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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As critical issues eluded corporate media over the past month, BORDC staff continued to open dialogue on developments concerning civil liberties. Recent themes include the Obama Administration’s inaction towards realizing rights-based campaign promises, and the erosion of law in a national security state.

On Wednesday, April 24, Communications Specialist Samantha Peetros appeared on Bread and Roses to discuss the local lockdown following the Boston Marathon bombings. Examining the friction between knowledge of one’s rights and genuine safety concerns, Samantha explains:

it was an overwhelming experience to see…the National Guard….. At the same time there is that sense of comfort, and it’s hard to deal with those conflicting thoughts. But I’m also very aware of what this could mean for civil liberties…”

Samantha also raised questions regarding possible outcomes if the public chose not to cooperate with state and federal agents during the Boston lockdown.

On Monday, May 6, Legal Fellow Michael Figura appeared on Connecticut’s Counterpoint Radio to discuss the ongoing hunger strike in the Guantánamo Bay. Michael explains the dire situation facing many unjustly and indefinitely detained men at the detention camp:

Over half of them have been cleared for release by the United States Government…yet they’re still held there. Many of these men have been held there 10-11 years now.

This austere, peaceful protest staged by over one-hundred men, which has prompted further human rights violations by our government, draws greater scrutiny to the globally infamous injustices inside Guantánamo Bay. However, while the Obama Administration chants its chorus of closure, an end to Guantánamo remains unseen.

Also on May 6, Executive Director Shahid Buttar appeared on the NextNewsNetwork to discuss the Obama Administration’s policies including extrajudicial assassination of US citizens and dragnet surveillance. Shahid follows this commentary with a compelling discussion of the consistent evasion of judicial review by presidents from both political parties, and Congress’ abdication of its constitutional responsibilities. He suggests (at 11:15) that the rule of law no longer exists in the United States, before observing a disturbing double standard between mass incarceration for minor crimes, and the continuing prestige — and public paychecks — for war criminals such as John Yoo and federal appellate judge Jay Bybee.

Stay with us for the latest BORDC press hits and coverage of issues that impact the liberties and lives of all Americans.

For a comprehensive view of BORDC’s latest news coverage, and to find out how to reach staff for comment, and more, view our online press resources.

5/10, Kevin Collier, Salon, Congress wants to let you unlock your cellphone

5/10, A.M. Gittlitz, TruthOut, Double Jeopardy: New York Activist Subpoenaed for Secret Grand Jury – Again

5/10, Max Fisher, Washington Post, Photos from Guantanamo’s force-feeding facilities

5/10, Natasha Lennard, Salon, Hidden in immigration reform, vast biometrics plan

5/10, Jonathan Weisman, New York Times, I.R.S. Apologizes to Conservative Groups Over Application Audits

5/9, Mark M. Jaycox, Electronic Frontier Foundation, Update to Email Privacy Law Must Go Further

As the hunger strike at Guantánamo has widened to include all of the men held there, President Obama recently announced that he would renew a push on Congress to close the prison and examine his administrative options. However, the implication that Congress is preventing the closure of Guantánamo is at best disingenuous.

Obama has the power to transfer prisoners from Guantánamo right now.  The president himself has placed a uniform ban on transferring any prisoners to Yemen, a collective punishment policy that he could reverse immediately. He could also release prisoners by issuing a certification through the Department of Defense and State that the administration has steps to assure the secure release and monitoring of the prisoners.

Moreover, President Obama’s seemingly newfound rhetorical opposition to indefinite detention runs counter to the policies of his administration. While he may have tried to move the prisoners to the United States, he still wanted them indefinitely detained, in violation of the Constitution and International Law. This has left even supporters of his detention policy befuddled.

The Guantánamo hunger strike can only be ended by the administration taking meaningful steps to close the prison. Those steps can begin immediately by releasing the 86 men who have been cleared for release by the government itself. The remaining men should either be given a speedy and fair trial or released as well.

