As 2007 and another session of Congress ends, it’s appropriate to reflect on some of the legislation that affected the First Amendment this year. With the support of our coalition partners and allies on the Hill, we won many victories. But we also continue to face many threats to freedom of speech, religion, association, belief and the press.

Among some of our notable victories this year: For the first time ever, we saw federal reporters’ shield legislation pass through the House by an overwhelming veto-proof margin, with a very real hope that the legislation will finally become law in 2008.

We blocked efforts to regulate grassroots lobbying that would have restricted the right to petition our elected officials.

More open government became a reality through expanded access to the Freedom of Information Act that passed the Senate by unanimous consent and the House by voice vote. And last, but not least, we succeeded in killing several faith-based measures that violated the separation of church and state.

This week, I’ll be blogging in more detail about net neutrality; internet censorship; national security and free speech; television censorship; and media consolidation and free speech. We hope that 2008 will promise greater protections for the First Amendment rights of all Americans. The challenges we faced in 2007 show we have a long way to go in the year ahead.

It’s been two weeks since we learned that the CIA secretly destroyed at least two videotapes of its “enhanced interrogations” of terror suspects. At issue is the possible criminality of both the tapes’ destruction and what the tapes might show – like torture.

There are several investigations being launched into the CIA’s decision to destroy the tapes – from congressional committees, the Justice Department, and the CIA. Because the Bush administration can hardly be trusted to investigate itself, and because Congress’ track record of holding administration officials accountable has been unimpressive at best, a special prosecutor is desperately needed.

In addition to these investigations, the destruction of the tapes is at issue in a few court cases. In a case brought on behalf of Guantánamo detainees, Justice Henry H. Kennedy - despite being warned off by the Justice Department - has called a hearing for tomorrow addressing the fact that he had ordered evidence in the case – including of detainee treatment of Guantánamo detainees – not be destroyed. Good for him.

A second case is a Freedom of Information Act lawsuit brought by the ACLU in which the ACLU requested documentation of U.S. treatment and abuse of detainees overseas – not limited to Guantánamo. Judge Alvin K. Hellerstein ordered the government to produce all responsive information. Yet, in blatant disregard of that order, the CIA destroyed the videotapes that clearly fall into the scope of the ACLU’s request.

The ACLU has asked Judge Hellerstein to hold the CIA in contempt of court. It has also asked that the government be ordered to produce documentation regarding the decision to destroy the tapes, including from the White House and the FBI.

The ACLU’s case has been characterized as perhaps the strongest. For why it might provide the CIA with a “very serious problem” and might “force the Bush administration’s hand,” see John Dean’s recent piece: www.alternet.org/story/70797/

In our troubled democracy where the critical element of separation of powers is regularly attacked by the Bush administration, let’s hope our courts are allowed and willing to provide the crucial oversight of this administration that is so sorely needed.

CORRECTION: An earlier version of this post linked “Freedom of Information Act lawsuit brought by the ACLU” to the wrong page. It should go to www.aclu.org/torturefoia, not www.aclu.org/nsafoia.

With three major events this week, the campaign to end capital punishment in the U.S. and throughout the world is moving full steam ahead.

On Monday, New Jersey became the first state to legislatively repeal the death penalty in over 40 years. The bill, which replaces capital punishment with life imprisonment without the possibility of parole, passed with bipartisan majorities in the state legislature before it was signed into law by Governor Jon Corzine. At the historic bill signing ceremony, Corzine said he was “eternally grateful” to the ACLU for its commitment to ending the death penalty. Likewise, the ACLU is grateful that New Jersey’s public leaders put politics aside and took a stand for what’s right.

Then on Tuesday, the United Nation’s General Assembly passed a resolution calling for the suspension of the death penalty worldwide. The vote came after two previous attempts to impose a ban on state executions ended in failure. The assembly’s language clearly identifies some of the major problems with the death penalty, stating, “There is no conclusive evidence of the death penalty’s deterrence value” and “any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable.”

The actions of New Jersey’s government and the United Nations send a strong message to the rest of the country – and the world – that capital punishment is an abhorrent practice that has no place in a civilized society. It is ineffective, discriminatory, arbitrary and expensive.

Finally, yesterday the Death Penalty Information Center released its year-end report , which announced that the number of executions in the United States hit a 13-year low in 2007. There were 42 executions this year, down from 53 in 2006 — this is the lowest number since 1994, when 31 people were put to death. The most immediate reason is court cases across the nation challenging the constitutionality of the chemical combination used in lethal injections by all but one of the 36 states that administer the death penalty.

