I look at the case of Salim Ahmed Hamdan from two perspectives. As a retired army colonel who served 30 years as an intelligence officer, I understand combating terrorism is a critical strategic objective. However, as one who believes in constitutional government and civil liberties, I believe we can fight terrorism and preserve individual liberty and constitutional government.

The U. S. Supreme Court has heard the case; the court will determine whether and under what conditions and limitations the President may use military commissions to determine the fate of enemy combatants.

The decision to try Hamdan and other Guantanamo detainees before “military commissions” is one of many instances where the Administration has asserted the prerogatives of an “imperial presidency.” Since 9/11, the Administration has fashioned a legal opinions arguing that the President Bush’s Article II powers as commander-in-chief and the Congressional Authorization for Use of Military Force permit him to pursue the war on terror unfettered by law, international treaties, Supreme Court precedent, and the Constitution itself.

This view of executive power was the basis for creating military commissions that are little more than “kangaroo courts,” approving “aggressive interrogation techniques” that we would certainly call torture if used against Americans, claiming the right to jail immigrants indefinitely pending deportation, and authorizing the National Security Agency to eavesdrop on U. S. citizens without a warrant in violation of law (FISA) and the 4th Amendment. The administration believes if it invokes 9/11 and “the war on terror” anything goes.

Too many Americans have bought into the notion that criticism of the President in time of war is unpatriotic. They find it ironic that Mr. Hamdan has sought justice from the system that joined al-Qaeda to destroy. However, among those who oppose the President’s claim of unchecked authority, is a group of military lawyers – regular officers who have risked their careers to defend unpopular clients and preserve the rule of law.

Last summer in pre-Katrina New Orleans, I was honored to participate in a ceremony honoring five of these military lawyers with the ACLU’s 2005 Medal of Liberty. The five had been detailed, by sheer luck of the draw, to defend Guantanamo detainees before the Military Commissions President Bush created to try them for war crimes. One was Lieutenant Commander Charles Swift, Hamdan’s attorney who charged that the commissions had “an Alice in Wonderland” quality. The JAG lawyers could have taken their distasteful assignment and done just enough to slip by, but they didn’t. They had sworn to support and defend the Constitution of the United States against all enemies – foreign and domestic. They took their oath seriously.

Working at night and in civilian clothes, they prepared an amicus brief to the Supreme Court challenging “the attempt by the Executive to oust Article III courts of jurisdiction over the military prosecution of individuals whom the President deems ‘enemy combatants.’” They argued:

The President here asserts the power to create a legal black hole, where a simulacrum of Article III justice is dispensed but justice in fact depends on the mercy of the Executive. Under this monarchical regime, those who fall into the black hole may not contest the jurisdiction, competency, or even the constitutionality of the military tribunals… (Westlaw 2004 WL 96765)

Indeed, the detention facility was located at Guantanamo precisely to evade review by Article III courts.

In Congressional testimony, Commander Swift argued that, by running roughshod over the UCMJ:

…we have lost sight of our fundamental values to the point Mr. Hamdan faces judgment for allegedly violating the law of war in a tribunal that fails to live up to the standards of justice require by the same law.

Initially, Commander Swift was detailed to represent Hamdan for the limited purpose of negotiating a guilty plea to an unspecified offense; Hamdan’s access to counsel was “conditioned on his willingness to negotiate such a plea.” Swift fought for his client.

Interestingly, the JAG defense lawyers were not alone in attacking the commissions. Three military prosecutors assigned to the Office of Military Commissions also attacked the fairness of the military commissions. In internal emails they complained that their boss had admitted the commissions were rigged to improve the odds of conviction.

One prosecutor alleged being told that members of the tribunals would be hand picked to ensure convictions and that exculpatory evidence for the defense would only be found in CIA documents that were being withheld for security reasons. They were concerned about the admissibility of evidence obtained through torture. Major Robert Preston wrote: “I lie awake worrying about this every night… writing a motion saying that the process will be full and fair when you don’t really believe it will be is kind of hard — particularly when you want to call yourself an officer and a lawyer.” All three of the JAG prosecutors were transferred to other duties at their request. The Department of Defense investigated their allegations, but, unsurprisingly, determined they were unfounded, the result of a communications breakdown in the office.