The men at Guantánamo are resolute to peacefully protest through a hunger strike until they receive justice. One of them, Moath Hamza Ahmed al-Alwi put it this way:

I do not want to kill myself. My religion prohibits suicide. But I will not eat or drink until I die, if necessary, to protest the injustice of this place. We want to get out of this place. It is as though this government wishes to smother us in this injustice, to kill us slowly here, indirectly, without trying us or executing us.

Currently, 21 of the men, including Mr. al-Alwi, are bring force-fed in violation of medical ethics. The force-feeding process is brutal, as was described by one prisoner in an New York Times op-ed and can constitute torture, if undertaken as a form of punishment.

As the hunger strike continues, people across the world are pushing for the closure of Guantánamo and an end to indefinite detention. A change.org petition started by a former Guantánamo prosecutor, calling for the prison’s closure, has gained over 100,000 signers in less that two days. From May 17-19, people of conscience will stand together to demand that President Obama close the United States’ forever prison.

On April 23, the  Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights,  held a hearing entitled “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing.”  The Bill of Rights Defense Committee submitted testimony to the hearing emphasizing the need for transparency, and end the unconstitutional use of drone killing. BORDC’s testimony highlighted the secrecy of the administration’s legal justification for killing through drones and the attendant impossibility of meaningful checks and balances.

Despite repeated promises of transparency tied to the targeted killing program, President Obama refused to send a witness from his administration to the hearing. Even after the hearing date was moved a week to accommodate a potential administration witness, ultimately the Senators, the witnesses and the public were left guessing about what could put them on a kill list and whether the administration had any explanation for shocking number of civilians killed by US bombings.

One witness stood out among a panel populated by an otherwise typical beltway crowd of ex-military, academics and think tank members. Farea al-Muslimi, Yemeni democracy activist who previously spent time in the US studying through State Department scholarships told the committee about the impact of a drone strike on his village in Wessab, Yemen.

al-Muslimi’s testimony exposed many of the core justifications for Obama’s killing program as fallacies.  While the administration argues that it only executes people with drones when it cannot safely capture them, al-Muslimi pointed out that the ostensible target of the drone stroke on his village would have been easily detained.

My understanding is that a man named Hammed al-Radmi was the target of a drone strike. Many people in Wessab know al-Radmi, and the Yemeni government could easily have found and arrested him. Al-Radmi was well known to government officials, and even to local government—and even local government could have captured him if the U.S. had told them to do so.

al-Muslimi also drew on his experience traveling the country as a democracy activist to describe the impact of drone strikes on public opinion of American in Yemen. The drone program is operated on the theory that it makes the US safer by killing our enemies. However, al-Muslimi testified that the program has killed large numbers of civilians.

The drone strikes are the face of America to many Yemenis. I have spoken to many victims of U.S. drone strikes, like a mother in Jaar who had to identify her innocent 18-year-old son’s body through a video in a stranger’s cellphone, or the father in Shaqra who held his four- and six-year-old children as they died in his arms. Recently in Aden, I spoke with one of the tribal leaders present in 2009 at the place where the U.S. cruise missiles targeted the village of al-Majalah in Lawdar, Abyan. More than 40 civilians were killed, including four pregnant women. The tribal leader and others tried to rescue the victims, but the bodies were so decimated that it was impossible to differentiate between those of children, women and their animals. Some of these innocent people were buried in the same grave as their animals.

Moreover, he pointed out that the drone program has successfully turned people against the United States, even where Al-Qaeda in the Arabian Peninsula (AQAP) had previously failed to do so.

 Now, however, when they think of America, they think of the terror they feel from the drones that hover over their heads, ready to fire missiles at any time. What the violent militants had previously failed to achieve, one drone strike accomplished in an instant. There is now an intense anger against America in Wessab.

This commentary was written by John W. Whitehead, president of the Rutherford Institute. It was originally published on April 22, 2013.

“Of all the tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive.”—C.S. Lewis

Caught up in the televised drama of a military-style manhunt for the suspects in the Boston Marathon explosion, most Americans fail to realize that the world around them has been suddenly and jarringly shifted off its axis, that axis being the U.S. Constitution.

