In a press conference Thursday, May 16, at the White House, President Obama stated he had no regrets over the AP scandal:

Obama said he made “no apologies” for being concerned about national security but that the free flow of information was important to him as well.

What exactly is this “free flow” of information? According to The Guardian blogger Glenn Greenwald:

If you talk to any real investigative journalist, they will tell you that an unprecedented climate of fear has emerged in which their sources are petrified to talk to them. That the Obama administration has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined has already severely chilled the news gathering process. Imagine what message this latest behavior sends to journalists and their sources: that at any moment, the phone records of even the nation’s most establishment journalists can be secretly obtained by the DOJ, which has no compunction about doing so even in the most extreme and invasive manner.

This mind set is obviously not very conducive to a “free flow” of information. So apparently, President Obama’s “free flow” of information is only pertaining to that information which benefits his administration:

The Obama administration does not mind leaks of classified national security information; to the contrary, they love such leaks and are the most prolific exploiters of them. What they dislike are leaks that they don’t approve and/or which don’t glorify the president.

Interestingly,  the media is suddenly up in arms about this abuse by the Obama administration. This passage from the Washington Post had Greenwald laughing audibly:

President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.

The Justice Department’s collection of journalists’ phone records and the Internal Revenue Service’s targeting of conservative groups have challenged Obama’s credibility as a champion of civil liberties – and as a president who would heal the country from damage done by his predecessor.

Greenwald’s response?

You don’t say! The Washington Post’s breaking news here is only about four years late. Back in mid-2010, ACLU executive director Anthony Romero, speaking about Obama’s civil liberties record at a progressive conference, put it this way: “I’m disgusted with this
president.” In the spirit of optimism, one can adopt a “better-late-than-never” outlook regarding this newfound media awakening.

The news media should take a several steps back from its cozy relationship inside the Beltway and return to its adversarial position as a watchdog of government. We, the people, need the media on our side, not the side of the politically elite.

Last week, U.S. District Judge Jorge A. Solis temporarily voided a Dallas city ordinance which criminalizes carrying signs within 75-feet of particular streets and highways.   Judge Solis’s decision closes litigation initiated by  activists intending to protest the installation of a George W. Bush Presidential Center (the Bush Center) at Southern Methodist University (SMU).

With a Temporary Restraining Order against the ordinance, The People’s Response, a coalition of organizations and individuals representing human rights, equality, and justice, will demonstrate during the Bush Center’s opening celebration.

The People’s Response contrasts commemoration of the previous president by raising war crimes, unconstitutional procedures, and other violations committed by the George W. Bush Administration.  In allowing protests to commence, Judge Solis’s ruling also represents the prevalence of First Amendment rights over questionable hindrances to political expression.

The ordinance at issue states:

A person commits an offense if he carries or otherwise displays a sign on, over, or within 75 feet of the roadway of any of the following streets or highways in a manner intended to attract the attention of vehicle occupants on those streets or highways.

Both the Bush Center and the SMU-Expressway Tower, near which activists will rally, lie within the Dallas ordinance’s prohibition zone.  The activist-plaintiffs challenged the law as unconstitutionally vague and overbroad.  The City of Dallas (the City) contends that the ordinance decreases distracted driving in high-traffic areas, advancing a compelling state interest through ‘reasonable restriction’.  The City also maintains that its ordinance applies to sidewalks and service roads running along various specified motorways.

Judge Solis rejected the City’s claims, finding the restriction ordinance vague and inadequate to serve the safety interest of the state.  His decision seemed to turn on unclear definitions  for words like “highway,” “street,” and “expressway,” in the Dallas code.  He read these terms as essentially interchangeable, and denied that the ordinance’s language encompasses sidewalks and service roads.  Judge Solis also observed that if signs represent such a driving hazard, the City should have restricted them from the vicinity of other main highways.

Stating the principles behind the Bush Center demonstrations, activist Hadi Jawad of the Dallas Peace Center and The People’s Response explained to press:

…That is the only way forward. That is the right thing for us to do. We are a nation of laws. There is nobody in this country who is above the law.

The People’s Response signifies civil liberties in motion. We, the people have a right to political expression; without actions to preserve and exercise this right, we acquiesce to the obfuscation of history and corrosion of civil liberties. As activists around the US demonstrate for transparency and accountability into the federal government, BORDC encourages all people to keep informed and stay loud for truth, equality, and justice.

Last year, the Associated Press won a Pulitzer Prize for revealing that New York City Police Department (NYPD) has spied on Muslim Americans, as well as their non-Muslim clients, customers and classmates over a decade both across the greater New York area and even well beyond its jurisdiction.

Today, impacted communities are continuing to respond. A lawsuit has been brought against the NYPD on behalf of Muslims in New Jersey, but has been delayed in court as lawyers for the city have asked the court to dismiss the case before examining evidence.

