All in all, not a bad week for civil liberties:

On Wednesday, Jameel Jaffer of the ACLU’s National Security Project argued in the 2nd Circuit for upholding a decision striking down the Patriot Act’s National Security Letter (NSL) provision in Doe v. Mukasey. Our client, John Doe, runs an Internet Service Provider and has been gagged by the NSL he received from speaking about his case. It was an active and engaged panel — Judges Calabresi, Newman, and Sotomayor. They had allocated 15 minutes for each side, but in the end they kept the lawyers up there for almost two hours (!)— an almost unheard of stretch in the 2nd Circuit. Our fingers are crossed that the panel will agree with the district court ruling that the gag order violates the First Amendment and the principle of separation of powers.

At the Foreign Intelligence Surveillance Court (FISC) yesterday, the news was less cheery: They issued an opinion denying our motion for leave to participate in proceedings relating to the meaning, scope, or constitutionality of the FISA Amendments Act. This ruling indicates that the FISC will decide legal issues that affect all Americans’ privacy rights in compete secrecy. The FISA Amendments Act allows the President virtually unfettered access to the international phone calls and emails of anyone on U.S. soil. As Jameel says in a statement: “The intelligence court should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear.”

An excellent development in our Torture FOIA lawsuit: the judge issued an order yesterday requiring the government to get on with processing the three 2005 memos relating to waterboarding and other “enhanced interrogation methods,” authored by Steven Bradbury, of the Justice Department’s Office of Legal Counsel (OLC). That’s right, the same OLC from whence John Yoo came.

One last note: The government filed its brief in the Mohammed v. Jeppesen case. (Our suit against the Boeing subsidiary for accommodating and servicing the CIA’s extraordinary rendition program. It’s now before the 9th circuit.) Our reply is due in three weeks. Check back for developments…

For the first time, a court has recognized that a concerted effort by the federal government to sabotage state medical marijuana laws violates the U.S. Constitution.

While California’s landmark 1996 medical marijuana law has mostly been upheld by the state’s courts, after the U.S. Supreme Court’s unfavorable ruling in 2005 it appeared the sun may have been setting on medical marijuana reform in the federal courts.

The outlook is a whole lot brighter after last week’s ruling by U.S. District Judge Jeremy Fogel of San Jose, which denies a Bush administration request to dismiss a lawsuit by Santa Cruz city and county officials and the Wo/Men’s Alliance for Medical Marijuana (WAMM), which was raided by federal agents in 2002.

More significantly, in a first-of-its-kind ruling, the court held that the 10th Amendment of the U.S. Constitution bars the federal government from targeting the enforcement of federal drug laws to intentionally subvert state medical marijuana laws. The court ruled that the 10th Amendment would be violated if the ACLU can prove, as it has alleged, that a calculated pattern of selective arrests and prosecutions by the federal government has been intended to render "California’s medical marijuana laws impossible to implement and thereby forcing California and its political subdivisions to recriminalize medial marijuana."

This ruling is especially significant because it recognizes the constitutional significance of the fact that the federal government has gone out of its way to arrest and prosecute some of the most legitimate doctors, patients, caregivers and dispensary owners that are working most closely with state and local officials.

WAMM, for instance, is widely recognized as a model medical marijuana patients’ collective. WAMM is fully supported by the City and County of Santa Cruz, and functions in strict compliance with city and county ordinances and California state law. (In response to the 2002 arrest of WAMM’s founders, Mike and Valerie Corral, the city of Santa Cruz even allowed WAMM to hold its regular meeting to distribute marijuana to its members on the steps of City Hall.) Founded over 15 years ago, WAMM has operated solely on a not-for-profit basis — it has not sold or purchased marijuana but rather its members have collectively cultivated their medicine and provided it free of charge to approved collective members with a physician’s recommendation. WAMM includes 250 seriously ill men and women, with more than 80 percent of members suffering from a life-threatening illness. Health permitting, members have been encouraged to contribute volunteer hours to the organization by working in the garden, assisting with fundraising, volunteering in the office, or helping each other with informal hospice care.