The Supreme Court is expected to decide next spring whether the lethal injection cocktail used by virtually all states constitutes cruel and unusual punishment. But regardless of the state’s method of choice, government executions will always be intolerable. As John Holdridge, Director of the ACLU Capital Punishment Project put it earlier this week, “the death penalty is not only a grossly improper use of government power, but also the ultimate denial of civil liberties.”

The CIA is on a roll lately with news that it destroyed taped “harsh” interrogations of detainees. The Justice Department recently warned a federal judge to back off of an inquiry as to whether the tapes’ destruction violated a court order. The department also asked congressional committees to back off of their independent investigations – as if Congress does not have a constitutionally mandated oversight role.

Just today we learned from the New York Times that four White House lawyers, including former Attorney General Alberto Gonzales and former White House counsel Harriet Miers, took part in the discussions about whether or not the videotapes should be destroyed. We know that no one in the White House suggested the taped interrogations be preserved, and in fact, several officials claim that the White House went as far as providing “vigorous sentiment” that the tapes be destroyed.

This is just another case of Bush administration officials trying once again to hide their criminal activity. The White House cannot be trusted to investigate itself and at this point, only an independent prosecutor can fully investigate the matter without the Justice Department attempting to influence the process.

The argument that the tapes needed to be destroyed in order to protect the operatives just does not hold water. If that were the case then virtually all of the documents in the CIA’s possession would need to be destroyed.

Congress and the courts are right to investigate this matter. If it is found that criminal activity did take place, whether it be the destruction of the tapes or the interrogations the tapes depicted, those responsible must be held accountable – no matter who they are.

Ensuring proper care for incarcerated people with mental illness has increasingly become a hot button issue across the country. From Maine to Nevada and in between, state legislatures and department of corrections officials have been forced in recent months to grapple with the fact that the care provided to mentally ill prisoners has been substandard at best and life-threatening at worst.

But as Libby Lewis’ story this morning for National Public Radio documents, one of the worst places to be caught up in the correctional system as a person with mental illness is the U.S. Virgin Islands, an American territory that is governed by the same constitutional principles that the rest of the United States seeks to abide by.

A quick glance at a medical report detailing the standard of care provided to mentally ill prisoners at the Criminal Justice Complex in the Virgin Islands reveals the sickening reality faced by inmates there. Lewis focuses on the story of Jonathan Ramos, who suffers from chronic schizophrenia. Ramos has been imprisoned for more than five years now after stealing a bicycle from a local Wal-Mart because there is no mental health facility in the Virgin Islands to treat him. But Ramos is only one of a handful of inmates with mental illness who continue to be victimized by a woeful criminal justice system and governmental officials who seemingly don’t care.

Eric Balaban, an attorney with the ACLU’s National Prison Project, has asked a federal judge to levy fines against officials in the Virgin Islands to force them to comply with two years worth of court orders and move the five other mentally ill prisoners in the Virgin Islands to a hospital that can treat them properly.

People like Ramos who are in desperate need of proper treatment and care deserve better than to have to rot away in prison, tossed aside and forgotten about, while their urgent mental health needs go unattended to. Allowing our nation’s prison system to turn into de-facto warehouses for the mentally ill not only does people like Ramos a grave injustice, but it also does an injustice to already overburdened and overpopulated prisons. Victory in this case in the Virgin Islands would send a clear message to the rest of the country about the urgent need for systemic reform and overhaul.

RH Reality Check ran a great series last week on reproductive rights in prison, an issue which the ACLU has done quite a bit of work.

The blog postings ranged from sexual abuse in prison to mothering as a reproductive right. I’ve pasted some excerpts below:

What Do Prisons Have to Do with Reproductive Rights?
By virtue of being a strict system of physical confinement and punishment, incarceration has unique institutional characteristics, and yet it also provides a kind of microcosm of reproductive politics. Nowhere is race and class stratification more evident than in the criminal justice and prison systems, where poor women and men of color are dramatically overrepresented relative to their numbers in the population.

In a nationally representative government study, 20 percent of pregnant women in prison reported getting no prenatal care, and 50 percent of pregnant women in jails went without care.

Powerless in Prison: Sexual Abuse Against Incarcerated Women
While guard-on-prisoner sexual assault is common, putting a number on the instances is difficult because so many assaults are unreported….Despite the widespread underreporting, some statistics exist. First, there are about 200,000 women incarcerated in the U.S. (in federal, state, local and immigration detention settings), a number that is growing exponentially and that makes up about 10 percent of the total prison population. Amnesty International reports that in 2004, a total of 2,298 allegations of staff sexual misconduct against both male and female inmates were made, and more than half of these cases involved women as victims, a much higher percentage than the 10 percent that women comprise of the total prison population. It can vary from institution to institution, but in the worst prison facilities, one in four female inmates are sexually abused in prison, says Stannow.

