President Obama’s speech yesterday, presenting his vision of a comprehensive counter-terrorism strategy, included welcome rhetoric about the importance of constitutional principles, including Due Process and rights to dissent. It may represent the high watermark for civil liberties since his inauguration five years ago.

It is disappointing, given his thoughtful words, that he ignored so many inconvenient truths. From extrajudicial assassination to free speech and freedom of the press, from the need to address root causes of terrorism to partnership with American Muslims, the president promoted important principles but papered over reality.

The reaction by Republican senators was even worse. Senator Saxby Chambliss (R-GA) foolishly suggested that “The president’s speech today will be viewed by terrorists as a victory,” and suggested doubling down on many of the same failed Bush-era policies from which President Obama finally signaled long overdue independence yesterday.

Due Process: Gitmo

The president forcefully spoke about the need to close Guantánamo Bay, and also lifted his moratorium on releasing Yemeni detainees whom the government has cleared for release, despite the clamor among conservative lawmakers who prefer to indefinitely detain anyone accused of terror without trial.

Yet the president’s words reflected important principles that his own administration has routinely violated. Col. Morris D. Davis, the former chief military prosecutor at Guantánamo who resigned his position to challenge torture (and serves on the BORDC advisory board), agreed that “It’s great rhetoric. But now is the reality going to live up to the rhetoric?”

The president criticized restrictions on resettling detainees cleared for release imposed by Congress early in his administration. But he has the authority to resettle those detainees through a separate process, if he were willing to certify the release of particular individuals—which he has avoided in order to avoid the political risk.

Due Process: Drone strikes

President Obama also pledged more congressional oversight of drone strikes, responding to sustained controversy and reiterating a promise from his State of the Union address in January that he has yet to fill.

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After a four year absence, a board charged with ensuring government respect for privacy and civil liberties was recently reconvened and received recommendations from civil liberties groups.  How it approaches its work will carry serious implications for civil liberties going forward.

In 2004, the September 11th Commission’s recommendations to Congress included the creation of a Privacy and Civil Liberties Oversight Board (PCLOB) to ensure the protection of civil liberties.  Noting that “if our liberties are curtailed, we lose the values that we are struggling to defend,” the commission called for a board to oversee the government’s adherence to defending civil liberties.  The PCLOB was constituted in 2006, but after operating for less than a year, it was reorganized by Congress, curtailing the tenure of its original members and then allowing to lapse after 2008.

After years of inactivity, the Senate finally confirmed new members of the Board, and it convened for a public hearing on October 31.  A bevy of civil liberties groups submitted statements to the Board, including the Bill of Rights Defense Committee (BORDC), as well as the ACLU, the Defending Dissent Foundation, the Electronic Privacy Information Center (EPIC), the Brennan Center for Justice at NYU School of Law, the DC-based Center for National Security Studies (CNSS), and the Constitution Project.

Both BORDC and CNSS  recommended approaches to the PCLOB’s work going forward, rather than discrete issues.  BORDC’s statement included three major recommendations to guide the work of the board:

• [Undertake] a concerted effort to recruit and engage pro bono counsel to extent the PCLOB’s investigative capacity.
• Beyond examining any discrete set of policies…acquaint policymakers, the press, and its observers within the executive branch with context about the landscape connecting these various long overlooked civil liberties issues.
• Because the PCLOB has convened only in passing over the decade since its creation was first recommended by the 9/11 commission, it should evaluate contemporary policies not in the context of the most recent incremental changes, but rather against the baseline pre-dating the 9/11 commission.

Similarly, CNSS provided input on the Board’s role, objectives, operations and its place vis-a vis the public and Congress. Notably, CNSS urged the Board to take a broad view of what constitutes privacy, inviting it to:

consider those ways in which government access to personal information, even when that information may be somehow available on the internet, impacts those constitutional values of liberty, due process and individual autonomy that privacy is supposed to protect.

A number of allied organizations presented suggestions about particular issues screaming out for scrutiny and oversight by the PCLOB.