The ACLU lawsuit alleges that in addition to targeting medical marijuana providers who cooperate most closely with municipalities, the defendants — U.S. Attorney General Michael Mukasey, DEA agents involved in the raid of WAMM, and administrators of the DEA and Office of National Drug Control Policy — also violated the U.S. Constitution by (1) threatening to punish California physicians who recommend marijuana; (2) threatening government officials who issue medical marijuana identification cards; and (3) interfering with municipal zoning plans.

So, we have a potential legal breakthrough on our hands. This ruling, combined with the issuance of medical marijuana guidelines this week by California Attorney General Jerry Brown, and the passage of a medical marijuana employment rights bill in the California legislature earlier this month, provide further indication that California’s medical marijuana law — which brings the state $100 million each year in tax revenue — is continuing to gain legitimacy in spite of the Bush administration’s best efforts.

Let’s hope that federal officials quit playing politics with medical science by bringing a merciful end to their cruel and counterproductive war on sick and dying medical marijuana patients.

O.K. class, we’re back with another round of Congress-ese, your ever-informative glossary of the arcane and questionable vocabulary of our federal government.

Today’s word is Substitute.

A substitute is a motion, amendment or entire bill introduced in place of pending legislation. Passage of a substitute replaces the original bill. However, the substitute may also be amended.

Substitutes are normally used by committee chairs to make changes throughout a bill by striking all the text in the underlying bill and replacing it with new language. They can also be employed to resolve differences between two competing committee bills, mainly to incorporate changes — which can be very minor and/or technical — so that members don’t have to explicitly vote on each one individually.

Substitutes can be both good and bad. For example, the Senate Judiciary Committee attempted to substitute a better alternative to the disastrous FISA Amendments Act earlier this year (which would have been good). The Senate being the Senate, unfortunately, decided to vote against the Judiciary Committee’s substitute. So now we’re stuck with government agents reading our overseas emails and listening to our overseas phone calls without warrants (which is bad).

So that’s it for this week’s Congress-ese. But don’t worry — we’ll be back after Labor Day when Bryan Fisher, one of the newest additions to the ACLU family, tells us all about the exciting world of Rules Committees.

Yesterday, we honored the 45th anniversary of the 1963 March on Washington for Jobs and Freedom, at which Dr. Martin Luther King, Jr. delivered his legendary "I Have a Dream" speech.

Today, we remember the anniversary of an event that showed this country how far we still have to go. It was three years ago today that Hurricane Katrina struck the Gulf Coast and delivered devastation on a scale many Americans never would have thought possible. Close to 2,000 people lost their lives in the storm and awful floods that followed.

In the days, weeks and months after Katrina, it became shockingly clear that the storm was a human rights as well as humanitarian disaster. It exposed the deeply painful reality about how those who were poor and black in the wealthiest country in the world were literally left to fend for themselves.

The ACLU, particularly our affiliates in Louisiana and Mississippi, worked mightily in the period after the storm to document the full scale of the human rights tragedy, as well as to prevent ongoing civil liberties and civil rights abuses against those who were impacted by it.

On the first anniversary of the storm, the ACLU’s National Prison Project published Abandoned and Abused: Orleans Parish Prisoners in the Wake of Hurricane Katrina, which documented the horrors suffered by the thousands of men, women and children who were abandoned at the Orleans Parish Prison in the days after the storm struck.

Last year, the ACLU published Broken Promises: Two Years After Katrina, which exposed the civil rights abuses that had occurred in Louisiana and Mississippi since the storm, including reports of heightened racially motivated police activity, housing discrimination and ongoing prisoner abuses.

2008 has been marked by heartbreaking stories in the news about the plight of the homeless, many suffering from addiction and mental health problems, in New Orleans, as well as revelations about formaldehyde levels in FEMA trailers that, as was reported in the Washington Post, "may have triggered a public health catastrophe among the more than 300,000 people, many of them children, who lived in the FEMA homes."

The tragedy of Hurricane Katrina will go down in history as one of the most shameful episodes from one of the worst administrations ever to lead our nation. Whoever wins the election in November will have plenty of work to do along our Gulf Coast, which will be particularly urgent now that they are facing a looming affordable housing crisis.

As we mark this third anniversary of Hurricane Katrina, a documentary has just opened that is getting amazing reviews and seems to present this event as I’ve never seen. It is called Trouble the Water. It definitely looks like something worth checking out when it comes to a theater or Netflix queue near you.

