Alberto Gonzales? John Ashcroft? Our Aggressively Abrogated civil liberties? Alligators All Around?

Yesterday Glenn Greenwald interviewed Mike German, policy counsel for the ACLU’s Washington Legislative Office, about the FBI’s new guidelines that would give it even more power to spy on innocent Americans. Mike got to take peek at the new guidelines — the FBI hasn’t made them public — and blogged about FBI director Robert Mueller’s hearings before the House and Senate Judiciary committees in mid-September. He says in the interview:

When investigating Americans for criminal work, the only way to protect innocent people is to make sure the FBI has some level, some facts based on some reasonable belief that they’re doing something wrong…what these guidelines do is remove the need for any information, so the FBI doesn’t have to have any information that somebody’s doing something bad…to begin an investigation. It’s really a quite extraordinary power grab.

I spy: An abuse of power.

Here’s an angle to the economic bailout-rescue-panic package that you probably haven’t thought of: the exorbitant cost of capital punishment to death penalty states. From California, to Maryland, to Tennessee, to New Jersey, the taxpayer burden to execute a prisoner is significantly higher than the cost of a life sentence. Jack Payden-Travers of the ACLU’s Capital Punishment Project writes today in the Pasadena Star-News:

In Maryland, the Urban Institute study of March 2008 noted that it costs the state three times more to try a death penalty case than a non-death penalty case. The report stated that "an average capital-eligible case resulting in a death sentence will cost approximately $3 million, $1.9 million more than a case where the death penalty was not sought."

…Since 1977 we’ve carried out over 1,100 executions in this country to the tune of what is conservatively estimated over $1 billion…

That money has only purchased a system that doesn’t work. In the last 3 decades, 129 individuals have been released from death row because they were innocent. That’s one exoneration for every 9 executions. Would you buy a car that failed to start one time out of 10?

Jack points out that there are approximately 3,300 men and women on death row right now. That’s billions of dollars to execute these prisoners. The death penalty is a morally and fiscally bankrupt policy, and it’s time to abolish it.

(Originally posted on Daily Kos.)

It’s a safe bet that future generations will judge the U.S. military’s detention, treatment and trial of prisoners at Guantánamo harshly, as one of the lowest points in this country’s history. But the full story has to include accounts not just of leaders who betrayed this country’s most fundamental values, but also of the lower-ranking military personnel who stood up to confront their own government. During the military commissions hearings last week, military defense lawyers and a prosecutor reminded us, again, that there are men and women of courage and honor who are willing to risk their careers and livelihood to speak out against injustice.

At the beginning of the week, military defense lawyers assigned to advise the 9/11 defendants fought zealously to seek some measure of fairness in a system stacked against these detainees. In the latter part of the week, all the focus was on a dramatic development in the commissions’ case against Mohammad Jawad: Lt. Col. Darrel Vandeveld, the lead prosecutor, resigned because he does not believe he can ethically proceed with the case.

Before the start of Thursday’s hearing in Jawad’s case, Major David Frakt, his lawyer, told the media and observers that Vandeveld had given him a written declaration setting out the reasons for the resignation, which Frakt had filed with the court. During the hearing, Frakt reminded the court that Vandeveld "was quite an aggressive prosecutor" but said "he is nevertheless guided by a strong ethical and moral compass." Frakt told the judge that although Vandeveld feared retaliation against him, he was willing to testify, either by phone or videoconference.

The retaliation Vandeveld feared began even before he testified, and it was fierce and personal. Frakt told the court that the chief prosecutor had directed Vandeveld to undergo a psychiatric evaluation, ordered him to stay at home, and prohibited him from coming into his office pending his official release from military service. Once Brig. Gen. Thomas Hartmann, the new "war-court czar" in charge of logistics for the military commissions, found out about Vandeveld’s declaration, he quickly armed commissions personnel with media talking points that discredited Vandeveld and called his motivations into question. (Frakt had a copy of the talking points, which he provided to the judge.)

Hartmann has a well-documented history of improperly attempting to influence commission proceedings. Until a couple of weeks ago, he oversaw the military commissions as a legal advisor, a position in which he was supposed to maintain neutrality. But, as military judges found in three cases, Hartmann pressured prosecutors to make decisions based on political considerations or otherwise exercised inappropriate control over them. Hartmann was likely reassigned by the Pentagon in an attempt to neutralize criticism, but it seems that the fox was removed from the henhouse only to act as if he were in charge of the farm. Frakt told the court that since Hartmann was reassigned, he has "lost any pretense of impartiality" and that he was "very involved" in efforts to prevent Vandeveld from testifying.

