Score one for the rule of law!

Fantastic news! The Supreme Court’s ruled this morning that military tribunals are illegal. This is a huge victory that could have much wider implications, as the Court held that the Geneva Convention actually does apply to the conflict with Al Qaeda.

Marty Lederman on has an interesting analysis: “This [ruling] almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the administration has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).”

The vote was 5-3. The dissenters were (surprise!) Alito, Scalia, and Thomas. According to the AP,

Justice Clarence Thomas wrote a strongly worded dissent and took the unusual step of reading part of it from the bench — something he had never done before in his 15 years. He said the court’s decision would “sorely hamper the president’s ability to confront and defeat a new and deadly enemy.”

The ruling can be found here (I warn you, it’s long). I haven’t had a chance to read through it, but I’m looking forward to it.

The ACLU press release, along with a copy of the amicus brief we filed in the case, can be found here.

All I can say is “Woo hoo!”

Is this YOUR America?

Okay, now that I depressed you with my previous post, I felt I should write something to cheer you up. So I’m going to encourage you to attend one of five town hall meetings we’re holding across the state on the abuse of executive power issue. We’ll talk about how torture, kidnapping, and illegal spying are NOT what this country is supposed to be about. It’s a great chance to 1) get even more outraged, 2) meet your fellow civil libertarians who are also pissed off, and 3)get some ideas for fighting back.

Here’s the schedule:

July 11 – Harrisburg – Speakers: Lisa Graves, Senior Legislative Counsel, ACLU Washington Legislative Office; Spero T. Lappas, Esq., Civil rights and criminal defense attorney; & Kathleen Lucas, human rights organizer

July 12 – Philadelphia – Speakers: Caroline Frederickson, Legislative Director, ACLU Washington Legislative Office; Michael Coard, Esq., Host of “The Radio Courtroom” on WHAT 1340 AM; Bal Pinguel, Coordinator, Peacebuilding & Demilitarization Program, AFSC; Signe Wilkinson, Editorial Cartoonist, Daily News.

July 13 – Allentown – Speakers: Matt Bowles, Field Organizer, ACLU Washington Legislative Office; Malcolm J. Gross, Esq., Gross, McGinley, LaBarre & Eaton, LLP.

July 19 – Erie – Speakers: Matt Bowles, Field Organizer, ACLU Washington Legislative Office; Jim Fisher, Dept. of Political Science and Criminal Justice, Edinboro University; Bob Rhodes, Dept. of Political Science (Emeritus), Edinboro University.

July 20 – Pittsburgh – Speakers: Greg Nojeim, Associate Director and Chief Legislative Council, ACLU Washington Legislative Office; Doug Shields, Pittsburgh City Councilman, Co-sponsor of anti-PATRIOT Act Resolution.

Check out our website page for more information about times and locations for each town hall.

Hope you come, and bring people. Because frankly, my friends, this is a damn scary time in this country.

Posted in Uncategorized

State Secrets, State Shame

It must be pretty easy being a lawyer for the government these days. Instead of coming up with an actual legal argument to defend some pretty indefensible actions, they just cry “state secrets!”.

I guess you can’t really blame them, since the strategy seems to be working. The government has invoked this privilege in a number of our cases lately in an effort to short circuit the judicial process and stymie an investigation. Just two examples where it was used successfully:

In el-Masri v Tenet, the government stopped an attempt by Khaled El-Masri, a German citizen born in Kuwait, to seek redress after he was erroneously kidnapped by the CIA and transported to a secret prison in Afghanistan, where he was tortured.

In Edmonds v. DOJ, the court dismissed the case of Sibel Edmonds, a former FBI translator who was fired in retaliation for reporting security breaches and possible espionage within the Bureau.

The government is now trying to cite state secrets in the ACLU’s challenge to the NSA’s warrantless wiretap program.

In the past, the state secrets privilege was used very narrowly, and it when it was used successfully, the case would simply go forward without the specified evidence. Now the Bush Administration routinely invokes the state secrets privilege at the very beginning of a case in an effort to get the whole case dismissed.

Want to know a little bit more about this origins of this dubious legal strategy? I knew you did. This is from those helpful folks in our national office.

Nothing demonstrates the dangers of the state secrets privilege better than United States v. Reynolds, the Supreme Court’s first and last comprehensive statement on the “state secrets” privilege. In October 1948 Al Palya and eight other men died when their military plane crashed into a Georgia field. Palya’s widow and two others filed a lawsuit against the Air Force alleging that shoddy maintenance had led to the crash. The government insisted that disclosing the accident report would harm national security, and the Supreme Court ruled in their favor. However, when the military finally declassified old reports in 2004, the family learned what they suspected all along: the report contained no secrets, but did expose the Air Force’s failure to make needed repairs to its B-29 fleet. The state secrets privilege was born on a lie.

