ACLU Challenges Government’s Ban On Renowned South African Scholar In Federal Court Today

In Oral Arguments, Group Says U.S. Unfairly Blocking Exchange Of Ideas In This Country

BOSTON -- Today in federal court, the American Civil Liberties Union and ACLU of Massachusetts challenged the government’s refusal to grant a visa to respected South African scholar Adam Habib. Last fall, the State Department refused Habib a visa after months of inaction, claiming that he is barred because he has “engaged in terrorist activities” -- but the government failed to explain the basis for its inflammatory accusation, let alone provide a single piece of evidence to prove it.

“By barring Professor Habib from speaking in the U.S. without any substantiation whatsoever, the government is stifling debate with a prominent critic of U.S. policy. But the government doesn’t get to decide what we are allowed to hear and what we are not,” said Melissa Goodman, a staff attorney with the ACLU National Security Project. “The government has not only deeply harmed the reputation of a respected professor, but its own reputation as a democracy that embraces a diversity of ideas.”

In oral arguments before the U.S. District Court for the District of Massachusetts, the ACLU argued that the Departments of State and Homeland Security must grant Habib a visa because the government has no legitimate basis for preventing him from speaking to U.S. audiences.

Last September, the ACLU filed a lawsuit charging that the government's exclusion of Professor Habib amounts to censorship at the border because it prevents U.S. citizens and residents from hearing speech that is protected by the First Amendment. The ACLU brought this case on behalf of organizations that have invited Professor Habib to speak in the U.S., including the American Sociological Association, the American Association of University Professors, the American-Arab Anti-Discrimination Committee and the Boston Coalition for Palestinian Rights.

Habib is a renowned scholar, sought-after political analyst, and Deputy Vice-Chancellor of Research, Innovation and Advancement at the University of Johannesburg. He is also a Muslim who has been a vocal critic of the war in Iraq and some U.S. terrorism-related policies. Habib has repeatedly condemned terrorism but urged governments to respond to the terror threat with policies that are consistent with human rights norms and the rule of law. Until the government suddenly revoked his visa without explanation, he never experienced any trouble entering the U.S.; in fact, Habib lived in New York with his family for years while earning a Ph.D. in political science from the City University of New York.

The October 2006 revocation of Professor Habib’s visa prevented him from attending a series of meetings with representatives from the National Institutes for Health, the Centers for Disease Control and Prevention, the World Bank, Columbia University and the Gates Foundation. When he landed in New York, Habib was detained for seven hours and interrogated about his associations and political views. Armed guards eventually escorted him to a plane and deported him back to South Africa. The State Department later revoked the visas of Professor Habib’s wife and two small children again without explanation.

“It is ironic that someone who studies democracies around the world can be refused entry into the U.S. because of political views that differ from the government’s. Although I have analyzed -- and sometimes criticized -- American foreign policy as a public affairs commentator, it is utterly ridiculous that anyone could possibly associate me with terrorism,” said Habib. “While the U.S. government’s inflammatory, unsubstantiated label has caused harm to both my family and my reputation, this case is not about me -- it is about restoring the marketplace of ideas that has always made America unique.”

Last May, Habib applied for a new visa that would allow him to travel to the U.S. to attend speaking engagements. The ACLU’s lawsuit was prompted by the government’s failure to process Professor Habib’s visa in time for him to attend the annual meeting of the American Sociological Association in August 2007 and the fact that the application continued to languish after Habib received numerous new U.S. invitations.

“The government is using the immigration laws to silence a foreign policy critic and to censor political debate inside the United States,” said Sarah Wunsch of the ACLU of Massachusetts. “The American people have a constitutional right to engage prominent scholars face-to-face.”

Professor Habib’s exclusion is part of a larger pattern. Over the past few years, numerous foreign scholars, human rights activists and writers -- all vocal critics of U.S. policy -- have been barred from the U.S. without explanation or on vague national security grounds. In 2006, the ACLU filed a similar lawsuit on behalf of U.S. academic groups and Professor Tariq Ramadan, a widely respected Swiss scholar of the Muslim world. When the government revoked his visa in 2004, Professor Ramadan was prevented from assuming a tenured teaching position at the University of Notre Dame. He remains excluded from the U.S. to this day.

