Keeping Same-Sex Marriage in the Dark

On Wednesday, a conservative majority of the Supreme Court overturned a ruling made by a federal trial judge that would have allowed limited television coverage of a trial that will decide the fate of California’s Proposition 8. The trial, which is currently proceeding in San Francisco, is one of the most significant civil rights cases of our time. The plaintiffs are seeking to overturn a ballot initiative that makes same-sex marriage illegal in California.

It was unusual that the Supreme Court even decided to hear this case. The high court takes very few cases. It generally decides issues about which the state or federal courts are in conflict or cases that raise important questions of federal law. Yet relying on the Supreme Court’s “supervisory power” over the lower courts, the five conservative justices – Roberts, Scalia, Thomas, Alito and Kennedy – joined in an unsigned 17-page decision and chided Chief Judge Vaughn Walker for seeking to broadcast the trial without a sufficient notice period for public comment.

Justice Breyer wrote in the dissent joined by Justices Stevens, Ginsburg and Sotomayor that he could find no other case in which the Supreme Court had intervened in the procedural aspects of local judicial administration. Indeed, Breyer cited a case in which Scalia wrote, “I do not see the basis for any direct authority to supervise lower courts.”

Moreover, in the comment period that Walker did allow, he received 138,574 comments, and all but 32 favored transmitting the proceedings.

The majority concluded that the same-sex marriage opponents would suffer “irreparable harm” if the trial were broadcast to five other federal courts around the country. But all the witnesses who allegedly might be intimidated by the camera were experts or Prop 8 advocates who had already appeared on television or the Internet during the campaign.

No one presented empirical data to establish that the mere presence of cameras would negatively impact the judicial process, Breyer wrote. He cited a book that I authored with veteran broadcast journalist David Dow, “Cameras in the Courtroom: Television and the Pursuit of Justice.” It describes studies that found no harm from the camera, and one which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed.”

The five justices who denied camera coverage noted at the outset that they would not express “any view on whether [federal] trials should be broadcast.” Toward the end of their decision, however, they stated that since the trial judge intended to broadcast witness testimony, “[t]his case is therefore not a good one for a pilot program.”

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.

This piece first apeared on Jurist.

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Legendary Lawyer Doris Brin Walker Dies; Represented Angela Davis, Smith Act Defendants

Doris “Dobby” Brin Walker, the first woman president of the National Lawyers Guild, died on August 13 at the age of 90. Doris was a brilliant lawyer and a tenacious defender of human rights. The only woman in her University of California Berkeley law school class, Doris defied the odds throughout her life, achieving significant victories for labor, and political activists.

Doris’ legal and political activism spanned several decades and some of the most turbulent but significant periods in US history. She organized workers, fought against Jim Crow and McCarthyism, was active in the civil rights and anti-Vietnam War movements, and actively opposed the current wars in Iraq and Afghanistan.

At UCLA, Doris became a Marxist. After she was sworn in as a member of the California State Bar, Doris joined the Communist Party USA, remaining a member until her death. Upon graduation from law school, Doris began practicing labor law; but a few years later, she went to work in California canneries as a labor organizer. When Cutter Labs fired Doris in 1956, the case was appealed all the way to the Supreme Court. Although the Court refused to hear the case, Justice Douglas, joined in dissent by Chief Justice Warren and Justice Black, wrote, “The blunt truth is that Doris Walker is not discharged for misconduct but either because of her legitimate labor union activities or because of her political ideology or belief. Belief cannot be penalized consistently with the First Amendment . . . The Court today allows belief, not conduct, to be regulated. We sanction a flagrant violation of the First Amendment when we allow California, acting through her highest court, to sustain Mrs. Walker's discharge because of her belief.”

Doris returned to the practice of law and represented people charged under the Alien Registration Act of 1940 (the Smith Act) in California. The Act required all resident aliens to register with the government, enacted procedures to facilitate deportation, and made it a crime for any person to knowingly or willfully advocate the overthrow of the government by force or violence. The work of Doris and other NLG lawyers led to Yates v. United States, in which the Supreme Court overturned the convictions of Smith Act defendants in 1957. After Yates, the government never filed another prosecution under the Smith Act.

During the McCarthy era, Doris was called to testify before the House Un-American Activities Committee and she also represented several HUAC witnesses. From 1956 to 1961, Doris successfully defended William and Sylvia Powell, who faced the death penalty, against Korean War sedition charges. The US government charged that articles Powell had written reporting and criticizing US biological weapons use in Korea were false and written with intent to hinder the war effort. When a mistrial ended the sedition case, the government charged the Powells with treason. Attorney General Robert Kennedy dismissed the case in 1961.

A partner with the NLG firm of Treuhaft & Walker in Oakland, California from 1961 to 1977, Doris’ practice focused on civil rights, free speech and draft cases during the Vietnam War. She also defended death penalty cases. Perhaps best known for her defense of Angela Davis, Doris was part of a legal team that secured Angela’s acquittal on charges of murder, kidnapping and conspiracy. In that case, which Harvard Professor Charles Ogletree in 2005 called “clearly the trial of the 20th century, and one that exemplified the vast and diverse talents of the true Dream Team of the legal profession,” the defense pioneered the use of jury consultants.

Doris was elected president of the NLG in 1970 after a bruising battle during which one opponent labeled her “a man in a woman’s skirt.” She paved the way for the election of six women NLG presidents in the ensuing years.

Serving as Vice President of the International Association of Democratic Lawyers from 1970 to 1978, Doris supported the struggles of victims of U.S. imperialism throughout the world and was instrumental in the development of international human rights law. In 1996, Doris served as one of eight international observers at the South African Truth and Reconciliation Commission hearings led by Desmond Tutu.

In 2004, Doris submitted a resolution on behalf of the NLG Bay Area Chapter to the Conference of Delegates of the California Bar Association asking for an investigation of representations the Bush administration used to justify the war in Iraq, for possible impeachment.

Noted writer Jessica Mitford and Doris were close friends for years; Jessica was married to Robert Truehaft, Doris’ law partner. When Doris invited Jessica to join the Communist Party, the latter replied, “We thought you’d never ask!” There is speculation that author J.K. Rowling, who cited Jessica as her main literary influence, named her Harry Potter house elf “Dobby” after seeing Dobby Walker’s name in Jessica’s books. On a recent visit to her home, Doris showed me the Dobby references in works by Jessica on her bookshelf.

Doris frequently called me with her concerns and opinions about the issues of the day and in the NLG. She remained intensely engaged in politics until the day she died.

Doris “Dobby” Walker inspired generations of progressive lawyers, law students and legal workers to struggle unrelentingly for justice and equality. She was a friend, comrade and role model to scores of people in and out of the NLG. We will never see the likes of her again.

Doris is survived by her daughter Emily Roberson and her granddaughter Iris Feldman. The family requests that contributions in Doris' name be sent to the National Lawyers Guild, 132 Nassau St., Room 922, New York, NY 10038.

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What About Constitutional Powers?

Institute for Public Accuracy
915 National Press Building, Washington, D.C. 20045
(202) 347-0020 * http://www.accuracy.org * ipa@accuracy.org
___________________________________________________

Wednesday, October 29, 2008

What About Constitutional Powers? Two Views

MARJORIE COHN, Libertad48@san.rr.com, http://www.marjoriecohn.com
Cohn is the president of the National Lawyers Guild, a professor at Thomas Jefferson School of Law and the author of "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law." She recently wrote the piece "A Palin Theocracy."

Cohn said today: "The next president will almost certainly appoint one to three justices to the Supreme Court, which is now delicately balanced politically. The most likely justices to retire are John Paul Stevens, Ruth Bader Ginsburg and David Souter. John McCain, who voted to confirm Robert Bork, Clarence Thomas, John Roberts and Samuel Alito, has vowed to appoint more justices like Roberts and Alito to the high court.

One McCain appointee would tip the balance of the Court to the right which would likely overturn Roe v. Wade and decisions protecting the rights of workers and the environment, and decisions curbing the power of the executive. Barack Obama voted against the confirmation of Roberts and Alito, and has promised to appoint justices like Ginsburg and Stephen Breyer. Even if Obama made three appointments, he would not tip the political balance of the Court to the left, but would maintain the status quo since he would likely be replacing the 'liberals.'"

BRUCE FEIN, bruce@thelichfieldgroup.com
Author of the new book "Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy," Fein said today: "It's disgraceful that core constitutional questions have been virtually ignored in this election. Neither McCain nor Obama have indicated that they will move to a constitutional government and away from executive government.

"They have both said they would close Guantanamo, but that's really meaningless since they both assert the right to hold so-called 'enemy combatants' without charge, so they could simply move the people being detained to another facility.

