Today’s 2-1 decision upholding the Military Commissions Act represents a misguided endorsement of the Bush Administration’s view that Guantánamo is a place without law and the Guantánamo detainees are people without rights. Unfortunately, the decision is likely to be seen by the Bush Administration as a green light to continue its policy of arbitrary and indefinite detention.
The war on terror is not an excuse to abandon our commitment to fundamental fairness. The burden is now squarely on Congress to restore the right to meaningful judicial review that the Military Commissions Act repealed. If Congress does not fulfill its responsibility, the Supreme Court will be forced to step in once again and correct the balance.
An internal examination by the Inspector General of Justice Department of terrorism prosecutions since 9/11 shows the government has labeled many criminal cases as anti-terrorism, despite having no connection to terrorist activity. The report mirrors findings highlighted three years ago by the Transactional Records Access Clearinghouse.
You can call an apple an orange, but that doesn’t make it so. Classifying routine criminal cases as terrorism cases lets the Justice Department tweak their record in the war on terrorism but does nothing to make Americans safer. The Inspector General’s report shows the Justice Department is attempting to mislead the public.
We applaud Inspector General Fine and his office for looking into this matter. The Justice Department has the awesome responsibility of enforcing our nation’s laws, and they should do so without distorting the truth. Congress must look into the Justice Department’s inflated claims on their terrorism record.
Marc Fisher, the Metro Columnist for The Washington Post, has a great piece in today’s paper about the “gum game” controversy in Montgomery, Maryland, that I blogged about yesterday. Fisher notes that all parties seem to be in agreement that the game was ill-conceived, but his column digs deeper to the real problem at hand:
Okay, the game is revolting, and the group is gone — we got that. But I still have questions: Why, exactly, was teaching about sensitive and difficult issues of sexual activity and sexually transmitted disease outsourced? And why was this job entrusted to the Pregnancy Center, which says its abstinence program is based on the belief that “pregnancy is not the root problem, but a symptom of a lifestyle that is outside of God’s will”
Those outsiders have a hidden agenda of their own. Tierney [founder and head of the Rockville Pregnancy Center that was contracted by the Montgomery school sytem to teach sex ed to students] assures me there is no religious content to the school lessons. But her abstinence instructor says she makes a point of offering each class free pregnancy tests at the center. There, Tierney shows me how each woman who comes in for a test gets the full-court antiabortion press: a showcase of cute little plastic fetuses, a walk through a treasure chest of baby clothes, a video on the ravages of abortion and a sonogram “so they can hear the beating heart and see that this is a real, live baby,” Tierney says.
What Fisher doesn’t mention is that outsourcing the teaching of sex ed classes to instructors from crisis pregnancy centers (CPCs) is not limited to schools in Montgomery. As part of the current administration’s funding of abstinence-only-until-marriage programs, millions of dollars have been funneled to these groups. Last summer, Representative Henry Waxman (D-CA) issued a report that found the Bush Administration has funded CPCs to the tune of over $30 million dollars and that 87 percent of the CPCs investigated by Waxman provided pregnant women with misleading and inaccurate information about the medical risks of abortion.
But it’s not just the federal government funding CPCs — last week the Los Angeles Times ran a story about state funding of these groups.
At least eight states — including Florida, Missouri and Pennsylvania — use public funds to subsidize crisis pregnancy centers, Christian homes for unwed mothers and other programs explicitly designed to steer women away from abortion. As a condition of the grants, counselors are often barred from referring women to any clinic that provides abortions; in some cases, they may not discuss contraception either.
All told, states will spend at least $13 million this year — much of it from welfare or family-planning budgets — to dissuade women from abortion.
Clearly, parents would be wise to find out not only what their students are being taught, but also who is behind these messages.
Happy Valentine’s Day — or as The Liberty Council calls it “The Fourth Annual Day of Purity.”
Ever wondered what sorts of demonstrations take place in abstinence-only-until-marriage programs? Here’s a sampling from recent news articles:
In Montgomery, Maryland high school students were encouraged to participate in the “gum game” in which they share a piece of gum with classmates to demonstrate the consequences of premarital sex.
Students were also told they could sample squares of chocolate, one of which, according to the instructor, was actually a laxative in order to illustrate the uncertainty of knowing whether an STD was contracted after a sexual encounter.