I admire the intellectual honesty and moral courage of the military lawyers who risked their careers to defend the rule of law. They understand that Constitutional limits on arbitrary executive power do not become inoperative “when they become inconvenient or when expediency dictates.” We must hope the Supreme Court has the fortitude to play its appointed role and check the excesses of the Executive Branch.

Mike Pheneger, Colonel, US Army (R)
National Board and National Executive Committee, ACLU

Two years ago, the Bush Administration tried to persuade the Supreme Court that Guantanamo detainees had no right to challenge their detention in court, and that Americans held as “enemy combatants” in the United States had no right to challenge the government’s evidence against them. The Administration lost both cases.

Yesterday, the Administration returned to the Supreme Court to defend the system of military commissions established by President Bush in November 2001. As in 2004, the Administration argued that the case should be dismissed without even considering the legality of the military commissions. Alternatively, the Administration urged the Court to recognize the President’s authority as commander-in-chief to create a system of military commissions that fails to meet even minimal standards of fairness and impartiality.

Once again, the Administration appears to have overplayed its hand. And, once again, it received a chilly reception from the Court.

That was particularly true with regard to the jurisdictional issue, which turns on the meaning of the Detainee Treatment Act adopted by Congress after Hamdan’s appeal had already been accepted for review by the Supreme Court. Solicitor General Paul Clement got into immediate trouble when he told the Court that Congress could suspend the writ of habeas corpus without ever saying so explicitly or clearly setting forth its reasons for doing so. He did not fare much better when he argued that the President could create new war crimes without congressional authorization and then have those war crimes tried before a military commission that Congress had never specifically approved.

There is a theme here, and it is a disturbing one. By pressing its jurisdictional arguments to the limit, the Administration has tried to marginalize the courts. By stressing the President’s inherent authority as commander-in-chief, the Administration has usurped or disregarded the role of Congress on a host of critical national security issues, including torture, detention, and surveillance. In the particular context of Hamdan case, that attitude has led to a system of military commissions in which the President effectively acts as judge, jury, and executioner. More broadly, it has invited the abuse of executive power that the framers foresaw when they created the system of checks and balances that this Administration seems to view as an inconvenience rather than as a basic safeguard of our constitutional democracy.

Whatever other disagreements we may have had with the Rehnquist Court, it jealously guarded its role in the system of checks and balances, and did not react well to arguments that the war on terrorism represents a blank check for the President to do whatever he sees fit. We will shortly see if the Roberts Court takes the same approach.

Today’s 90-minute oral argument in Hamdan v. Rumsfeld gave no clear indication of how the Court will rule, or even which questions it will choose to answer. Chief Justice Roberts was recused, and Justice Thomas characteristically silent, but the remaining seven justices were active in their questioning, particularly of Solicitor General Paul Clement. Experienced Court observers seem to have concluded that it was a tough day for the government; you can read two interesting accounts on SCOTUSblog and in the LA Times.

A few of the exchanges seemed especially notable. One question in the case involved the government’s decision to charge Hamdan with “conspiracy” — a crime that Hamdan’s counsel, Georgetown Law Professor Neal Katyal, persuasively argued does not exist under the laws of war. Justice Stevens asked the government whether the President had the authority to invent a new crime under of the laws of war, then charge a detainee for its violation. Yes, answered Clement: the President possesses the “pure constitutional power” to do so, if he chooses.

Justices Scalia and Alito — the only two justices whose sympathy for the government’s position was apparent — repeatedly advanced the argument that the Court’s consideration of the case was premature, and that the Court should wait until after the military commissions had rendered verdicts before evaluating their legitimacy. That would be a mistake, said Katyal: Hamdan contends that the commissions have no basis in law, and therefore the question whether he is being tried by a legitimate tribunal is a threshold one. If this were a criminal case, Justice Scalia asked, wouldn’t the Court wait until all proceedings were completed before weighing in? Wasn’t that the rule? Justice Kennedy — the likely swing vote in this case — interjected in support of Hamdan’s position. What if a “group of people” decided to hold someone and put him on trial for war crimes, he asked. Would the Court wait until after proceedings to rule on whether those people were a “regularly constituted court”? Wasn’t it the “historic function of habeas” to answer that question?

