Change we can believe in

Here at the ACLU, we are non-partisan. We praise public officials when they do right by the Constitution and civil rights. And we wack them when they fail our freedoms.

There's so much good news in Day 2 of the Obama administration, it's hard to know where to begin. So let me just bullet point them for you.

• This morning, President Obama signed executive orders to close the detention center at Guantanamo Bay and the CIA's secret prisons around the world. The message is clear: The United States is not a country that holds people indefinitely without charge and without trial.
• Yesterday Obama signed an executive order placing a presumption of openness on all government records. (I'm not sure how he did this without legislation, but hey, we'll go with it.) In the past, a person pursuing a government record had to prove why it should be open. Now the government must prove why it should be secret. This is the same reform that Pennsylvania passed into law last year.

But it wasn't all good news. Last night NSA whistle blower Russell Tice, who is a former analyst with the agency, told Keith Olbermann on MSNBC that the NSA spied on journalists inside the United States.

Visit msnbc.com for Breaking News, World News, and News about the Economy

Andy in Harrisburg

A Promising Start?

"On Day One, with the stroke of a pen, you can restore America's moral leadership in the World," says the full-page ACLU ad (PDF). The open-letter campaign calls for President-elect Barack Obama to issue an executive order that closes Guantanamo Bay prison on Jan. 20. (Check out our new website, www.closegitmo.com.)

While Obama said throughout his presidential run that he believes the indefinite imprisonment of the detainees "a sad chapter in American history," and would work to close it (as did his opponent Sen. John McCain) yesterday's news reports indicate that the new administration intends to make it a top and immediate goal.

According to a hopeful article Monday from the Associated Press:

President-elect Obama's advisers are crafting plans to close the Guantanamo Bay prison and prosecute terrorism suspects in the U.S., a plan that the Bush administration said Monday was easier said than done.

Under the plan being crafted inside Obama's camp, some prisoners would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases.

The article goes on to say:

Laurence Tribe, a Harvard law professor and Obama legal adviser, said discussions about plans for Guantánamo had been "theoretical" before the election but would quickly become very focused because closing the prison is a top priority.

However, before we permit too much unbridled optimism to cloud our judgment, another breaking story in the Chicago Tribune last night cautioned readers that a lot of work yet remains in closing this international disgrace.

"President-elect Obama said throughout his campaign that the legal framework at Guantanamo has failed to successfully and swiftly prosecute terrorists, and he shares the broad bipartisan belief that Guantanamo should be closed," McDonough said in a statement.

Obama isn't perfect. I'm still irked over his FISA vote. But this, to all the cynics out there, should give us hope that, perhaps, he means business and that the worst abuses of civil liberties over the past eight years may be rectified.

Lauri in York

Will the new president defend the Constitution?

So the clouds have opened and all will be well since the Democrats won, right? Ha! Yeah, right. We've been warning our friends that civil liberties will still need defended at the local, state, and, yes, federal level after the election. Remember Bill Clinton with the Defense of Marriage Act, the Anti-Terrorism and Effective Death Penalty Act, the massive ballooning of the prison industrial complex, and the original proposal of the PATRIOT Act?

National is all over what needs to be done by President-elect Obama. Click here for the ACLU's transition plan for the new president. Here's Day One.

Day One: Stop Torture, Close Guantanamo, End Extraordinary Renditions
The next president will have a historic opportunity -- on day one -- to take very important steps to restore the rule of law in the interrogation and detention of detainees held at Guantanamo Bay, Iraq, Afghanistan, and in secret prisons around the globe. Every action taken pursuant to an executive order of President Bush can be reversed by executive order of the next president.

Therefore, on the first day in office, the next president should issue an executive order directing all agencies to modify their policies and practices immediately to:

• Cease and prohibit the use of torture and abuse, without exception, and direct the Attorney General immediately after his or her confirmation to appoint an outside special counsel to investigate and, if warranted, prosecute any violations of federal criminal laws prohibiting torture and abuse;
• Close the detention facility at Guantanamo Bay and either charge and try detainees under criminal law in federal criminal courts or before military courts-martial or transfer them to countries where they will not be tortured or detained without charge;
• Cease and prohibit the practice of extraordinary rendition, which is the transfer of persons, outside of the judicial process, to other countries, including countries that torture or abuse prisoners.