Unlike access to emergency contraception, access to abortion by inmates has seen its way through the courts. Crucially, women do not lose their right to decide to have an abortion just because they are in prison; rather, the issue is how the prison accommodates (or refuses to accommodate) her decision. “There are constitutional minimums,” says Diana Kasdan, staff attorney with the ACLU’s Reproductive Freedom Project. Although the details can vary from jurisdiction to jurisdiction, prisons must provide access to an abortion if one is desired. “Providing access” can range from providing transportation to an off-site medical facility, to allowing for a furlough or to providing abortions on-site, although Kasdan says she has not heard of the latter. A court in Arizona recently ruled that a court order to obtain transportation for an abortion cannot be required, and a federal court in Missouri ruled last year that a prison cannot refuse to pay for the transportation of inmates to receive abortions.

Mothering as a Reproductive Right
Since 1986, following the introduction of mandatory sentencing to the federal drug laws in the mid-1980s, and its adoption by many states at about the same time, the number of women in prison has risen 400 percent, according to a recent Department of Justice report, “Survey of State Prison Inmates;” for Black women, the figure is 800 percent. Most are mothers to minor children.

The condition of mothers giving birth behind bars is equally difficult. Babies are removed from their mothers within a 24 hour period after their birth and placed into foster care. Babies born to mothers behind bars are often born to mothers who labored and gave birth to them while in shackles. In our federal prisons and most state prisons, restraints are routinely used on pregnant women when they are in labor and when they give birth. Only 2 states have legislation regulating the use of restraints on pregnant women: Illinois and California. In the other 48 other states, the District of Columbia and the Federal Bureau of Prisoners, no such laws exist. This routine use of restraints on pregnant women, particularly on women in labor and giving birth, constitutes a cruel, inhumane and degrading practice that rarely can be justified in terms of security concerns during the delivery process.

For more information on reproductive rights in prison check out
Know Your Rights: Pregnancy-Related Health Care in Prison or Jail

and

Women Don’t Check Their Reproductive Rights at the Jailhouse Door

The Senate just voted to move forward with the White House/Intelligence Committee FISA bill. No surprise. The legislation will now be debated over the next couple of days.

This is not good news for those of us who respect freedom, the rule of law and the Constitution. Instead of capitulating to the White House, senators should be listening to their constituents — not telecom lobbyists or White House spinmeisters.

A number of senators have been speaking out against the Intelligence Committee bill. Two clear and thoughtful voices particularly stood out:

In his arguments against the Intelligence Committee bill, of which he is a member, Senator Russ Feingold (D-WI) said this morning

These bills do not just authorize the unfettered surveillance of people outside the United States communicating with each other. They also permit the government to acquire those foreigners’ communications with Americans inside the United States, regardless of whether anyone involved in the communication is under any suspicion of wrongdoing.

Senator Christopher Dodd (D-CT), who has been leading efforts on the Senate floor against the telecom immunity provision of the Intelligence Committee bill, had this to say

[T]he extent of our president’s lawbreaking, and the extent of his corporations’ complicity… That, our president will go to the mat to defend. That, he will keep from the light of a courtroom at all costs. That, his supporters would amend the law to protect.

In this week’s debates, senators will hopefully come to see the need to reject the Bush administration’s spying free-for-all and deny immunity to telecommunications companies that have been breaking the law for six long years.

In an op-ed published in The New York Times last week, Roger Cohen relates the insight of a former French king who, surveying the destruction that rained down upon 16th-century Europe as a result of pre-Enlightenment religious fervor, said, “Paris is well worth a Mass.”

Folks in Wilson County, Tennessee would be wise to heed this monarch’s words.

Check out the chatter tagged to Wednesday’s front-page story about the ACLU of Tennessee’s lawsuit challenging the ongoing practice by Wilson County Schools’ officials of promoting and endorsing specific religious beliefs. While the chatter certainly pales in comparison to the smoldering cathedrals that dotted the European landscape in the wake of Reformation-era violence, the culture war being played out on The Tennessean’s website is indicative of the very same ill: religion and the state becoming too enmeshed with each other.

In this particular case, there are teachers who are leading prayer and religious song during class time.

