A President Beyond Precedent

Caroline Fredrickson is the Director of the ACLU Washington Legislative Office.

With Congress on recess and the president blowing out birthday candles, Washington's had a relatively quiet week. But it's the eye of hurricane - a few moments to reflect and regroup before it all starts back up on Monday.

This week, my ACLU colleagues have guest posted on MyDD about the Hamdan ruling, NSA spying, and the ever-expanding secrecy of the Bush administration. These specific abuses of power, and a spate of others, form a disturbing constellation. As the administration's power grab grows more visible, each abuse looks more and more like the same standard fare. Each new announcement of a secret, potentially illegal, and certainly troubling program or tactic is as predictable as it is shocking.

And it is shocking. The scope of this administration's abuses of power has no precedent. No president has operated under so heavy a cloak of secrecy, and no administration has held itself so flagrantly above the law.

In the name of "national security," Bush circumvents secret courts designed specifically to protect national security interests; he authorizes programs to spy on American citizens illegally; and fails to stop "rendition," the practice of kidnapping individuals and handing them over to countries where torture is the verified norm. All the while exempting himself from the rule of law.

It is long past time for these abuses of power to end - abuses that should never have occurred in the first place.

We've celebrated some notable victories this month - the Supreme Court's Hamdan decision, the defeat of the flag desecration and federal marriage amendments, and the newly rescheduled hearings on the Voting Rights Act. We're gaining momentum in a powerful fight against government abuses.

I'm glad we've had this week in particular - the Fourth of July - to discuss these issues. The Bush administration's actions remind us why protecting our freedom is so important. Celebrating our nation's founders' triumph over tyranny can seem hollow when our current leader orchestrates spying, kidnapping, and torture. But we can and do celebrate the resolve and determination of Americans across the country to end this administration's violations of civil liberties, and our victories along the way.

Thank you for taking part in these postings. We're all working together to move this country forward - and we know it's an uphill climb! But this Fourth, I hope you toasted to freedom: to our most recent victories, to victories to come, and to protecting our constitutional rights for the next 230 years and beyond.

Secrecy Kool-Aid

Ann Beeson is Associate Legal Director for the ACLU, and lead attorney in the U.S. District Court case ACLU v. NSA. I would also like to direct our reader's attention to Lisa Graves's diary from Wednesday. Finally, I am finishing up my summer vacation and will return to regular posting next week--Chris

With hot weather all over the country this Fourth of July week, we're all craving cool drinks. But here's one drink too many lawmakers and even some judges have swallowed -- the Bush Administration's secrecy Kool-Aid. Yes, secrecy has become the President's favorite drink, guaranteed to cleanse the palate of all those nasty human rights abuses. "Secrecy is necessary to protect national security," say the feds -- and everybody drinks.

Many Members of Congress, apparently too hot and tired to perform their oversight duties, join the secrecy cult as soon as they're offered a little drink. Courts are told that classified evidence might exist, and suddenly declare they can't decide cases without disclosing secrets. What they haven't noticed is that Bush is using secrecy not to protect legitimate national security information, but to cover up wrongdoing and abuse. The government has used secrecy to prevent disclosure of documents showing torture at Abu Ghraib, to gag librarians from speaking out when the FBI demanded records, and to threaten whistleblowers determined to expose wrongdoing.

The flavor-of-the-month of Bush's secrecy Kool-Aid is the so-called "state secrets privilege." The government is now relying on the state secrets privilege to try to shut down the ACLU's lawsuit -- on behalf of prominent journalists, scholars and attorneys -- challenging electronic eavesdropping on Americans without a warrant by the National Security Agency. And it's not just our case they want to stop -- they claim that secrecy requires dismissal of every case filed against the NSA or the phone companies in bed with the feds. In other words, they claim that secrecy should prevent any court from deciding whether the President broke the law.

On Monday, July 10, I'll tell a judge in Detroit why the government's use of the state secrets privilege is wrong and dangerous. The state secrets privilege was meant to shield particular documents, like the location of troops in battle, from disclosure in discovery. It was never intended to provide blanket immunity for any abuse committed by the government in the "war on terror." If the Administration has its way, it could immunize any human rights abuse -- including the detention and torture of American citizens within our own borders - merely by invoking "state secrets" and moving to dismiss the case.