Andy in Harrisburg

July 4: A day for repentance

Wow, columnist Chris Satullo raised the roof today in The Philadelphia Inquirer. This is a must-read. Here's a snippet.

This year, America doesn't deserve to celebrate its birthday. This Fourth of July should be a day of quiet and atonement.

For we have sinned.

We have failed to pay attention. We've settled for lame excuses. We've spit on the memory of those who did that brave, brave thing in Philadelphia 232 years ago.

The America those men founded should never torture a prisoner.

The America they founded should never imprison people for years without charge or hearing.

The America they founded should never ship prisoners to foreign lands, knowing their new jailers might torture them.

Such abuses once were committed by the arrogant crowns of Europe, spawning rebellion.

Today, our nation does such things in the name of our safety. Petrified, unwilling to take the risks that love of liberty demands, we close our eyes.

Andy in Harrisburg

I got so much trouble on my mind. Refuse to lose.

Lots of stuff out there in the ether.

• To borrow a phrase, America's chickens have come home to roost. Several federal agencies sponsored a summit last week with immigrant groups to recruit aid in intelligence gathering. And guess what they heard.
  

  "We are going to ask you to open up your communities to us," said Ronald Sanders, an assistant national intelligence director, and the son of an Egyptian immigrant mother.
  
  The officials got an earful in return — about immigration and hiring rules and foreign policies that make life harder in immigrants' old countries. The intelligence agencies' own practices also came under criticism: extraordinary rendition, holding prisoners at Guantanamo Bay in Cuba, harsh interrogation practices that some say amount to torture.
  
  "Basically they've scared people," said Amina Khan, of the Association of Pakistani Professionals and an attorney formerly with the U.S. Energy Department.

• ID this! Yesterday 40 people came out on a workday morning to attend a public hearing in Erie on the federal Real ID Act. The testimony from the one defender of the real nightmare of Real ID, who was from the Coalition for a Secure Driver's License, sounded something like this:
  

  "9/11, drug dealers, September 11, illegal aliens, terrorists, terrorists flying planes into buildings, be afraid."

  
  That's not an exact quote, but it was something like that. I was trying to ignore what he was saying.

• ID this, part deux! Here we go again. Last week PA House Republicans introduced legislation to require photo identification at the voting booth. Their press conference sounded something like this:
  

  "The illegal alien vote, stop fraud, dead people, Chicago, illegal aliens, close the borders, 9/11."

  
  That's right, one rep even managed a 9/11 reference, saying, "Can you imagine if the 19 9/11 hijackers had been allowed to vote?"
  
  These people are mad. There is no evidence that this type of voter fraud is happening, so why put up more roadblocks to voting? Maybe they're afraid of the voters. Frankly, they should be.
  
  The Erie Times News, Philadelphia Inquirer, and Patriot News of Harrisburg all opined against this ridiculous idea.
  

Andy in Harrisburg

Harold and Kumar shout out to the ACLU

This weekend is the opening of Harold and Kumar Escape from Guantanamo Bay. The ACLU gets a shout in the clip below.



Andy in Harrisburg

Sameh Khouzam free tomorrow?

We just found out that the Third Circuit Court of Appeals denied the government's request for a stay of the release of Sameh Khouzam. Unless the government tries any other legal maneuvering, Sameh will walk out of York County Prison tomorrow a free man with protection from the Convention Against Torture.

There was quite a bit of media coverage, both national and in PA, on the decision last week. The best story I saw was in the New York Times, which included insight from academics on how this case will affect future cases.

Philip G. Schrag, a professor of law at Georgetown University and an expert on asylum issues, said the ruling was significant.