"Both maintain that the executive can initiate war. Both -- like Bush now -- have said that they would not allow further waterboarding and that it is torture, but neither has said that they would prosecute the conceded waterboarding of the Bush administration. Likewise, neither has said they would prosecute members of the current administration for other criminal conduct, such as well-known criminal violations of the FISA statute. Neither Obama nor McCain has disclaimed the authority claimed by Bush to order current or former White House officials to defy congressional subpoena."

Fein recently wrote the piece  "Palin vs. Palin."


For more information, contact at the Institute for Public Accuracy:
Sam Husseini, (202) 347-0020; or David Zupan, (541) 484-9167

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Preemptive Strikes Against Protest at RNC

In the months leading up to the Republican National Convention, the FBI-led Minneapolis Joint Terrorist Task Force actively recruited people to infiltrate vegan groups and other leftist organizations and report back about their activities. On May 21, the Minneapolis City Pages ran a recruiting story called "Moles Wanted." Law enforcement sought to preempt lawful protest against the policies of the Bush administration during the convention.

Since Friday, local police and sheriffs, working with the FBI, conducted preemptive searches, seizures and arrests. Glenn Greenwald described the targeting of protestors by "teams of 25-30 officers in riot gear, with semi-automatic weapons drawn, entering homes of those suspected of planning protests, handcuffing and forcing them to lay on the floor, while law enforcement officers searched the homes, seizing computers, journals, and political pamphlets." Journalists were detained at gunpoint and lawyers representing detainees were handcuffed at the scene.

"I was personally present and saw officers with riot gear and assault rifles, pump action shotguns," said Bruce Nestor, the President of the Minnesota chapter of the National Lawyers Guild, who is representing several of the protestors. "The neighbor of one of the houses had a gun pointed in her face when she walked out on her back porch to see what was going on. There were children in all of these houses, and children were held at gunpoint."

The raids targeted members of "Food Not Bombs," an anti-war, anti-authoritarian protest group that provides free vegetarian meals every week in hundreds of cities all over the world. They served meals to rescue workers at the World Trade Center after 9/11 and to nearly 20 communities in the Gulf region following Hurricane Katrina.

Also targeted were members of I-Witness Video, a media watchdog group that monitors the police to protect civil liberties. The group worked with the National Lawyers Guild to gain the dismissal of charges or acquittals of about 400 of the 1,800 who were arrested during the 2004 Republican National Convention in New York. Preemptive policing was used at that time as well. Police infiltrated protest groups in advance of the convention.

Nestor said that no violence or illegality has taken place to justify the arrests. "Seizing boxes of political literature shows the motive of these raids was political," he said.

Further evidence the political nature of the police action was the boarding up of the Convergence Center, where protestors had gathered, for unspecified code violations. St. Paul City Council member David Thune said, "Normally we only board up buildings that are vacant and ramshackle." Thune and fellow City Council member Elizabeth Glidden decried "actions that appear excessive and create an atmosphere of fear and intimidation for those who wish to exercise their first amendment rights."

"So here we have a massive assault led by Federal Government law enforcement agencies on left-wing dissidents and protestors who have committed no acts of violence or illegality whatsoever, preceded by months-long espionage efforts to track what they do," Greenwald wrote on Salon.

Preventive detention violates the Fourth Amendment, which requires that warrants be supported by probable cause. Protestors were charged with "conspiracy to commit riot," a rarely-used statute that is so vague, it is probably unconstitutional. Nestor said it "basically criminalizes political advocacy."

On Sunday, the National Lawyers Guild and Communities United Against Police Brutality filed an emergency motion requesting an injunction to prevent police from seizing video equipment and cellular phones used to document their conduct.

During Monday's demonstration, law enforcement officers used pepper spray, rubber bullets, concussion grenades and excessive force. At least 284 people were arrested, including Amy Goodman, the prominent host of Democracy Now!, as well as the show's producers, Abdel Kouddous and Nicole Salazar. "St. Paul was the most militarized I have ever seen an American city to be," Greenwald wrote, "with troops of federal, state and local law enforcement agents marching around with riot gear, machine guns, and tear gas cannisters, shouting military chants and marching in military formations."

Bruce Nestor said the timing of the arrests was intended to stop protest activity, "to make people fearful of the protests, but also to discourage people from protesting," he told Amy Goodman. Nevertheless, 10,000 people, many opposed to the Iraq war, turned out to demonstrate on Monday. A legal team from the National Lawyers Guild has been working diligently to protect the constitutional rights of protestors.

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Supreme Court Checks and Balances in Boumediene

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

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The National Lawyers Guild Condemns Senate Grant of Immunity to Lawbreaking Telecommunications Companies

Responding to fear-mongering by the Bush administration, the Senate voted on February 12 to give retroactive immunity to the telecommunications companies that have turned over our telephone and Internet communications to the government. These companies have violated several laws, including the Foreign Intelligence Surveillance Act (FISA), Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution.

The Bush administration has been illegally engaging in warrantless surveillance since early 2001, through its "Terrorist Surveillance Program." Over 40 lawsuits against the telecommunications companies challenging the legality of the program are pending.

On the eve of Congress's Labor Day recess last year, the Bush administration had rammed that the "Protect America Act" through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn't anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that provided consumer telephone and computer data to the government.

The day before the Senate took up this issue, Vice President Dick Cheney invoked the memory of September 11, 2001 twelve times in his address to the Heritage Foundation, and urged Congress to make the Act permanent. In the face of lawsuits against the telecom companies, Attorney General Michael Mukasey described the need for the companies to defend against litigation as "an enormous burden." Indeed, defending these lawsuits has likely cut in to their enormous profits.

Although President George W. Bush claims that making the Act permanent was critical to keeping us safe, he threatens to veto the bill unless it includes the immunity provision. Apparently protecting corporate profits trumps national security.

The House of Representatives passed a bill without immunity for the telecoms. The two bills will have to be harmonized. The National Lawyers Guild urges Congress to adopt the House version that omits immunity. Litigation against the telecommunications companies is the only remaining avenue of accountability for the administration's lawbreaking.

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

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Senate Poised to Capitulate to Cheney's Fear-Mongering

After a January 24 debate in the Senate on amending the Foreign Intelligence Surveillance Act, the Senate appears ready to capitulate once again to the Bush administration's agenda of sacrificing liberty for questionable security.

On the day before Congress was slated to take up this issue, Dick Cheney addressed the Heritage Foundation, the most influential right-wing think tank. He was given a thunderous reception, to which he quipped, "I hold an office that has only one constitutional duty - presiding over the Senate and casting tie-breaking votes." But the most powerful vice president in this nation's history was about to strong-arm Congress into doing the administrations' bidding.

Invoking the memory of September 11, 2001 twelve times, Cheney said it was "urgent" that Congress update the FISA law immediately and permanently. Notwithstanding the administration's well-known violations of FISA months before 9/11, Cheney claimed they had used "every legitimate tool at our command to protect the American people against another attack." He omitted the illegal tools the administration has admitted using, that is, Bush's so-called "Terrorist Surveillance Program" and a massive data mining program. FISA makes it a crime, punishable by up to five years in prison, for the executive to conduct a wiretap without statutory authorization. The TSP has been used to target not just the terrorists, but also critics of administration policies, particularly the war in Iraq.

Although Cheney repeatedly linked amending FISA with protecting America, there is no evidence Bush's secret spying program has made us any safer. Indeed, in 2006, the Washington Post reported that nearly all of the thousands of Americans' calls that had been intercepted revealed nothing pertinent to terrorism. About the same time, the New York Times quoted a former senior federal prosecutor, who described tips from intelligence officials involved in the surveillance. "The information was so thin and the connections were so remote, that they never led to anything, and I never heard any follow-up," he said.

In his speech to the Heritage Foundation, Cheney aimed to bully Congress into making the so-called "Protect America Act of 2007" permanent. On the eve of Congress's Labor Day recess last year, the Bush administration had rammed that act through a Congress still fearful of appearing soft on terror. It was a 6-month fix to the 1978 FISA, which didn't anticipate that foreign intelligence communications would one day run through Internet providers in the United States. But the temporary law, which expires February 1, went further than simply fixing that glitch in FISA; it granted immunity to telecommunications companies that turned over our telephone and Internet communications to the government.

Permanent immunity, retroactive to 9/11, for the telecommunications companies is apparently the most critical concern of the Bush administration, whose primary constituency has been the mega-corporations. Although Cheney touted these companies as patriotic partners in the administration's "war on terror," they are breaking several U.S. laws, including FISA itself, Title III, the Communications Act, and the Stored Communications Act, as well as the First and Fourth Amendments to the Constitution. Indeed, as the Electronic Frontier Foundation put it, "the real heroes are the companies that refused to help [the administration], like Verizon Wireless" and Quest Communications.

