Toonces the cancerous cat

Well, the Heritage Foundation's fearmongering "countdown clock" is still ticking, now up to 40 days, 9 hours, 41 minutes and 32 seconds...no wait, 46 seconds...marking the time that has passed since Congress first stood up to President Bush's demands that blanket immunity be granted to telecom companies as part of legislation over warrantless wiretapping - and the time that has passed since, the Heritage Foundation wants you to believe, we are now utterly unprotected from the grave, grave danger of terrorist attacks.

But there is something that is often lost in the argument against unchecked surveillance and the Bush Administration's desire to grant total amnesty to telecom company's all-too-willing eagerness (Excuse me, alleged eagerness.) to comply with its demands - the law and rights to privacy all beside the point.

Isn't there something, some way-cool technology perhaps, that would allow our government to ferret out terrorists without granting it complete unchecked access to its citizens' private thoughts and conversations?

Of course, while the Bush Administration and its Fox News minions would have you believe the only way to protect ourselves from terrorism is the complete abdication of our constitutional rights to privacy, here's a Seattle Times column that discusses the fact that maybe our government already has less random and more efficient ways at protecting our borders from terrorist attack.

In a meeting with Washington state residents recently, border agent Joe Giuliano described some of that technology.

According to Danny Westneat's column:

"Vehicle goes by at 70 miles per hour," Giuliano told the crowd. "Agent is in the median, a good 80 feet away from the traffic. Signal went off and identified an isotope [in the passing car]."

The agent raced after the car, pulling it over not far from the monitoring spot (near the Bow-Edison exit, 18 miles south of Bellingham). The agent questioned the driver, then did a cursory search of the car, Giuliano said.

Did he find a nuke?

"Turned out to be a cat with cancer that had undergone a radiological treatment three days earlier," Giuliano said.

Keith Olbermann also discusses the story in yesterday's segment of "Worst Person in the World," a dubious honor he awards to Michael Chertoff, for the secretary of Homeland Security's staunch support of unchecked snooping.

Interestingly, Giuliano, a federal agent for 35 years, is queasy about the technology's reach. He also said he opposes parts of the Patriot Act, namely the section that expands warrantless searches.

"I think we can do this without tossing out our checks and balances," he said.

Lauri in York

FBI: Lose in court? Ignore the court

Yet another report by the Department of Justice has found that the FBI has abused the power of National Security Letters granted to it in the USA PATRIOT Act. There are all kinds of things to say about this, but what I found most appalling was this:

According to the findings by Justice Department Inspector General Glenn A. Fine, the FBI tried to work around the Foreign Intelligence Surveillance Court, which oversees clandestine spying in the United States, after it twice rejected an FBI request in 2006 to obtain certain records. The court had concluded "the 'facts' were too thin" and the "request implicated the target's First Amendment rights," the report said.

But the FBI went ahead and got the records anyway by using a national security letter. The FBI's general counsel, Valerie E. Caproni, told investigators it was appropriate to issue the letters in such cases because she disagreed with the court's conclusions.

The level of arrogance here is beyond stunning. The FBI's counsel disagreed with the court, so she told the bureau to just ignore the court. Has this woman been disbarred yet?

Andy in Harrisburg

A whopper from the White House

This is too rich to let it pass by.

Q: Is it ever reasonable to restrict constitutional freedoms in the name of fighting terrorism?

WH Press Secretary Dana Perino: In our opinion, no.

More from Think Progress.

Andy in Harrisburg

Big Brother is watching: Not just for fiction anymore

Doing a fly-by at national, the ACLU is reminding us that we are inching ever closer to a surveillance society. National has launched this new campaign with a stark warning:

The reality is we are fast approaching a genuine surveillance society in the United States - a dark future where our every move, our every transaction, our every communication is recorded, compiled, and stored away, ready to be examined and used against us by the authorities whenever they want. The ACLU has created this Surveillance Clock to symbolize just how close we are to a "midnight" of a genuine surveillance society. But it's not too late - there is still time to save our privacy.

