While last week’s mainstream hysteria shifted from fiscal cliff-jumping to debt ceiling collapse, BORDC engaged media outlets to discuss disturbing developments endangering our constitutional rights.

On Monday, January 7, Flashpoints  (on KPFA 94.1 PM in the San Francisco Bay Area) invited BORDC’s Shahid Buttar and Nadia Kayyali to break down domestic surveillance under the recently re-authorized FISA Amendments Act (FAA). Describing the counterintuitive construction of the FAA, Kayyali notes:

[The Foreign Intelligence Surveillance Act (FISA)] was amended in 2008…and this amendment changed even the minimal requirements of review of this surveillance by the FISA court, and now it allows for warrantless wiretapping that will sweep up Americans’ communications.

Kayyali’s observation suggests that the FAA, in amending a law created to establish judicial oversight, actually undermines its very purpose. Buttar, highlighting the secrecy with which the National Security Agency (NSA) violates our privacy rights, adds:

[I]n spite of knowing that the [NSA] has violated the law, no one knows the context in which that violation took place. No one knows how many people [were affected]. No one knows even whether or not it’s been stopped or whether that violation remains ongoing.

Also on Monday, BORDC’s Michael Figura appeared on Progressive Radio Network’s The Smart Show, as well as The Monitor (on KPFT 90.1 FM in Houston),  to extend the discussion of unconstitutional federal programs. Highlighting the treatment of former CIA agent John Kiriakou, Figura states the chilling consequences for individuals who defy our government’s  illegal conduct:

the only person to ever go to prison so far in the history of the whole [CIA] torture program is someone who blew the whistle on it.

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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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November 2012, Vol. 11 No. 11

View this newsletter as a webpage: http://www.bordc.org/newsletter/2012/11/

Will President Obama’s second term finally fulfill his 2008 promises?

BORDC News

BORDC seeks spring 2013 interns

BORDC in the news

Support BORDC—without opening your wallet

Happy Thanksgiving from BORDC

Read the latest news & analysis from the People’s Blog for the Constitution

• Whistleblower sentenced for exposing torture during Bush Administration by Annette Macaluso
• Seattle grand jury: guilt by association? by Nadia Kayyali
• Michigan county passes resolution against NDAA by Yiqian Wang
• Communities come together to stop collective criminalization by Michael Figura
• Will Obama’s second term finally fulfill his 2008 promises? (Part II) by Shahid Buttar

Grassroots News

Patriot Award: Arthur Persyko

Grassroots updates

• Albany, NY: Coalition fights racial profiling in policing
• Charlotte, NC: People’s Power Assembly brings communities together
• Cleveland, OH: Building connections between mass incarceration and immigrant rights
• Chicago, IL: Art exhibit addresses torture
• Los Angeles, CA: Collecting their own data in the fight against LAPD spying
• Alameda County, CA: Coalition forms in response to Sheriff’s efforts to purchase drones
• Berkeley, CA: Coalition challenges Sheriff’s efforts to purchase drones
• Seattle, WA: Rights Working Group holds conference to unite coalitions in protecting civil liberties

Upcoming events

• Oak Brook, IL: MLFA Legal Fellow Michael Figura to address conference outside Chicago
• New Britain, CT: December 8 statewide convening, “An Injury to One is an Injury to All”
• San Francisco, CA: NLG Legal Fellow Nadia Kayyali to speak at conference in Bay Area

Law and Policy

Drones and the Obama Administration

All is fair in love and e-mail: the Petraeus scandal’s case for electronic privacy reform

CO and WA take steps to fight mass incarceration by legalizing marijuana

What will the lameduck session hold for the 2013 NDAA amendments?

Senate prepares to extend FISA amendments during the lameduck session

New Resources and Opportunities

Join BORDC in opposing the FISA and the NDAA during this year’s lameduck session

Inspire students in conversations about civil liberties

 

This is the third installment in a series suggesting opportunities for the Obama administration, in its second term, to finally pursue his 2008 campaign promise to restore civil liberties.

The first installment in this series reviewed President Eisenhower’s prescient warnings about “the military-industrial complex…endanger[ing] our liberties or democratic processes,” and examined casualties of the national security state, including transparency, accountability, and democratic legitimacy, with a particular focus on the NSA’s dragnet spying program authorized by the FISA amendments of 2008 now before the Senate.