Cheney quoted Attorney General Michael Mukasey, who described the need for these companies to defend against litigation as "an enormous burden." What he really meant is that defending the roughly 40 pending lawsuits is cutting into their enormous profits.

The House of Representatives passed a bill without immunity for the telecoms. But in a 60-36 vote, the Senate rejected a proposal from the Senate Judiciary Committee that omitted immunity and contained important limits on wiretapping powers. Republican senators John McCain and Lindsey Graham, and Democratic senators Hillary Clinton and Barack Obama were not present for the vote.

Senator Christopher Dodd has indicated his intent to filibuster, or prevent a Senate vote, on a version of the bill that includes immunity. Senate Majority Leader Harry Reid apparently now supports the filibuster. The Senate is scheduled to vote on whether to proceed to a final Senate vote on this issue on January 28. Three of the Democrats who voted against the SJC proposal must be persuaded to change their votes, and Clinton and Obama must follow suit in order to maintain the filibuster and prevent the Senate from adopting a bill that includes immunity and omits vital civil liberties safeguards.

Here are the Democrats who voted against the SJC proposal:

Bayh (202) 224-5623
Carper (202) 224-2441
Inouye (202) 224-3934
Johnson (202) 224-5842
Landrieu (202)224-5824
McCaskill (202) 224-6154
Mikulski (202) 224-4654
Nelson (FL) (202) 224-5274
Nelson (NE) (202) 224-6551
Pryor (202) 224-2353
Salazar (202) 224-5852

John Edwards, the only Democratic presidential candidate willing to effectively take on the corporations, should weigh in against immunity for the telecoms and challenge his competitors to do the same. This is a golden opportunity for Clinton and Obama to exercise leadership on a crucial issue. Our civil liberties and privacy rights are at stake.

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National Lawyers Guild and Society of American Law Teachers Strongly Oppose Homegrown Terrorism Act

On October 23, 2007, the House of Representatives passed the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007 by a vote of 404-6. The bill will be referred out of committee this week and will then go to the Senate floor. The National Lawyers Guild and the Society of American Law Teachers strongly oppose this legislation because it will likely lead to the criminalization of beliefs, dissent and protest, and invite more draconian surveillance of Internet communications.

This bill would establish a Commission to study and report on "facts and causes" of "violent radicalism" and "extremist belief systems." It defines "violent radicalism" as "adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change." The term "extremist belief system" is not defined; it could refer to liberalism, nationalism, socialism, anarchism, communism, etc.

"Ideologically based violence" is defined in the bill as the "use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual's political, religious, or social beliefs." Thus, "force" and "violence" are used interchangeably. If a group of people blocked the doorway of a corporation that manufactured weapons, or blocked a sidewalk during an anti-war demonstration, it might constitute the use of "force" to promote "political beliefs."

The bill charges that the Internet "has aided in facilitating violent radicalization, ideologically based violence, and the homegrown terrorism process in the United States by providing access to broad and constant streams of terrorist-related propaganda to United States citizens." This provision could be used to conduct more intrusive surveillance of our Internet communications without warrants.

This legislation does not criminalize conduct, but may well lead to criminalizing ideas or beliefs in violation of the First Amendment. By targeting the Internet, it may result in increased surveillance of Internet communications in violation of the Fourth Amendment.

The National Lawyers Guild and the Society of American Law Teachers strongly urge the Senate to refuse to pass the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007.

Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States. Its headquarters are in New York and it has chapters in every state.

The Society of American Law Teachers (SALT) is a community of progressive law teachers working for justice, diversity and academic excellence. SALT is the largest membership organization of law faculty and legal education professionals in the United States.

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Remembering Victor Rabinowitz: Legal Giant of the Left

On November 16, 2007, Victor Rabinowitz, one of the giants of the legal profession and a tireless fighter for social justice, died at the age of 96. One of the founders of the National Lawyers Guild 70 years ago, Victor defended unpopular clients when other lawyers were afraid to touch them. During the McCarthy period, he and his partner Leonard Boudin represented unions that were considered to be left-wing. The firm counted as clients Daniel Ellsberg, Paul Robeson, Julian Bond, Dashiell Hammett, Dr. Benjamin Spock, the Rev. Philip Berrigan, Alger Hiss, the Black Panthers, the Salvador Allende government in Chile, and the Cuban government.

Victor handled several landmark cases. In 1950, he challenged the provision of the Taft-Hartley Act that prevented unions from representing workers unless all union officers swore a loyalty oath that they were not members of or affiliated with the Communist Party. He lost the case 5 to 4 in the Supreme Court. His work in the Supreme Court case of United States v. Yellin was instrumental in the demise of the notorious House Un-American Activities Committee (HUAC). In 1964, in a 8 to 1 decision, the Supreme Court held in Banco Nacional de Cuba v. Sabbatino that U.S. courts cannot review the legality of the Cuban nationalizations of U.S.-owned property under international law. Victor represented the government of Cuba in that case.

John Mage, prominent radical lawyer and Officer and Director of the Monthly Review Foundation, wrote a review of Victor's book, Unrepentant Leftist: A Lawyer's Memoir, for Monthly Review. Mage recalled his favorite Victor story: "In the Cuban bank litigation, Victor (representing the Cubans) was served with a discovery demand that he forwarded to the Cuban Finance Ministry, at that time headed by Che. Shortly afterwards he was in Havana for an anniversary celebration and was invited to accompany Guevara. Che directed Victor's attention to the confetti being thrown from an office tower and said 'remember that discovery demand? . . . There it is.'"

The Rabinowitz Boudin partnership "constituted the defining invention of radical lawyering," said Northwestern law professor Bernardine Dohrn, a leader of the Weathermen who became the Guild student organizer while Victor was NLG president in 1967. The firm "always represented the most controversial victims of oppressive state power: labor struggles, the Community Party cases, constitutional right to travel and political speech issues, defense of the Cuban revolution, support for the civil rights/Black Freedom Movement, defense of anti-Vietnam War activists, and legal defense of Palestinian political activists," Dohrn added.

In his book, Victor characterized McCarthyism as "the era of Great Fear." In those days, it was the fear of Communism; today, it is the fear of Terrorism that the administration uses as an excuse to decimate civil liberties. Describing the government repression against Communists, leftists, and those suspected of being associated with them, Victor wrote, "It was the worst of times . . . It was a terrible and terrifying time." Even the ACLU "succumbed to the red scare" in those days.

"It became dangerous to utter radical or even progressive thoughts in an audible tone of voice," he added. The motion picture industry, teachers, progressive Congress members, progressive organizations, and those who read books considered "un-American" were targeted. "Thousands of people lost their jobs, with little prospect of finding new ones quickly. Families were destroyed and friendships were wrecked," Victor reported.

Rabinowitz Boudin "probably represented more clients before McCarthy and HUAC than any other law firm in the country, mostly for little or no fee," said Michael Krinsky, a partner in the firm.

Victor wrote, "I was under surveillance by the FBI from the early fifties until the late sixties. The earliest report on me I've found in my FBI files states that on June 23, 1943, I was believed to be a member of the Communist party, and it further described me as an 'agile-minded labor attorney' [Thanks]." Victor joined the Communist Party in 1942 after the Soviet Union and the United States became allies; he remained a member until the early 1960s.

During the Vietnam War, the Rabinowitz Boudin firm represented hundreds of men facing the draft or criminal charges for refusing induction due to their opposition to the war.

Lawyers pick and choose the cases they take for various reasons. Victor's decisions were always based on principle. "I had always adhered to a few basic rules," Victor observed. "I would not represent a landlord against a tenant; I would not represent a drug dealer; I would not represent an employer against a union; I would not represent a fascist or right-wing institution."

Victor helped found the National Lawyers Guild, to, in his words, "counter the anti-New Deal corporation-controlled American Bar Association (ABA), which at that time did not admit black lawyers or Communists to membership." As former Guild president and Yale law professor Thomas Emerson wrote, "The National Lawyers Guild was born in revolt - a revolt that embraced the entire intellectual life of the times."

Victor's efforts contributed mightily to the Guild's survival after the McCarthy period. He counted his work with the Guild as perhaps his most significant accomplishment. "There are a few things I can point to with some pride," Victor reflected. "The National Lawyers Guild is almost sixty years old, and I played some part in building it. I cannot think of more than a handful of national progressive organizations that have lived so long in this perilous world."