In fact, the state secrets privilege is a total red herring in our challenge to NSA spying. We don't need any more facts -- let alone secret ones -- to prove that the President broke the law when he authorized the NSA to wiretap Americans without court approval. The President hasn't denied that the NSA program exists -- he has publicly defended his decision to ignore laws that expressly prohibit warrantless eavesdropping! As the Supreme Court reminded us so refreshingly last week in Hamdan v. Rumsfeld, "the [President] may not disregard limitations that Congress has ... placed on his powers." We are hopeful that the court will resist the secrecy Kool-Aid and take a drink instead from the deep well of checks and balances.

Unfortunately judges in two prior ACLU cases have been sedated by the secrecy Kool-Aid. In May this year, a federal judge in Virginia dismissed our case on behalf of Khaled El-Masri, a German citizen kidnapped by the CIA, tortured, and flown to a secret prison in Afghanistan where he rotted for months even after the government knew he was innocent. Governments in Europe are openly investigating the minor role they played in this sickening abuse of power -- and they uncover more facts every day about the CIA's illegal rendition program. Yet our court said it couldn't decide whether our government illegally tortured and kidnapped an innocent man without disclosing state secrets. Needless to say, we're appealing the dismissal of Mr. El-Masri's case.

And last year judges in D.C. relied on the state secrets privilege to block a lawsuit on behalf of Sibel Edmonds, a former FBI translator who was fired when she disclosed serious security breaches and espionage within the bureau. The Inspector General of the Justice Department had concluded -- yes, in a public report -- that the FBI fired Ms. Edmonds for speaking out. Yet the court ruled that state secrets might be disclosed if the case was allowed to proceed. We appealed to the Supreme Court, which declined to take the case.

Both courts and Congress have an obligation under the Constitution to serve as checks on executive power. Let's hope more of them refuse the secrecy Kool-Aid this summer. And stay tuned to see whether the court in Detroit will see the state secrets privilege for what it is -- a dangerous doctrine that threatens to immunize the abuse of executive power and erode our system of checks and balances.

A Refresher on the Rule of Law

Lisa Graves is the Senior Counsel for Legislative Strategy for the ACLU Washington Legislative Office where she focuses on national security and civil liberties.

We hope you had wonderful Independence Day celebrations with your family and friends! At our house, amid efforts to stay cool but enjoy the sun (and then dodge the rain), friends got caught up on each other's lives and talked about the country we love. And, of course, what President Bush is doing to our country and the ideals for which it stands naturally came up.

Surprisingly, my Republican, Democratic and Independent friends somehow agree that the administration is on the wrong track. It's not a representative sample but I think it's a sign of the times. Bush and Cheney have just gone too far in eroding our privacy and threatening the liberty that is our heritage. And even the Supreme Court agrees (although not Bush's newest additions, Roberts and Alito), stating that the president "is bound to comply with the rule of law." (My colleague Ben Wizner posted on last week's decision just yesterday.

The problem is that the Bushies have adopted a truly radical idea (at least in a democracy) that whatever the president says or does is "the law," and he is simply not bound to follow laws passed by Congress and which he or a previous president signed into law. For me, the clearest example of this arrogance is in the illegal NSA wiretapping. (Full disclosure - I've worked on this topic `round the clock since we discovered after all the hoopla surrounding the Patriot Act's legal procedures that they're "optional" to Bush)

[If you want to read a really powerful statement about what's wrong with the president's claim that, as commander-in-chief of the army under the Constitution, he can disobey or interpret away any law he "thinks" impinges on his supposedly unlimited powers ("plenary" as Cheney has described them), you've got to read Bruce Fein's testimony before the Senate Judiciary Committee. Bruce has joined other true conservatives, such as former Congressman Bob Barr and key allies of ours from the right, in strongly opposing these Nixonian claims. As a Nixon White House Counsel wrote to me, it really is worse than Watergate.]