Part II discussed further costs of counter-terrorism, including budgetary waste and constitutional violations, concluding with an argument that closing Guantanamo Bay should not be the highest priority in the civil liberties arena.

Part III, below, will suggest the first of two policy “menus,” appropriate for whichever political attitude the administration adopts in the wake of 2012 presidential election. Before turning to opportunities to advance accountability requiring political boldness, this installment will focus on the relatively easier opportunities for the Obama administration to support transparency goals it has long proclaimed.

The casualties of our national security state have grown to include transparency, accountability, and democratic legitimacy, as well as the federal budget, our constitutional rights, and most recently (and with unmatched irony), the former director of the CIA.

Having recently secured re-election to a second term, President Obama should not sit idly by while these problems continue to fester. With all eyes on the federal budget and the looming fiscal cliff, there has never been a better time to act on the president’s longstanding promises to restore liberty and security following the Bush administration’s assault on the Constitution.

Transparency: a transpartisan value for a conciliatory second term

Should the administration replicate the conciliatory political strategy that dominated its first term, no issue offers the chance to build goodwill from as many political corners as supporting long-overdue transparency. Indeed, transparency is favored by the most active elements of each of the major parties, with the digital privacy community joining civil rights advocates alongside libertarian critics of the president.

Advancing transparency would not only gain the enthusiastic support of observers from across the political spectrum, it would also ensure future opportunities to engage underlying issues such as surveillance, torture, and profiling, by enabling public discussion of news cycles that would otherwise remain entirely secret. The administration has had a chance, over the course of its first term, to grown more savvy about how Washington works. Have officials learned the value of enabling independent institutions, such as the press, to do their jobs?

The timing never been better within recent memory. While some in the intelligence community may support continuing secrecy, President Obama would enjoy plenty of cover should he finally fulfill his promises from 2008, either to restore the balance between liberty and security in the abstract, or his specific promise to reign in abuses at the NSA.

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Donald Vance and Nathan Ertel, both US citizens that worked for a private company in Iraq in 2006, were denied access to justice by the US Court of Appeals for the Seventh Circuit in Chicago. They had alleged that, after trying to blow a whistle on illegal weapons trafficking by their employer and military personnel, they endured torture by the US military for over two months.

The Seventh Circuit, however, ruled that they cannot sue former Defense Secretary Donald Rumsfeld over their allegations. The court’s decision was an 8-3 ruling that overturned a three-judge panel’s decision that allowed the suit to proceed, against the wishes of both the Bush and Obama administrations.

The trial court ruled that Rumsfeld could be held personally responsible because the decision to use torture was made by senior government officials.  Judge Frank Easterbrook, writing for the appeals court that reversed that decision, stated:

“A court cannot say that, if there are too few prosecutions (or other enforcement), and thus too much crime, then the Attorney General or the Secretary of Defense is personally liable to victims of (preventable) crime.”

Three judges, however, did disagree with Judge Easterbrook. They based their dissenting opinion on the observation that the majority’s opinion creates immunity for the military, which is a violation of prior Supreme Court precedent.

The Seventh Circuit’s ruling essentially establishes that civilians may not assert their rights if a member of the military violates them. Exceptions such as these undermine access to justice, fundamental rights and universal human rights. The ruling is especially ironic because it was announced in the one city in America that has proactively declared itself a torture-free zone.

It is unacceptable for Rumsfeld and other leaders to not take responsibility for actions taken under their direct command. The result is yet another case against whistleblowers and the Constitution.

This is the first part in a series examining opportunities for the Obama administration to return, in the wake of the 2012 election, to the president’s promises from the 2008 campaign to restore liberty and security. Part II and part III are also available.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Unlike Obama, Bush & Cheney never asserted the authority to kill US citizens based on their speech.

Unlike Obama, Bush & Cheney never signed into a law a statute granting the military the power to detain any American without evidence or proof of crime.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide  that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

The Obama administration’s prosecution of whistleblowers who sacrifice their jobs to defend the public interest has reached unprecedented levels, as have deportations of undocumented workers, their families, and occasionally, even US citizens. Rather than repudiate the Bush & Cheney paradigm, Obama has unfortunately perpetuated it.