Tributes to Victor are legion. Doris Brin Walker, the first woman president of the Guild and one of its leaders during the McCarthy period, said, "Victor was inspirational, witty, insightful, tolerant/intolerant, humane, didactic - one of the most important and beloved persons in my life. And he will remain so." Ann Fagan Ginger, another Guild leader in this era, noted, "During the McCarthy/Truman repressive period, Victor played a particularly important role in meeting with other lawyers to figure out the best strategies to defend against, and finally to attack, the Red Baiters. His principles were larger than his ego, and after the meetings, he went back to his office and saw to it that the tasks agreed on were actually carried out." She called the Rabinowitz Boudin firm "a place of refuge and hope for many whose jobs, reputations, and family relationships were under attack."

"In each decade, Victor managed to stay utterly committed to the revolutionary principles of his youth," according to Dohrn, "to work with the highest intellectual and professional standards of the law, and to attract clients of the most urgent issues of the moment. His passionate love of books, his dedicated friendships, and his wry humor abide in our hearts."

The National Lawyers Guild and all justice-loving people will miss Victor Rabinowitz. He was a giant of a man.

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Erwin Chemerinsky and the Post-9/11 Attack on Academic Freedom

One week after renowned legal scholar Erwin Chemerinsky was offered the position of dean of the new law school at the University of California at Irvine, Chancellor Michael Drake withdrew the offer, informing Professor Chemerinsky he had proved to be "too politically controversial." Duke Law Professor Chemerinsky is one of the most eminent law teachers and constitutional law scholars in the country. Author of a leading treatise on constitutional law, he has written four books and more than 100 law review articles. In 2005, he was named by Legal Affairs as one of "the top 20 legal thinkers in America."

This is the latest chapter in the post September 11 attack on academic freedom under the guise of protecting security. Two weeks after 9/11, former White House spokeman Ari Fleischer cautioned Americans "they need to watch what they say, watch what they do." The American Council of Trustees and Alumni, a group founded by Lynne Cheney and Senator Joe Lieberman, accused universities of being the weak link in the war on terror; it listed the names of 117 "un-American" professors, students and staff members. A few months later, a blacklisting Internet site called Campus Watch was launched. It published dossiers on scholars who criticized U.S. Middle East policy and Israel's treatment of the Palestinians. And the Bruin Alumni Association at UCLA offered students $100 to tape left-wing professors.

In 2003, the American Association of University Professors recalled the "still-vivid memories of the McCarthy era" and warned of the perils of sacrificing academic freedom in the war on terror. The premise of their report was that "freedom of inquiry and the open exchange of ideas are crucial to the nation's security, and that the nation's security and, ultimately, its well-being are damaged by practices that discourage or impair freedom."

At a 2004 conference on academic freedom at UC Berkeley, Professor Beshara Doumani observed, "Academic freedom in the United States is facing its most important threat since the McCarthy era of the 1950s. In the aftermath of 11 September 2001, government agencies and private organizations have been subjecting universities to an increasingly sophisticated infrastructure of surveillance, intervention, and control. In the name of the war against terrorism, civil liberties have been seriously eroded, open debate limited, and dissent stifled."

Art. 9, § 9 of the California Constitution, which sets forth the powers and duties of the Regents of the University of California, provides, "The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs."

Drake denied he was influenced by pressure from donors, politicians or the UC California Board of Regents. Yet psychology professor Elizabeth Loftus, a member of the search committee, told the Los Angeles Times that Drake advised the committee he was compelled to make the decision by outside forces whom he did not identify. Her account was confirmed by a second member of the committee, who talked to the Times on condition of anonymity.

Chemerinsky has handled several cases in the appellate courts and the U.S. Supreme Court, and has testified many times before congressional and state legislative committees, including before the Senate Judiciary Committee in the Samuel Alito confirmation hearings. Chemerinsky has represented Valerie Plame Wilson, the CIA agent whose identity was revealed by members of the Bush administration; a Guantánamo detainee asserting his right to habeas corpus; a man sentenced to 50 years-to-life under California's three strikes law; and a person challenging the Texas Ten Commandments monument.

UCI's November 16, 2006 press release announcing the inauguration of the new law school said, "UCI law graduates will be particularly encouraged to pursue careers in public service, including non-governmental organizations and philanthropic agencies. As part of their training, UCI law students will provide legal services to people who are unable to afford counsel. They also will be encouraged to pursue public interest law through programs focusing on underserved communities." Chemerinsky is devoted to public service as well as legal scholarship and education. He was elected by voters to be a Commissioner and chaired the Los Angeles Elected Charter Reform Commission; the new Charter was adopted by voters in 1999. He also spearheaded the Los Angeles Independent Analysis of the Board of Inquiry Report on the Rampart Police Scandal, Prepared at the Request of the Police Protective League, September 2000.

Untold numbers of law students have been helped through law school and the bar exam by Chemerinsky, including National Lawyers Guild Student Vice President Teague Briscoe, who said, "Chermerinsky on Constitutional Law saved my life in law school and I loved him doing the Professional Responsibility lectures but, most of all, I really dug that he was a progressive law prof who defends an unpopular client."

David Dow, an adjunct lecturer at the Annenberg School of Journalism and former veteran CBS correspondent who frequently interviewed Chemerinksy on legal issues, said, "I can't imagine any considerations that would outweigh the prospect of launching a law school with an internationally-known, highly-respected, fair-minded expert at the helm. Apart from his legal and professional credentials, Erwin has demonstrated an ability to get along well with colleagues and the community wherever he's been." Dow's words were echoed by Stanford Law School Dean Larry Kramer, who called Chemerinsky "the nicest person in legal education." Conservative law professor Douglas Kmiec wrote of Chemerinsky, "there is no person I would sooner trust to be a guardian of my constitutional liberty. Nor is there anyone I would sooner turn to for a candid, intellectually honest appraisal of an academic proposal."

One of the "controversial" matters Drake cited to Chemerinsky was an August op-ed the professor wrote in the Los Angeles Times criticizing a proposed regulation by then-Atty. Gen. Alberto Gonzales to shorten the time death row inmates have to file habeas corpus petitions. In an op-ed in the Sep. 14 Times, Chemerinsky explained, "There are more than 275 individuals on death row in California without lawyers for their post-convictions proceedings. The effect of the new rule would be that many individuals, including innocent ones, would not get the chance to have their cases reviewed in federal court."

Drake's action, which sends a clear message to academics that they must avoid speaking out or writing about controversial issues, is a threat to academic freedom. As Chemerinsky wrote, "Without academic freedom, the reality is that many faculty members would be chilled and timid in expressing their views, and the discussion that is essential for the advancement of thought would be lost."

Hundreds of faculty, students and staff at UC Irvine are urging reinstatement of Chemerinsky. In an open letter to Drake, they wrote, "We are disturbed because of the deep violation both of the integrity of the university and of the intrusion of outrageously one-sided politics and unacceptable ideological considerations into a hiring process that should be driven by academic excellence, administrative experience, leadership capacity, and personal integrity."

Chancellor Michael Drake should immediately reinstate Professor Erwin Chemerinsky as dean of the UC Irvine Law School.

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Targeting Dissent: FBI Spying on the National Lawyers Guild

In 1937, the American Bar Association refused to allow people of color to join its ranks. With the blessing of President Franklin D. Roosevelt, the National Lawyers Guild was founded as a multi-racial alternative to the ABA. The Guild's founding members included the attorney general, several judges, some congressmen, and the head of the National Labor Relations Board.

Three years after the creation of the National Lawyers Guild, the FBI began to conduct secret surveillance of the Guild. From 1940 to 1975, the FBI wiretapped Guild phones, burglarized Guild offices, and sent informers into Guild meetings. The June 25, 2007 New York Times report on the FBI's program of spying on the Guild omits FBI Director J. Edgar Hoover's primary rationale for undertaking this surveillance: "to blunt the Guild's criticism of the FBI and, if possible, to destroy the organization," in the words of Michael Krinsky, one of the lawyers who filed the 1977 lawsuit against the FBI.

The Guild, which provided legal support for the people, was a thorn in Hoover's side. In 1950, the Guild was about to release a big exposé on the FBI, prepared by Yale law professor and ex-Guild president Thomas Emerson. No other organization was undertaking such a comprehensive criticism of the FBI. Through illegal wiretaps and informants the FBI learned of the Guild's impending report. In advance of the report's release, the FBI launched a pre-emptive strike at the Guild by causing people in the press and the Senate to denounce the report. "So the story became the Lawyers Guild, not the FBI," Krinsky said.

The FBI asked Richard M. Nixon, a member of the House Un-American Activities Committee (HUAC), to call for an investigation of the Guild, on the eve of the release of the Guild report. The investigation led to the 1950 HUAC report titled, "National Lawyers Guild: Legal Bulwark of the Communist Party." It concluded with a call to the attorney general to designate the National Lawyers Guild a "subversive organization." The AG complied in 1953, but when no evidence to support the designation was forthcoming, he dropped it in 1958.

