Civil Rights
Jul. 1, 2006
For Former ACLU Chief, July 4th Means Celebrating Fight Against Abuses
By Stephen F. Rohde As we approach July 4, our celebrations are muted by the deaths of more than 2,500 Americans in Iraq, the deaths of coalition forces, countless wounded and the untold loss of tens of thousands of innocent Iraqis.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
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As we approach July 4, our celebrations are muted by the deaths of more than 2,500 Americans in Iraq, the deaths of coalition forces, countless wounded and the untold loss of tens of thousands of innocent Iraqis.
As if that were not enough, in the name of spreading "democracy" around the globe, the United States is violating human rights abroad and civil liberties at home.
Civil libertarians have never disagreed with the government's stated intention of keeping our nation safe, but individuals need not forfeit their fundamental civil liberties to keep our nation secure. No one said it better than Benjamin Franklin, a signer of the Declaration of Independence: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
The declaration warned despotic governments that it was the right of the people "to provide new Guards for their future security." One of those guards is the American Civil Liberties Union, founded in 1920 and never more active than today in the struggle for "Life, Liberty and the Pursuit of Happiness."
We can assess the erosion of constitutional rights this Independence Day by looking at a small sampling of the wide array of legal actions the ACLU is pursuing to restore the rule of law in the face of sweeping abuses of power committed by the Bush administration.
On Dec. 15, 2005, The New York Times revealed that President Bush had authorized the National Security Agency to conduct electronic surveillance of "hundreds, perhaps thousands, of people inside the United States," including American citizens, with persons abroad, without a court order as required by the Foreign Intelligence Surveillance Act.
On Jan. 17, the ACLU filed a first-of-its-kind lawsuit against the National Security Agency on behalf of prominent journalists, scholars, attorneys and nonprofit organizations, including the National Association of Criminal Defense Lawyers, Greenpeace, and journalists/authors Larry Diamond and Christopher Hitchens, who frequently communicate by phone and e-mail with people in the Middle East and believe their communications are being intercepted by the National Security Agency, thereby disrupting their ability to talk freely with sources, locate witnesses, conduct scholarship and engage in advocacy. The lawsuit charges that the program violates free speech and privacy protected by the First and Fourth amendments.
In April, the ACLU filed two amicus briefs on behalf of six prominent leaders of the nation's business community and by five leading civil rights organizations, including the NAACP, the American-Arab Anti-Discrimination Committee, the Asian American Legal Defense and Education Fund and United for Peace and Justice.
Unfortunately, the true extent of government surveillance continues to come to light. In May, USA Today revealed that the National Security Agency has also been secretly collecting the domestic telephone records of tens of millions of U.S. households and businesses, despite the fact that President Bush told the American people that the government is tracking only calls from terrorists. Attorney General Alberto Gonzales assured Congress that the focus of the surveillance was on international calls only.
On May 24, the ACLU launched a coordinated initiative with its affiliates by filing formal complaints with 20 state regulatory bodies, demanding that they investigate the National Security Agency's secret gathering of millions of phone records from telecommunications companies, such as AT&T, Verizon and BellSouth, without a court order. In California, the local ACLU filed a lawsuit against the phone companies citing the privacy provisions of the state constitution and state laws.
In December 2004, the ACLU discovered through the Freedom of Information Act that the FBI was using its Joint Terrorism Task Forces to gather extensive information about peaceful organizations, including Greenpeace, People for the Ethical Treatment of Animals, United for Peace and Justice, the Muslim Public Affairs Council and the ACLU itself.
Last February, additional Freedom of Information Act requests were filed on behalf of the American Friends Service Committee, Veterans for Peace, United for Peace and Justice and Greenpeace, as well as dozens of local groups in Florida, Georgia, Rhode Island, Maine, Pennsylvania and California to obtain more information about who the Department of Defense has been spying on under its ominously named Threat and Local Observation Notice database, targeting non-violent activists and monitoring anti-war and anti-military recruiting protests throughout the United States.
In March 2006, the House and Senate reauthorized the expiring provisions of the Patriot Act but failed to make the most needed changes to protect constitutional rights. ACLU litigation is pending challenging several parts of the Patriot Act.
Section 215 empowers the FBI to demand an individual's medical records, personal papers, library records; and membership lists of political organizations whether or not the individual in question is suspected of terrorist, or even criminal activity and prohibits those individuals from disclosing the FBI demands, even where there is no real need for secrecy. In April 2005, Attorney General Gonzales admitted to Congress that Section 215 had been used 35 times, despite the government's initial claim that it had never been used.
