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|AMP Report – September 1, 2011
2001-2011: A decade of civil liberties’ erosion in America – Part Two
(This is part two of a three-part series. Click here to read Part One)
In June 2010, the Supreme Court exposed Americans to jail sentences of up to 15 years just for giving advice to groups the U.S. government considers untouchable. In the course of arguing the Holder v Humanitarian Law Project case in the Supreme Court, Georgetown Law Professor David Cole warned that the federal law against providing “material support” to U.S.-designated terrorist groups could be used to improperly target and prosecute a whole range of humanitarian, human rights and peace advocacy groups based on protected exercise of speech and other First Amendment rights.
The Patriot Act has broadened the “material support” concept to encompass “expert advice and assistance” to “foreign terrorist organizations” as designated by the Secretary of State. As journalist Courtney Martin noted, “The definition of material support includes everything from providing aid to distributing literature to political advocacy.”
During arguments in February 2010, Solicitor General Elena Kagan, defended the law and urged a broad interpretation that would allow prosecution of a U.S. citizen who filed a legal brief on behalf of a terrorist organization. “What Congress decided,” Kagan told the court, “is that when you help Hezbollah build homes, you are also helping Hezbollah build bombs.”
In Holder v. Humanitarian Law Project, the court ruled that the USA Patriot Act’s expanded definition of “material support” for “foreign terrorist organizations” passes Constitutional muster. The broad wording of the statute not only makes it a crime to support violent activities, but also prohibits Americans from offering “services” or “training, expert advice or assistance” to any entity designated as a terrorist group.
In a 6-3 opinion written by Chief Justice John G. Roberts Jr., the court essentially dismissed a challenge to the material support law brought by the Humanitarian Law Project. The project wanted to advise the Kurdistan Workers’ Party (PKK) — which for years has been on the U.S. terrorist list — on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government.
Justice Breyer, who was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor, proposed a narrower interpretation of the material support law: Individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence.
The Supreme Court decision essentially makes advocacy of peace and humanitarian issues illegal with respect to the 40 or so designated groups.
To borrow Joshua Holland, the material support law essentially criminalizes promoting dialogue in conflict zones and undermines efforts to provide nonviolent solutions to previously violent groups, equating such actions with trafficking weapons.
All kinds of missionaries, fair-election proponents and humanitarian workers could be placed in jeopardy. People like Three Cups of Tea author Greg Mortenson could be in trouble since he has had to meet with a variety of foreign country nationals in war zones to successfully formulate consensus to build schools for girls in Pakistan and Afghanistan. So could former President Jimmy Carter who engages in pro-democracy efforts to monitor election fraud in many places in the world.
Civil liberties advocates said they also feared repercussions for U.S.-based critics of the Israeli government, who might be charged with aiding Hamas, which Washington has designated as a terrorist group. One such critic is former President Jimmy Carter, whose private Mideast diplomatic efforts have included contact with Hamas.
The ruling “threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence,” said Carter, whose organization filed arguments with the court.
Since 2001, Islamic charities have struggled to deal with the uncertainty caused by the material support provision. According to the Bill of Rights Defense Committee, “Muslims fulfilling their obligation to contribute to [charity]…risk inadvertently supporting a current or future [Foreign Terrorist Organization]. In 2004, in order to avoid this, Muslim leaders asked the DOJ for a list of acceptable charities. The DOJ responded that their request was ‘impossible to fulfill’ and that it was ‘not in a position to put out lists of any kind, particularly of any organizations that are good or bad.’” Several people have already been jailed in the United States for their charitable activities in the Islamic world. 
As Tom Burghardt, the San Francisco Bay Area-based activist reports :
The National Security State’s assault on our right to privacy comes hard on the heels on moves in Congress, spearheaded by troglodytic Republicans (with “liberal” Democrats running a close second) to criminalize whistleblowing altogether.
In February 2011, the Muslim-hating Rep. Peter King (R-NY) introduced the SHIELD Act in the House, a pernicious piece of legislative flotsam that would amend the Espionage Act and make publishing classified information, and investigative journalism, a criminal offense.
Also in February, legislation was introduced in the Senate that “would broadly criminalize leaks of classified information,” Secrecy News reported.
Sponsored by Senator Benjamin Cardin (D-MD), the bill (S. 355) “would make it a felony for a government employee or contractor who has authorized access to classified information to disclose such information to an unauthorized person in violation of his or her nondisclosure agreement,” Secrecy News disclosed.
In an Orwellian twist, Cardin, who received some $385,000 in campaign swag from free speech advocates such as Constellation Energy, Goldman Sachs and Patton Boggs (Mubarak’s chief lobbyist in Washington) according to OpenSecrets.org, said that the bill would “promote Federal whistleblower protection statutes and regulations”!
As Secrecy News points out, the bill “does not provide for a ‘public interest’ defense, i.e. an argument that any damage to national security was outweighed by a benefit to the nation.” In other words, you don’t need to know about government high crimes and misdemeanors. Why? Because we say so.
In November 2010, shortly after WikiLeaks began publishing Cablegate files, King fired off a letter to Secretary of State Hillary Clinton and Attorney General Eric Holder demanding that WikiLeaks be declared a “foreign terrorist organization” and the group’s founder declared a “terrorist ringleader.” We know the fate reserved for “terrorists,” don’t we?
Obama Wants to Read Your Email 
The Obama U.S. Department of Justice (DoJ) also wants another new law too. This one would require Internet companies to retain data and records of user activity online. In doing so, the Obama administration is supporting measures advocated by the Bush administration that pose a grave threat to free speech and the freedom of the Internet. The sweeping legislation would cover cell phone service, Internet records, and email.