From the 1950s through the early 1970s, the FBI continued to focus on the National Lawyers Guild. The FBI had a list called The Security Index, which identified people, including Guild leaders, to be rounded up in the event of a national emergency.

Hoover's COINTELPRO (Counter-Intelligence Program) engaged in illegal surveillance of other organizations and individuals as well as the Guild. For example, in a program called Racial Matters, the FBI wiretapped Dr. Martin Luther King Jr.'s hotel rooms and tried to drive him to divorce and suicide. Dr. King's voter registration campaign and especially his vocal opposition to the Vietnam War incurred the wrath of J. Edgar Hoover, who went after Dr. King with a vengeance. Groups such as the Committee in Solidarity with the People of El Salvador (CISPES) were also on Hoover's surveillance list.

The revelation of President Richard Nixon's illegal surveillance of groups opposed to his policies as well as hearings by a select Senate committee chaired by Senator Frank Church led to the enactment of the Foreign Intelligence Surveillance Act (FISA) and other curbs on the power of the FBI and the CIA. Today we are faced with President George W. Bush's secret domestic spying program, which, as I explain in my book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, violates not only FISA, but the Fourth Amendment as well.

Bush's predecessors illegally targeted those who criticized their policies, under the guise of fighting communism. Bush's rationale for bending the Constitution is fighting terrorism, but his attacks are leveled at disssenters.

The HUAC report and the AG's designation of the Guild not only violated the Constitution; they nearly succeeded in destroying the organization. Membership in the Guild fell to about 300 members. But the Guild survived and today it boasts nearly 6,000 members.

Members of the National Lawyers Guild continue to work beside those who struggle for economic, racial and sexual equality, and against imperial wars and occupations. I'm proud to have been a Guild member for more than half of its 70-year life.

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Pentagon Attacks Lawyers of Guantánamo Detainees

In one of the most severe blows the Bush administration has dealt to our constitutional democracy, the Pentagon attacked the lawyers who have volunteered to represent the Guantánamo detainees.

Deputy Assistant Secretary of Defense Charles Stimson threatened corporate lawyers who agree to defend the men and boys imprisoned there. Flashing a list of corporations that use law firms doing this pro bono work, Stimson declared, "Corporate C.E.O.'s seeing this should ask firms to choose between lucrative retainers and representing terrorists."

In 1770, John Adams defended nine British soldiers including a captain who stood accused of killing five Americans. No other lawyer would defend them. Adams thought no one in a free country should be denied the right to a fair trial and the right to counsel. He was subjected to scorn and ridicule and claimed to have lost half his law practice as a result of his efforts.

Adams later said his representation of those British soldiers was "one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

Federal Judge Green, who has handled the many habeas corpus petitions filed by the Guantánamo detainees, expressed appreciation for the lawyers: "I do want to say we are very grateful for those attorneys who have accepted pro bono appointments. That is a service to the country, a service to the parties. No matter what position you take on this, it is a grand service."

More than 750 men and boys have been held like animals in cages during the last five years at Guantánamo. Many were picked up by warlords and sold to the U.S. military for bounty. None has been tried for any crime. Very few even have any criminal charges against them.

Ironically, there were no alleged terrorists connected with 9/11 there until Bush recently transferred 14 men from his secret CIA prisons to Guantánamo. Meanwhile, hundreds of detainees languish in custody, aided by 500 courageous lawyers from 120 firms who have volunteered countless hours to represent them.

Under the Military Commissions Act Bush just rammed through Congress, the Guantánamo prisoners could be held for the rest of their lives without ever seeing a judge. Those who decide that death could not be worse than life at Gitmo have participated in a hunger strike.

Rather than subject the Bush administration to embarrassment when prisoners die in U.S. custody, military guards force feed them. Thick plastic tubes are forced down their throats with no anesthesia. Tubes are not sterilized before being reused on other prisoners. The UN Human Rights Commission called the force-feeding "torture." Many prisoners also report being tortured during interrogations.

Guantánamo has become the symbol of U.S. hypocrisy. While fighting the "war on terror" and attacking other countries for their human rights abuses, the officials in the Bush administration have become war criminals. Torture and cruel or inhuman treatment are punishable as war crimes under the U.S. War Crimes Act.

The Supreme Court held in Rasul v. Bush that the Guantánamo prison is under U.S. jurisdiction, so prisoners there are entitled to the protections of the Constitution. The Sixth Amendment mandates that every person charged with a crime has the right to be defended by an attorney. The government is forbidden by the Fifth Amendment from denying any "person" -- U.S. citizen or not -- due process of law. The presumption of innocence is enshrined in our legal system.

Bush's attack on lawyers is the latest assault on our civil liberties, which now includes warrantless surveillance of our phone calls and email, and most recently, our U.S. Mail. Although Bush says he's spying on the terrorists, those who criticize his policies, including his illegal and immoral war on Iraq, are also invariably in his cross hairs.

All Americans should heed the words of Martin Niemoller: "First they came for the Communists, but I was not a Communist, so I said nothing. Then they came for the Social Democrats, but I was not a Social Democrat, so I did nothing. Then came the trade unionists, but I was not a trade unionist. And then they came for the Jews, but I was not a Jew, so I did little. Then when they came for me, there was no one left who could stand up for me."

George W. Bush must immediately renounce Stimson's threats and relieve him of his duties. A country that would sacrifice its own values under the guise of protecting them has no moral authority in this world.

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Rounding Up U.S. Citizens

The Military Commissions Act of 2006 governing the treatment of detainees is the culmination of relentless fear-mongering by the Bush administration since the September 11 terrorist attacks.

Because the bill was adopted with lightning speed, barely anyone noticed that it empowers Bush to declare not just aliens, but also U.S. citizens, "unlawful enemy combatants."

Bush & Co. has portrayed the bill as a tough way to deal with aliens to protect us against terrorism.

Frightened they might lose their majority in Congress in the November elections, the Republicans rammed the bill through Congress with little substantive debate.

Anyone who donates money to a charity that turns up on Bush's list of "terrorist" organizations, or who speaks out against the government's policies could be declared an "unlawful enemy combatant" and imprisoned indefinitely. That includes American citizens.

The bill also strips habeas corpus rights from detained aliens who have been declared enemy combatants.

Congress has the constitutional power to suspend habeas corpus only in times of rebellion or invasion. The habeas-stripping provision in the new bill is unconstitutional and the Supreme Court will likely say so when the issue comes before it.

Although more insidious, this law follows in the footsteps of other unnecessarily repressive legislation. In times of war and national crisis, the government has targeted immigrants and dissidents.

In 1798, the Federalist-led Congress, capitalizing on the fear of war, passed the four Alien and Sedition Acts to stifle dissent against the Federalist Party's political agenda. The Naturalization Act extended the time necessary for immigrants to reside in the U.S. because most immigrants sympathized with the Republicans.

The Alien Enemies Act provided for the arrest, detention and deportation of male citizens of any foreign nation at war with the United States. Many of the 25,000 French citizens living in the U.S. could have been expelled had France and America gone to war, but this law was never used. The Alien Friends Act authorized the deportation of any non-citizen suspected of endangering the security of the U.S. government; the law lasted only two years and no one was deported under it.

The Sedition Act provided criminal penalties for any person who wrote, printed, published, or spoke anything "false, scandalous and malicious" with the intent to hold the government in "contempt or disrepute." The Federalists argued it was necessary to suppress criticism of the government in time of war. The Republicans objected that the Sedition Act violated the First Amendment, which had become part of the Constitution seven years earlier. Employed exclusively against Republicans, the Sedition Act was used to target congressmen and newspaper editors who criticized President John Adams.

Subsequent examples of laws passed and actions taken as a result of fear-mongering during periods of xenophobia are the Espionage Act of 1917, the Sedition Act of 1918, the Red Scare following World War I, the forcible internment of people of Japanese descent during World War II, and the Alien Registration Act of 1940 (the Smith Act).

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

One month after the terrorist attacks of September 11, 2001, United States Attorney General John Ashcroft rushed the U.S.A. Patriot Act through a timid Congress.

The Patriot Act created a crime of domestic terrorism aimed at political activists who protest government policies, and set forth an ideological test for entry into the United States.

In 1944, the Supreme Court upheld the legality of the internment of Japanese and Japanese-American citizens in Korematsu v. United States. Justice Robert Jackson warned in his dissent that the ruling would "lie about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."

That day has come with the Military Commissions Act of 2006. It provides the basis for the President to round- up both aliens and U.S. citizens he determines have given material support to terrorists. Kellogg Brown & Root, a subsidiary of Cheney's Halliburton, is constructing a huge facility at an undisclosed location to hold tens of thousands of undesirables.

In his 1928 dissent in Olmstead v. United States, Justice Louis Brandeis cautioned, "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Seventy- three years later, former White House spokesman Ari Fleischer, speaking for a zealous President, warned Americans "they need to watch what they say, watch what they do."