"The importance of this case," he said, "lies in its rejection of the Bush administration's claim that secret diplomatic assurances by a foreign government that it will not torture a person preclude judicial review."

The American Civil Liberties Union, which represented Mr. Khouzam, echoed that view. And Marc D. Falkoff, assistant professor of law at Northern Illinois University in DeKalb and counsel for 16 Yemenis held at Guantánamo Bay, Cuba, said the ruling could have sweeping implications for those detained at Guantánamo.

"It's tremendously important," Mr. Falkoff said. "It's not a binding precedent outside the jurisdiction of the Third Circuit but the ruling has persuasive authority in any federal court and, without a doubt, it will be brought to the attention of any federal judge who has a case pending where a detainee or prisoner is challenging the government's right to transfer him to a country where he might be tortured."

Andy in Harrisburg

The prison at Guantanamo Bay: Our national disgrace

Maybe I haven't yet had enough coffee this morning. Maybe I'm just tired. But as I'm reading the newspapers today, I'm feeling ... a bit emotional. I feel as if I might...get a little misty. Not in a blubbery sort of way. No woman should ever do that! But I feel as if I might shed a few tears.

Six years ago today, the first shackled prisoners captured on the fields of Afghanistan were shuffled to Guantanamo. ACLU executive director Anthony Romero has some powerful words on the subject in today's Salon.com:

Make no mistake: There were, and are, innocent people imprisoned at Guantánamo. Brig. Gen. Jay Hood, who was Guantánamo's commander for several years, candidly acknowledged in the Wall Street Journal: "Sometimes, we just didn't get the right folks." And we now know that only a small percentage of the many hundreds of men and boys who have been held at Guantánamo were captured on a battlefield fighting against Americans; far more were sold into captivity by tribal warlords for substantial bounties.

But the appalling fact that innocent men have been imprisoned and abused at Guantánamo is not the only reason why its closure is of such urgent importance. The most profound and enduring stain of Guantánamo is its corrosive effect on America's reputation and standing, and on respect for the rule of law worldwide.

Now, I know I can't cry without coming across as either a weak and ineffective writer or a cold calculated ice queen merely using the topic of tears as a writing device to segue into different topics.

But if Gitmo's ongoing human rights' atrocity isn't moving enough, perhaps you men can weep in frustration at this article in today's Washington Post. (Us women will just stuff down our emotions by eating cookies.)

As you know, our government believes it is of vital importance to this nation's safety to turn our telecommunications industry into a vast, and outside the law, spy agency. But what apparently the government finds less vital to the war on terror is paying its phone bills on time. So the companies sometimes have to cut off these vital wire taps.

A report by the Justice Department Inspector General found that "late payments have resulted in telecommunications carriers actually disconnecting phone lines established to deliver surveillance results to the FBI, resulting in lost evidence."

Lauri in York

Resources on yesterday's habeas oral arguments

Yesterday the U.S. Supreme Court heard oral arguments pertaining to the habeas corpus rights of detainees at Guantanamo Bay. The arguments can be heard at PBS's website. (MP3s: Part 1 here and Part 2 here.)

Cecillia Wang from ACLU's Immigrants' Rights Project has also blogged on it at national and at the ACSblog.

[I]f the Court rules in the Boumediene petitioners' favor on narrow grounds limited to the precise facts of Guantánamo, the most pernicious effects of the D.C. Circuit's error will go unaddressed. What if U.S. officials engage in horrific abuses in places other than Guantánamo? This is no idle speculation, given what we know about "extraordinary renditions" and CIA black sites, and in light of rumors of the closing of the detention center at Guantánamo.

Finally, there is extensive commentary at SCOTUSblog.

Personally, I'm a fan of Amnesty International USA's video short on habeas and the Military Commissions Act.



Andy in Harrisburg

Don't buy what the ACLU's selling? Then how about a Marine?