And a group of self-named “Praying Parents” who pray together on campus as students arrive for the school day and then deliver personalized notes inside classrooms informing individual students and teachers that they have been prayed for.

And so now, instead of being focused on the altruistic task of improving public education, some folks in Wilson County are insisting on enlisting public schools to promote their particular religious views. They simply don’t understand why public school officials - rather than individual parents and families - are barred from deciding what sort of religious education the children of Wilson County receive.

The answer is simple: the Constitution of the United States says they can’t - and with good reason. Religious freedom is alive and well in America precisely because the government - and especially our public schools - don’t take sides in matters of faith.

Our friends at the Alliance Defense Fund - one of a slew of fundamentalist Christian law firms that have popped up in the past couple of decades who purport to defend religious freedom but who in actuality promote freedom for one small niche of Christians at the expense of all other religious and non-religious Americans - will scream until they’re hoarse that if the ACLU wins its lawsuit in Tennessee that it will have a chilling and precedent-setting effect on the rights of Christians to freely express their religious beliefs.

But all they are really doing is fueling the fire of the culture wars they concoct, feed upon and use to arouse good folks like those who have chimed in on the Tennessean’s website. There in fact will be little precedent set by an ACLU victory. Indeed, the Constitutional principles that are at stake in this case have been clearly communicated in the Bill of Rights for over 200 years: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

By requiring that teachers not promote explicitly religious beliefs in public school classrooms and barring schools from giving certain individuals and faiths preferential use of school resources, the ACLU will in no way be limiting people’s constitutional right to be religious. Instead, by ensuring that the government stays out of deciding which religions to promote, the ACLU will be making sure that religious liberty continues to be a hallmark of our democracy.

And instead of being a battle field for wars rooted in religious fervor, Wilson County Schools can once again resume the essential task of providing a quality public education to its students.

Echoing the words of the king from a generation long since passed, Cohen argued in his New York Times op-ed that Washington is well worth a Mass. So too are the Wilson County Schools.

After a vote by the New Jersey General Assembly yesterday, all it will take is a stroke of Governor Jon Corzine’s pen to make it official: The Garden State will have abolished the death penalty.

The New Jersey Death Penalty Study Commission, formed last year, released a report in January of 2007 that found it costs the state more money to execute a prisoner than imprisoning the inmate for life. “New Jersey is the first state that realized that ending the death penalty is not about freeing criminals from responsibility, it is about freeing the state from a costly program which does not administer justice,” said Christopher Hill, State Strategies Coordinator for the ACLU’s Capital Punishment Project.

Gov. Corzine has said he will sign the bill inside a week. He told the Associated Press: “This is an issue of conscience and the responsible administration of justice.”

We couldn’t agree more.

It’s the end of the year, and everyone’s offering lists, like the top 10 movies of the year, the top 10 video games, the top 10 gadgets.

Here at the ACLU, we’re offering a Top 10 of our own. In light of recent news of the CIA destroying tapes showing the torture and interrogation of al-Qaeda detainees in U.S. custody, today we present:

Top 10 Reasons Congress Should Demand Attorney General Mukasey Appoint an Independent Prosecutor to Investigate Violations of Federal Criminal Laws Related to the Interrogation of Detainees in U.S. Custody

(The headline isn’t as catchy, but we think it’s more important than gadgets or movies.)

10. Congress and the Agencies Have Failed in Holding Torture Perpetrators Accountable

9. Further Delay in Criminal Investigations Could Put Some Crimes Outside the Statues of Limitations

8. Military Prosecutors Have Not Gone Up the Chain of Command

7. The Justice Department Has Failed to Bring Any Indictments Based on 20 CIA and DOD Referrals of Possible Crimes by Civilians

6. The Justice Department Wrote the Legal Opinions Authorizing Torture

5. The Past Head of the Criminal Division Reportedly Advised on Interrogation Practices, Possibly Including the Interrogation of Abu Zubaydah

4. The Current Head of the Criminal Division Was in Meetings on Interrogations

3. Attorney General Mukasey Still Refuses to Say Whether Waterboarding and Other Forms of Torture Are Illegal

2. Attempts to Shield Government Officials from Criminal Prosecution Were Pursued by the White House, Including by the President and Vice President

1. There Is Credible Evidence of Numerous Federal Crimes

We sent this Top 10 letter to every member of the House yesterday, asking them to stand up torture and the executive abuse of power. You can help by sending a letter Attorney General Michael Mukasey asking him to appoint an independent prosecutor to investigate the crimes that may have been committed by C.I.A. personnel or other top officials.