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The following commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published in on November 12, 2012.

“I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.”—Barack Obama (March 2007)

Four years after Barack Obama was elected on a platform of “change you can believe in,” he’s now promising America that the “best is yet to come.” However, on almost every front—fiscally, militarily, politically, socially—the country is in a state of disarray.

Most troubling, however, is the state of our freedoms. Indeed, during Obama’s first term, our civil liberties were utterly and completely disemboweled. The great irony, of course, is that this happened with a self-proclaimed constitutional law professor at the helm—a man who was supposed to understand and respect the rule of law as laid out in the U.S. Constitution.

Not only did Obama continue many of the most outrageous abuses of the George W. Bush administration (which were bad enough), including indefinite detention and warrantless surveillance of American citizens, but he also succeeded in expanding the power of the “imperial president,” including the ability to assassinate American citizens abroad and unilaterally authorize drone strikes resulting in the deaths of countless innocent civilians, including women and children.

Obama has a lot to account for over the course of his first four years in office, particularly in terms of the erosion of our civil liberties. Just consider some of the assaults on our freedoms that took place under Obama’s watch, either as a result of his continuing Bush’s policies, enacting his own misguided policies or simply because he did nothing to counter them.

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Last night, the Berkeley City Council unanimously approved a historic measure ending Berkeley’s cooperation with federal Immigration and Customs Enforcement officials, mere weeks after enacting groundbreaking reforms protecting privacy and dissent in the face of federally-coordinated domestic surveillance and intelligence collection efforts.

Responding to sustained pressure from the Coalition for a Safe Berkeley, the City Council declared last night that:

“The Berkeley Police Department will follow its normal rules and procedures irrespective of the immigration status with whom it comes into contact. The Berkeley Police Department will not honor requests by the United States Immigration and Customs Enforcement, ICE, to detain a Berkeley jail inmate for suspected violations of the federal civil immigration law.”

The decision resulted from sustained controversy in Berkeley, and across the nation, over federal policy initiatives that co-opt local police and distract them from their core public safety mission, such as the Secure Communities Initiative (S-Comm).

Almost exactly one year ago, Santa Clara County rejected S-comm, implementing a policy that severely restricted the Santa Clara Sheriff’s compliance with detainer requests. After mobilizing for the past two years to champion broad law enforcement reforms to protect civil rights undermined by federal programs, the Coalition for a Safe Berkeley (covered by Bay Area media sources including the SF Bay Guardian, Berkeley Daily Planet, ABC News, and CBS News) has secured the support of its City Council on a series of important policy reforms.

The City Council enacted many of the Coalition’s proposed reforms, on September 18, particularly relating to intelligence collection by the Berkeley Police Department. Those reforms also addressed: (1) dissemination of intelligence information to the Northern California regional fusion center (mere weeks before the US Senate released a report sharply critical of fusion centers for wasteful spending and abuses of constitutional rights), (2) responses to mutual aid requests from nearby police agencies when suppressing  First Amendment activity (such as the crackdown on Occupy Oakland nearly exactly a year ago), and (3) transparency into proposed purchases of military equipment (like an armored personnel carrier whose attempted purchase by the police department the Coalition eventually blocked).

While the Council supported many of the Coalition’s reform proposals in September, it continued the vote on the Coalition’s proposed civil detainer policy (responding to S-Comm) until this week’s Council meeting. In the wake of the Coalition’s further victory last night,  Manuel De Paz from East Bay Sanctuary Covenant said:

“This…policy…protects the rights of immigrants and follows the Constitution….[it] gives faith and hope nationwide to those who struggle day by day for social justice. When a coalition like the Coalition for a Safe Berkeley finds common ground, values, and puts aside the differences and personal interests, and persists, everything can be achieved and there’s no battle that can’t be won.”