Depressed yet?

Geno’s Law?

This just in – our legislative director just called to tell us that two administrative bills in the state House up for a vote tomorrow will be amended to include a provision that would make English the official language of PA. (For those who might want to call your representatives, the bills being amended are HB 1569 and SB 810, both in the House.)

(I know one cheesesteak seller in Philly who must be pretty happy right now…)

Newfound use for the American flag

Not only does Old Glory work on a pole outside your business, as a tie, or, my personal favorite, as underwear (here, here, and here, (DISCLAIMER: A) Some of the pics might not be appropriate for young eyes and B) no, we’re not trying to sell you anything…it’s just funny)), but the U.S. Senate has found yet another use for the Stars & Stripes: Cover up the real issues facing the country!

Debate on amending the U.S. Constitution to ban flag burning started yesterday with our own Arlen Specter, self-proclaimed great defender of the Constitution, leading the charge:

“I think of the flag as a symbol of what veterans fought for,” Sen. Arlen Specter (R-Pa.) said as he opened the debate yesterday, “what they sustained wounds for, what they sustained loss of limbs for and what they sustained loss of life for.”

In pursuit of this urgent matter, floor leader Specter mustered all manner of argument: the military service of his brother, Morton; his brother-in-law’s service in the Pacific; his father Harry’s service in the Argonne; his mother’s emigration from Ukraine; his own stateside service during the Korean War; a pickup-truck accident his father once had with his sister; bicycle rides he took as a 7-year-old in Kansas; the “treachery of Mussolini”; the light casualties sustained during the Persian Gulf War, and a trip he made to VA hospitals 15 years ago.

“I think it’s important to focus on the basic fact that the text of the First Amendment, the text of the Constitution, the text of the Bill of Rights is not involved,” Specter argued. The Judiciary Committee chairman did not explain how he could add 17 words to the Constitution without altering its text.

Dana Milbank of the Washington Post also points out that incidents of flag-burning shockingly escalated last year by 33%…from three incidents to four.

Meanwhile, the NSA continues to conduct surveillance without a search warrant, the PATRIOT Act continues to allow the FBI to get warrants from the FISA court without showing a shred of evidence for why they suspect the subject of the search of a crime, and a whole of host of important non-civil liberties issues continue to smolder out here in the hinterlands. Thanks, Senate…for nothin’.

UPDATE, 8:54PM: In the Senate, the amendment went down in flames. *Ba-dump-ching* Ah, I’ve got a million of ’em. Seriously, it failed by one vote. Kudos to the 34 senators who had the chutzpah, the gumption, and other less appropriate terms to vote against this tom-foolery. In particular, it must be pointed out that Mitch McConnell, R-Kentucky, and Bob Bennett, R-Utah, both voted against it, along with usual suspect Lincoln Chafee, R-RI, a moderate R. Both McConnell and Bennett typically do not buck the party line. In a written statement, McConnell said this:

“No act of speech is so obnoxious that it merits tampering with our First Amendment.” Doing so, he said, “could also set a dangerous precedent for the rest of the Bill of Rights.”

Andy in H-burg

All rights reserved

Today the Senate Judiciary Committee is supposed to be holding hearings on presidential signing statements – the administration’s equivalent of holding crossed fingers behind one’s back while signing something into law.

From today’s New York Times:

…[A]ccording to the White House… [a] law is not binding when a president issues a separate statement saying he reserves the right to revise, interpret or disregard it on national security and constitutional grounds.

That’s the argument a Bush administration official is expected to make Tuesday before the Senate Judiciary Committee, chaired by Arlen Specter, R-Pa., who has demanded a hearing on a practice he considers an example of the administration’s abuse of power.

I can see the White House’s point. I mean really, it would make things so much easier if the president could just interpret the constitutionality of a law rather than the judiciary branch. Who needs those activists, anyway? The money we could save on black robes alone! Of course, we could really streamline government if the executive branch got to write laws, too.

ADDITION TO POST: You can read the testimony from the hearing on the Senate Judiciary Committee webpage. Leahy was clearly pissed that the Administration didn’t send someone high up to talk to them.

Memorializing Narrow Minds

On Monday, the PA House was considering a concurrent resolution on immigration. To be precise: “Memorializing the President of the United States and the United States Congress to secure all borders of this nation to protect American citizens from the dangers of unlawful invasion and illegal immigration” (House resolution #799). Glad to know our lawmakers are concerned about protecting us not only from unholy marriages, but from unlawful invasion.