In York County, Pennsylvania, an instructor sticks tape to students’ arms. Once removed, the instructor notes how the tape is no longer clear as bits of hair, skin and soap have stuck to it, and how the tape no longer sticks well to other items, apparently in an attempt to teach students that, “[a]ny time you have sex with someone, you leave a piece of yourself with them.”
I’m pretty sure none of these tactics address what teens really need — information on how to protect themselves from unintended pregnancy and STDs.
And now for the news round-up:
California: Teens from four area high schools in Oakland have put together a 15 minute movie to educate their peers about contraceptives. The article notes that two years ago Oakland’s schools approved making contraception available on high school campuses, as long as it was provided by school-based health clinics or community organizations. There can’t be many other high schools in the nation that have this policy.
Colorado: An op-ed in the Daily Athenaeum says the move by schools in Fort Collins, Colorado, to teach students about contraception is a step in the right direction.
Florida: St. Lucie County public schools are getting closer to implementing comprehensive sex education. Local health instructors are scheduled to meet with the district’s top science staff member to review potential curricula. Efforts to improve the curriculum couldn’t have come at a better time: 2005 State Health Department statistics show that St. Lucie County had the highest proportion of blacks living with HIV among Florida’s 67 counties-1 in 35.
Louisiana: Joe Cook, the Executive Director of the ACLU of Louisiana, is quoted in an article about purity balls. He notes that the ACLU favors “abstinence-plus” programs where abstinence is stressed but teens are still able to learn how to protect themselves from unintended pregnancy and STDs.
Michigan: Cedar Springs schools are set to approve a new policy regarding sex education. The proposed policy would require that sex education address: benefits of abstinence; possible emotional, economic and legal consequences of sex; legal responsibility of parenthood; how to refuse sexual advances; self-control and respect for others; healthy dating relationships and how to set limits; and adoption services and safe delivery of newborns. Of course, nowhere is contraception even mentioned.
Nevada: Abstinence-only-until-marriage speaker Pam Stenzel is visiting schools throughout northern Nevada. Stenzel’s speaking engagements are funded using a $35,000 federal grant received by the Crisis Pregnancy Center in Reno.
Virginia: Local parents and religious leaders are voicing their concerns over presentations by the abstinence-only-until-marriage comedian, Keith Deltano, at local high schools. A mother who watched Deltano’s presentation in October says she is disturbed to hear that he has been invited back to Loudoun County High School, and a local minister urges administrators at Dominion High School not to follow suit.
Washington: Good News! Legislation that would require comprehensive sex education in schools is likely to pass the state legislature this year.
Wisconsin: The Ashland School District is reinstating its annual sex education talk for fifth graders after an increase in the number of young students who have sought pregnancy testing. The Ashland County Human Services Department Children and Families Unit reports that it has had “four 12-year-olds and an 11-year-old girl inquiring about pregnancy tests” just this year. The annual talk was suspended last year after parents complained about its content.
 After years of successful assaults by the Executive Branch on the protections the Constitution provides citizens against the abuse of governmental power, January 31 and February 1, 2007, saw counter-attacks launched on two fronts to the continual siege of police-state tyranny.
First, in Cincinnati, in ACLU v. NSA, the Sixth Circuit heard the Deputy Solicitor General argue that a lawsuit challenging the NSA wiretap and email surveillance program should be thrown out because the plaintiffs – journalists, researchers, and lawyers – lacked standing because they could not prove the government intercepted their calls. That should seem a strange argument, since the NSA could simply acknowledge or deny whether the plaintiffs calls had been intercepted. Sounds simple. No interception, no standing. Interception, standing. But no.
Whether the plaintiffs’ calls have been intercepted is a fact known only to the government – the defendant – and to reveal this information would reveal “state secrets.” Courts take this nonsense seriously. Rather than following the Rules of Civil Procedure applicable to all other litigants, which permit Requests for Admissions, e.g. “Admit you wiretapped the plaintiff,” courts don’t make the government admit or deny basic jurisdictional facts and then dismiss cases that seek to enjoin executive crimes because the plaintiffs can’t prove standing. If the government asserts the “state secrets” privilege, why not just decree standing as a matter of law? On January 31, the ACLU continued to push the Constitution out of the trenches, and press forward against the unabashed cynicism of the administration’s drive to conquer the rule of law.