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Last week, we wrote about the three Northwest May Day activists who had been jailed for refusing to testify, and the way grand juries can be and are used as tools for political repression. Since then, there have been two major developments. First, Leah Lynn Plante has been released from jail, although Matt Duran and Kteeo Olejnik have not. Second, FBI documents have been uncovered that make it clear that this grand jury is, indeed, being used to target a political movement

As we noted in our last article, grand juries are problematic because they do not afford the same constitutional protections as criminal trials, they can lead to jail time for civil and criminal contempt, they can sow suspicion in political movements, and they are highly secretive. The current Seattle grand jury is flexing all of these destructive muscles.

While there has been speculation that it was convened in order to investigate property destruction in Seattle on May Day, there are indications that it is a far more complex investigation. The Seattle Post-Intelligencer broke a story about unsealed court documents which reveal that the FBI was tailing Portland anarchists the day before May Day. As the Committee Against Political Repression(CAPR) states in their blog:

The FBI’s treatment of anarchism as evidence of criminality in the affidavit quoted in the P-I supports the conclusion that the ongoing investigation is more about politics than law. The political nature of this investigation is also demonstrated by the scale of the state’s attack and the seizure of “anarchist literature” in armed raids.

This is nothing less than guilt by association, clearly demonstrated by the affidavit CAPR refers to. It includes a statement from an FBI Agent that:

Although many anarchists are law-abiding, there is a history in the Pacific Northwest of some anarchists participating in property destruction and other criminal activity in support of their political philosophy.

This conclusion is also supported by Kteeo’s statements about the lines of questioning she has been subjected to:

They weren’t trying to figure out from me who did a certain thing. They wanted to know who knew who, who was connected to who . . . They’re asking us who believes in things.

Moreover,  a public records act request by the Civil Liberties Defense Center (CLDC) revealed that  the Grand Jury was empaneled on March 2^nd, 2012, far before May Day activities.

What exactly this means remains to be seen.  The grand jury is ongoing. In the meantime, Lauren Regan, CLDC Director & Staff Attorney has some very good advice for the anarchist community, and for all involved in social justice movements:

It is extremely important not to speculate about what a grand jury investigation may be looking for—you may give the government an idea that it was unaware of.

Perhaps even more importantly, instead of allowing the government’s tactics to scare communities into disarray:

The most effective way to counteract that is to do the opposite; not be scared into submission and not disassociate yourself from people based on their political beliefs.

• 10/19, Lizzy Tomei, Global Post, Federal Reserve plot renews debate on counterterrorism versus civil liberties
• 10/18, Associated Press, San Francisco Chronicle, Civil rights groups criticize police surveillance
• 10/18, David Cole, Foreign Policy, Rewarding Impunity
• 10/18, Natasha Lennard, Salon, ACLU challenges Bay Area police drone plans
• 10/18, Jane Sutton, Reuters, Judge in 9/11 case weighs whether Constitution applies at Guantanamo

Update: Leah Lynn Plante was released.  Matt Duran and Kteeo Olejnik remain in custody.  

Last week, on October 11, grand jury resister Leah Lynn Plante of Portland, OR, was jailed for refusing to testify in front of a grand jury. She is the third individual who has been jailed in connection with a grand jury convened in Seattle early last month, purportedly to investigate May Day protests in Seattle. Kteeo Olejnik of Olympia, WA, was jailed on September 28, 2012 and Matt Duran, also of Olympia, was jailed several weeks earlier. They are the targets of a profoundly troubling tool for political repression, the secretive grand jury system.

In the federal legal system, grand juries are used to determine whether someone should be indicted for (charged with) a crime. A United States Attorney presents evidence to 16-23 jurors, and can subpoena witnesses, as well as documents and physical evidence. What most people do not know about grand juries, however, is the lack of almost all the constitutional protections provided in a regular trial. As Kimberly Gordon, attorney for Matt Duran, states, what stands out about grand juries is:

…how powerless you are as a subpoenaed party. As a defendant, there are tools that you have to be able to defend yourself. ..none of those tools exist in this circumstance.  You are far more vulnerable than someone charged with a crime. There is very little that you can do.