Attorneys in the case are Goodman, Jameel Jaffer, Nasrina Bargzie and Judy Rabinovitz of the ACLU, and Wunsch and John Reinstein of the ACLU of Massachusetts.

More information about ideological exclusion -- including a podcast with Adam Habib, plaintiff statements in support of Habib, and the legal complaint in today’s case -- is available at: www.aclu.org/exclusion

To learn more about how ideological exclusion affects scholars, listen to a podcast of Greek economics professor John Milios discussing his detainment and interrogation at New York's JFK airport in 2006. The podcast can be found at: www.aclu.org/multimedia/john_milios_final.mp3

Government Surveillance 101

The Wall Street Journal has provided this excellent overview of government surveillance efforts and the concerns they raise.

Meanwhile, DailyKos blogger mcjoan has just written about the ACLU's reponse to the WSJ article, including more on the scope of the program (at least as much as we know about it) and a Freedom of Information Act request to find out more about aspects of the WSJ story.

House lets "Protect America Act" expire! (For now)

Good news -- at least for the moment. Here's a just-out release from the national ACLU.

=====

House Stands Up to Threats from the White House
on Domestic Surveillance
ACLU urges careful consideration of cherished constitutional rights

For Immediate Release: February 14, 2008

Washington, DC – The Democrats in the U.S. House of Representatives stared down the White House today and decided to stick with their version of revisions to the Foreign Intelligence Surveillance Act. The House voted to adjourn without letting the phone companies off the hook for breaking the law by helping the government spy on Americans. The House is leaving town and allowing the unconstitutional Protect America Act to expire this weekend.

Statement from Caroline Fredrickson, director of the American Civil Liberties Union Washington Legislative Office:

“It is heartening that the House is standing up to the bullying from the president. The House is saying it will not give in to the administration’s lies and fear mongering. This administration has abused its power time and time again, and finally the House is standing up and saying no. The House is also sticking with the decision it made back in November not to give the phone companies and the Internet providers amnesty for illegal actions over the past six years when they provided Americans’ private calls and emails to the government without warrants.

“Members of the House were wise to let the clearly unconstitutional Protect America Act expire. Now, if the government wants to wiretap Americans on American soil it needs to get a warrant from the FISA court.

“The House sent the president a welcome reminder from the people that no one is above the law. Not the telecom providers. Not the White House.”

Fredrickson said that although the Protect America Act is set to expire this weekend, it doesn’t mean the new mass, untargeted surveillance programs authorized under that act will expire. Certain provisions of the Protect America Act will live beyond the law’s expiration date, including:

Orders under the Protect America Act can last for up to a year. Orders issued in the past six months will continue through their internal expiration date. So, for example, if the attorney general and director of national intelligence issue year-long orders on 2/15/08, they will run uninhibited until 2/15/09. (See PAA Section 6: Authorizations in Effect - Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration.)

Orders are not specific to individuals and can pick up new targets in the future. Although the orders are secret, we know the authority granted to the executive branch allowed them to create whole programs of surveillance that are not confined to any specific individual or facility – in fact, that breadth is precisely what the PAA is about. So, as programs continue, it stands to reason agents can pick up new suspects, phone lines, email accounts, etc., without the need to return to court.

In addition to all these continuing PAA authorities, if the government wants to listen to terrorists abroad it has a host of other options:

Collecting the call overseas where no warrant or order is required at all
Collecting the call here without an order under the 72-hour emergency provision
Collecting the call here under a FISA court order

To read more about the ACLU’s efforts to keep America safe and free and specifically to read about the FISA fight, visit www.aclu.org/fisa

Kennedy and Kerry opposed FISA

The Senate's latest cave-in, voting 68-29 to extend wiretapping authority and provide immunity for telecoms that went along with the White House's warrantless wiretaps when they were illegal, was outrageous.

At least Massachusetts can take consolation from the fact that Sen. Kennedy and Kerry stood on the right side.