We can expect Bush to continue to exploit 9/11 to strip us of more of our liberties. Our constitutional right to dissent is in serious jeopardy. Benjamin Franklin's prescient warning should give us pause: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

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The New Civil Rights Movement

In a wave of mass protest not seen since the 1960s, hundreds of thousands of people have taken to the streets to demand justice for the undocumented. An unprecedented alliance between labor unions, immigrant support groups, churches, and Spanish-language radio and television has fueled the burgeoning civil rights movement.

The demonstrations were triggered by the confluence of a draconian House bill that would make felons out of undocumented immigrants and HBO's broadcast of Edward James Olmos's film, "Walkout." But the depth of discontent reflects a history of discrimination against those who are branded "illegal aliens."

Since September 11, 2001, immigrants have become the whipping boys for the "war on terror." Calls for enhanced militarization of the southern US border - including a 700-mile-long Sisyphean fence - reached a crescendo in the bill passed by the House of Representatives.

Under its terms, three million US-citizen children could be separated from their parents, who would be declared felons and be subject to immediate detention and deportation. Those who employ them, and churches and nonprofits that support them, could face fines or even prison.

Cardinal Roger Mahony called it a "blameful, vicious" bill, and vowed to continue serving the undocumented even if it were outlawed.

Immigrants comprise one-third of California's labor force. But claims that immigrants take jobs away from Americans are overblown. Last summer, California suffered from labor shortages in spite of the high percentage of undocumented workers who labor in the fields.

As a likely result of pressure from business dependent on cheap labor and the escalating protests around the country, the Senate Judiciary Committee passed a bill that strikes a more reasonable balance. It would legalize the nation's 11 million undocumented immigrants, and provide them with the opportunity to become citizens. They would have to remain employed, pass criminal background checks, learn English and civics, and pay fines and back taxes. A temporary worker program would allow about 400,000 foreign nationals to enter the United States each year; they too could be granted citizenship.

The current debate in the full Senate has focused on accusations and denials of "amnesty" and threats to national security. But the "immigration problem" is more complex than the sound bytes that proliferate. Seventy-eight percent of the 11 million undocumented immigrants are from Mexico or other Latin American countries.

According to Michael Lettieri, a Research Fellow with the Council on Hemispheric Affairs, "The free trade accords that the Bush administration so tirelessly promotes do little to remedy such maladies, as both NAFTA and CAFTA-DR leave regional agricultural sectors profoundly vulnerable, as well as disadvantaged, in the face of robustly subsidized US agribusiness that enables Iowa to undersell Mexico when it comes to corn."

The US was instrumental in the passage of NAFTA, which protects the rights of employers and investors but not workers. As a result of NAFTA, wages in Mexico, Canada and the United States have fallen. US food exports have driven millions of poor Mexican peasants from their communities. They come north to find work.

Seventeen-year-old Carlos Moreno was among the thousands of students in Los Angeles who walked out of their high schools to protest the attack on immigrants. "I was born here," he said, "but I'm doing it for my parents, and for my family, and for all the Latinos, because I know what the struggle is."

Sergio, an undocumented tenth grader from San Diego High School, attended a rally in San Diego's historic Chicano Park. "My parents are proud of me," he said. "They told me that I should help every time I can."

A few years ago, San Diego filmmakers Issac and Judith Artenstein released "A Day Without a Mexican." In the film, all of the Mexicans in California disappeared one day. Gone were the cooks, gardeners, nannies, policemen, doctors, farm and construction workers, entertainers, athletes, as well as the largest growing market of consumers. The world's fifth largest economy was paralyzed.

Today we celebrate the birthday of César Chávez, one of the most influential labor leaders this country has ever known. In the 1970s, when undocumented workers crossed the border and went to work in California's fields for lower wages than employers had to pay union members, the United Farm Workers began to call the migra to have them deported. Eventually, César realized that a much better solution was to organize those immigrants into the union.

The answer is not to shut out those who work for less than minimum wage, without workers' compensation, occupational safety protections, and overtime pay. "It is a common-sense solution to bring an underground economy above ground," Senator Edward Kennedy (D-Mass.) said, "with strong labor protections to improve working conditions for all."

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Bush on Trial for Crimes against Humanity

The International Commission of Inquiry on Crimes against Humanity Committed by the Bush Administration convened last weekend in New York City's Riverside Church. Martin Luther King Jr.'s portrait hangs in the foyer. Dr. King delivered his historic 1967 speech, "Beyond Vietnam: A Place to Break the Silence," opposing the war and calling for the removal of all foreign troops from Vietnam, in that same church.

Center for Constitutional Rights President Michael Ratner, who delivered a keynote address to the commission of inquiry, invoked Dr. King's words from 1967: "A time comes when silence is betrayal." The following year, the Bertrand Russell War Crimes Tribunal put the US government on trial for "crimes without precedent" it was committing in Vietnam. In the tradition of the Russell tribunal, the panel of judges at the commission of inquiry heard evidence of George W. Bush's war crimes and crimes against humanity committed in Iraq, Afghanistan, Guantánamo Bay, and elsewhere.

Ratner said that Bush openly and notoriously "laid the plan for coup d'état in America" with a small paragraph in his "signing statement" attached to the McCain anti-torture amendment. Bush wrote that his commander in chief power allows him to do anything he thinks is necessary, including torture, notwithstanding the amendment passed by Congress. Ratner called that a "historic, unprecedented grab for power" that spells the end of checks and balances in our government. Bush, according to Ratner, has declared that George Bush is the law.

Harry Belafonte gave the other keynote address. "When a government fails to protect justice," Belafonte declared, "it is the responsibility of the people to rise up and change the guard, change the regime." In a hoarse voice, the legendary singer charged, "Those who fail to answer that call should be charged with patriotic treason."

T r u t h o u t writer Ray McGovern, a CIA analyst from 1961 to 1990, took the testimony of Scott Ritter, a senior United Nations weapons inspector in Iraq from 1991 to 1998. The allegation that Iraq possessed weapons of mass destruction was the only justification on which George W. Bush's war in Iraq was based, McGovern said. He cited statements by Colin Powell and Condoleezza Rice before September 11, 2001, that Saddam Hussein had no WMDs and was unable to pose even a conventional threat to his neighbors. After September 11, however, Donald Rumsfeld expressed "no doubt" that Hussein had WMDs. "A trained ape knows that," Rumsfeld said.

Ritter noted that Rumsfeld knew Iraq had disarmed and had no ongoing weapons program. By 1998, the weapons inspectors had accounted for 95 to 98 percent of Iraq's WMDs, Ritter said. "No nation had hard factual data that Iraq retained or was reconstituting WMDs," Ritter added. "No nation had those facts."

The Bush administration willfully misled the American people about Iraq's weapons programs, Ritter charged. When Dick Cheney said that Iraq was constituting its nuclear program, he "was lying," Ritter said.

From 1991 to 2003, the United States policy in Iraq was regime change, according to Ritter. The US and the United Kingdom sought to maintain the public perception that Iraq was not complying with its obligations to disarm, in order to justify regime change. The US never intended to disarm Iraq; it would have had to lift the sanctions, which were aimed at undermining Iraq's welfare, weakening the government, and facilitating regime change.

"Intelligence" in the George W. Bush administration "was being fixed around the policy of regime change," Ritter maintained. "What passes for intelligence is nothing more than politically motivated propaganda." He said, "There was no intelligence failure because the policy wasn't disarmament; it was regime change."

Another witness, David Swanson, from www.afterdowningstreet.org, detailed the Downing Street Minutes, which were prepared in March 2002 and July 2002, but were leaked to the public last spring. They disclosed that Bush was determined to go to war and was building a case to accomplish that goal. "Intelligence was being fixed around the policy," the minutes reveal. "Going to the UN was an attempt to legalize a war that had already been decided upon," Swanson testified.

Dahr Jamal, who spent 8 months in occupied Iraq as an independent journalist, also testified at the commission. He charged that the US military carried out collective punishment in Fallujah in violation of international law. Snipers engaged in targeted killings, and troops prevented ambulances from reaching the wounded and prevented the wounded from receiving medical attention, violations of the Geneva Conventions.

The United States decided that the entire city of Fallujah, with more than 350,000 civilians, was "a free-fire-zone," Jamal said. In the attack on Fallujah in November 2004, between 4,000 and 6,000 civilians were killed. The US military employed illegal weapons, including cluster bombs, depleted uranium, and white phosphorous.

Jamal accused the media, including CNN, Fox, Judith Miller, Thomas Friedman, Bill O'Reilly, and Rush Limbaugh, of aiding and abetting the Bush administration's war crimes and crimes against humanity in their coverage of the US assault on Fallujah.