Perhaps because of Vandeveld’s fears of reprisals, on Thursday he initially asked for immunity from prosecution in return for his agreement to testify. It appears Vandeveld had a change of heart, though, because he does not seem to have pressed the issue and he testified without immunity on Friday afternoon. It will be important and telling, in the coming days and weeks, how the Pentagon treats Vandeveld and whether there are further attempts to smear him. Already, Vandeveld’s request to be transferred to Afghanistan or Iraq for the remainder of his time on active duty has been denied and he is being released from active service.

Based on Vandeveld’s own testimony and Frakt’s description of his declaration in court, Vandeveld has three main reasons for resigning. First, Vandeveld said he turned from a "true believer" in the military commissions to feeling "truly deceived" when he realized records were not being provided to defense lawyers as required — and simply could not be — because the process for gathering, maintaining and transferring records was in "utter disarray." According to Vandeveld, the systemic flaws "deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct."

Second, Vandeveld said that the government has not provided Jawad’s lawyers with exculpatory evidence — evidence that could show Jawad’s innocence — as it is required to do; he provided examples of specific documents that had not been turned over. On cross-examination by the government (his former co-counsel), Vandeveld admitted that he had himself known about the existence of certain of those documents for a year, but had not turned them over to the defense. According to Vandeveld, he was waiting for the documents to be declassified and for a judge to issue an order establishing a schedule for document production. This struck me as odd. Every prosecutor knows that exculpatory evidence has to be turned over to the defense promptly, regardless of whether there’s a court order. Why would a prosecutor willing to resign over documents not being handed over to the defense himself fail to provide those documents? Vandeveld didn’t address that question specifically. Given his general description of pressure to prosecute cases aggressively, quickly and without being too cooperative with the defense, I’d speculate that he was working in an environment in which an ethical prosecutor may need the protection of a judicial order to do the right thing.

Finally, Vandeveld said that he had become troubled that Jawad, who was a teenager at the time of his capture, had not been segregated from adult prisoners and had not been provided with rehabilitation. He added that his view of the case had "evolved" over time because he suspected that Jawad was duped into joining an anti-American group and was drugged before the event of which he is accused — throwing a grenade at two U.S. service members and an interpreter. Vandeveld also referred to the abuse Jawad suffered at Bagram and at Guantánamo. Based on all this, and on his strong belief as a Catholic in "reparative and restorative" justice, Vandeveld had come to the conclusion that the government should offer Jawad a plea deal — a short period of confinement that would include rehabilitation, followed by release. His supervisors refused.

Rather than the plea deal Vandeveld wanted to give him, Jawad faces a maximum sentence of life imprisonment. But Vandeveld’s concerns about prosecuting Jawad were reinforced by the government’s own witnesses who testified on pre-trial evidentiary issues that were also before the court during the hearing. These witnesses told the court they knew at the time of Jawad’s capture that he was a juvenile, and that he may have been forced by adults to throw the grenade. Jawad’s defense counsel questioned whether he even threw the grenade, given that Afghan authorities arrested at least one other person, an adult, in connection with the attack.

The first military interrogator to interview Jawad after his capture admitted that Jawad said he had not wanted to throw the grenade and that "when it came time to commit the act, he got cold feet and was afraid. He was drugged and accompanied by an older gentleman who did not give him the option not to go through with the act." In addition, the interrogator testified, Jawad said he’d been "recruited" by a Taliban-affiliated group, the Hizb-i-Islami, with the understanding that he would be able to make money to support his family, but that "at the time he was recruited, he wasn’t fully aware of what he would be doing." A part of the military interrogator’s testimony took place behind closed doors because the interrogation techniques to which he subjected Jawad are apparently classified. (The ACLU has challenged similar abuses of the classification power in other cases) In open court proceedings, though, Jawad’s counsel made clear that the techniques could include acts of torture and cruel, inhuman and degrading treatment in violation of the Geneva Conventions.

There is a souvenir shop a short drive from the courtroom in which the hearing in Jawad’s case took place. On Friday, after Vandeveld testified and the hearing ended, I walked around the shop looking at T-shirts and coffee mugs emblazoned with Honor Bound to Defend Freedom, the motto of the military task force responsible for detainee operations in Guantánamo. It struck me that the only honor to be salvaged in the courtroom that afternoon had been that of the military lawyers defending Jawad, and the military prosecutor who refused to continue on the case against him.