The Washington Times reported Tuesday on the still-being-investigated case of the FBI collecting the phone records of four reporters working for The New York Times and Washington Post’s Indonesia bureaus. Earlier this month, FBI Director Robert Mueller apologized to the papers’ editors for collecting its reporters’ phone records.

The Washington Times reports:

While it is not known why the agent in [Communications Analysis Unit (CAU)] sent the [exigent letter demanding the phone records], [FBI general counsel Valerie Caproni] suggested the agent in CAU may have been trying to be helpful. She also noted CAU is on the front lines of the fight against terrorism and that the unit was busy at the time.

Now, everyone’s pretty used to hearing officials play the "terrorism" card as an excuse for lack of oversight and abuse, but this is pretty weak excuse. Even if we took Caproni at her word, she’s basically saying that the CAU agent was too busy to get Justice Department permission and a grand jury subpoena—what’s officially required when seeking information from journalists—to properly ask for the information sought by the FBI.

This kind of abuse doesn’t surprise ACLU Policy Counsel Mike German, who tells the Washington Times, "It’s clear the FBI wants to minimize this as a mistake and not abuse…The facts are, there was a ridiculous amount of misuse and abuse." And Mike should know, as he was an FBI agent for 16 years before coming to the ACLU.

This is only the latest in a string of abuses that the Office of the Inspector General (OIG) has found with the FBI’s abuse of both exigent letters and National Security Letters. (Both letters lack any requirement of judicial oversight.) Another report, specifically on the use of exigent letters, from the OIG is due out this fall. Something tells us we won’t be surprised when we learn of even more abuse of these letters.

Following news reports and a video showing Denver law enforcement agents ordering a reporter off a public sidewalk and pushing him into the street and later arresting him, the ACLU and the ACLU of Colorado called for renewed protection of the First Amendment guarantees of free speech and a free press. Our joint statement is here.

Raw Story reported today that protestors detained after mass arrests on Monday were held without access to counsel. The ACLU of Colorado’s Taylor Pendergrass says: "The City refused to provide any access to allow these persons to meet with attorneys."

The ACLU of Colorado sent a letter (PDF) to William Lovingier, Director of Corrections and Undersheriff for the Denver Sheriff Department and City Attorney David Fine yesterday outlining this week’s events and its concerns about possible violations of protestors’ constitutional rights. It’s an excellent, first-hand account by Pendergrass about what exactly went down earlier this week.

Today we learn about: Markups vs. Hearings!

A hearing is an opportunity for members of a particular congressional committee to learn more about an issue. Sometimes, they are also seeking information about how to improve a certain piece of proposed legislation or input as they consider drafting legislation. Other times, they are conducting oversight of a government agency or exploring an issue about which they may introduce legislation in a future Congress. (Or, they might be covering their behinds when they’ve dropped an issue out of a piece of legislation and want to look like they still care about it — for example, the House Education and Labor Committee held a hearing on employment discrimination against transgender people after the House dropped gender identity and expression from its Employment Non-Discrimination Act.) Hearings usually have a number of witnesses, often from the government and non-profits, as well as private citizens with personal experiences on the issue and experts (e.g. professors or medical personnel). Each witness will present a five-minute opening statement and then answer questions from the members of Congress present. Witnesses, as well as organizations and individuals who are not scheduled to testify, can submit longer statements to be considered by the committee if they are invited to do so. The ACLU often submits statements for the record, which can be found throughout our website. Usually, witnesses will leave the hearing with homework, questions for the record that Members ask in writing and expect answers to.

Mark-ups, on the other hand, are when a congressional committee will approve (or not) and amend (or not) a piece of legislation. At a mark-up, members have the opportunity to speak about and debate the legislation and to offer amendments, which will be debated and subsequently voted up or down. (At the moment, just about every bill to come through any committee seems to be subject to Republican amendments about off-shore drilling.) Usually, amendments have to be germane — that is, related to the bill being marked up — in order to pass (but that doesn’t seem to stop the onslaught of off-shore drilling amendments, and a ruling that an amendment is non-germane can generally be set aside by a majority vote). After all of the amendments are considered by the committee, the committee will vote on whether or not to send the bill to the full House or Senate for consideration. A mark-up is often not the only opportunity for amendments to be introduced. Assuming the bill passes out of the committee, members may be able to propose and debate amendments when the bill is considered by on the House or Senate floor, unless, of course, the bill comes up on suspension (which we’ll define next week).