For those like myself who have studied emerging police states, the sight of a city placed under martial law—its citizens under house arrest (officials used the Orwellian phrase “shelter in place” to describe the mandatory lockdown), military-style helicopters equipped with thermal imaging devices buzzing the skies, tanks and armored vehicles on the streets, and snipers perched on rooftops, while thousands of black-garbed police swarmed the streets and SWAT teams carried out house-to-house searches in search of two young and seemingly unlikely bombing suspects—leaves us in a growing state of unease.

Mind you, these are no longer warning signs of a steadily encroaching police state. The police state has arrived.

Equally unnerving is the ease with which Americans welcomed the city-wide lockdown, the routine invasion of their privacy, and the dismantling of every constitutional right intended to serve as a bulwark against government abuses. Watching it unfold, I couldn’t help but think of Nazi Field Marshal Hermann Goering’s remarks during the Nuremberg trials. As Goering noted:

It is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.

As the events in Boston have made clear, it does indeed work the same in every country. The same propaganda and police state tactics that worked for Adolf Hitler 80 years ago continue to be employed with great success in a post-9/11 America.

Whatever the threat to so-called security—whether it’s rumored weapons of mass destruction, school shootings, or alleged acts of terrorism—it doesn’t take much for the American people to march in lockstep with the government’s dictates, even if it means submitting to martial law, having their homes searched, and being stripped of one’s constitutional rights at a moment’s notice.

As journalist Andrew O’Hehir observes in Salon:

In America after 9/11, we made a deal with the devil, or with Dick Cheney, which is much the same thing. We agreed to give up most of our enumerated rights and civil liberties (except for the sacrosanct Second Amendment, of course) in exchange for a lot of hyper-patriotic tough talk, the promise of “security” and the freedom to go on sitting on our asses and consuming whatever the hell we wanted to. Don’t look the other way and tell me that you signed a petition or voted for John Kerry or whatever. The fact is that whatever dignified private opinions you and I may hold, we did not do enough to stop it, and our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

Particularly disheartening is the fact that Americans, consumed with the need for vengeance, seem even less concerned about protecting the rights of others, especially if those “others” happen to be of a different skin color or nationality. The public response to the manhunt, capture and subsequent treatment of brothers Tamerlan and Dzhokhar Tsarnaev is merely the latest example of America’s xenophobic mindset, which was also a driving force behind the roundup and detention of hundreds of Arab, South Asian and Muslim men following 9/11, internment camps that housed more than 18,000 people of Japanese ancestry during World War II, and the arrest and deportation of thousands of “radical” noncitizens during America’s first Red Scare.

Moreover, there has been little outcry over the Obama administration’s decision to deny 19-year-old U.S. citizen Dzhokhar Tsarnaev his due process rights and treat him as an enemy combatant, first off by interrogating him without reading him his Miranda rights (“You have the right to remain silent. Anything you say can and will be used against you in a court of law…”).

Presently, under the public safety exception to the Miranda rule, if law enforcement agents believe a suspect has information that might reduce a substantial threat, they can wait to give the Miranda warning. For years now, however, the Obama administration has been lobbying to see this exception extended to all cases involving so-called terror suspects, including American citizens. Tsarnaev’s case may prove to be the game-changer. Yet as journalist Emily Bazelon points out for Slate: “Why should I care that no one’s reading Dzhokhar Tsarnaev his Miranda rights? When the law gets bent out of shape for him, it’s easier to bend out of shape for the rest of us.”

The U.S. Supreme Court rightly recognized in its 1966 ruling in Miranda v. Arizona that police officers must advise a suspect of his/her civil rights once the suspect has been taken into custody, because the police can and often do take advantage of the fact that most Americans don’t know their rights. There have been few exceptions to the Miranda rule over the last 40 years or so, and with good reason. However, if the Obama administration is allowed to scale back the Miranda rule, especially as it applies to U.S. citizens, it would be yet another dangerous expansion of government power at the expense of citizens’ civil rights.