Working for the ACLU on criminal justice policies, we are often asked to confront an array of legislative proposals aimed at getting “tough on crime” by doing things like making it easier to try children as adults and increasing the use of mandatory minimum sentences. While certainly tough-sounding, these policies do very little to actually reduce crime, other than fill our prisons to the point where the U.S. stands as the global leader in incarceration (PDF). No gold medal comes with this title.

While what doesn’t work is painfully obvious, the question of what does work must also be addressed. I recently came across two very good articles that shed some light on exactly what positive criminal justice policy results from (you know, what actually works as opposed to just sounding tough) and the answers may surprise you.

The first is an article in the October edition of In These Times magazine titled “No Jobs Make Mean Streets,” which traces the increase in violence, in particular gun violence, that accompanies job losses and economic decline in urban areas around the country. The second is an article from the Las Vegas Review-Journal titled “Superintendent, Sheriff Link Low Graduation Rates, Crime.” This article describes the low graduation rates of certain school districts in Nevada and the potential connection to increased levels of criminal activity. This paragraph grabbed my attention:

Improving graduation rates by just a little might save lives, Gillespie said. He referred to a 2004 study by University of California, Berkeley economist Enrico Moretti and Canadian economist Lance Lochner, whose research found that a 10 percentage point increase in graduation rates would reduce the murder and assault rate by 20 percent.

Show me any so-called “get tough” policy that has led to a 20 percent drop in violent crime.

It’s the simple things — providing good job and educational opportunities — that really get to the heart of reducing crime. Not only that, it actually helps to make for stronger communities. Talk about getting two for the price of one!

To say we at the ACLU are fans of Jane Mayer’s work would be an understatement. And clearly we’re not the only ones. This week at TPM’s Book Club, an impressive panel of writers and bloggers will discuss Mayer’s new book, The Dark Side: The Inside Story Of How The War On Terror Turned Into A War On American Ideals. Panelists are journalist Christopher Hitchens (who knows a little something about torture), attorney and Harpers contributor Scott Horton; Slate senior editor Emily Bazelon; Attackerman blogger Spencer Ackerman; and attorney, professor and Balkinization blogger Marty Lederman.

Mayer kicks off the discussion with a doozy, noting that torture hasn’t come up during the presidential campaign:

…Understandably, this is a toxic subject, reeking of political payback. But I have personally interviewed CIA officers who have said they refused to partake in the “enhanced interrogation” program because they feared that eventually it would lead to criminal charges. They had seen this happen before, and wanted nothing to do with it, even if it meant in some instances, leaving the CIA. The threat of prosecution clearly acted as a deterrent. My question is what happens if there is no accountability for America’s first program of state-authorized torture? Does it send a green light to torture again when the next attack takes place? Is it an invitation to other forms of lawlessness by the U.S. Government? But, if top officials of the Bush Administration who were acting in what they believed to be the best interests of the country’s security, are now prosecuted, is that just? Will the public support it?

We’re curious about this too, and one of the reasons we launched our Constitution Voter campaign: to push issues like torture and “enhanced interrogation techniques" to the forefront of this election. Join us by signing the pledge; let the candidates know we care about these issues and want to hear how they would address them. What’s the plan to close Guantánamo? Will they bring those who authorized the torture of detainees in U.S. custody to justice? Will they ban the use of torture and rendition without exception?

Tell the candidates to address these issues now, while they still need our votes and support. Ask them the hard questions, and let them know they can’t ignore the Constitution.

If you put a frog in a pot of boiling water, it will leap out right away to escape the danger. But if you put a frog in a pot of water that is cool and gradually heat until boiling, the frog will not be aware of the danger until it is too late. Often, the same holds true when we are faced with creeping encroachments on our constitutional rights.

This principle was most recently evident as the House and Senate were considering the Debbie Smith Reauthorization Act, legislation designed to help eliminate the nationwide backlog of rape evidence kits and bolster DNA testing of criminals and crime scene evidence.

In early summer, the House passed an amendment that would have brought the pot to a boil with cash incentives expanding the scope of state DNA collection efforts to anyone merely arrested for a violent or sex crime, including a misdemeanor sex offense. In addition to eroding the fundamental constitutional principle of innocent until proven guilty, this amendment would have thwarted the goal of the underlying legislation — to reduce the ever mounting backlog of unprocessed DNA evidence from rape crime scenes.