Justices Souter and Breyer were most concerned about the consequences of the government’s argument that Congress had divested the courts of jurisdiction over habeas corpus claims. Had Congress expressly suspended the writ of habeas corpus, as the Constitution permits only in times of “invasion or insurrection”? Should the Court require a clearer indication of congressional intent before reaching such a conclusion? In Souter’s words, was not suspension of habeas corpus “just about the most stupendously significant action” that Congress could take? Clement tried to deflect these questions but was repeatedly cut off by the justices. It was yet another demonstration that the justices do not take lightly attempts by the other branches to strip courts of their traditional authority.

In August of 2003, in a federal courtroom in San Francisco, a lawyer for the United States made an alarming statement. The court, the lawyer argued, was completely powerless to rule on the legitimacy of the Administration’s detention policies at Guantanamo Bay: detainees could be held without charge or trial, without access to lawyers, and without any recognized rights under U.S. or international law. Would this be the case, the judges inquired, “even if the claims were that [the government] was engaging in acts of torture or that it was summarily executing the detainees?” Yes, replied the government lawyer. The judges were incredulous. “To our knowledge,” they wrote, “prior to the current detention of prisoners at Guantanamo, the U.S. government has never before asserted such a grave and startling proposition.” Gherebi v. Bush, 374 F.3d 727, 738 (9th Cir. 2004). (PDF file.)

The Supreme Court repudiated the government’s position in the landmark Rasul decision, but the Administration has sought new ways to deny justice to the 500 men and boys still detained at Guantanamo. Today the Court will hear the case of Salim Ahmed Hamdan, Osama Bin Laden’s driver, which began as a challenge to the Administration’s unprecedented military tribunal system, but has grown in significance since the enactment of the disastrous “Detainee Treatment Act” (popularly known as “Graham-Levin,” after Senate sponsors Lindsay Graham and Carl Levin), which purports to divest federal courts of jurisdiction over habeas corpus petitions submitted on behalf of Guantanamo detainees.

The military tribunal system at the heart of the case is terribly flawed, as the ACLU argued in a friend-of-the-court brief submitted in January. I had a chance to view some of the tribunal proceedings firsthand, and it’s hard to imagine that, with the whole world watching, we can’t do better than these kangaroo courts. The system, in the words of a former tribunal prosecutor, is “rigged,” with “handpicked” members who “will not acquit the detainees.” The President and Secretary of Defense — who, under military commission rules, are the final arbiters of guilt or innocence — have already publicly declared that the detainees are “bad people” and “among the most dangerous, best-trained, vicious killers on the face of the Earth.”

Contrary to any established system of law — whether derived from the Constitution, the Uniform Code of Military Justice, or our international treaty obligations — the military commission rules do not guarantee an independent tribunal, an impartial appeal or the exclusion of tesimony obtained through coercive interrogation techniques, although the ACLU has obtained abundant evidence that the detainees at Guantanamo have been subjected to brutal and degrading treatment. (PDF file, obtained through ACLU FOIA requests) Finally, there is no guarantee that, in the unlikely event that a detainee were actually acquitted by a military commission, he would be released from custody, because the Administration has already designated the detainees “unlawful combatants.” (For more related documents released to the ACLU under the Freedom of Information Act, see http://www.aclu.org/torturefoia.)

But much more may be at stake today than the legitimacy of the military tribunals. The Administration has moved to dismiss the Hamdan appeal — as well as all other Guantanamo cases pending in the lower courts — on the ground that Congress has stripped the courts of habeas jurisdiction, and the detainees have no rights under the Constitution to challenge their indefinite detention and conditions of confinement. In a more refined way, the Administration is once again advancing the argument that so astonished the federal judges in San Francisco. Today we’ll see whether the justices of the Supreme Court react similarly.

March 22 was a bad day for crisis pregnancy centers. The same day the Washington Post published an article exposing the Bush Administration’s massive federal funding for anti-abortion crisis pregnancy centers (CPCs), Rhode Island education officials ordered the public schools to stop teaching one of these federally funded group’s curriculum, “Right Time, Right Place,” a product of the South Carolina-based Heritage Community Services, for promoting sexist stereotypes, ignoring the state’s comprehensive sex education standard, and for promoting of religious views.