On September 11 of last year, I wrote a post here about where American freedom stood at that moment. The post included the story of Omar Khadr, a teenage detainee at Guantanamo Bay:

An hour or two later they came back, checked the tautness of his chains and pushed him over on his stomach. Transfixed in his bonds, Omar toppled like a figurine. Again they left. Many hours had passed since Omar had been taken from his cell. He urinated on himself and on the floor. The MPs returned, mocked him for a while and then poured pine-oil solvent all over his body. Without altering his chains, they began dragging him by his feet through the mixture of urine and pine oil. Because his body had been so tightened, the new motion racked it. The MPs swung him around and around, the piss and solvent washing up into his face. The idea was to use him as a human mop. When the MPs felt they'd successfully pretended to soak up the liquid with his body, they uncuffed him and carried him back to his cell. He was not allowed a change of clothes for two days.

Yesterday NPR featured a story on Lt. Col. Colby Vokey, the Marine attorney who defended Khadr, who is retiring next year. (Found via Daily Kos, "One fewer good man".)

By all accounts, Vokey is a Marine's Marine.

"Colby Vokey?" muses retired Col. Jane Siegel "Integrity almost seems like a word too small to describe him."

Says Lt. Col. Matthew Cord, "He's just one of the best."

But Vokey is retiring because he is, in his words, "fed up." And his revelations about Guantanamo are startling, albeit nothing new to a lot of us.

The U.S. has imprisoned hundreds of "enemy combatants" at Guantanamo Bay in a military legal system that Vokey denounces as "horrific." Vokey saw the system first-hand when he agreed two years ago to defend a teenager there who had been charged with murdering a U.S. soldier in Afghanistan. Vokey said he knew the case would be difficult, but he discovered that the legal system at Guantanamo is a "sham."

Vokey said the military staff constantly harassed him and interfered with his defense work by making it difficult even to meet with his client or show his client the government's evidence against him. The teenager confessed to killing the soldier, but he told Vokey he confessed after being shackled for hours in excruciating positions and bombarded by screeching music and flashing lights.

FBI agents have reported seeing detainees treated in similar ways and investigators at human rights groups have reported evidence suggesting that detainees are routinely abused.

Vokey calls the system "disgraceful."

"Anytime you want to subvert the rule of law to the power of a government, you've got a very bad thing brewing," Vokey told NPR. "As an officer in the Marine Corps I took an oath to support and defend the Constitution of the United States. And now we are perpetrating something that if any other country in the world was doing, we would likely step in and stop it."

After speaking out, Vokey was fired as the chief of defense counsels for the western United States.

But when former Marine Corps lawyers heard about Vokey's firing, they were incensed. Siegel said Vokey's firing sent a chilling message that some officials don't want military lawyers to defend the Constitution too vigorously.

"I believe that Colby Vokey was pulled out of his position because he's doing too good a job," Siegel said. "I think that the people in Washington, D.C., don't like that."

After Siegel and other well-known lawyers wrote a blistering letter of protest about Vokey's firing and lobbied top commanders at Marine headquarters, officials backed down and reinstated him. But critics say the Corps is just doing damage control because officials know that Vokey is planning to leave on his own.

Mind you, Vokey is the attorney who vigorously defended eight Marines accused of killing unarmed civilians in Haditha, Iraq. He is not one of the usual suspects. He's a Marine, and he considers what he has seen to be "disgraceful."

How many voices will it take until enough Americans know that our freedoms and principles are in serious danger?

Update- Thursday, 2:30pm EDT: I intended to include a link to the NPR story but forgot. Here it is.

Andy in Harrisburg

ACLU-PA meets with Congressman Mike Doyle

As part of the June 26 Day of Action, members of the ACLU Pittsburgh Chapter paid a lobby visit to Congressman Mike Doyle to urge him to continue his opposition to the Military Commissions Act and to demand an end to prisoner torture. Doyle was responsive and supported the closure of Guantanamo Bay and the restoration of habeas corpus to prisoners held there. I hope we got the message across that Pennsylvanians care enough about these issues to effect the next election.