National's website has a lot of great info on this topic. And performance artists Steve Connell and Sekou (tha misfit) are back with "Monster Among Us."

Andy in Harrisburg

Another PATRIOT Act victory!

The USA PATRIOT Act continues to crumble. September started with one victory, and as the month winds down, a federal judge yesterday struck down two provisions of the law because they violate the 4th Amendment's "probable cause" requirement.

The ruling by Judge Anne L. Aiken of Federal District Court in Portland was in the case of Brandon Mayfield, a lawyer in Portland who was arrested and jailed after the Federal Bureau of Investigation mistakenly linked him to the Madrid train bombings in March 2004.

"For over 200 years, this nation has adhered to the rule of law — with unparalleled success," Judge Aiken's opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. "A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised."

Under powers granted by the PATRIOT Act, the FBI searched Brandon Mayfield's home and office and took things without ever informing him they had been there. It's hard to believe that Congress approved such a thing in the first place, but it's even harder to believe that it didn't correct its error four years later when the sunset provisions of the law were renewed.

The courts appear to be the last bastion of respect for the Constitution.

Andy in Harrisburg

Remembering a champion for justice

"So keep fightin' for freedom and justice, beloveds, but don't you forget to have fun doin' it. Lord, let your laughter ring forth. Be outrageous, ridicule the fraidy cats, rejoice in all the oddities that freedom can produce. And when you get through kickin' ass and celebratin' the sheer joy of a good fight, be sure to tell those who come after you how much fun it was." - Molly Ivins

As most of us know, the ACLU lost one of its greatest supporters in January when Molly Ivins died of cancer at 62. On Tuesday, in a tribute hosted by the Society for Ethical Culture, writers and journalists gathered on the anniversary of 9/11 to remember the Texas firebrand and the causes for which she stood.

Ivins, who famously gave one speech each month on behalf of the ACLU until the cancer she was fighting made it impossible, was a true believer in defending the causes of justice and civil liberties.

As she once wrote: "There's not a thing wrong with the ideals and mechanisms outlined and the liberties set forth in the Constitution of the U.S. The only problem is the founders left a lot of people out of the Constitution. They left out poor people and black people and female people. It is possible to read the history of this country as one long struggle to extend the liberties established in our Constitution to everyone in America."

Next month, her final book, co-written by long-time collaborator Louis Dubose, will be published by Random House.

The Bill of Wrongs: The Executive Branch's Assault on America's Fundamental Rights, documents the struggles of little guys – always a favorite topic of Ivins – to defend their constitutional rights against government bullies.

Dubose, who attended the tribute, said he regrets his writing partner is no longer here to see the success of the people whose stories are told in the book.

The Bill of Wrongs includes a chapter on the Dover Area School District's First Amendment battle over intelligent design. Thankfully, Ivins lived to see the concept ruled creationism and its teaching in science class struck down as unconstitutional. But Dubose wishes she had lived to see more recent successes. "I regretted Molly didn't stick around long enough to see our subjects prevailing as plaintiffs," he said.

One of those subjects is John Doe. In Doe vs. Gonzales, the anonymous internet provider's free speech rights were silenced by the amended Patriot Act's National Security Letter (NSL) provision. Last week, U.S. District Court Judge Victor Marrero struck down the NSL provision, which the FBI uses to demand personal customer records from Internet service providers, libraries and others without prior court approval. Marrero ruled the gag order, which prevents those served from discussing the letters, violates the First Amendment.

Additionally Dubose said Ivins would have really enjoyed seeing a Texas couple cash their $80,000 check with the U.S. Treasury last month, restitution paid by the Bush Administration for illegally arresting them because of the messages - "Love America, Hate Bush" and "Regime Change Starts At Home" – they peacefully wore on their T-shirts.

"I really miss Molly," Dubose said. "As a reader as much as a colleague.

"After she died, I got all these letters from people about her columns, saying things like, 'They made me realize I wasn't crazy.' Or 'They made me realize I wasn't alone.'"