Back in the 80s when I was in college, these small, obscure anti-abortion groups began setting up shop next to legitimate family planning clinics. They would put on white medical coats, even though they were not medical professionals, and try to persuade women who came into their offices not to have abortions. CPCs had a variety of tactics up their sleeves to “persuade” women to take a pregnancy to term including, but not limited to, having women read misleading anti-abortion literature, showing women doctored pictures of fetuses, forcing women to watch anti-abortion films, and, as was reported in Texas, chopping up dolls to depict “what an abortion does to the baby.”

Fast forward 20 plus years, and crisis pregnancy centers are the recipients of more the $60 million in federal taxpayer dollars to spread the abstinence-only-until-marriage message to America’s children. In fact, the vast majority of these organizations would not even exist if it weren’t for the federal trough to feed from.

For example, Heritage Community Services has successfully secured millions in federal abstinence-only-until-marriage grants. As a result, Heritage went from a $51,000 crisis pregnancy center to a $4 million non-profit operating in three additional states — Maine, Rhode Island, and Georgia. Additionally, family members who now work for Heritage have launched projects in other states including a number of locations near resort communities such as Martha’s Vineyard, Massachusetts; West Palm Beach, Florida; and St. Lucia.

Moreover, Heritage, like virtually all of the groups receiving the federal abstinence-only dollars, have no public health experience in teen pregnancy prevention or HIV and STD prevention. They also have been unable to document the impact of their programs and have not been subject to any oversight or audits by state or federal officials.

Heritage’s curriculum is like a time warp back to the 50s. For example, the curriculum states that “girls have a responsibility to wear modest clothing that doesn’t invite lustful thoughts,” and that “a man is strong and courageous, while a real woman is caring.” Included in a Heritage video, a host explains how abstinence helped him to “honor my relationship with Jesus.” On the other hand, the materials do not even include information on sexuality-related topics such as STDs, condoms, contraception, sexual orientation, or pregnancy options.

I give huge kudos to the state of Rhode Island for putting the smack-down on Heritage. I hope that all the negative publicity of these programs influences other states to follow suit, or at the very least, take a second look at what these programs are teaching our young people.

Adrienne Verrilli is the director of communications at the Sexuality Information and Education Council of the U.S. The views and opinions expressed in this communication do not necessarily reflect the official positions of the staff, management and directors of the American Civil Liberties Union, the American Civil Liberties Union Foundation, its affiliates, or its chapters.

Yep it exists.

Salon published a really interesting article today called “The battle to ban birth control.” After reading it I think there might be some potential ties between the anti birth control movement and the fight against comprehensive sex ed.

Here’s one quote from the article about the HPV/condom battle (a topic I have blogged about before)

“Another successful campaign has centered on condoms. In 2000, at the behest of then-Rep. and anti-choice ally Tom Coburn, R-Okla., the National Institutes of Health convened a panel of experts to evaluate the condom’s effectiveness at preventing the spread of sexually transmitted diseases. The panel concluded that correct condom use definitively protected against the spread of HIV and gonorrhea, and that there was “a strong probability of condom effectiveness” for other STDs, including human papillomavirus (HPV). Coburn used the findings to declare that condoms don’t protect against HPV — a wild misappropriation of fact that has nonetheless become a big part of the anti-choice argument against the condom’s efficacy. Under pressure from Coburn and other anti-choice activists, the Centers for Disease Control was forced to revise its Web site fact sheet on condoms. There is now a box in the center of the page that reads, in part, “While the effect of condoms in preventing human papillomavirus (HPV) infection is unknown, condom use has been associated with a lower rate of cervical cancer, an HPV-associated disease” — not quite the same as saying, as the CDC previously did, that condoms protect against HPV.”

So, after reading the article what do people think?

From the state that brought you religious-conservative activist Senator Sam Brownback (R-KS), heavily flirted with the idea on putting creationism back in the public schools, the state of Kansas will now require parents to give written permission before teaching their children sex education. Specifically, on March 15, the Kansas State Board of Education voted 6-4 to adopt an “opt-in” requirement for sex education. Kansas joins the ranks of three other conservative states, Utah, Nevada, and Arizona, in erecting this particular barrier to young people receiving sex education. I think it is important to note that Nevada and Arizona rank #1 and #2 in teen pregnancy rates in the U.S.