Nawshin in Pittsburgh

Cheney exploits executive powers to push agenda of torture

Tomorrow, on June 26, 2007, thousands of ACLU supporters will rally on Capitol Hill in Washington, D.C. to call on Congress to restore habeas corpus, fix the Military Commissions Act, and restore our constitutional rights. Three years after the horrific images of prisoner abuse in Abu Ghraib were released, the tactics of torture endure. The Washington Post writes:

Cheney and his allies, according to more than two dozen current and former officials, pioneered a novel distinction between forbidden "torture" and permitted use of "cruel, inhuman or degrading" methods of questioning. They did not originate every idea to rewrite or reinterpret the law, but fresh accounts from participants show that they translated muscular theories, from Yoo and others, into the operational language of government.

A backlash beginning in 2004, after reports of abuse leaked out of Iraq's Abu Ghraib prison and Guantanamo Bay, brought what appeared to be sharp reversals in courts and Congress -- for Cheney's claims of executive supremacy and for his unyielding defense of what he called "robust interrogation."

But a more careful look at the results suggests that Cheney won far more than he lost. Many of the harsh measures he championed, and some of the broadest principles undergirding them, have survived intact but out of public view.

The vice president's unseen victories attest to traits that are often ascribed to him but are hard to demonstrate from the public record: thoroughgoing secrecy, persistence of focus, tactical flexibility in service of fixed aims and close knowledge of the power map of government. On critical decisions for more than six years, Cheney has often controlled the pivot points -- tipping the outcome when he could, engineering stalemate when he could not and reopening debates that rivals thought were resolved.

For more information about the ACLU rally, visit JuneAction.org.

Nawshin in Pittsburgh

Bush administration official smears attorneys defending Gitmo detainees

Nothing like a good dose of incredulous outrage to start your day. This morning I read an editorial in the Washington Post about recent comments made by Curtis Stimson, deputy assistant secretary of defense for detainee affairs. In an interview this week with Federal News Radio, Stimpson listed a group of US law firms defending detainees in Guantanamo. He continued on to say,

"I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out."

When asked who was paying the firms, he said "It's not clear, is it?" he said. "Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that."

It shouldn't surprise me that Stimson is mystified by the motivations of the attorneys defending detainees - it's called a commitment to the rule of law and a belief in the Constitution.

(Incidentally, a lawyer from one of these law firms who is defending detainees in Guantanamo spoke at a vigil yesterday about his clients. His comments can be read in yesterday's post.)

Sara in Philly

To Torture or Not to Torture

Interesting Washington Post op-ed about torture from Scott Adams, creator of the Dilbert cartoons. Adams describes himself as having gone from 'pretty certain' to 'doubtful' about the effectiveness of torture.

I suppose that's progress.

The burden is on torture's proponents to produce some evidence that torture makes sense as a policy. I don't rule out the possibility that it can be effective in some cases, but if it's being done in my name, I want some frigging evidence that it works.

Makes me realize that civil libertarians are damn lucky torture is not, generally speaking, an effective means for obtaining information. If torture were highly effective, we'd be sunk trying to sell the 'principle' of the issue.

Lisa in Pittsburgh

So many outrages packed into one little ol' year

Sometimes I worry that SF becomes a place where we blow off a little too much steam, as if all we do is complain. So instead we'll let Dahlia Lithwick of Slate do the complaining for us. Last week she published her Bill of Wrongs, which are the 10 most outrageous civil liberties violations of 2006. I wonder how she whittled it down to 10.

Here are a few highlights:

10. Attempt to Get Death Penalty for Zacarias Moussaoui
Thankfully, a jury rejected the notion that Moussaoui could be executed for the crime of merely wishing there had been a real connection between himself and 9/11.

9. Guantanamo Bay
The lucky 75 to be tried there will be cheered to hear that the Pentagon has just unveiled plans to build a $125 million legal complex for the hearings. The government has now officially put more thought into the design of Guantanamo's court bathrooms than the charges against its prisoners.