Further, on March 11, a coalition of Muslim groups, including the Muslim American Civil Liberties Coalition (MACLC) and the Creating Law Enforcement Accountability and Responsibility (CLEAR), delivered a report of the devastating consequences that spying has had on the people it targets.

The report is based on interviews with 57 American Muslims in the city and reveals that the spying, far from being secret, was fairly well known and has created a “pervasive climate of fear and suspicion.” The report details the impact on nearly every aspect of everyday life, from religious life to freedom of speech to relationships with law enforcement to forming friendships. The report concludes with a request to the NYPD to end its surveillance program and for the City Council to establish more oversight of the police.

One young woman said, “Even if we know we have rights, we know they don’t apply equally to everyone.”

The police have defended themselves by claiming that they were acting within constitutional limits. New York Police Commissioner Raymond Kelly outlined the principle of the surveillance program, which is, “In its effort to anticipate or prevent unlawful activity, including terrorist acts, the NYPD must, at times, initiate investigations in advance of unlawful conduct.”

Yet the head of the NYPD Intelligence unit admitted under testimony that the surveillance program had not produced any terrorism or criminal leads during his six year tenure. The intelligence department has reportedly cost the city $1 billion since 2001.

Despite these assaults on their rights, community members remain resilient. The recently-formed New York City Muslim Club is eschewing other organizations’ ban on talking politics. The club is out to participate in the next mayoral race, and is also campaigning for recognition of Muslim holidays in public school calendars. The club, as well as a separate AL Jazeera estimate, claims that as many as 10 percent of the city’s population is Muslim.

On February 14, over 100 residents of Alameda County, many of them sporting “no drones” stickers, packed the Alameda County Board of Supervisors’ hearing room to tell the County’s public protection committee that they did not want the county to become the first in California to purchase a drone.

The Sheriff’s office and civil liberties advocates from the American Civil Liberties Union of Northern California (ACLU), Alameda County Against Drones (ACAD), and the Electronic Frontier Foundation (EFF) made presentations to the supervisors. While ACLU and EFF agree that drones are acceptable for extremely limited uses and ACAD is calling for a complete ban on drones, all of the advocates agreed that the Sheriff’s proposed uses for drones were a threat to civil liberties. Linda Lye of the ACLU stated that the uses outlined in the Sheriff’s policy were:

vastly over broad. Virtually any political protest would involve some sort of arguable crime [such as jaywalking]. Information [gathered at protests] could be submitted to fusion centers, including the identify of people with unpopular political views.

The hearing stretched for 3 hours, with dozens testifying against the drone and only one in favor. Residents emphasized their concerns about safety, privacy, efficacy, and cost. They made it clear that the potential public safety benefits, which were doubtful due to the current limitations of drone technology, were not worth the almost certain erosion of civi liberties. Some cited the decision of Seattle, WA, to end use of the drones it had already purchased and deployed, noting Mayor Mike McGinn’s focus on the community:

we agreed that it was time to end the unmanned aerial vehicle program, so that SPD can focus its resources on public safety and the community building work that is the department’s priority.

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Yesterday, activists gathered on the steps of San Francisco’s city hall to oppose the indefinite military detention provisions of the National Defense Authorization Act (NDAA), and to support the introduction of a resolution by Supervisor and President of the Board David Chiu. The resolution of the San Francisco Board of Supervisors will uphold due process and articulate San Francisco’s opposition of the NDAA. Supervisor Chiu stated that the indefinite detention provisions of the NDAA:

violate our fundamental right to our presumption of innocence. Those who forget history are doomed to repeat it.

In addition to Supervisor  Chiu and Supervisor Jane Kim, speakers at the rally, mc’ed by the Bill of Rights Defense Committee,  included community leaders from a broad range of organizations. Karen Korematsu, civil rights activist and daughter of Fred Korematsu, emphasized the need to learn from the mistakes of history, pointing out  the similarities between the potential for indefinite military detention without trial to the tragedy of internment of Japanese-Americans during World War II.  Her father is known for refusing to submit to internment, being convicted for his refusal, and challenging his conviction in Korematsu v. United States. He eventually had his conviction overturned, and continued to fight for civil liberties, including supporting the Arab, Muslim, and South Asian community as they were targeted in the wake of 9/11. His legal team filed an amicus in Hedges v. Obama, a case challenging the NDAA that is currently in the Second Circuit Court of Appeals. Rachel Roberts, civil rights coordinator for the Council on American-Islamic Relations, San Francisco, told the crowd about the fear the specter of detention has spurred in her clients in the Muslim community.  Joe Nicholson, of the San Francisco 99% Coalition, reminded the crowd that the Constitution has no meaning without  concerned Americans to support it.