Tomorrow, Chris Ford will explain substitutes (bills, not teachers).

Yesterday the LGBT community lost one of its pioneers when 87-year-old lesbian activist Del Martin passed away in San Francisco with her partner of 55 years — and wife of two months — Phyllis Lyon at her side.

Del and Phyllis were among the plaintiffs in the combined lawsuit brought by the ACLU, the National Center for Lesbian Rights, Lambda Legal, and several other civil rights organizations and individuals that won the right to marry for same-sex couples earlier this summer, and they were the first same-sex couple to be married in San Francisco on June 16, 2008, after the California Supreme Court overturned that state’s ban on marriage for couples like Del and Phyllis. But that was only her most recent step in a lifetime of advances for LGBT people, more of which you can learn about here.

Del’s role in history and her continued relevance today are huge. As National Center for Lesbian Rights executive Director Kate Kendell noted in her own remembrance of Del, "We now have a fierce and mighty angel on our side."

We join the greater LGBT community in mourning Del’s death, and our thoughts are with Phyllis today.

More info:

Tributes to Del (Pam’s House Blend)

Del Martin, Lesbian Activist, Dies at 87 (The New York Times)

“Nothing Was Ever Accomplished By Hiding In A Dark Corner”: Remembering Del Martin (Jezebel)

Progress doesn’t happen without people like Del Martin going out to change their communities and their worlds. Learn how you can make a difference at Get Busy, Get Equal.

Like many of you no doubt, I really love history. I’m especially fond of learning about previous movements and struggles for social justice, a quality for which I have my dad to thank.

Today marks the 45th anniversary of a true watershed moment in the civil rights movement and American history — the 1963 March on Washington for Jobs and Freedom. Several hundred thousand Americans — from every racial background — gathered at the foot of the Lincoln Memorial here in Washington, D.C., and heard the Rev. Martin Luther King Jr. deliver his “I Have a Dream” speech. This was one of those special occasions that really helped to awaken the conscience of our country and changed it for the better.

In the two years that followed, Congress would pass and President Johnson would sign into law both the Civil Rights Act of 1964 and the Voting Rights Act of 1965 — legislation that opened doors of opportunity and the promise of democracy for countless millions of Americans.

When you think that African-Americans were literally putting their lives at risk by attempting to vote in some parts of our country little more than 40 years ago, it’s remarkable how far we’ve come as a nation. As Dr. King himself said “Let us realize the arc of the moral universe is long but it bends toward justice.”
While there’s no question we have yet to reach Dr. King’s “promised land,” it is worth pointing out that as we honor a shining moment in American history, an African-American stands on the cusp of becoming the nominee of a major political party for president of the United States. This is a moment that all Americans should take pride in, irrespective of our many varying personal political beliefs.

Going forward, we all can recommit ourselves to working to honor and fulfill Dr. King’s dream. As far as we’ve come in the past 50 years, imagine the changes we can bring about by 2063!

Last September, the First Amendment Center released a poll with a truly scary finding: they found that 55 percent of Americans believe that the Founding Fathers established the United States as a Christian nation, and that Christianity is somehow established in the Constitution.

Noooooo! It is absolutely nowhere in the Constitution that Christianity, or indeed any religion, is the official religion of the United States. In fact, the sole mention of "religion" in the Constitution is in the First Amendment, which states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis ours)

Translation: Congress can’t establish a religion or stop you from practicing yours. ‘Nuff said.

Obviously, we need to keep bringing lawsuits like the one we filed today against the officials on the Santa Rosa County School Board in Pensacola, Fla. They must be a part of that 55 percent who believe the U.S. is a Christian nation, and take it as an excuse to force their religion on others: promoting and endorsing prayers at graduation ceremonies and other school events, sponsoring religious ceremonies and holding official school events at churches.

In fact, teachers and staff at Pace High School preach about "judgment day with the Lord" and offer Bible readings and biblical interpretations during student meetings. That kind of stuff is constitutionally protected—that’s, right, by the First Amendment—at private schools, in religious communities and, of course, at home, but that’s where it ends. Any government- or publicly funded school should never endorse, promote or espouse any religion.

Don’t even get us started on the pledge of allegiance.