What really struck me about this resolution, though (being a little bit of a word junky) was the use of the term “memorializing.” For me, it instantly conjured up a picture of folks in black garb standing around saying solemn and significant things. Made me want to ask, “Who died?” And then I got out the OED (that is, the Oxford English Dictionary, of course) and looked it up. Buried (pardon the pun) deep in the definition of the word “memorial” was this: “7. A statement of facts forming the basis of or expressed in the form of a petition or remonstrance to a person in authority, a government, etc.” (OED, p.1767).

While the above definition allows me to make more sense of the House’s proposed resolution, it’s limiting to the imagination. I prefer to muse over what we’re memorializing in our state and our country with such a resolution – in this instance, applying the first definition of the word, which is: “To preserve the memory of;…to commemorate” (OED, p.1768). Writing such a resolution at the state level – and encouraging protectionist and enforcement-based policies at the national level – will make our laws memorials to a time of narrow-mindedness. A time when we couldn’t see how immigrant “invasions” are spurred on by a global economic system that powerful countries largely control. A time when the drive for security trumped both compassion and broad analysis of our global realities to the detriment of citizens and newcomers alike.

The Statue of Liberty – a memorial of the U.S. fight for independence – holds a poem about immigrants – “your tired, your poor, your tempest-tossed.” I don’t need to trifle with anyone’s intelligence here. But where is this sentiment memorialized in our current laws? Lazarus’s poem reminds us of and inspires us to our better selves – as any decent memorial ought to do. This resolution, on the other hand, doesn’t do us justice.

Jess in Philadelphia
(with thanks to J.Rat for creative input)

House Judiciary Committee Keeps Us Guessing

Just when you think you know them, that wacky House Judiciary Committee goes and does this. According to our national office’s press release today, the committee “unexpectedly adopted a ‘resolution of inquiry’ to formally seek any and all documents held by the president and attorney general relating to warrantless requests made by the National Security Agency and other Federal agencies to telephone service providers regarding the records of their customers’ calls.”

Wow. I just don’t know what to say. Except that you rock, House Judiciary Committee.

What’s the Matter with Kansas? (Part II)

This post goes out to the Supreme Court for their almost uncannily bad timing (with a special shout out to Alito).

On the heels of a major story (broke by the Chicago Tribune) indicating that Texas likely executed an innocent man in 1989, the U.S. Supreme Court today upheld the bizarre death penalty law in Kansas (which says that juries should impose death sentences if aggravating evidence of a crime’s brutality and mitigating factors explaining a defendant’s actions are equal in weight). The vote was 5-4, with Alito tipping the scale.

According to the National Coalition to Abolish the Death Penalty, the recently released Chicago Tribune story is the fourth time since December 2004 that a major U.S. newspaper, though investigative reporting, has seriously called into question the guilt of a person who has been executed. The others:

— In December 2004, a Chicago Tribune series on junk science concluded that Cameron Todd Willingham, executed earlier that year, had been convicted on the basis of discredited arson analysis. A recent report by the Innocence Project, conducted by a team of leading arson experts, supports the Tribune story.

— In May 2005, the St. Louis Post-Dispatch reported that Larry Griffin, executed June 21, 1995, for the murder of Quinten Moss, may well have been innocent. A man wounded in the shooting said Griffin was not the gunman. A police officer on the scene revised his account, first given at trial. And St. Louis Circuit Attorney Jennifer Joyce has re-opened an investigation of the case.

— In November 2005, the Houston Chronicle reported on the case of Ruben Cantu, executed in 1993. The Chronicle reported that the person who identified Cantu said that he only did so because he believed the police wanted him to select Cantu. Sam Millsap, the Bexar County District Attorney when Cantu was prosecuted, has said that he has no reason to doubt the recantation, and regrets that a death sentence was sought in the case. The current Bexar County district attorney is investigating the case.

“The execution of one innocent person is too many and now we are dealing with four very disturbing reports in the past 19 months,” said Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty. “We see common themes in these wrongful executions, which tell us exactly the wrongs we need to right. Prosecutorial and police misconduct, ineffective assistance of counsel and flawed testimony characterized each of these cases, and faulty eyewitness identification and lack of credible evidence were factors in at least three of the four.”

You’d think, given the increasing uncertainty about death penalty convictions and the proven racial disparities in sentencing, that we would start setting the bar higher for death penalty convictions. Instead, a majority on the Supreme Court is content to keep the bar abysmally low.

Lisa in Pittsburgh

Marriage amendment: The plot thickens

Senate OKs rewritten marriage proposal

This is hot:

“If anyone’s marriage is threatened because two people love each other and they happen to be the same sex, then God help your marriage,” (Senator Vince) Fumo (D-Philadelphia) said, dismissing the argument that this is about protecting the sanctity of marriage. If that’s the case, he said maybe the state should outlaw divorce.

Andy in the HBG