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Today, the US Court of Appeals for the Second Circuit heard oral arguments in Hedges v. Obama, a lawsuit challenging domestic military detention authority under the National Defense Authorization Act (NDAA) of 2012. The panel of three judges heard arguments from lawyers representing the plaintiffs, who included Christopher Hedges, Noam Chomsky and Daniel Ellsberg.  The court also heard arguments from attorneys for the Department of Justice and, in a move opposed by the government, a lawyer representing three members of the Senate Armed Services Committee: Kelly Ayotte (R-NH), Lindsey Graham (R-SC), and John McCain (R-AZ).

The small courtroom was quickly filled with supporters of the plaintiffs. Over  a hundred additional supporters, as well as journalists, were soon shuttled to an overflow courtroom outfitted with an audio feed of the arguments, but the sound quality was spotty, making it difficult to decipher the proceedings in the courtroom.  Outside, a large group of activists held signs emblazoned with the rights and values threatened by the NDAA, including a free media, the right to assemble and the right to live without fear.

As the government was the party challenging the lower court’s decision placing a hold on the use of indefinite military detention under the NDAA, its lawyers presented their arguments first. During the government’s argument, lawyers claimed that the plaintiffs had no reasonable fear of indefinite detention, prompting the judges to question what prevented this administration, or any other, from backing away from that interpretation of the law. The government also emphasized its claim that the NDAA’s indefinite detention provisions did not expand governmental power beyond what already existed from the Authorization for Use of Military Force (AUMF) signed by President Bush after September 11, 2001.

Plaintiffs’ attorney Carl Mayer began by dedicating his argument to  Fred Korematsu and Gordon Hirabayashi and the other victims of Japanese Internment in the United States. The dedication drew attention to the history and dangers of indefinite military detention and the human consequences of unchecked executive authority.  BORDC helped to organize amicii for the case, including a brief on behalf of the Korematsu Center, and also filed its own amicus brief in the case.

The plaintiffs’ lawyers argued that the NDAA clearly expanded the detention authority granted to the executive branch, noting both the text of the la, as well as the absurdity of passing a law that has no effect.

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Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. . . There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist’s shoulder in the library, or walks invisibly by his side in a picket line, or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed . . .

While originally written in dissent from the Laird v. Tatum in 1979, Supreme Court Justice William Douglas could have been describing Panagacos v. Towery. The Towery case was decided just a few weeks ago by the US Court of Appeals for the Ninth Circuit, arising from the infiltration of activist groups in Tacoma and Olympia, WA. From 2007 to 2009, John Towery, a criminal intelligence analyst for the army, infiltrated and spied on these groups, going by the name John Jacob.

Unfortunately, Justice Douglas’ statement is from the dissent in the Supreme Court’s ruling in Laird v. Tatum, a 1979 case in which the Supreme Court ruled that the fear of surveillance, leading to chilling of First Amendment activity, was too speculative to support a claim. This precedent, along with other obstacles, has made it almost impossible to sue the Pentagon for domestic spying.

However, one National Lawyers Guild attorney, Larry Hildes, is hoping to change that. A December 17 ruling by the Ninth Circuit breathed new life in his efforts.

Towery’s identity was discovered almost by accident. Brendan Maslaukas Dunn, an activist with Students for a Democratic Society, Port Militarization Resistance, and the Industrial Workers of the World made a Freedom of Information Act request for any communications between the Olympia police and the military concerning anarchists. He recounts:

One of the documents was an email that was sent between personnel in the military, and the email address that was attached to this email was of John J. Towery. We didn’t know who that was, but several people did a lot of research to find out who that was, and they identified that person as being John Jacob.

It is unclear exactly how much information John Towery shared with law enforcement and the military, but there are at least 133 pages of intelligence documents, including Towery’s spying contract with the Pierce County Sheriff’s Department, available online.

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Senate readies to extend FISA, allowing the NSA to remain above the law

BORDC News

• BORDC in the news
• New video showcases BORDC’s work across the nation
• BORDC seeks spring 2013 interns
• Support BORDC—without opening your wallet
• Read the latest news & analysis from the People’s Blog for the Constitution:
  • Call your Senators to demand privacy and transparency by Samantha A. Peetros
  • How much more money will we waste violating the Constitution? by Nadia Kayyali
  • All is fair in love and email: the Petraeus scandal as a case for digital privacy reform byAlok Bhatt
  • BORDC welcomes Privacy & Civil Liberties Oversight Board by Michael Figura
  • Supreme Court rejects appeal concerning anti-eavesdropping law by Yiqian Wang
  • Detainee’s death pronounced suicide, but details remain murky by Emily Walsh
  • 4 ways Congress could either protect your rights, or instead assault them by Shahid Buttar