The ACLU has continually supported the use of DNA testing as an important crime fighting tool when used appropriately. So we were pleased when last week Senator Joe Biden (D-Del.) came up with an alternative way to reauthorize the Debbie Smith Act without the amendment. The Biden bill will move us closer to realizing a reduction in rape kit backlogs without the heedless expansion of DNA testing to non-convicted arrestees.

What that bill shows is there needn’t have been a choice between safety and long-held constitutional rights. We urge the president to support this constitutionally sound approach. The Biden bill will enable us to bring criminals to justice and provide closure to victims — without jettisoning our fundamental constitutional rights.

Are you a Constitution Voter? We were in Mississippi last Friday for the first presidential debate, and found the Ole Miss campus crawling with students who care about the Constitution. Many of them pledged to vote based on how well they think candidates will uphold the Constitution. See the faces and voices from the University of Mississippi and then sign the pledge yourself. Go to http://www.aclu.org/constitutionvoter.

Don’t forget, we’ll be sending these pledges to the presidential candidates in October. Let’s show them how much American voters care about the Constitution, and tell them to address the issues we care about, like torture, warrantless spying and closing Guantánamo.

Join these students in telling the candidates, loud and clear: “You can’t ignore the Constitution.”

Sometimes it’s hard to focus on civil liberties when all everyone is talking about is the economic bailout. (The House voted today; Senate vote Wednesday. You’re welcome.)

This will be a light week on the civil liberties front for Congress. We’re…still…waiting for that report on National Security Letters from the Justice Department’s Office of the Inspector General, and we’re still hoping for a markup of Rep. Jerrold Nadler’s (D-N.Y.) state secrets bill.

In addition, President Bush is expected to sign H.R. 923, the Emmett Till Unsolved Civil Rights Crime Act of 2007, into law this week.

Congress will adjourn this week: the House today, and the Senate, well…soon. And hey, did you know that Congress will return for a lame duck session after the elections?

Tuesday, September 30

Freedom of Religion in Prison
The U.S. Commission on Civil Rights will hold a teleconference at 11 a.m. on, among other things, freedom of religion in prison.

(In July, the ACLU won a freedom of religion in prison case a few months ago on behalf of a Native-American inmate who was prohibited from possessing the eagle feathers crucial to a religious prayer.)

As we were told by the lovely family who’s housing us in Oxford, tonight will be a combination of debate-watching and tailgating. Issue alley is situated in the Grove, what seems to be the nerve center of the Ole Miss campus, where a lot of tailgating goes down during football season. Lots of locals and students have been setting up their lawn chairs and digging in for tonight’s big event.

The debate will happen in the Ford Center. Last night we walked around campus and saw the ginormous media tent, a.k.a. the “spin room,” where pundits and camera crews will gather for pre- and post-debate coverage.

We’re having a lot of fun telling people about our Constitution Voter campaign, getting lots of signatures to the pledge, and lots of photos. (Check out the entire Flickr set if you don’t want to wait for the pix to scroll through.) We’re cheered to see how most people want to hear the candidates talk about the Constitution in this campaign, so we’re hoping for some meaty, substantive questions about the Constitution in this and following debates. Protecting the Constitution is something that all voters can get behind.

Our intrepid Multimedia Producer Joel Engardio is talking to Ole Miss students about the election, so stay tuned for video from today. For a taste, check out our Constitution Day video on YouTube!

Previously we’ve discussed the push to search under travellers’ clothes with the naked machine and the million names on the terrorist watch list. The latest Civil Discourse comic examines DHS’s need to literally put their hands in your pockets.

The Washington Post reported last month:

Federal agents may take a traveler’s laptop computer or other electronic device to an off-site location for an unspecified period of time without any suspicion of wrongdoing, as part of border search policies the Department of Homeland Security recently disclosed.

DHS doesn’t stop with your MacBook. The policies extend to, well, everything. They claim they can seize “any device capable of storing information in digital or analog form” along with “all papers and other written documentation.” Yes, that antique pendulum clock you’re lugging around qualifies as a analog device and may be searched. (ticking time bomb?)

Just in case you thought of something that could slip through those categories, they included “written materials commonly referred to as ‘pocket trash’ or ‘pocket litter.’”

They defined it twice just to be sure they cover everything under the sun.