“Opt-in” sex education policies are unnecessary, an administration nightmare for school districts, and, most importantly, may prevent many young people from getting the sexual health information they need to live a healthy life. The Kansas State Board of Education has essentially taken away the responsibility of the school district to inform parents of its plans to teach sex education and placed that burden on its young people. Like any other permission slip, there are countless scenarios that would prevent a young person from getting it signed — parents could be out-of-town, parents could be working when the children are home, child abuse exists in the home, and frankly, kids forget. But unlike a field trip, this permission slip forces young people to approach their parents about the issue of sex.

The Kansas State Board of Education should have left well enough alone. Until yesterday, 36 states, including Kansas, plus the District of Columbia require an “op-out” policy. An “op-out” policy provides parents and young people the necessary protections to ensure that young people get the critical sexual health information and education they need, while giving parents the right to remove their child from the class if they choose. It also lessons the school administrative duties while place the burden of informing parents where it belongs, with the school district.

Board chair Steve Abrams said this move to an “opt-in” policy was about “empowering parents.” Mr. Abrams characterization of the policy is misguided. Kansas parents were already empowered with the state’s “opt-out” policy. The only consequence of this policy is that young people who would otherwise attend a sex education program will miss out.

“Opt-out” is a win for everyone — parents, the school, and especially the children. Like the creationism decision, I hope the Kansas State Board of Education changes its position and returns to its original “opt-out” policy, removing an unwise and unnecessary obstacle so all young people can get the information they need.

Adrienne Verrilli is the director of communications at the Sexuality Information and Education Council of the U.S. The views and opinions expressed in this communication do not necessarily reflect the official positions of the staff, management and directors of the American Civil Liberties Union, the American Civil Liberties Union Foundation, its affiliates, or its chapters.

“[New York City's] new health curriculum will require teachers to start to explain what HIV is to their students starting on Monday.”

Read the rest of this post on Gothamist:

I feel so privileged to have been asked to be the first guest blogger on the Take Issue Take Charge website. For those who know me in the movement, you understand how much I like to give my opinion.

So let’s get started!

After a lawsuit brought by the ACLU, the Department of Health and Human Services has agreed to stop funding the Silver Ring Thing, a Pittsburgh-based abstinence-only-until-marriage program, because of the religious content used in SRT’s programs. This is a great victory for proponents of comprehensive sex education and for young people. Yet, it forces us to ask ourselves how the federal government has been able to create a billion dollar nationwide industry that spreads false and misleading medical information, promotes stereotypes and traditional gender roles, and marginalize so many of our young people. In my opinion it has been the fear of some of our staunchest, pro-choice members of Congress who fail to stand up against these despicable programs.

Sex education is like no other issue in America — we agree. The vast majority of Americans, no matter what political stripe, support a comprehensive approach to sex education that talks about abstinence and contraception to prevent unintended pregnancy or the spread of STDs. Any poll taken at any given time shows that 80 to 90 plus % of Americans support comprehensive sex education. Why then are the politicians, particularly pro-choice allies in Congress, so out-of-touch with the American people on this issue? Two words — TEENAGE SEX. When we talk about family planning and abortion, lawmakers can make it about adults, specifically sisters, wives, and girlfriends. When we talk about sex education, lawmakers are talking about teenagers having sex, specifically lawmakers’ teenagers having sex.

Well, my advice for our pro-choice allies is — get over it. The American people understand that all young people need to be fully-informed about the sexual health in order to live a happy and healthy future. It is time our allies in Congress did too.

Adrienne Verrilli is the director of communications at the Sexuality Information and Education Council of the U.S. The views and opinions expressed in this communication do not necessarily reflect the official positions of the staff, management and directors of the American Civil Liberties Union, the American Civil Liberties Union Foundation, its affiliates, or its chapters.

This month the TITC blog will begin featuring guest bloggers. Our first blogger is Adrienne Verrilli, Director of Communications at the Sexuality Information and Education Council of the U.S. (SIECUS).

SIECUS advocates for the right of all people to have access to accurate information and comprehensive education about sexuality and sexual health services.  Not only that, but SIECUS offers some amazing resources.  The SIECUS State Profiles  provide a wealth of information about abstinence-only-until-marriage education in the states, and SIECUS also has guidelines for developing comprehensive sexuality education. 

I’m really excited to bring Adrienne on board this month.  I know she will bring a wealth of information and a great perspective to the blog!