Another eyewitness to the occupation, journalist Jeremy Scahill, testified about the targeted killing of independent journalists by the US military. He cited the killing of an Al Jazeera reporter and the bombing of the Palestine Hotel in Baghdad, both on April 8, 2004. More than 100 unembedded journalists were in that hotel, and the US knew it, Scahill contended. The attack killed two cameramen.

Scahill said the Pentagon warned unembedded journalists, "Baghdad is not a safe place. You should not be there."

The Bush administration has consistently attempted to link Iraq with the September 11 attacks. Scahill observed, "There is a connection between Saddam Hussein and Al Qaeda. It's called Washington," he said.

Challenging the Democrats to end the war, Scahill alleged: "We can't be vegetarians between meals. A loyal opposition is not going to end this war."

Craig Murray, former UK ambassador to Uzbekistan, testified before the commission. Murray charged that Uzbekistan practices torture on an industrial scale. He cited a UN investigation that concluded torture was widespread and systemic in that country. Thousands of people are tortured every year, Murray said. This includes rape with objects like broken bottles, smashing of limbs, pulling out of fingernails, and immersing people into boiling liquid.

Uzbekistan, Murray said, is a US ally in the war on terror, a member of the coalition of the willing. Murray displayed a letter on the big screen. It was from Ken Lay, former chairman of Enron, to then Texas Governor George W. Bush in April 1997. It began, "Dear George" ["Look who's boss," Murray noted], and continued, "You will be meeting with" the Uzbek ambassador to the United States to discuss Enron's $2 billion oil and gas contract.

The real reason underlying the war in Iraq, Murray testified, was oil and gas. So "they needed false intelligence from torture chambers," he said, in order to justify the war on terror. Sir Michael Wood informed Murray that the official position was that it's not illegal to get information from torture provided they do not themselves torture or direct that a specific individual be tortured.

"You can't build security on evil," Murray said. "I don't believe torture works," he concluded. "But even it if did work, I'd rather die than have anyone tortured to save my life."

I presented the testimony of Janis Karpinski, a brigadier general who was assigned to Iraq in July 2003 to oversee 17 prison facilities, including Abu Ghraib. Karpinski described how General Geoffrey Miller transferred the interrogation techniques he had instituted at the US prison at Guantánamo Bay to Abu Ghraib.

Miller was specially selected by Rumsfeld and sent to Iraq to run the interrogations operation, to work with the military intelligence personnel and teach them new and improved interrogation techniques to obtain more actionable intelligence from their interrogations.

When Miller arrived at Abu Ghraib, he said, "It's my opinion that you're treating the prisoners too well. At Guantánamo, the prisoners know that we are in charge, and they know that from the very beginning." He said, "You have to treat the prisoners like dogs, and if you think or feel differently, you've lost control."

Miller declared, "We're going to Gitmo-ize the operation" (referring to the techniques they used at Guantánamo Bay).

Karpinski thought Miller came with the authority of Rumsfeld because General Ricardo Sanchez, who was a 3-star, deferred to Miller, although he was only a 2-star. Even though Miller told Congress he was sent to Abu Ghraib merely in an assisting capacity, Colonel Thomas Pappas furnished Miller with a daily report detailing the results of interrogations at Abu Ghraib.

Sanchez himself signed an 8-page memorandum with a laundry list of harsher interrogation techniques, including the specific use of unmuzzled dogs, Karpinski said.

Control of cellblocks 1-A and 1-B, "the hard sites," was transferred to military intelligence. Karpinski didn't learn of the torture and abuse until January 12, 2004. In fact, she never attended any of the meetings in which the progress of interrogations was discussed. Sanchez said, "We scheduled them specifically when she would not be available to attend."

When Karpinski was told about the photographs and the abuse, she prepared to hold a press conference and tell the Iraqis in Arabic that there would be a full investigation. But Sanchez warned her off. "He looked me dead in the eye and said, 'absolutely not. You are not to discuss this with anyone. And that's an order.'"

Karpinski discovered that all personnel and documents relating to the scandal had been removed from Abu Ghraib. The only thing that remained was a memorandum signed by Rumsfeld. It was called, "Approval of Harsher Interrogation Techniques," and listed sleep deprivation, stress positions, playing loud music, insulting religious beliefs. In the margin, there was a note in Rumsfeld's handwriting. It said, "Make sure this happens."

Sanchez would not have implemented the techniques without the approval of Rumsfeld, and Rumsfeld would not have authorized them without the approval of the vice president, Karpinski testified. "And so it filtered down, and it never filtered down to me because I wasn't even responsible for interrogations."

Ultimately, however, Karpinski and 7 low-ranking soldiers were made the scapegoats. Karpinski was demoted to colonel. "I believe the Pentagon wanted to put this into a nice little package, 7 so-called bad apples, out of control on the night shift, and a female officer. They wanted to put that in a package, tie it up in a bow, and sink it forever, to make people believe we got it under control, we solved the problem."

Karpinski also testified that American female soldiers in Iraq were assaulted or raped by male soldiers in the women's latrines, and an alarming number committed suicide. "Because the women were in fear of getting up in the darkness [to go to the latrine], they were not drinking liquids after 3 or 4 in the afternoon," Karpinski said. "In the 100 degree heat, they were dying of dehydration in their sleep. Rather than making everyone aware - it was shocking - they told the surgeon not to brief on the details, and don't say specifically that they were women." Karpinski identified the commander who ordered that the cause of death of the women not be listed on the death certificates. It was General Sanchez, she said.

The commission heard testimony about the Bush administration's criminal responsibility for indefinite detention, rendition for torture, destruction of the global environment, attacks on global public health and reproductive rights, and actions and inactions leading up to and following Hurricane Katrina. The panel of judges will consider the testimony and release its findings.

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Alito Sounds Death Knell for Individual Rights

Yesterday, the Senate Judiciary Committee began its confirmation hearings on the nomination of Samuel Alito for Associate Justice of the Supreme Court.

Alito is no John Roberts. Whereas Roberts had barely been a judge for two years when Bush nominated him for the Supreme Court, Alito has authored 361 opinions during his 15-year tenure on the federal court bench. Whereas Roberts is photogenic, with a winning smile, Alito is stiff and awkward before the cameras. Most significantly, whereas Roberts replaced Chief Justice William Rehnquist, who had a similar judicial philosophy, Alito would take the place of Justice Sandra Day O'Connor, who provided the swing vote 77 percent of the time.

If confirmed, Alito would tip the high court's delicate balance radically to the right. Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents.

In a 196-page report released last week, the Alliance for Justice (AFJ) determined that in split decisions - the "difficult cases" - "the reasoning Judge Alito employs and the results he reaches are not balanced. Rather," the report found, "they track the staunchly conservative political and legal views he expressed in his 1985 application to be Deputy Assistant Attorney General for the Office of Legal Counsel in President Reagan's Justice Department."

Alito's 1985 application stresses his commitment to federalism (states' rights), his view that "the Constitution does not protect a right to an abortion," and his disagreement with the criminal procedure, reapportionment (one-man, one-vote), and Establishment Clause (church-state separation) decisions of the Warren Court.

The members of the Senate Judiciary Committee drew clear lines in yesterday's session. Although abortion was a significant concern for three senators from each party, the limitation on executive power was a much more prominent theme during the opening statements.

Six Democratic senators, as well as committee chairman Sen. Arlen Specter (R-Pa.), expressed alarm at the recent revelation that Bush has been secretly spying on Americans since 2002. Five Democrats made reference to O'Connor's opinion for the Court in Hamdi v. Rumsfeld: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Alito's record reveals that he "has been extraordinarily deferential to the exercise of government power, especially executive branch power, except in cases involving alleged infringements on religious expression," according to the AFJ. His "judicial record strongly suggests that he will ... interpret the Constitution as giving the president greater authority to evade Congressional statutes and constitutional limitations whenever deemed essential to national security."

Indeed, in a memorandum he wrote as a lawyer in the Reagan Justice Department, Alito argued that the attorney general should receive absolute immunity from lawsuits when he illegally wiretaps Americans. The Supreme Court rejected Alito's view in a 1985 decision.

Alito also advocated that the president make a "signing statement" indicating what he thinks the law means when he signs a bill. Even though the Constitution grants the lawmaking power only to Congress, and thus courts look to congressional intent to interpret statutes, Alito hoped that the president could divert the courts' focus away from congressional intent in favor of what he called "the President's intent."

George W. Bush has issued at least 108 such "signing statements," according to the Washington Post. Most recently, Bush qualified his concurrence with the McCain amendment that outlaws torture and cruel, inhuman or degrading treatment, implying that he would be free to torture if he felt it was necessary for national security.