This continual undermining of the rules that protect civil liberties, not to mention the incessant rush to judgment by politicians, members of the media and the public, will inevitably have far-reaching consequences on a populace that not only remains ignorant about their rights but is inclined to sacrifice their liberties for phantom promises of safety.

Moments after taking Tsarnaev into custody, the Boston Police Dept. tweeted “CAPTURED!!! The hunt is over. The search is done. The terror is over. And justice has won.” Yet with Tsarnaev and his brother having been charged, tried and convicted by the government, the media and the police—all without ever having stepped foot inside a courtroom—it remains to be seen whether justice has indeed won.

The lesson for the rest of us is this: once a free people allows the government to make inroads into their freedoms or uses those same freedoms as bargaining chips for security, it quickly becomes a slippery slope to outright tyranny. And it doesn’t really matter whether it’s a Democrat or a Republican at the helm, because the bureaucratic mindset on both sides of the aisle now seems to embody the same philosophy of authoritarian government. Increasingly, those on the left who once hailed Barack Obama as the antidote for restoring the numerous civil liberties that were lost or undermined as a result of Bush-era policies are finding themselves forced to acknowledge that threats to civil liberties are worse under Obama.

Clearly, the outlook for civil liberties under Obama grows bleaker by the day, from his embrace of indefinite detention for U.S. citizens and drone kill lists to warrantless surveillance of phone, email and internet communications, and prosecutions of government whistleblowers. Most recently, capitalizing on the nation’s heightened emotions, confusion and fear, government officials used the Boston Marathon tragedy as a means of extending the reach of the police state, starting with the House of Representatives’ overwhelming passage of the controversial Cyber Intelligence Sharing and Protection Act (CISPA), which opens the door to greater internet surveillance by the government.

These troubling developments are the outward manifestations of an inner, philosophical shift underway in how the government views not only the Constitution and the Bill of Rights, but “we the people,” as well. What this reflects is a move away from a government bound by the rule of law to one that seeks total control through the imposition of its own self-serving laws on the populace.

All the while, the American people remain largely oblivious to the looming threats to their freedoms, eager to be persuaded that the government can solve the problems that plague us—whether it be terrorism, an economic depression, an environmental disaster or even a flu epidemic. Yet having bought into the false notion that the government can ensure not only our safety but our happiness and will take care of us from cradle to grave—that is, from daycare centers to nursing homes, we have in actuality allowed ourselves to be bridled and turned into slaves at the bidding of a government that cares little for our freedoms or our happiness.

By a vote of 43-7, the Montana state senate voted on Tuesday in favor of a bill against the National Defense Authorization Act (NDAA).  HB 522 “prohibit[s] the state from providing material support for” and cooperation with federal officials who attempt to implement indefinite detention on Montanan soil.  The bill previously passed committees in the House and Senate unanimously and passed the statehouse 98-0.  HB 522 now heads to Governor Steve Bullock.  Since more than two-thirds of the statehouse and senate have already voted in favor of restoring due process, there may be enough votes to override a veto.

First introduced by freshman representative Nicholas Schwaderer, a 24-year-old Republican, HB 522 has been backed by groups all across the political spectrum, including BORDC, the ACLU, and the Tenth Amendment Center.  In fact, grassroots pressure even helped convince six senators to change their votes, since on the second reading of the bill, 13 senators had voted against HB 522.  The fact that a mere seven Montanan lawmakers did not vote in favor of defending civil liberties is a welcome contrast to the U.S. Senate, where only 13 senators voted against enacting the NDAA in 2011.

Montana’s vote is just the latest in a growing nationwide movement against indefinite detention. Anti-NDAA legislation has been approved by Hawaii and Virginia, as well as the state senates in Michigan, Indiana, and South Carolina and the statehouses of Arizona and New Hampshire.  Meanwhile, another dozen states are still considering bills to oppose the NDAA.  In addition, almost two dozen local jurisdictions have enacted resolutions and legislation to restore due process, including cities like San Francisco and Las Vegas.

Governor Bullock can be contacted here.