A former President’s warning

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

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• 11/8, Nadia Kayyali, People’s Blog for the Constitution, Four more years…of what, exactly?
• 11/8, Marc Rotenberg, Huffington Post, Election 2012 — Privacy and Unfinished Business
• 11/7, Kim Zetter, Wired, Bradley Manning Offers to Plead Guilty to Partial Charges, Including Leaking to WikiLeaks
• 11/7, Chicago Tribune, Appeals court rejects torture suit against Rumsfeld
• 11/7, Democracy Now!, Jeremy Scahill and Dennis Kucinich: In Obama’s 2nd Term, Will Dems Challenge U.S. Drones, Killings?
• 11/7, Jeff Kaye, Fire Dog Lake, Anti-Torture Psychologists Respond to Attack from APA Division Chief

On Tuesday, ex-Central Intelligence Agency counterterrorism operative, John Kiriakou, pleaded guilty for violating the Intelligence Identities Protection Act for disclosing information about a former associate to Matthew Cole, who then was a reporter for ABC News. This news comes just two months after the Justice department stated that it would not charge any C.I.A. officials who were involved with the interrogation of detainees during the Bush administration.

Kiriakou could have faced a sentence of multiple decades, but the recommendation of the prosecutor has been thirty months in prison. This sentencing is due to dropping multiple other charges, including helping New York Times reporter, Scott Shane, identify a colleague and lying to the C.I.A. publications board review of his 2010 memoir, “Reluctant Spy: My Secret Life in the C.I.A.’s War on Terror.”

In 2002 Kiriakou was in charge of the team that found Abu Zubaydah in Pakistan, but really came into the public eye in 2007 when he was interviewed by ABC News where he expressed that waterboarding was torture, but necessary for C.I.A. business. For the Obama administration the guilty verdict was following the intense pressure put on the unauthorized release of government secrets. Presently, six former and current officials have been charged with disclosing government secrets during the Obama Administration. This statistic is twice the number of cases presented by all former presidents combined.

The sentence hearing will be held on January 25, 2013, and the criminal investigation began in 2009 when lawyers for suspects at Guantanamo Bay were identifying witnesses to their client’s torture during the interrogations. The identification of the witnesses were linked back to the knowledge that Kiriakou passed onto Cole.  Director of the C.I.A., David Petraeus, claimed that the guilty plea was the first successful use of the Intelligence Identities Act in the past three decades and “an important victory for the intelligence community.” This case truly shows the backlash for whistleblowers like Kiriakou. Kiriakou’s exposing the Bush administration’s illegal torture of suspected terrorists has been made into a crime, in which he will spend two and a half years in prison. Unfortunately, telling the truth has its consequences in the Untied States, and this is an indicator of the way in which the government respects the rights of detainees, but also the right of the American public to government accountability.

• 10/23, Natasha Lennard, Salon, Ex-CIA officer jailed for two years for leaking torture chief’s name
• 10/23, Greg Miller, Washington Post, Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists
• 10/23, Charlie Savage, New York Times, Former C.I.A. Operative Pleads Guilty in Leak of Colleague’s Name
• 10/23, Adam Goldman and Matt Apuzzo, Associated Press, Informant: NYPD paid me to ‘bait’ Muslims
• 10/22, Elizabeth Goitein, Huffington Post, A Mixed Message for National Security Whistleblowers

Introduced in 2011 and sponsored by Senator Daniel Akaka of Hawaii, the Whistleblower Protection Enhancement Act (WPEA) was recently passed by both the Senate and the House. In a Congressional term characterized by strong party partisanship, WPEA represents a rare, bi-partisan effort to expand first amendment protections to federal whistleblowers, and passed the House with unanimous consent in September 2012.

Having received undisputed praise by both Republican and Democratic politicians, WPEA is championed as necessary legislation for defending whistleblowers while simultaneously punishing individuals or agencies guilty of misconduct. Tom Devine, legal counsel for the Government Accountability Project (GAP) has stated that:

“…the whistleblower rights in [WPEA] are the strongest in history for federal workers. Congress has restored credible free speech rights for government employees who want to expose corruption and defend taxpayers. The bottom line is that the House consensus sweeping reform is a major, bipartisan victory for good government.”

However, many proponents of WPEA have expressed worry that some essential provisions of the bill have been removed during the bill’s passage through Congress; for instance, provisions regarding jury trials and protections for intelligence agency employees were removed from WPEA due to Republican pressure. Regardless, this bill presents an important step for free speech protections by closing existing legal loopholes concerning whistleblower security, and establishing greater safeguards for the rights and safety of federal whistleblowers.

Having passed with congressional consent, WPEA now moves to the executive branch, where President Obama will consider the bill.