Grassroots News

• Patriot Award: Ana Aguayo & Jose Luis Aguayo Herrera
• Grassroots Updates
  • Bill of Rights Day prompts grassroots actions across the country
  • New Britain, CT: Diverse activists come together from across the Northeast
  • Albany, NY: Center for Law and Justice calls on Governor to appoint commission on mass incarceration of people of color
  • Cleveland, OH: Nearly 20 organizations convene in the aftermath of police killings
  • Chicago, IL: Proposed closure of “Supermax” prison moves forward on budget grounds, if not human rights
  • Dallas, TX: Bill of Rights Day luncheon prompts defiance of local anti-dissent measure
  • Michigan: State House unanimously approves bill to repudiate NDAA’s domestic detention provisions
  • Alameda County, CA:  Hearing on drone purchase to take place in coming months

Law and Policy

• 2013 NDAA clears Senate and bicameral conference committee
• BORDC coordinates amicus briefs in Obama v. Hedges before the Second Circuit
• Ninth Circuit holds military accountable for violating First Amendment rights of civilians
• ECPA clears Senate Judiciary Committee with bi-partisan support
• Are zombies chasing us over the edge of the fiscal cliff?

New Resources and Opportunities

• BORDC seeks spring 2013 interns
• Resources for Teachers

The Bill of Rights Defense Committee recently coordinated the filing of three amicus (friend of the court) briefs in Hedges v. Obama, a lawsuit in the Second Circuit Court of Appeals challenging domestic military detention under the National Defense Authorization Act (NDAA) of 2012.

The suit was brought by journalists and activists concerned about being subjected to indefinite military detention if they interview subjects hostile to the US, and secured a permanent injunction earlier this year from Judge Katherine Forrest of the US District Court for the Southern District of New York.

The briefs coordinated by BORDC support the position of the plaintiffs and provide additional arguments to inform the court’s decision. One brief was filed on behalf of BORDC, arguing that when the government has previously used military domestic detention it has taken extreme steps to evade the oversight of the federal courts, and thus it is now especially important for the Second Circuit to decide the constitutionality of the NDAA, so that the government does not later avoid the courts’ oversight.

The other briefs were filed on behalf of the Government Accountability Project, which defends whistleblowers, and the the Korematsu Center, which seeks to combat discrimination and to support communities in advocating for themselves. Both of these briefs were recently highlighted by the Huffington Post, in an article that also points out “7 Ways to Get Yourself Indefinitely Detained.”

Oral argument in the case is anticipated to be before the Second Circuit Court of Appeals in New York City in January. Updates can be found on BORDC’s blog and at StopNDAA.org. You can also find others organizing across the country against the NDAA on BORDC’s national map of anti-NDAA movements. Read more about each brief after the jump.

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Essam Attia, 29, the artist behind a series of provocative posters about NYPD surveillance strategies and possible future drone use, was arrested last week. The artist, who is also an US Army vet, created several official looking posters and, with the help of a crew dressed as maintenance workers, placed these posters around New York City early this fall.

The posters depict drones shooting missiles at fleeing people and intense cameras monitoring over people, and such slogans “Always Watching” and “Drones: Protection When You Least Expect It.” The posters also include a precise NYPD logo. In a video interview posted on Animal New York, Attia, silhouetted and in a face mask, explains that his posters are intended to call attention to NYPD plans to start using unmanned aerial drones as surveillance tools within New York City. The art is intended to get more people thinking and talking about a critical issue: should police use drones for law enforcement?

Drones are unmanned aerial vehicles used regularly in aggressive military operations (for which they carry and deploy missiles) as well as surveillance missions (for which they are equipped with heat sensors, high resolution cameras, and advanced radar). Though most Americans think of drones in the context of far-off war zones, in February, the US Congress approved legislation that would allow 30,000 drones to be used within American airspace by 2020.

The machines are already regularly used along the US-Mexico Border. It is in no way outside of the realm of possibility for the NYPD to start using drones; in fact, in a memo released earlier this year through the Freedom of Information Act, NYPD officials stated that they were investigating the possibilities of using drones for law enforcement. 

The use of extremely sophisticated and, indeed, invasive surveillance tools against American citizens is distressing. Why? Well, the New York Police reaction against Essam Attia has been swift and forceful. Attia was arrested on 56 criminal charges, from possession of a forged instrument, grand larceny possession of stolen property and weapons possession after “allegedly having an unloaded .22-caliber revolver under his bed at his Manhattan apartment when he was arrested.” Quite a heavy price to pay for daring to speak out.

The NYPD’s surveillance program has already raised concerns, with unconstitutional “stop-and-frisk” actions against minority youth, an extensive surveillance operation on Muslim people around NYC, and close surveillance of protestors within the Occupy movement. Which populations would be targeted for heightened surveillance? On what basis are people deemed suspicious and on what basis are people deemed guileless? Who would provide oversight of these new surveillance measures, ensuring that they not be used unethically? Are we comfortable with the idea of intelligence tools being used in American airspace? As Attila points out, these are conversations that we should be having, often and in earnest.