So the question is - what does the rule of law mean? We preach the importance of the rule of law abroad but the president doesn't seem to know what it means at home. In this country, there has been a law on the books for a quarter of a century, the Foreign Intelligence Surveillance Act (FISA), requiring the president to get a court order before wiretapping any American. FISA allows no exceptions from the rule about getting a court order (though the FISA court is secret). But it does allow an emergency wiretap to begin immediately; a court order must be requested soon afterward. The court approves wiretaps when Americans are conspiring with al-Qaeda.

I always feel that I need to repeat that fact, given the White House's disinformation campaign: the court approves wiretaps when Americans are conspiring with al-Qaeda or aiding agents of al-Qaeda in plotting terrorism or sabotage. But this White House thinks it can bypass these laws and allow the NSA to wiretap anyone they want without any independent check. That is against the law. It's contrary to the rule of law. It's illegal.

Some in Congress, including Senator Specter (who's gotten some great headlines for holding hearings but not actually issuing subpoenas for AT&T or the Justice Department memos), are poised to support legislation to whitewash the NSA program by making illegal actions legal. Senator Specter's current bill, already re-written at the behest of the White House and its sycophants, makes getting a court order optional and makes any judicial review a sham by allowing the administration to continue monitoring Americans' phone calls without showing you are doing anything wrong. Because this administration is infallible. Yeah, right. If any president needed a check it would be this one. All presidents need checks. Without them, presidents are simply temporary kings.

So what can you do about it? Call Senator Specter's office and tell him you oppose his bill, S. 2453, and the negotiations with Cheney to undermine your Fourth Amendment freedoms by making the law "optional." And, hold accountable any member of Congress who goes along with this bill or the administration's effort to make the rule of law mean whatever the president and his opportunistic advisors say it means. You can also get a DVD about the need to STOP THE ABUSE OF POWER (30-second trailer available here) and hold a house party, or "Rendezvous for Our Rights."

Another Look at Hamdan v. Rumsfeld

Ben Wizner is Staff Attorney at the ACLU, who wrote the organization's amicus brief in Hamdan v. Rumsfeld. He has traveled to Guantanamo to observe and report on the military commissions. From the diaries--Chris

First things first, let's be clear about what the Supreme Court's decision in Hamdan v. Rumsfeld did not address: the continued indefinite detention without charge or trial of the hundreds of men and boys held in Guantanamo. Notwithstanding President Bush's peculiar statement last month that "we would like to end the Guantanamo [sic]," but "we're waiting on our Supreme Court to act," the Hamdan case has never been about closing Guantanamo, and the President has never needed the Court's guidance or permission to do so.

Having said that, Thursday was one of those days that allow a lawyer to write, without irony, about the majesty of the law. The Guantanamo prison camp was expressly fashioned as an island outside the law. The Administration's intent was that no lawyer would ever set foot there, and that no court would ever consider the legitimacy of any aspect of the detention and interrogation regime. That strategy began to crumble in 2004, when the Supreme Court ruled in the Rasul case that Guantanamo detainees could challenge their detention in U.S. Courts. Thursday's ruling was a decisive repudiation of the sham military commission system that was devised not to adjudicate the guilt or innocence of detainees whom the President had already designated "bad people," but to provide an illusion of legal process as camouflage for the lawlessness of the entire Guantanamo enterprise.

I've written previously about the extensive - and ultimately unsuccessful - public relations apparatus that surrounded the military commissions when they were in session. For all the effort and energy that went into the propaganda side, as a legal system, the military commissions were a profoundly unserious exercise from the start. The commission room looked like a courtroom; the man sitting in front wearing a robe looked like a judge; the lawyers presented arguments and filed motions and raised objections. But did anyone - anyone - believe for a moment that detainees whom the Secretary of Defense had already characterized as "the worst of the worst" had any prospect of a fair trial from military commission members who, according to a former commission prosecutor, had been "handpicked" to assure conviction, and who made up the rules as they went along, because the time-tested rules of our military justice system had been rejected as too cumbersome?