The House now has the last chance to stop this before it goes to George Bush for his signature.

Press Release: Ellsberg, Maddow to headline ACLU of Mass. Membership Conference

Amid 2008 election season, gathering will focus on "Reclaiming Our Civil Liberties," Saturday at Bentley College

BOSTON -- More than 300 people from Cape Cod to the Berkshires plan to attend the first annual membership conference of the American Civil Liberties Union of Massachusetts, this Saturday, January 26, 2008, at Bentley College in Waltham. The conference theme is "Reclaiming Our Civil Liberties."

WHAT: ACLU Membership Conference: Reclaiming Our Civil Liberties
WHERE: Bentley College, Waltham, Massachusetts, Lindsay Hall, 1st Floor
WHEN: January 26, 2008, 12–6 pm

Speakers include Daniel Ellsberg, the writer, activist, and former U.S. military analyst who released the Pentagon Papers in 1971, and Rachel Maddow, the Air America host and frequent commentator on networks such as MSNBC, CNN, and LOGO. Ellsberg will speak on "2008 and Beyond: What will it take to end the abuse of power?" Maddow's speech is entitled "Don't Wait for November '08!"

The conference also features ten workshops:

• Moving Beyond the War on Drugs
  
• Confronting the Surveillance Society: Real ID, NSA Spying, Warrantless Wiretapping, and Fusion Centers
  
• Torture, Rendition and Guantánamo
  
• Next Steps for LGBT Rights
  
• Freedom of Speech and Association in the Post 9/11 World
  
• Racial, Ethnic & Religious Profiling in the Post 9/11 World
  
• Ensuring Reproductive Freedom
  
• Which Way Forward for the Immigrant Rights Movement?
  
• Blogging for Civil Liberties
  
• Building and Sustaining Strong Student Groups
  

"Many of us concerned about the abuses of power we've seen in our country in recent years are focused on the 2008 elections. That's important, but for our conference this year, we've chosen to focus on specific issues and what individual people can do about them," said Carol Rose, Executive Director of the ACLU of Massachusetts. "The erosion of our civil liberties has been so severe that it is unlikely that the next president and Congress alone will be able to undo the damage. We need the sustained involvement of concerned, committed citizens, and that is what the ACLU is working to develop."

Rendition: See the Movie, End the Practice

Michael Mukasey, our new Attorney General-in-waiting, just told the Senate Judiciary Committee that he doesn't know what waterboarding is. He also doesn't seem clear about what constitutes torture.

Someone should give him a ticket to see the new movie Rendition. The film has its dramatic flaws. But it also forces viewers to confront some critical and unsavory facts about how the US is fighting the "war on terror."

This is what it is like to have someone you love simply disappear at the whim of the US government. This is what waterboarding looks like. This is what it looks like to torture someone with electricity. Just imagine what that feels like. Wouldn't you say anything at all to make it stop?

It is my hope that the movie will awaken audiences to the crucial importance of the rule of law. Our standing in the world and our traction in the "war on terror" have been gravely undermined by the immoral, illegal and counterproductive practice of kidnapping victims and torturing them in CIA "dark sites" or outsourcing their torture to other countries.

The 9/11 Commission had it right when it said it was in our national interest to "offer an example of moral leadership in the world, commit to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors."

What is the law we should abide by – not simply abandon when the executive branch and its legal advisors see fit?

For a start, there is the Constitution, whose "checks and balances" are threatened by the secrecy and lack of any kind of accountability surrounding "extraordinary rendition." Then there is the Convention Against Torture, which the US ratified in 1994.

Four years later, in the Foreign Affairs Reform and Restructuring Act, Congress declared that it cannot be the policy of the US to "expel, extradite and otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States."

Tell that to the scores of innocent victims who have been kidnapped and "disappeared" into torture cells on flimsy evidence or no evidence at all. Maher Arar, a Canadian citizen, had Massachusetts friends, neighbors and colleagues when he lived in Framingham from 1999-2001 and worked at MathWorks in Natick.