The Bill of Wrongs: The Executive Branch's Assault on America's Fundamental Rights, published by Random House, comes out Oct. 23.

Lauri in York

We the People: Get a warrant

A new Rasmussen poll (found via Daily Kos) indicates that a large majority of Americans like their surveillance accompanied by a warrant.

Sixty-four percent (64%) of American adults agree that a search warrant should be required before the government can ask Internet providers to turn over customer records. A Rasmussen Reports national telephone survey found that just 16% disagree and 20% are not sure.

The poll results come on the heels of a federal court decision last week that struck such searches from the USA PATRIOT Act as unconstitutional.

The people are not giving in to the fearmongering of the Bush crowd.

Andy in Harrisburg

PATRIOT Act victory!

Fly, Eagles, fly, on the road to....err, I mean, yeah for us! Yeah for the U.S.! Yeah for freedom!

Federal court strikes down National Security Letter provision of PATRIOT Act

U.S. District Court Judge Victor Marrero wrote, "In light of the seriousness of the potential intrusion into the individual's personal affairs and the significant possibility of a chilling effect on speech and association - particularly of expression that is critical of the government or its policies - a compelling need exists to ensure that the use of NSLs is subject to the safeguards of public accountability, checks and balances, and separation of powers that our Constitution prescribes."

"As this decision recognizes, courts have a constitutionally mandated role to play when national security policies infringe on First Amendment rights. A statute that allows the FBI to silence people without meaningful judicial oversight is unconstitutional," said Jameel Jaffer, Director of the ACLU's National Security Project.

Andy in Harrisburg

The USA PATRIOT Reauthorization Act: The Gift that Keeps on Giving

So how many more "little-noticed provisions" of the USA PATRIOT Improvement and Reauthorization Act of 2005 (yes, that's really the name) are waiting to rear their ugly heads? Earlier this year we found out about a provision that was snuck in that allowed the executive branch to replace US attorneys without Senate confirmation, as had been the law. Now it turns out that, according to an LA Times story today, there's a provision that:

"...gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use 'fast track' procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court."

The article goes on to say:

"The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years." Of course, many of those individuals freed on DNA evidence would be dead now if the appeals process had been sped up, as DNA tests simply weren't available when they were initially sentenced.

A USA Today article on the same topic mentions that "Pennsylvania [is]among the states that have expressed interest in participating in this fast-track execution program."

My question: how is Gonzales going to find the time to do this fast-tracking of executions with all the secret warrantless wiretapping he's now busy authorizing?

Sara in Philly

No excuse for ignorance of the law

Is it just me, or does it make one just a tiny bit nervous that FBI Director Robert Mueller, the man who keeps assuring Congress he's on top of correcting his agency's recent abuses of the USA Patriot Act, doesn't even know what the act says?

According to an AP story, Mueller said the following at Senate hearing about national security letters:

"I would give up NSLs for administrative subpoenas.... We do not have an enforcement mechanism for national security letters."

Oops. Turns out that the FBI actually does have that power already, thanks to the reauthorization of the Patriot Act a year ago.

I really can't say it better than the first paragraph of the same AP story:

FBI Director Robert Mueller blames poor training and supervision for the bureau's Patriot Act abuses and promises new training programs. He might want to sign up for the first class himself.

Sara in Philly

NY Times: Gonzales' time is up

Calling him "The Failed Attorney General," the New York Times today called for the ouster of AG Alberto Gonzales, based largely on numerous civil rights and constitutional violations:

He has never stopped being consigliere to Mr. Bush's imperial presidency. If anyone, outside Mr. Bush's rapidly shrinking circle of enablers, still had doubts about that, the events of last week should have erased them.
...
The administration said that, as with many powers it has arrogated since the 9/11 attacks, this radical change was essential to fast and nimble antiterrorism efforts, and it promised to police the use of the letters carefully.