In a system in which the outcomes were preordained, it was difficult at times not to view the commission proceedings as a kind of theater, and the courtroom itself as a Potemkin village. The title of the play was "Full and Fair Trial" - the oft-repeated mantra of the military commissions -- and not all of the participants realized they were actors reading from a script. If this seems like an extreme characterization, consider that more than four years after the arrival of the first hooded prisoners at Guantanamo, the Pentagon was continuing to launch public relations campaigns aimed at "present[ing] a benign picture of life at Gitmo," where the "biggest threats faced by many detainees [were] in fact frequent sports injuries on Gitmo basketball courts." If even half as much effort had gone into devising fair legal procedures, Thursday's historic rebuke would have been unnecessary.

In the aftermath of the Hamdan decision, some civil libertarians have legitimately worried that the Court's decision might be quickly and easily undone by Congress. That would be regrettable. But being governed by a lousy Congress is far preferable to being ruled by a king. The Hamdan decision restored the law to its proper place, and the President to his.

Four Reasons We're Celebrating the Fourth of July

Caroline Fredrickson is the Director of the ACLU Washington Legislative Office. To celebrate July 4th, the ACLU will be guest blogging on MyDD this week--Chris

We at the ACLU hope you're enjoying a fabulous Fourth of July long weekend. Our Fourth is especially sweet this year. We've got some great reasons to celebrate - although, unfortunately, we've got plenty of reasons to be angry, concerned, and just plain amazed at the level of presidential abuses of power in this sixth year of the Bush administration.

So what's the good news on the 230th birthday of the United States? Plenty.

  • A victory for basic human rights in the Supreme Court. The Court's decision in Hamdan v. Rumsfeld sent a clear message that no president is above the law. No, not even this one. It smacked down the notion that Guantanamo detainees can be tried in military tribunals that lack any basis in the law, and asserted that defendants are owed due process under the law. The ACLU filed an amicus brief in the case, and Ben Wizner, author of said brief and one of our amazing staff attorneys, will be posting more about that tomorrow.

    In the majority opinion, the court stated, "The executive is bound to comply with the rule of law." We're waiting now to see how the Bushies try to talk their way out of that one.

  • Whose flag? Our flag! By one vote, the Senate rejected the Flag Desecration Amendment, a despicable political ploy by Bill Frist and congressional Republicans to motivate their base. (And what base election-year maneuvering it was.) By an unbelievably hold-your-breath-then-break-out-the-cham pagne slim margin, the Senate protected the Constitution from an amendment that would have, for the first time ever, narrowed our free speech rights.

  • The House of Representatives blocked an amendment that jeopardized reauthorization of the Voting Rights Act (VRA) and committed to upcoming committee hearings. Certain sections of this historic legislation are due to expire in the next year -- sections that have enabled millions of Americans to participate fully in the electoral process. I'm sure we don't need to tell you - look at Florida in 2000, Ohio in 2004 - that we have a long way to go before we can allow the sections of the VRA that protect minority voting rights to expire.

  • Finally, the Senate stopped the Federal Marriage Amendment that would have written discrimination into the Constitution. As in the past, not only did the amendment fail to pick up enough votes to cut off debate - it failed even to pick up the votes of a majority of the Senate. And it fell far short of the two-thirds vote necessary to approve a constitutional amendment

So we've got a lot to celebrate. In each of these battles, thanks to the hard work of ACLU members, allies, and people like you - the rule of law, civil liberties, and fairness prevailed.

But of course, there's no rest for the weary. The Bush-Cheney White House continues to insist on an ever-growing executive power grab. This administration has flouted the rule of law: authorizing surveillance programs that fly in the face of the Constitution, permitting the illegal kidnapping of individuals, holding prisoners indefinitely without charging them with anything, advocating and supporting the torture of detainees, and repeatedly ignoring its Constitutional duty to enforce laws passed by Congress.

This week, voices from the ACLU will be posting about our work to stop these abuses of power, our take on the Hamdan v. Rumsfeld victory and what it means for detainees at Guantanamo and elsewhere, domestic spying, and whatever new injustices the administration's nefarious minds are cooking up.

But also, this week we're pausing, as we hope you are, to celebrate the Fourth and the things that make this country great. Let freedom rock!


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