In 2002, he was taken from JFK Airport in New York by US operatives and soon found himself in an underground dungeon in Syria, where he was tortured into making false confessions. After a year he was released and a thorough investigation by the Canadian government exonerated him of any connection with terrorism. The Canadians gave him an official apology and more than $10 million in compensation.

What did the US government do? It insisted that the case he brought to clear his name be thrown out of federal court on "state secrets" grounds. And it refused to take him off its "no fly list."

It took until October 18th for Arar to hear any kind of regret from US lawmakers. On that day, he was beamed into a Capitol Hill hearing by videoconference to tell his story and Rep. Bill Delahunt and a few other Members of Congress gave him their heartfelt personal apologies.

The Canadian media was all over the story. If it was reported in the US media, I missed it.

As the years have gone by, we have learned that Arar is one of scores of innocent victims of our "extraordinary rendition" policy. People have been seized from the streets, bound, blindfolded, and rendered on "torture flights" for knowing one of the wrong people or being from the wrong country.

We would do well to heed the words of Khaled El-Masri. This German car salesman and father of six was kidnapped and tortured in a case of mistaken identity. After his lawsuit against the US government was also thrown out on "state secret" grounds, he said:

"This is not democracy. In my opinion, this is how you establish a dictatorial regime. Freedom and justice are disrespected, as are basic morals and values. And if you don't keep quiet after you are abused, you are considered a threat to international or national security."

Extraordinary rendition puts more than our basic values and morals at risk. It also threatens national security.

To see how, you need look no further than the case of another rendition victim, Ibn al-Sheikh al-Libi. Under torture he gave what former Secretary of State Rumsfeld called "bulletproof" evidence of a connection between al Qaeda and Iraq, even as the Department of Defense's own intelligence agency was concluding that he was giving unreliable information.

From the rendition of al-Libi, it was a short road to the disastrous invasion of Iraq and Abu Ghraib. Regrettably, the road from Abu Ghraib has not seen us returning to the rule of law, and to those values we say our nation stands for. Instead, our use of torture, our secret prisons, and Guantanamo have all continued to offer propaganda victories to Al Qaeda.

The result? Eighty-four percent of the nation's top foreign-policy, intelligence and national security experts across the political spectrum contend that the US is losing the "war on terror," according to Foreign Policy magazine's recent Terrorism Index. More than 90 percent said the world is growing more dangerous for Americans. And a Pew global survey shows in key "war on terror" countries – Egypt, Jordan, Pakistan, and Turkey – our nation's approval rating ranges from 21 percent to 9 percent.

A key aim of terrorists is to deprive its opponents of legitimacy. There is no doubt that policies like "extraordinary rendition" help their recruitment efforts. We can only get back lost ground by returning to the rule of law.

As a move in the right direction, Congress should immediately pass Rep. Edward Markey's "Torture Outsourcing Prevention Act." And then it should make sure it is enforced.

It is time for Americans to stand up against a deplorable practice that is so at odds with our stated principles, and is making us less safe, not more.

Nancy Murray
Director of Education
ACLU of Massachusetts

Press Release: ACLU Constitution Day Tonight Features National Speakers, Release of Congressional Civil Liberties Scorecard

BOSTON - Today, the ACLU presents its Constitution Day program, "Standing Up To The PATRIOT Act, Rolling Back Real ID: How Can We Reclaim Our Civil Liberties?" The event will take place in the Rabb Lecture Hall of the Boston Public Library, Copley Square, from 6 to 8 p.m.

The event features three nationally known speakers:

* Barbara Bailey, Director of the Wellesley-Turner Memorial Library in Connecticut, who is one of only four people in the country who can talk about being served with a National Security Letter -- out of more than 200,000 who have been permanently gagged after getting a National Security Letter from the FBI;

* Mike German, a former Special Agent with the FBI, who infiltrated domestic right-wing terror groups and later blew the whistle on the FBI's counter-terrorism operations;

* Tim Sparapani, national ACLU Legislative Counsel, who focuses on protecting privacy and opposing abuses of government power.

In addition, the event will feature a preview clip from a not-yet-released Robert Greenwald Executive Productions film on Government Spying.