5. Government Snooping
Take your pick. There's the NSA warrantless eavesdropping program wherein the president breezily authorized spying on the phone calls of innocent citizens, in violation of the Foreign Intelligence Surveillance Act. The FBI's TALON database shows the government has been spying on nonterrorist groups, including Quakers, People for the Ethical Treatment of Animals, and Veterans for Peace. The Patriot Act lives on. And that's just the stuff we know about.

3. Abuse of Jose Padilla
The Bush administration supported his motion for a mental competency assessment, in hopes that will help prevent his torture claims from ever coming to trial, or, as Yale Law School's inimitable Jack Balkin put it: "You can't believe Padilla when he says we tortured him because he's crazy from all the things we did to him."

Lithwick encourages you to send CL outrages that she's forgotten to her at dahlia.lithwick@hotmail.com

Andy in the HBG

An Overdue Visit

From our clever colleagues in the national ACLU office (you can send your own e-card from their website here.)

An Overdue Visit

'Twas the night before Christmas and all through the nation
Friends of Freedom knew it was a special occasion.
Lady Liberty stood taller just off the shore
Her torch shining brighter than a few weeks before

But it wasn't the flame turning her cheeks all rosy
It was thoughts of Snowe, Feingold and Nancy Pelosi
And leaders from every side of the aisle
Who would soon bring the Bill of Rights back into style.

The Amendments had all hurried out of their beds -
Which was no easy task, they were nearly in shreds -
And they rushed to the window on papery feet
As a jolly old man flew right over their street.

"Could it be!?" they inquired as the roof shook and trembled
And they crept toward the mantle, peaceably assembled,
Just as someone emerged from the chimney with flair
In a shiny red suit, with a shock of white hair

And a top hat, and pants all in red, white and blue -
"Wait a minute," the Amendments exclaimed, "Who are you?"
"Don't be frightened my children," he said, "it's no scam.
"You can't have forgotten your old Uncle Sam!"

"Holy crap!" said Free Speech. "Stop right there!" yelled Bear Arms
And Privacy cried "Who shut off the alarms?!"
The Fifth remained silent, but Uncle Sam said
"We've been having some trouble, but Freedom's not dead."

The Amendments were cautious. "It's just been so long
"We've seen Liberty lost, we've seen so much go wrong.
"The President's trying to mangle and warp us,
"The Fourth is in tatters, so's Habeas Corpus!"

The old man sat down - he had had quite a ride -
But he told them "Don't worry, the Law's on our side,
"'Cause the nation's fed up and more people are crying
"For Justice and an end to illegal spying,

"And secret abductions by the CIA,
"And laws that would take women's choices away,
"And Gitmo tribunals and secret detention,
"And other intrusions too numerous to mention - "

"Not so fast," said a grinchity voice from above
And Don Rumsfeld pushed past the Fourteenth with a shove.
He was covered in soot and he looked kind of scary.
It seemed like his Christmas had not been so merry.

The Amendments said they weren't happy to see him:
"You tried to throw all of us in the museum!
"You've done so much the Constitution forbids!"
"And I would have gone on, but for you meddling kids!"
Uncle Sam told him "Rummy, your plans just won't do,
"So we've got a brand new timetable for you!"
And as Rumsfeld retired and crept into the night
The Amendments cried out "Have a good secret flight!"

From the distance they heard him reply with a snort.
"Bye-bye, Rummy!" they answered, "we'll see you in court!"
Uncle Sam rode the chimney up out of the room
And, like Frosty, he said "I'll be back again soon."

But they heard him exclaim "Oh, and just one more thing!
"This year, when the holiday bells start to ring,
"Try to honor religion. Honest faith can't be wrong.
"It's America, can't we all just get along?

"So, on Christian," he cried, "Muslim, Hindu, and Jew!
"On Quaker! On Shaker! And Atheist too!
"On Buddhist! On Taoist! And to show we're not chickens
"We'll file a few lawsuits defending the Wiccans!

"Your belief is your right, so get out there and savor it.
"Uncle Sam's not a preacher, and he doesn't play favorites!"
So this holiday season, whatever you do,
Warmest wishes for Freedom, from the ACLU.