security Agency is still engaged in illegal actions.

They may not yet be aware of how their lives can be affected by the huge databases that the government is creating, and by such new terror-fighting tools as the Automated Targeting System which automatically assigns a terrorist risk assessment to everyone who leaves or enters the country, US citizen as well as non citizen. These assessments are due to be kept on file for at least 40 years—but we won't be able to see them. If false information culled from a data base somewhere led to a faulty assessment, there is nothing we can do about it.

We may not be able to see clearly how our country is changing, but the outside world can. Guantanamo, torture, rendition, secret US prisons on European soil and elsewhere, and the total impunity with which the US is conducting its so-called "war on terror" are taking a heavy toll.

In this update there are summaries of two polls examining international attitudes towards the US. A Pew global survey shows that among our leading allies, the percentage of people who approve of the US ranges from 51 percent in Britain, 39 percent in France, 34 percent in Spain, and 30 percent in Germany. In key "war on terror" countries—Egypt, Jordan, Pakistan, and Turkey—it plunges to between 21 percent and 9 percent.

Then there are the results of the survey that the Harris Research poll conducted for the Financial Times. It shows that 32 percent of respondents in five European countries—that's one out of three—regard the US as the biggest threat to global stability in the whole world.

This update does have some good news, as some judges and some Members of Congress strive to restore checks and balances. On June 11, a three-judge panel of the very conservative Fourth Circuit Court of Appeals ruled that the president cannot declare civilians resident in the US to be "enemy combatants" who can be held in indefinite detention with no recognition of their constitutional rights.

In the Senate Judiciary Committee three Republicans joined Democrats to send subpoenas to the White House, and Committee chair Patrick Leahy has said he might cite the Administration for criminal contempt of Congress.

We must stiffen the spines of our Congressional representatives for the battles ahead. And before we reach the point of no return, we must figure out how we can get ourselves off the slippery slope and back onto the Constitutional track.

Nancy Murray
Director of Education
ACLU of Massachusetts

To read the latest update:

For previous updates:

News: Report warns of replenished Al Qaeda

So for nearly six years we've put up with the abuse of power and erosion of civil liberties, in the name of security, for this?

Thursday, July 12, 2007

News: Case dismissed

Bay Windows consults a variety of legal experts, including our attorney Sarah Wunsch, on the lawsuit brought by a law student who failed the Massachusetts bar exam. The suit alleges he failed the bar for refusing to answer a question about same-sex marriage. "It's practically unreadable," Wunsch says.

Tuesday, July 10, 2007

It's time for consequences

The Washington Post reports today that Attorney General Alberto Gonzalez assured Congress in 2005 that broad new powers, including use of a tool called national security letters (NSLs), had not been used to violate anyone's civil liberties. However, a Freedom of Information Act request has reportedly turned up the fact that Gonzalez received at least a half dozen reports of such violations in the three months before his April 2005 Congressional testimony.

This year, Gonzalez "reacted with surprise when the Justice Department inspector general reported this March that there were pervasive problems with the FBI's handling of NSLs...."

Surprise, surprise. It's as if we shouldn't wonder whether some of what Attorney General Gonzalez tells us might not be true, but whether any of it is.

The Post also published a handy and well-documented timeline of what Gonzalez did and received, and when.

As Caroline Frederickson, Director of the ACLU's Washington Legislative Office says, "It's time for consequences."

Thursday, July 5, 2007

News: City Hall in brouhaha over adversarial Web site

Yesterday the Brockton Enterprise quoted ACLUM staff attorney Sarah Wunsch in a story about the city of Brockton blocking access to a popular website that has criticized city officials. Wunsch says, "[I]f this is a case of the city blocking this Web site because it contains a critical view of the city, that would be troubling from a First Amendment point of view."

Tuesday, July 3, 2007

Globe weighs in on lessons from UK attacks

On Sunday, Connecticut Senator Joe Lieberman told ABC News:

"I hope these terrorist attacks in London wake us up here in America to stop the petty partisan fighting going on about... electronic surveillance."

A great editorial in today's Boston Globe, however, draws exactly the opposite conclusion. The Globe says there are "worthwhile lessons to be learned" from what happened in Britain:

"In their effort to deal with terrorism, authorities can work within the law. They do not require unconstrained power... Britain is fighting terrorists without branding them unlawful enemy combatants, without torturing them, and without frightening the populace with evocations of an apocalyptic war between good and evil."

News: The 10th Annual Muzzle Awards

The Phoenix cites ACLU work in a number of the cases highlighted in its 10th Annual Muzzle Awards, which take on efforts to stifle free speech. In particular, this year's awards highlight ACLUM's work on behalf of a Boston substitute teacher who wound up in trouble for speaking out against the school system spending $1.2 million on a Junior ROTC program. The City just agreed to settle the case.

Monday, July 2, 2007

News: No gay exception for ACLU

Chuck Colbert, a reporter with the LGBT paper In Newsweekly, interviewed Anthony Romero, the national ACLU's executive director, during his visit to Boston in June. His article based on the interview appears here. It highlights the ACLU's work on LGBT issues as well as civil liberties challenges post-9/11.

Press Release: Boston Agrees to Settle Lawsuit Alleging Retaliation Against Teacher for Testifying Against Funding of JROTC in Public Schools

BOSTON - Attorneys for the ACLU of Massachusetts and the Boston Teachers Union today announced the settlement of their lawsuit in federal court on behalf of long time substitute teacher Jeffrey Herman against Jose Duarte, the headmaster of Boston's English High School. Herman was put on a "Do Not Call" substitute teacher list for English High School after he testified at a Boston City Council hearing in opposition to the City spending over one million dollars for Junior Reserve Officer Training Corps (JROTC) programs in the Boston public schools. Duarte, a member of the U.S. military who has Reveille played over the school loudspeaker at the start of school each day, was angered by Herman's views and ordered him out of the school.

"I testified at City Hall that taxpayer dollars would be better spent on teaching kids how to stop the violence that is plaguing our city," said Herman. "After that, Duarte screamed at me to get out of his school. Since schools are supposed to teach respect for the Constitution, I believed Mr. Duarte needed a lesson himself," he said.

In settling the lawsuit, the City did not admit to any wrongdoing by the headmaster, but agreed to a monetary payment to Herman and his attorneys in exchange for Herman agreeing to the dismissal of his lawsuit. Herman, who has been outspoken about his criticisms of Duarte's leadership of the school in general, also agreed he would not return to substituting at English High School as long as Duarte is still headmaster there. The School Department has agreed that when Duarte is no longer the headmaster, Herman's name will be removed from the "Do Not Call" list for that high school. English High School is being restructured to become a Commonwealth Pilot School to avoid the label, "chronically underperforming."

"The Boston Teachers Union, which supported Jeff's right to speak out in this case, is pleased that the matter has been amicably resolved," said attorney Matthew Dwyer. "The union always takes seriously any infringement, actual or threatened, on the First Amendment rights of its members," he said.

Sarah Wunsch, ACLUM staff attorney, was also glad the case had been settled. "Teachers are entitled to political opinions just like everyone else. We need them to feel free to share those opinions with the public and elected officials, outside the school, without fear of losing their jobs for doing so," she said. "Especially with great public debate going on right now about the war in Iraq and the lack of alternatives for poor kids to pay for college, Jeff Herman had a right to speak out at City Hall about Boston spending over a million dollars on JROTC."