The ACLU is also releasing a Congressional Scorecard, a detailed look at how members of the Massachusetts Congressional delegation have voted on 11 key "Abuse of Power" issues in the Senate and 10 in the House. The Scorecard includes a lifetime score from the ACLU on civil liberties issues, and highlights the bills that members of the Massachusetts Congressional delegation have been leaders on, by sponsoring or co-sponsoring important legislation.

The Scorecard includes a lifetime score from the ACLU on civil liberties issues, and highlights the legislation that members of the Massachusetts Congressional delegation have been leaders on, as sponsors or co-sponsors.

Constitution Day celebrates the rights established by the U.S. Constitution, adopted on September 17, 1787.

News: Customs raids spur training on rights

Today the Boston Globe did an extensive story on 'know your rights' trainings done for years by the ACLU and other groups for non-citizens.

It's ironic that 'know your rights' trainings by the ACLU and other groups have drawn condemnation from Immigration and Customs Enforcement officials. What's really an outrage is their suggestion that constitutional rights should be suppressed.

An open and free society functions best when people are aware of their legal and constitutional rights. Our Constitution assumes that people are aware of their rights and may exercise them.

It’s true that non-citizens don’t have all the same rights as citizens. But the constitution guarantees that everyone inside our borders, not just US citizens, have basic rights, including the right to be free from unreasonable searches, the right not to self incriminate, the right not to let officers into their homes without a warrant, the right to due process, and the right to contact an attorney for assistance.

If law enforcement has absolute power to bypass these constitutional protections just because they happen to be looking for undocumented immigrants, then in the end, no US citizen is safe from a loud knock on the door in the middle of the night either.

News: Advocates criticize federal roundups

The Boston Globe carries another strong article today about Tuesday's raids on immigrants in Chelsea, Somerville, and East Boston. Supposedly they were directed at members of a "violent Salvadoran gang," but agents reportedly picked up other immigrants they came across, including legal residents.

The article cites Anjali Waikar, our Equal Justice Works Fellow, who points out that Constitutional protections, such as the right to refuse a warrantless search, apply to everyone in the country, not just citizens.

The article also quotes Mark Krikorian, of the Washington, DC-based Center for Immigration Studies. He says, "So what...?" Well, here's what: if basic constitutional protections didn't apply equally, everyone would need to be able to prove their citizen status on demand, wherever they want. Could you? And do you want to live in a 'Your papers, please' society?

Press Release: Statement on Resignation of U.S. Attorney General Alberto Gonzales by Carol Rose, Executive Director

BOSTON - "The reported resignation of U.S. Attorney General Alberto Gonzales presents an opportunity to stop the erosion of civil liberties, which must not be missed.

"The so-called 'Protect America Act,' passed by Congress earlier this month, provides one of the clearest illustrations of the need for a better U.S. Attorney General. Under the terms of this Congressional cave-in, the U.S. Attorney General is now one of two people, along with the Director of National Intelligence, who oversees the warrantless wiretapping of ordinary Americans.

"The American Civil Liberties Union of Massachusetts urges Sens. Kennedy and Kerry to take the lead in insisting on the confirmation of an Attorney General who is truly committed to the rule of law and the preservation of Americans' privacy, liberties, and rights -- not someone who will simply facilitate the accumulation of more and more power in the hands of the President.

"Appointing an Attorney General who is an advocate of civil liberties is a critical step in the direction of restoring the liberties we have lost in recent years to false promises of security."

More information on the loss of civil liberties is available from the American Civil Liberties Union of Massachusetts online:

http://www.aclum.org/issues/civilliberties.html

Press Release: ACLU of Massachusetts Urges Congress to Hold White House in Contempt, Force Compliance on NSA Subpoenas

BOSTON – The American Civil Liberties Union of Massachusetts today asked Congress to hold the White House in contempt. Having disregarded the second deadline for compliance with Senate Judiciary Committee subpoenas, the White House, Office of the Vice President and Department of Justice can now be held in contempt of Congress.