Section 505, known as the National Security Letter provision, authorizes the FBI to skip court approval altogether and demand a range of personal records from Internet Service Providers and other businesses, including a list of people who have visited a particular web site, and the identity of a person who has published an anonymous blog. In response to an ACLU lawsuit, a federal court struck down Section 505 saying, "Democracy abhors undue secrecy."
Section 411 contains an "ideological exclusion" provision which denies entry into the United States to anyone who "endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization." Such overly broad and vague language invites the government to block individuals critical of U.S. policy from entering the country. The ACLU filed a lawsuit in January on behalf of the American Academy of Religion, the American Association of University Professors, and PEN American Center, all of which had invited Professor Tariq Ramadan, one of the world's most respected scholars of Islam, who is believed to be a target of Section 411.
Beginning in December 2004, the ACLU has released more than 100,000 documents obtained through the Freedom of Information Act about detainees held by the United States in Iraq and Afghanistan, which indicate widespread torture, some endorsed by Secretary of Defense Donald Rumsfeld. Documents released last January confirm the existence of a secret "Special Access Program" which has been implicated in numerous detainee abuse incidents in Iraq, a medical examiner's report indicating that two Afghan detainees at Baghram were beaten to death while in restraints by U.S. troops and autopsy reports documenting death by strangulation and "blunt force injuries."
In March 2005, the ACLU, leading human rights organizations and retired high-ranking military officers filed a series of unprecedented lawsuits against Rumsfeld and three other high-ranking government officials charging them with direct responsibility for the torture and abuse of detainees in U.S. military custody, in violation of the Constitution and international laws. The plaintiffs are nine individuals who were brutally tortured while in military custody in Iraq and Afghanistan.
One was stabbed and sliced on his forearm and beaten unconscious during interrogation, locked naked in a coffin-like box for days, and urinated on. Another was sexually assaulted, shackled to a fence for hours in 120-degree heat, and subjected to mock executions.
Several plaintiffs were also forced to witness deliberate desecration of the Koran, as when soldiers ordered a military dog to pick up the Koran in its mouth. None of the plaintiffs was ever charged and all were eventually released.
On Dec. 6, 2005, the ACLU filed a lawsuit against former CIA director George Tenet, 10 CIA staff members, and three private airline companies on behalf of Khaled El-Masri, an innocent German citizen who was the victim of the U.S. policy of "extraordinary rendition," under which the U.S. government abducts and transfers individuals to foreign countries which are known to use torture.
El-Masri, a father of five young children, was forcibly abducted while on vacation in Macedonia, beaten, drugged, tortured, and held incommunicado in Afghanistan and elsewhere for five months. Although CIA officers realized three months into El-Masri's nightmare that they had abducted an innocent man, and Tenet was so notified, El-Masri was still not released.
During his captivity, he was never charged with a crime nor allowed any contact with a lawyer or his family. On May 12, after lawyers for the CIA argued that the case could not proceed because "state secrets'" may be exposed, the judge dismissed the case. The use of the "states secrets" defense to prevent courts from holding lawless government officials responsible will be tested on appeal.
In the wake of 9/11, countless innocent Arabs, Muslims and South Asians have been pulled off planes, searched at airports, and even stopped on the street based purely on their ethnicity or religious affiliation. The ACLU has contested these practices in several lawsuits.
In one the ACLU and the Council on American-Islamic Relations challenged the Department of Homeland Security's detention of several Muslim Americans families, including an infant and a pregnant woman, when they arrived at the Canada/United States border after participating in a "Reviving the Islamic Spirit" conference in Toronto.
Detained, interrogated, fingerprinted, and photographed, they were prevented from contacting attorneys, their families or the media. Tragically, last December, a federal judge dismissed the case and an appeal is planned.
Americans across the political spectrum are increasingly outraged about the unchecked abuses of the Bush administration and its pattern of contempt for the rule of law. This Fourth of July, as the Founders did in 1776, today's patriots are organizing across the country to oppose, in the words of the Declaration, these "repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States."
The ACLU is hardly alone in this struggle. It's joined by the Center for Constitutional Rights, the Bill of Rights Defense Committee, Human Rights Watch, Amnesty International, religious leaders, including Interfaith Communities United for Justice and Peace and all the courageous groups mentioned above.
From calls for impeachment to grassroots lobbying, from electoral politics to prayerful vigils, from noisy protests in the streets to online blogs and petitions, the people - as the People have done in every great movement for social justice - are taking seriously the call of the Declaration "to dissolve the political bands which have connected them" to their current government.
In that spirit, Happy Fourth of July!
Stephen Rohde, a constitutional lawyer with the firm of Rohde & Victoroff in Los Angeles, is a former president of the American Civil Liberties Union of Southern California and author of the books American Words of Freedom and Freedom of Assembly.
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