In 2000, Alito told a Federalist Society meeting that he was a strong proponent of the "unitary executive," which means that all federal executive power resides in the president. This theory would reject discretionary executive power of independent agencies Congress has created since the New Deal, such as the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve Board.

Alito argued in other memoranda that the Federal Bureau of Investigation should have broad latitude to investigate federal employees, and that an American Bar Association opinion prohibiting lawyers from secretly taping conversations should not prevent IRS lawyers from secretly taping as part of a federal criminal investigation.

Although the senators only touched on Alito's alarming civil rights record in yesterday's session, one would hope they would fully inquire into this area during the questioning.

In split decisions on claims involving violations of the civil rights of women, racial minorities, seniors and the disabled, Alito almost uniformly ruled against the claimants.

As America mourns the deaths of the 12 miners in West Virginia, we are reminded of the importance of mine safety regulations. Yet Alito disagreed with the Department of Labor and would not have applied mine safety rules to an area of a defunct Pennsylvania mine from which the company was still extracting materials to process into energy.

Sen. Edward Kennedy (D-Mass.) has raised the issue of Alito's credibility. Although he promised the Senate Judiciary Committee in his 1990 confirmation hearing for the Court of Appeals that he would recuse himself from cases involving Vanguard companies, in which he had substantial financial investments, Alito subsequently proceeded to sit on a Vanguard case. And on his 1985 job application, Alito boasted of his membership in the ultraconservative Concerned Alumni of Princeton, which opposed co-education and affirmative action. Yet he now denies any memory of being in that group.

In his opening statement, Alito told the senators, "A judge can't have any agenda. A judge can't have any preferred outcome in any particular case."

Yet Sen. Chuck Schumer (D-NY) advised Alito, "We need to know that presidents and paupers will receive equal justice in your courtroom. If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair." Schumer observed, "The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions."

Sen. Patrick Leahy (D-Vt.) said, "It's important to know whether [Alito] would serve with judicial independence or as a surrogate for the president nominating him." Sen. Russ Feingold (D-Wis.) declared, "We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect. And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach."

We will see during the questioning whether the senators will indeed hold Samuel Alito's feet to the fire, and demand that he forthrightly state his beliefs on the critical issues. Sen. Dianne Feinstein (D-Calif.) correctly noted that Alito's nomination is a "pivotal" one in the history of this country.

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Big Brother Bush Is Listening

Any time you hear the United States government talking about wiretap, it requires - a wiretap requires a court order.
-George W. Bush, April 20, 2004, Buffalo, New York.

In an assertion of executive power that rivals the excesses of the McCarthy era of the late 1940's and 1950's, and the dreaded COINTELPRO (counter-intelligence program) of the 1950's, 1960's and 1970's, George W. Bush's National Security Agency has been secretly spying on United States citizens without warrants for the last three years.

George Orwell's book "1984" was first published during the heyday of McCarthyism in 1949. In the society Orwell described, everyone was under surveillance by the authorities. The people were constantly reminded of this by the phrase, "Big Brother is watching you."

During the McCarthy period, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

Although Orwell's allegory was aimed at communism, it was the United States government that initiated COINTELPRO, designed by its own terms to "disrupt, misdirect, discredit and otherwise neutralize" political and activist groups. In the 1960s, for example, the FBI targeted Dr. Martin Luther King, Jr. in a program called "Racial Matters." King's campaign to register African-American voters in the South raised the hackles of the FBI, which disingenuously claimed King's organization was being infiltrated by communists. In fact, the FBI was really concerned that King's civil rights campaign, and particularly his opposition to the Vietnam War, "represented a clear threat to the established order of the US." The FBI went after King with a vengeance, wiretapping his telephones and securing very personal information which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of COINTELPRO, a congressional committee chaired by Senator Frank Church, a Democrat from Idaho, conducted an investigation of activities of the domestic intelligence agencies in the 1950's, 1960's and early 1970's. Congress established guidelines to regulate FBI activity in foreign and domestic intelligence-gathering. Reacting against President Richard Nixon's assertion of unchecked presidential power, Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978, to regulate electronic surveillance, while at the same time protecting national security.

FISA established a secret court to consider applications by the government for wiretap orders. It specifically created only one exception for the president to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers, and that there is no substantial likelihood that a United States person will be overheard.

FISA allows the Attorney General to engage in wiretapping in emergency situations without a prior judicial order provided he or she applies for one within 72 hours after initiating the surveillance. And FISA specifically covers warrantless wiretaps during wartime; it limits them to the first 15 days after war is declared. Since 1978, the court has granted about 19,000 warrants and only turned down five.

Nevertheless, in spite of FISA's streamlined procedure for allowing lawful surveillance, Bush has sidelined the Foreign Intelligence Surveillance Court. In 2002, he signed an executive order that authorizes the National Security Agency to wiretap people within the United States with no judicial review. It is estimated that the NSA has eavesdropped on thousands of private conversations in the last three years. Additionally, the NSA has combed through large volumes of telephone and Internet communications flowing into and out of the United States. It has thus collected vast personal information that has nothing to do with national security.

In the wake of the outcry after the New York Times broke the story of Bush's secret surveillance, Attorney General Alberto Gonzales cited Congress's authorization of the use of force the day after the September 11 terrorist attacks as justification for the program. But the 2001 Authorization for Use of Military Force (AUMF) only permits the president to use "necessary and appropriate force" against "nations, organizations, or persons" that "planned, authorized, committed, or aided" the 9/11 attacks, or that "harbored such persons."

That license to use appropriate force does not authorize the government to spy on people in the United States without a warrant. Indeed, several congresspersons who voted for the AUMF say they only intended to grant the president authority to invade Afghanistan, not to conduct unbridled electronic surveillance of people in the United States.

Tom Daschle, a former Democratic senator from South Dakota, was Senate majority leader when Congress passed AUMF. He helped negotiate the law with the White House counsel's office. "I can state categorically that the subject of warrantless wiretaps of American citizens never came up," Dashcle said. "I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance."

In fact, Daschle revealed that Congress turned down White House proposals both to authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States," and to authorize the use of appropriate force "in the United States."

Senator Edward M. Kennedy, D-Mass., described Bush's spying program as an "arrogant usurpation of power." He said, "The president is not above the law; he is not King George." Senator Russ Feingold, D-Wis., agreed: "He is the president, not a king," Feingold noted.

Senator Arlen Specter, R-Pa., Chairman of the Senate Judiciary Committee, said such behavior by the executive branch "can't be condoned." He declared on the Senate floor, "That's wrong, clearly and categorically wrong. This will be a matter for oversight by the Judiciary committee as soon as we can get to it in the new year - a very, very high priority item."

The spying revelation also influenced the Senate vote on the renewal of the USA Patriot Act. It swayed New York Democratic Senator Charles Schumer's decision. "Today's revelation that the government listened in on thousands of phone conversations without getting a warrant is shocking and has greatly influenced my vote," Schumer said. "Today's revelation makes it very clear that we have to be very careful - very careful."

In a stunning blow against Bush, who had hoped several provisions of the Patriot Act would be made permanent, Congress extended the Patriot Act for only five weeks just before it recessed for the holidays.

It is not just congresspersons who are outraged at Bush's secret surveillance. US District Judge James Robertson, one of 11 members of the FISA court, has resigned. Robertson, selected by former Chief Justice William Rehnquist to serve on the FISA court, reportedly expressed deep concern that Bush's program is legally questionable and may have tainted the FISA court's work, according to the Washington Post.

Besides the NSA program, the American Civil Liberties Union has discovered through a Freedom of Information request that counter-terrorism agents at the FBI have conducted extensive surveillance of such groups as the Vegan Community Project, the People for the Ethical Treatment of Animals, and a Catholic Workers group the FBI accuses of having a "semi-communist ideology." Red-baiting is once again alive and well in America.

In 1975, Senator Frank Church said of the NSA, "That capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide." Church worried about the capacity of "this agency and all agencies that possess this technology" to "make tyranny total in America."

George W. Bush has fulfilled the prophesies of both George Orwell and Frank Church - with a vengeance. But neither Orwell nor Church could have foreseen the technological developments that enable Bush's large ears to penetrate our most intimate conversations.

The real motivation underlying Bush's unprecedented assertion of executive power was revealed by Dick Cheney: "Watergate and a lot of the things around Watergate and Vietnam, both during the 1970's, served, I think, to erode the authority I think the president needs to be effective, especially in the national security area. The President of the United States needs to have his constitutional powers unimpaired."

Bush has gone far beyond what the Constitution authorizes, however. Only Congress has the power to make laws. Congress has not authorized the president to suspend the law. And FISA makes it a crime, punishable by up to five years in jail, for the executive to conduct a wiretap without statutory authorization.

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