The original subpoenas were issued June 27th and sought materials related to the National Security Agency’s warrantless wiretapping program. The White House received an extension in July, and the second deadline for compliance was Monday at 2:30 p.m. The ACLU is asking Chairman Patrick Leahy (D-VT) and the committee to vote to hold the offices in contempt and, if necessary, force compliance through court proceedings. The ACLU is asking Leahy and the Committee vote to hold the offices in contempt upon Congress’ return in September.

“Today, the people of Massachusetts will raise their voices for government accountability,” said Carol Rose, Executive Director of the ACLU of Massachusetts. “No one is above the law – not the Department of Justice, not the vice president and not even the president. Repeated failure to comply with these subpoenas is a slap in the face to Congress and, by extension, those who elected them. The Senate Judiciary Committee has led admirably, and now Congress has to show leadership. We deserve answers about this illegal and unconstitutional program, and we’re asking Congress not to back down now.”

In the first effort of its kind, the ACLU filed a request on August 8 with the Foreign Intelligence Surveillance Court (FISC) requesting that it disclose recent legal opinions discussing the scope of the government's authority to engage in secret wiretapping of Americans. In their aggressive push to justify passing this ill-advised legislation, the administration and members of Congress made repeated and veiled references to orders issued by the FISC earlier this year. On August 17th, the court said the request was "unprecedented" and required the government to respond to the ACLU's request by August 31.

The ACLU is also continuing its challenge in the courts to the president's illegal wiretapping plan. In July, the Sixth Circuit Court of Appeals reversed the District Court's decision declaring the NSA program unconstitutional and ruled that the ACLU's clients—scholars, journalists, and national nonprofit organizations—were not entitled to sue because they could not state with certainty that they had been secretly wiretapped by the NSA. The ACLU is currently weighing its options, including an appeal to the Supreme Court.

“Without accountability, there is nothing stopping our government from abusing its power again and again,” added Rose. “For over a year and a half, our questions about this program have gone unanswered. The people of Massachusetts should contact their member of Congress and let it be known that not only do they want answers, they deserve them.”

More information on the ACLU’s concerns with the NSA spying is online at www.aclu.org/nsaspying.

Take action on the ACLU’s website, Subpoena Watch, at www.subpoenawatch.com.

Massachusetts Congressmen do the right thing while Congress hands Gonzales (yes, Gonzales) new surveillance powers

If we want to preserve what is left of our civil liberties, we may have to keep Congress in session year round. Not that the legislature is doing a good job preserving checks and balances – far from it! But all it appears to take is an impending recess and cranking up the politics of fear for the Executive branch to get its way.

And so in swift order, first the Senate (August 4) and then the House (August 5) endorsed the "Protect America Act of 2007" without any kind of Committee hearing, leaving the President to spend a few minutes on Sunday signing it into law. The only positive thing there is to say about this sorry performance is that not a single Massachusetts legislator went along with this enhancement of the government's warrantless NSA spying program. With the exception of Senator Kerry and Representative Delahunt who did not vote, all of our elected officials opposed it.

What a difference a few weeks can make! Attorney General Gonzales may have been on the hot seat last month, with perjury accusations about this very NSA spying program hanging over his head. But now he is in the driver's seat. The "compromise" insisted on by Democrats is that he doesn't get to oversee the program all on his own, but shares the responsibility with Director of National Intelligence Michael McConnell.

Doesn't it make you feel much safer to know that this duo can command all telecommunications companies to hand over their records and permit the government to conduct wiretapping from their facilities? That your overseas emails and telephone conversations are there for the picking without any kind of court order? That it's up to that Great Communicator, the Attorney General, to report on what is being done to Congressional committees and the FISA court?

As legislators – including the 57 Democrats who sold out the Fourth Amendment -- chill out for the rest of the summer, they may be thinking it's no big deal. In six months they can re-visit it and throw a sop or two at constituents who care about civil liberties.

But will that happen? The last time Congress gave the President what he wanted so they could stampede out of town for the October recess, we got the Military Commissions Act of 2006. At a Senate hearing on the bill on September 25, 2006, protestors stood in T-shirts declaring "Torture is Un-American" and "Save Habeas Corpus," while retired rear admiral and top military lawyer John Hutson said of habeas corpus, "Without these kinds of protections, we're just another banana republic." An amendment which would have preserved habeas corpus lost by just a handful of votes.