Data retention legislation would jeopardize the privacy of millions of Americans who use the Internet. The Electronic Frontier Foundation (EFF) notes, “A legal obligation to log users’ Internet use, paired with weak federal privacy laws that allow the government to easily obtain those records, would dangerously expand the government’s ability to surveil its citizens, damage privacy, and chill freedom of expression.”
Once again, congressional Republicans are more than happy to cooperate in passing such a dangerous law; anything to go after those awful terrorists — even if it shreds the U.S. Constitution.
Laptops Galore 
Although they can cite no legal basis for their high-handed actions, the U.S. Department of Homeland Security claims that its agents have the right to look though the contents of a international traveler’s electronic devices, including laptops, cameras and cell phones, and to keep the devices or copy the contents in order to continue searching them once the traveler has been allowed to enter the U.S., regardless of whether the traveler is suspected of any wrongdoing.
Documents obtained by the ACLU in response to a Freedom of Information Act (FOIA) lawsuit for records related to the DHS policy reveal that more than 6,600 travelers, nearly half of whom are American citizens, were subjected to electronic device searches at the border between October 1, 2008 and June 2, 2010.
No law authorizes this power nor is there any judicial or congressional body overseeing or regulating what DHS is doing. And the citizens to whom this is done have no recourse — not even to have their property returned to them.
FBI agents encouraged to search your trash, public databases just to sniff around for crime
The Federal Bureau of Investigation plans to issue new rules for its agents saying, essentially, that they can and should dig through our trash and search databases if people who aren’t suspects but who are simply being assessed or looked at. The new FBI trash-digging policy will be a part of the agency’s updated Domestic Investigations and Operations Guide, a source tells the New York Times. The changes apply not to criminal investigations but, apparently, to agents’ ability simply to sniff around “proactively,” according to the Times. The paper states that some agents wanted the trash-sifting powers so they could use evidence found among refuse to pressure people to snitch on others.
The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing. “Claiming additional authorities to investigate people only further raises the potential for abuse,” Mr. German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the F.B.I. had frequently misused “national security letters,” which allow agents to obtain information like phone records without a court order. 
Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity. Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision. Mr. German said the change would make it harder to detect and deter inappropriate use of databases for personal purposes. 
The new rules will also relax a restriction on administering lie-detector tests and searching people’s trash. Under current rules, agents cannot use such techniques until they open a “preliminary investigation,” which — unlike an assessment — requires a factual basis for suspecting someone of wrongdoing. But soon agents will be allowed to use those techniques for one kind of assessment, too: when they are evaluating a target as a potential informant. Agents have asked for that power in part because they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others. 
Freedom of Speech Curbs 
As Geoffrey R. Stone, a professor of law at the University of Chicago and the chairman of the board of the American Constitution Society, wrote in the New York Times on January 3, 2011:
The so-called Shield bill, now introduced in both houses of Congress in response to the WikiLeaks disclosures, would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, “in any manner prejudicial to the safety or interest of the United States,” any classified information “concerning the human intelligence activities of the United States.”
Although this proposed law may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act should be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation.
And finally, a central principle of the First Amendment is that the suppression of free speech must be the government’s last rather than its first resort in addressing a problem. The most obvious way for the government to prevent the danger posed by the circulation of classified material is by ensuring that information that must be kept secret is not leaked in the first place.
If we grant the government too much power to punish those who disseminate information, then we risk too great a sacrifice of public deliberation; if we grant the government too little power to control confidentiality at the source, then we risk too great a sacrifice of secrecy. The answer is thus to reconcile the irreconcilable values of secrecy and accountability by guaranteeing both a strong authority of the government to prohibit leaks and an expansive right of others to disseminate information to the public.
Obama reverted to Bush detention policy in virtually every way
After week one in the White House, Obama reverted to Bush detention policy in virtually every way. One of the first major disgraces concerned detainees at Bagram, the prison camp in Afghanistan, where Bush began shipping more detainees after Guantanamo was no longer his lawless playground, and where Obama has increased funding and the prison population. Four men sued for habeas relief. Justice John Bates, a federal judge appointed by Bush found that habeas should apply, in limited capacity, to Bagram, given that the Supreme Court ruled that it extended to Guantanamo. Obama’s administration appealed this ruling, using Bushian reasoning down the line. 
Bagram is even worse than Guantanamo, where at least the CRST process existed, and the military commissions have freed hundreds of people. Bagram is simply a dungeon beyond the law, and Obama has basked in it with only a little criticism from the left. As for Guantanamo, Obama had promised to close it by January 2010. It is not closed and current plans indicate it will be closed, perhaps around the end of Obama’s first term. There is talk of bringing Gitmo to the mid-west, which raises other concerns of setting the precedent that you don’t need to go to Cuba to find an American legal black hole. A cry for justice in the spirit of “Yes We Can” has morphed into a totalitarian-style five-year plan. And the abuses there have only gotten worse. 
Raymond Azar, Obama’s first rendition victim, was not even an alleged terrorist or belligerent. He was accused of a white-collar crime that shouldn’t even be a crime — failing to come forward regarding very minor corruption in defense contracting. But for an alleged white-collar non-crime, this Lebanese man working at Sima International was arrested in Afghanistan and, according to his testimony, taken to Bagram, deprived of sleep, stripped naked, subjected to extreme temperatures and stress positions, deprived of food, confined in a metal box and railroaded into a plea bargain lest he never see his family again. 
 How Easy Is It for Peaceful People to Violate the Patriot Act? By Joshua Holland
 The Obama Administration’s War on Civil Liberties by Tom Burghardt – Feb 21, 2011
 Civil Liberties We Are a Police State Bob Bauman – March 23, 2011
 F.B.I. agents get leeway to push privacy bounds, New York Times – June 12, 2011]
 New York Times – January 3, 2011
 Civil Liberties in Obama’s America by Anthony Gregory – March 20, 2010.