The next day saw the second front open in the Fourth Circuit in Richmond, where attorneys from the Brennan Center for Justice challenged the government’s 2001 arrest of Ali al-Marri, a legal resident, still held under the recent Military Detentions Act in Charlestown as an “enemy combatant,” with no charges filed, and no court in which to challenge his incarceration.
Again, our government asserted the Executive’s power to unilaterally and secretly determine the facts, decree that a person legally in the United States is an enemy combatant, and hold him without charges or judicial review. Is he an enemy combatant? The Executive says so, and Congress caved in and concurred that courts cannot test the truth of that decision because that would reveal “state secrets.”
When the President announces he is “the Decider,” this does not just mean he decides what course of action should be undertaken to further national policy. It also means he decides the facts. What he decides establishes the facts. The facts don’t dictate what he decides. No one can challenge these “factual” decisions in the Courts – the traditional Anglo-American forum for resolving factual disputes. The real evil of the government’s present position is that the one who controls the facts always controls the outcome. The one thing judicial independence presupposes, is that the facts will be impartially and openly determined, so that laws can be applied to reach a just outcome.
Not in this administration. Will federal courts join those of us who want to uphold individual liberty, or will they cave in to the hysteria that we are under attack by a colossus of jihadists, and join the administration in its imagined war on terror and real war against the Constitution?
Don’t be too optimistic that the Constitution will win.
I am a trial lawyer by profession and understand that lawyers are supposed to represent clients with whom they do not always agree. Indeed, I was at one time a government lawyer and defended state actions and policies with which I personally disagreed. That is what we do. That is what we are supposed to do. I understand and accept that. That is the way our legal system is supposed to work.
But on Wednesday January 31, in a federal court in Cincinnati, listening to an argument before the U.S. Court of Appeals in a case entitled ACLU v. NSA, I found myself responding with anxiety, dismay and outrage as I listened to a lawyer from the U.S. Department of Justice, MY Department of Justice, defend the President’s secret and illegal Terrorist Surveillance Program. Even though I as a lawyer am supposed to be detached from these things, I found myself taking it personally, as personally as if I was had been the subject of secret eavesdropping by the government. Because I heard the government, MY government, argue to that court that no one had a right to challenge the legality and constitutionality of the President’s secret surveillance program.
Listening to the argument of the Department of Justice was much like reading Alice in Wonderland. You see, it is the position of the Department that (1) no person can challenge the government surveillance program unless they can prove they were the subject of surveillance, (2) the government will not tell you if you were surveilled and the court has no power to require it to do so, (3) even if you were surveilled the court has no legal right to review the legality of the program because the decision of whether the program is warranted and legal is exclusively within the authority of the President. And all of that is justified, according to the Department of Justice, to fight the so-called “war on terror.”
James Madison, architect of the U.S. Constitution, co-author of the Federalist Papers and later President wrote: “If tyranny and oppression come to this land it will be in the guise of fighting a foreign enemy.” The statement is as true today as it was 200 years ago.
Frankly, it is all chilling. And all reminiscent of the abuses of the CIA, NSA and FBI during the fight for civil rights, the opposition to the Vietnam War and the Watergate cover-ups in the 1960’s and 1970’s. I had thought we had put this all behind us. Apparently not.
Madison also wrote: “The accumulation of all powers, legislative, executive and judicial in the same hands, whether one or many … may justly be pronounced the very definition of tyranny.”
Let’s hope the Court of Appeals agrees.
The Washington Post reported Wednesday that the government has agreed to turn over classified documents about its domestic eavesdropping program to Congress, attempting to paint a picture of cooperative playground behavior: ”It’s important for us that they understand what we’re doing,” Attorney General Gonzales said, ”All they have to do is ask.” Oh, really. So the two week standoff between the congressional Judiciary and Intelligence committees and the Bush administration was not due to the government’s blatant refusal to provide details on the legality of its unwarranted NSA program? Right. Threats of subpoena action by Congress and a higher court finding the program unconstitutional probably had nothing to do with it in the least.
This disclosure came the same day I sat in the Sixth Circuit Court of Appeals in chilly Cincinnati, where a three-judge panel (Judges Alice Batchelder, Ronald Gilman and Julia Gibbons) heard oral arguments in the ACLU v. NSA case, after a district court judge found the president’s secret program unconstitutional.
I had the unique and fortunate opportunity to sit next to Nazih Hassan, a plaintiff in this case and native of Lebanon, whose perspective and experience demonstrate this administration’s gross abuse of power.