Ten months later, with the Democrats "in control," we still don't have it back. A banana republic with National Security Agency technology is quite a scary beast. If it takes fear to motivate Congress, maybe each Member should be sent a DVD of the 1998 Hollywood film about the NSA, "Enemy of the State." That may be the only hope we have of getting some of our civil liberties back.

Nancy Murray
Director of Education
ACLU of Massachusetts

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.

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.

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:
http://www.aclum.org/update/archives/2007.07.12.pdf

For previous updates:
http://www.aclum.org/update/index.html

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?

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."

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: 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.

Sweating for the Rule of Law on the "Freedom Trail"

By the time the Day of Action had dawned, the ACLU of Massachusetts conference room was full of props, and I was getting worried.

Would we really have enough people to wear the two dozen orange jump suits and gags at lunchtime when the temperature was supposed to reach the mid 90s? Would they really show up?

Would the media show up? If they did, would they find us in disarray? Would we have enough time to get everyone suited up and coordinate the carrying of coffins for Habeas Corpus and the Rule of Law, and "Torture Air," the rendition airplane?

What about all the other paraphernalia – the cell bars over mirrors that accompanied signs bearing the words of Martin Niemoller's poem about no one being left to speak for me? Were we too ambitious for a procession in the middle of the working day?

By noon, as the orange jump suits, gags and black hoods found their wearers, I began to grasp just how outraged people were by torture, Guantanamo and our government's abuse of power. Some had taken off work to be there. Others had traveled large distances. The heat was the last thing on their minds. They wanted to take these issues to the streets of Boston, home of the "Freedom Trail."

And so we set out, more than 60 strong, walking slowly to the beat of a drum. We were led by two men in black robes and a Bush mask who carried an orange jumpsuit stretched on a frame that bore the sign: "We have them in your size too."

Our intention was to pause at certain "stations of the Constitution," to remember the freedoms that were fought for at those sites. Pedestrians would be able to read the Niemoller poem and see their own faces in the mirrors beyond the bars.

The first "station" was the spot where Massachusetts delegates had signed the US Constitution in February 1788. It is commemorated by a plaque on the side of a giant Bank of America building. No sooner did we approach on the sidewalk when a Wackenhut guard barked out that we were on private property and should leave immediately. Through the megaphone I told him that we, and the members of the media who were with us, were interested to hear that the public was no longer able to pay its respects to the cradle of the Constitution in Massachusetts. He huddled with his fellow guards to decide what to do next.

We soon moved on, through the lunch hour foot traffic. Many people clapped. Some cheered. No one jeered. It seemed bystanders were happy to see us. Several came up and told us so.

Our next "station" was across the street from the Old South Meeting House, where the Sons of Liberty used to meet and the Boston Tea Party was organized. These streets had seen their share of symbolic protests over the years.

We moved on, to the front of the Old State House where the Declaration of Independence was first read to citizens of the Commonwealth, and then up the street to the seat of federal power.

Outside the JFK Federal Building we had speeches and spirited chants. One group went upstairs to Senator Kerry's office, while the rest of us chanted our way back to the ACLU office.

We had just finished changing clothes and rehydrating, when we were joined by those who had met with Kerry's staff. They said they were told he had just signed onto the Restoring the Constitution Act and the act to shut down Guantanamo.

If this is true – his support is not yet reflected on a Congressional website - it means that Representatives Delahunt and Lynch are the only Massachusetts Members of Congress who have not become co-sponsors of the Restoring the Constitution Act. This critically important legislation restores habeas corpus and fixes the worst aspects of the unconstitutional Military Commissions Act.

Where do we go from here? We have no illusions that one procession to mark the June 26 Day of Action will by itself turn things around. But on June 26 in Washington and around the country people are showing their dedication to the fundamental freedoms that were largely nurtured on the streets of Boston. We have right on our side, a pile of jumpsuits and props at the ready for future actions, and we will prevail.

Nancy Murray
Director of Education