But like so many of the administration's promises, this one evaporated before the ink on those letters could dry. The F.B.I. director, Robert Mueller, admitted Friday that his agency had used the new powers improperly.
...
It was Mr. Gonzales, after all, who repeatedly defended Mr. Bush's decision to authorize warrantless eavesdropping on Americans' international calls and e-mail. He was an eager public champion of the absurd notion that as commander in chief during a time of war, Mr. Bush can ignore laws that he thinks get in his way.
...
The attorney general helped formulate and later defended the policies that repudiated the Geneva Conventions in the war against terror, and that sanctioned the use of kidnapping, secret detentions, abuse and torture. He has been central to the administration's assault on the courts, which he recently said had no right to judge national security policies, and on the constitutional separation of powers.

His Justice Department has abandoned its duties as guardian of election integrity and voting rights. It approved a Georgia photo-ID law that a federal judge later likened to a poll tax, a case in which Mr. Gonzales's political team overrode the objections of the department's professional staff.

The Justice Department has been shamefully indifferent to complaints of voter suppression aimed at minority voters. But it has managed to find the time to sue a group of black political leaders in Mississippi for discriminating against white voters.

No one should hold their breath that Gonzo is going anywhere anytime soon. But kudos to the Times for keeping the heat on an administration that continues to abuse our basic constitutional protections.

Here is national ACLU's response to the revelation about the PATRIOT Act.

Andy in Harrisburg

I hate to say we told you so, but....

And they all said we were paranoid. Of course the government would never misuse the excessive powers given to them under the PATRIOT Act. Only a bunch of anti-American pinko commies would even suggest such a thing.

Except that now the Justice Department’s own Office of the Inspector General (OIG) has more than just suggested such a thing - it flat out said in a report issued today that the FBI has misused the provision of the PATRIOT Act that allows the agency to demand sensitive personal information without judicial supervision.

According to the Washington Post, the OIG "found that FBI agents used national security letters without citing an authorized investigation, claimed 'exigent' circumstances that did not exist in demanding information and did not have adequate documentation to justify the issuance of letters."

This is the part where we get to say "I told you so" (but in a really nice way, of course). Check out the ACLU's 2003 report, Unpatriotic Acts: The FBI's Power to Rifle Through Your Records and Personal Belongings Without Telling You.

Ya know, maybe that whole "checks and balances" thing wasn't such a bad thing after all. Congress, you might want to look into it.

Sara in Philly

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

Yeah, but how will it play in Peoria?

An abuse of power update:

Here's the Militarism Commissioned Act at work. A non-citizen named Ali Saleh Kahlah al-Marri gets picked up in Peoria, Illinois. He's charged with credit card fraud and making false statements to the FBI. One month before his trial, the trial is suddenly postponed. Why? Since al-Marri refused to cooperate with the FBI, the administration designated him as an "enemy combatant." In other words, the administration forced him to choose between cooperating or losing his due process rights, not to mention the presumption of innocence. His new trial date is right around never.

Former AG Ashcroft talks about the case in his new book:

Ashcroft observes that under the laws of war, an enemy combatant can even be killed on the spot. The government held its fire in Peoria. But it is intent on holding al-Marri "without charge or trial until the end of the war," as Ashcroft puts it. And the government thinks it has a new tool for doing so: the Military Commissions Act of 2006.

This is the law that Congress rushed to pass in the fall to strip the Guantanamo detainees of their rights to challenge their detentions by bringing habeas corpus petitions in federal court. The MCA could have been limited to people picked up outside the United States. But its language is broader: It bars habeas claims by any noncitizen determined by the government to be an enemy combatant (or "awaiting such determination"). This, the government argues, means that it could pick up al-Marri in Peoria one day and the next day stick him in a military brig indefinitely, with no chance of redress in court.

And the end of the so-called war, of course, is sometime between now and never.

So, what's the problem? Here's the problem:

The government's handling of al-Marri is an utter departure from historical practice. Noncitizens in the United States have constitutional rights, including the right to due process if they face criminal charges. When they're convicted, they routinely file habeas petitions, as they have for centuries. The Supreme Court explained all of this in a 2001 case, INS v. St. Cyr, in which the government wanted to deport an immigrant convicted of a crime without any judicial review. The court forbade that, saying that the constitution protects the rights of "all persons in the United States."