The appeal by the Justice Department, argued by Mr. Greg Garre was complex and nuanced by case law; however, the argument was clearly pronged: 1) The “jurisdictional defects” of the Plaintiff’s lack of standing - mainly, they could not prove that they were the subject of surveillance and suffered as a result, and that the plaintiff’s entire case is now moot given the attorney general’s letter stating that the Terrorist Surveillance Program (TSP) is now subject to FISA. The second prong is that if the court didn’t agree on standing or that the case is moot, then it must agree that the state secrets privilege applies and reverse the district court’s ruling. And here, my friends, is a classic Catch-22: according to the government, any ability that the plaintiffs may have in this case, or any case for that matter to prove they have been and/or are under surveillance is actually protected by the state secrets privilege and basically never existed. And it was also clear that to muddy up this circular argument with the merits of the case, you know, the (un)constitutionality of the president’s program, was simply unnecessary. The government did, however, remind the panel of the constitutionality of the president’s “inherent” powers during wartime, i.e. the state secrets privilege will always be an obstacle to resolving FISA and/or the Separation of Powers questions. Or a tool of circumvention.
The statement on behalf of the Plaintiff’s, argued by Ann Beeson was precise: The court must decide whether the President of the United States is obligated by statutory law to abide by FISA. If not, the impact, Beeson warned, is that the President is left to his own accord to decide which laws to follow and which to ignore, say, for nearly five years. And let me remind you, as Beeson reminded the panel: FISA provides the executive branch with the power to conduct warrantless surveillance 15 days after the declaration of war and up to 72 hours before FISA approval. President Bush continued to give the nod to his secret program of warrantless, indefinite and unlimited domestic surveillance of American citizens, violating the very FISA court he now concedes has a role in such activity.
The governments’ argument that the case is moot is empty: The voluntary cessation of an illegal action does not dissolve its illegality. Besides, as Judges Gibbons and Gilman stated: The government voluntarily put its’ secret program under the FISA “umbrella” and given its consistent position that the president’s program is legal (if you can believe that), it can “opt out” of any obligation to FISA (which is likely).
And to the standing argument, Judge Gilman pointedly asked the government: “If the Plaintiff’s here don’t have standing, who would?” Right on, your honor, especially since we seem to be living in the pages of Joseph Heller’s book. But to answer the question, the government relied on Laird, which basically goes back to state secrets and the plaintiffs illustrated for the court the concrete harm they indeed have suffered, which the government has never argued against.
So, in the name of cooperative playground behavior, the Bush administration is quite rickety on the balance beam – that “delicate balance,” as coined by the Church Committee, between the fundamental liberties of the American people and the government’s effort of security.
And lastly, a “reality check”: There are three branches of government and I quote Beeson’s perfect summation: “Now it’s for the Court to check the Executive branch. Congress did its part.” In the meantime, someone should give the president a wallet-size copy of the Bill of Rights.
As you have probably heard by now the largest part of the NSA arguments centered around the jurisdictional issues of “Standing” and “Mootness” - two words I NEVER heard before law school (which should give you some idea of how little they have to do with the “law”).
They are important and relevant premises to filing a law suit, addressing the questions of who can file a suit and at what point one can file a suit. but NO, they have NOTHING to do with wiretapping. And this is what government counsel focused his argument on.
While Ann Beeson argued for the ACLU and the Plaintiffs, she steered the argument back to the “merits” of the case - i.e. what the case is actually about!! Privacy! The judges seemed to readily move past her rebuttals to the standing and mootness issue (C’mon judge Gibbons! Get on the bus!). Judge Gibbons did pose a question which has been stuck in my head… something to the effect of “name a Supreme Court case that says that surveillance is a violation of the 4th amendment”. Hmmm.
This question has been running over in my mind, as fresh from both Crim procedure I and II, I feel I should be able to find the answer… so I will hunt… for… something…
Do you have questions after reading about the hearing, from this blog or articles like Adam Liptak’s coverage in the New York Times?
For those in the Seattle, Washington area – you’re invited to come to a brown bag lunch with co-counsel Randy Gainer of Davis Wright Tremaine. He’ll talk about the hearing and the issues behind the case.
Join us with your lunch and your questions at the ACLU of Washington office next Wednesday, February 7th; from 12:00pm - 1:00pm. Note: space is limited so rsvp to save a spot by calling our office at 206-624-2184.
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