On Friday, March 22, the Judiciary Committee of the Connecticut General Assembly held a public hearing for the Transparency and Responsibility Using State Tools (TRUST) Act.  Like its California namesake, Connecticut’s TRUST Act restricts local operation of Immigration and Customs Enforcement’s (ICE) Secure Communities (S-Comm) protocols.

Although purported to identify and remove dangerous undocumented criminals, S-Comm neglects human rights, enables profiling and racist policing, violates due process, and chills free expression.

Community members, organizations, and activists flooded Room 2B of the Legislative Office Building to support local immigration reform.  The Judiciary Committee heard heartfelt testimony against unjust detainment and deportation; how parents lose their children, how families live indefinitely without support, and the fear of seeking help when victimized by violence or unfair treatment.

BORDC Legal Fellow Nadia Kayyali submitted written testimony on S-Comm’s dragnet, stating:

[Even] citizens have been detained and deported under S-Comm, and more than one-third (39%) of individuals arrested…report that they have a documented spouse or child, meaning that approximately 88,000 families with documented members have been impacted…

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Opposition to the domestic detention provisions of the National Defense Authorization Act (NDAA) continues to grow around the country. On March 20, the Las Vegas City Council passed a resolution aiming to restore Due Process in the face of the NDAA by a 5-2 vote.

Under the terms of the 2012 NDAA, the US military could arrest and imprison indefinitely any person accused of “belligerent acts” or assciational crimes without trial or proof of crime.

The Las Vegas resolution, based largely on the model developed by BORDC that  was also recently adopted by a unanimous vote in San Francisco, expressed widespread concerns that the NDAA could be used — whether by the current administration or another — to deprive Americans of our rights under the Fifth, Sixth, and Eighth Amendments. The resolution also obliges Las Vegas officials to refuse requests by federal agencies operating under the NDAA and also asks that federal employees defer to the local law when working in the city.

The Nevada chapter of People Against the NDAA (PANDA) has been active in its resistance to the federal law. On their website, they write, ”In short, the 2012 NDAA enables the government to make any person on US soil a prisoner of war.”

PANDA praised the passage of the bill and hoped it will inspire more resistance to the federal law in other areas. Daphne Lee, the head of PANDA’s Clark County Chapter, thanked Council members and the mayor for their support of the resolution. She said, “This action will support other cities, counties and states all over the country who seek to take a stand to protect constitutional rights.”

The resolution has passed the City Council and now faces approval from the Board of Country Commissioners. If it passes at the county level, it will become the nation’s first joint city/council resolution condemning the NDAA. PANDA is also pressing for similar legislation to be adopted in northern Nevada.

Further, Nevada Senator Don Gustavson has submitted a bill to the state legislature, the Nevada Liberty Preservation Act, that would invalidate NDAA on the statewide level. Similar bills are pending in a dozen other states, including California, New Hampshire, and Michigan.

Groups opposing the NDAA can be found on Facebook; state groups have been formed in California, Arizona, Colorado, Indiana, Kansas, Michigan,  Missouri, Nevada,  New York, Ohio, South Carolina, Texas, Washington, and Wyoming.

Hopefully this happening in Vegas will not just stay in Vegas, but instead continue growing around the country.

• 3/26, Rafia Zakaria, Al Jazeera, President Obama: The drones don’t work, they just make it worse
• 3/25, Robert X. Cringely, InfoWorld, CISPA’s second serving is even worse than the first
• 3/25, Kevin Gosztola, Fire Dog Lake, ACLU Seeks Judgment on Whether US Government’s Secret No-Fly List Violates Due Process Rights
• 3/25, Rachel Manteuffel, Washington Post, PostScript: Releasing the torture report
• 3/25, Ryan J. Reilly, Huffington Post, Mark Udall Develops Domestic Drone Legislation
• 3/25, Glenn Greenwald, Guardian (UK), The racism that fuels the ‘war on terror’
• 3/25, Steve Vladeck, Lawfare, Chief Judge Lamberth on the Government’s Foot-Dragging in the Guantánamo Habeas Cases
• 3/25, David Swanson, WarIsACrime.org, Bradley Manning’s Nobel Peace Prize