Unlike a normal criminal trial, grand juries are not subject to the rule that unconstitutionally obtained evidence be excluded. Grand juries are not screened for bias. Witnesses who have been subpoenaed to appear in front of a grand jury do not have the right to counsel. Jenn Kaplan, attorney for Kteeo, explains:

If a person refuses, or is expected to refuse to testify on the basis of Fifth Amendment privilege, the United States Attorney can seek a compulsion order granting the witness immunity and requiring them to testify.

Finally, and perhaps most importantly, anyone called before a grand jury who is given immunity can be jailed for contempt for the court if they still refuse to testify, without being charged of any other crime. Even worse, they can then be charged with criminal contempt, thus effectively providing a court and prosecutor with a tool to institute “double jeopardy.”

In addition to the lack of tools, grand juries are also deeply secretive. Ms. Gordon noted that:

In the criminal system due process provides so many ways of figuring out what the government wants and why they want it so that you can make informed decisions. In the grand jury, no attorneys are allowed- they have to wait outside.  The client taken in alone.  Sometimes, they can take notes- this is  up to each individual judge.  The client does not know  what they are going to be asked about until they walk in.

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• 10/2, Burgess Everett and Adam Snider, Politico, ‘Defeat Jihad’ ads cause stir in D.C
• 10/2, Aaron Cynic, TruthOut, Free Speech Scores a Hat Trick
• 10/2, Spencer Ackerman, Wired, Not From the Onion: Army Says ‘Social Network’ Use Is a Sign of Radicalism
• 10/1, Public Radio International, Despite differences, Guantanamo prison out-of-sight, if not mind, in presidential election
• 10/1, Adam Serwer, Mother Jones, The Drone Unknowns
• 10/1, Brendan Sasso, The Hill, OVERNIGHT TECH: Court to hear arguments in cellphone tracking case
• 9/28, Ethan Bronner, New York Times, Citizen Held After 9/11 Wins Right to Be Tried

On September 24, 2012, activists from across the nation gathered outside FBI headquarters in Washington, DC, to protest the bureau’s expansive surveillance, infiltration and entrapment activities criminalizing dissent.

The rally was organized by the Montgomery County Civil Rights Coalition  to commemorate the second anniversary of FBI’s raid and seizure of computers, personal items, and books, belonging to 23 activists from the Midwest. On September 24, 2010, the FBI committed an act of unwarranted surveillance and attacked the activist community. The activists were subpoenaed to testify before a grand jury, but refused to do so.  Moreover, no charges were filed against any of the activists whose personal property was seized.

At the rally, the activists and their supporters demanded the end of this investigation and the unwarranted surveillance that targets dissenting voices.

Watch Shahid Buttar, BORDC’s executive director, perform a political rap piece at the rally:

House votes to extend FISA for five years, inviting more unconstitutional surveillance

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Grassroots News

Patriot Award: Talat Hamdani

Grassroots Updates

• Los Angeles, CA: Coalition responds to LAPD surveillance policy changes
• Los Angeles, CA: Coalition emerges to challenge domestic military detention
• Berkeley, CA: Coalition mobilizing to support reforms pending before City Council
• San Francisco, CA: The 99% lobby key Senator to repeal indefinite detention under NDAA
• Tacoma, WA: BORDC activism prompts investigative exposé of environmental and civil rights abuses in immigrant detention
• Chicago, IL: Activists plan events protesting police misconduct and unwarranted surveillance
• Cleveland, OH: coalition raises awareness of violence and profiling in the war on drugs
• Charlotte, NC: Activists challenge police abuses beyond the DNC
• New York, NY: Community action speaking out against racial profiling through Stop & Frisk
• Hartford, CT: Coalition to Stop Indefinite Detention plans regional conference

Law and Policy

Federal Judge Strikes down NDAA Detention Powers, Government Appeals

The Justice Department condones torture, ensuring it will recur

LA under occupation? Rise in LAPD shootings and violent arrests

New Resources and Opportunities

Resources for celebrating Constitution Day