Then again, what am I thinking? Of course you can trust the government. Just ask Brandon Mayfield. You may remember Mayfield. He is the Oregon attorney who was held for two weeks in connection with the Madrid bombing only for the government to later realize, uh, whoops, didn't quite get that one right. Abusive provisions of the USA PATRIOT Act were used to investigate Mayfield, including the expansion of the sneak-and-peek warrants, which allowed agents to bust into Mayfield's home, take things, and never tell him they were there.

This week Mayfield, his wife, and his kids got what they deserve: A $2 million apology from the government.

"You almost never see something like this," said Peter Neufeld, co-director of the Innocence Project, a legal clinic in New York City. "It's extraordinary, but the harm caused him was extraordinary. What I really think it speaks to is just how clearly the U.S. government crossed the line when it went after Mayfield."

And the best part?

The settlement includes an unusual condition that frees the government from future liability except in one important area: Mr. Mayfield is allowed to continue a lawsuit seeking to overturn parts of the Patriot Act as a violation of the Fourth Amendment protection against unreasonable search and seizure.

That's right. Go get 'em, bro.

Finally this week, the Justice Department announced that it will do some investigating into the NSA's warrantless surveillance program. The Albany Times Union is wary:

According to a Washington Post report, Mr. Fine intends to examine only how the Justice Department has used information obtained by the National Security Agency under the surveillance program, and whether department lawyers complied with its "legal requirements." But the larger issue the one that matters most is whether the program is legal at all, and Mr. Fine's investigation won't even touch on that.
...
If he issues a report claiming the material obtained under the program hasn't been abused, and that there are safe guards in place to protect the privacy of Americans, the White House will be able to argue that the Democrats' investigations aren't necessary.

But they are. This controversy involves nothing less than the basic constitutional liberties. No hastily arranged Justice Depart ment probe should whitewash that fact away.

Andy in H-burg

Is this YOUR America?

Okay, now that I depressed you with my previous post, I felt I should write something to cheer you up. So I'm going to encourage you to attend one of five town hall meetings we're holding across the state on the abuse of executive power issue. We'll talk about how torture, kidnapping, and illegal spying are NOT what this country is supposed to be about. It's a great chance to 1) get even more outraged, 2) meet your fellow civil libertarians who are also pissed off, and 3)get some ideas for fighting back.


Here's the schedule:

July 11 - Harrisburg - Speakers: Lisa Graves, Senior Legislative Counsel, ACLU Washington Legislative Office; Spero T. Lappas, Esq., Civil rights and criminal defense attorney; & Kathleen Lucas, human rights organizer

July 12 - Philadelphia - Speakers: Caroline Frederickson, Legislative Director, ACLU Washington Legislative Office; Michael Coard, Esq., Host of "The Radio Courtroom" on WHAT 1340 AM; Bal Pinguel, Coordinator, Peacebuilding & Demilitarization Program, AFSC; Signe Wilkinson, Editorial Cartoonist, Daily News.

July 13 - Allentown - Speakers: Matt Bowles, Field Organizer, ACLU Washington Legislative Office; Malcolm J. Gross, Esq., Gross, McGinley, LaBarre & Eaton, LLP.

July 19 - Erie - Speakers: Matt Bowles, Field Organizer, ACLU Washington Legislative Office; Jim Fisher, Dept. of Political Science and Criminal Justice, Edinboro University; Bob Rhodes, Dept. of Political Science (Emeritus), Edinboro University.

July 20 - Pittsburgh - Speakers: Greg Nojeim, Associate Director and Chief Legislative Council, ACLU Washington Legislative Office; Doug Shields, Pittsburgh City Councilman, Co-sponsor of anti-PATRIOT Act Resolution.

Check out our website page for more information about times and locations for each town hall.

Hope you come, and bring people. Because frankly, my friends, this is a damn scary time in this country.