We open our newsletter with articles on two law enforcement agency documents that were not meant for our eyes: One, which came from a Fusion Center in Texas, asks law enforcement agencies to engage in a battle against tolerance and groups that promote it (I'm not kidding). The other was shared with us by the Tacoma, Washington Bill of Rights Defense Committee in response to our request for evidence of police spying on activists, and illustrates how information about legal demonstrations is gathered and shared among law enforcement agencies. I encourage you to take a look at both original documents on our website by visiting our new page on domestic spying, www.defendingdissent.org/spying.html
Please note, that whatever else I may say about the Obama administration, they are moving quickly on a number of fronts. Please check our website for updates!
EXECUTIVE Shocking Fusion Center Document Leaked
The North Central Texas Fusion System distributes a bi-weekly Prevention Awareness Bulletin to over 1500 staff in 200 Texas agencies. The bulletin issued on February 19 calls on law enforcement agencies to target religious and political groups for investigation. It is an Islamaphobic diatribe warning that anti-war and Muslim groups are "gaining support for Islamic goals in the United States and providing an environment for terrorist organizations to flourish". The bulletin lists no illegal activity, but ominously warns that these lobbying groups "take advantage of growing tolerance in the U.S." and have been successful in pushing a pro-Islam agenda. As evidence, the bulletin cites such worrisome developments as footbaths installed in an Indianapolis airport to accommodate Muslim prayer, allowing Muslim school children to take prayer breaks and the banning of pork in some workplaces. The bulletin goes on to warn "Tolerance is growing in more formal areas" pointing to a Treasury Department conference on Islamic finance.
The bulletin concludes that "it is imperative for law enforcement officers to report these types of activities to identify potential underlying trends" (underlying trends of tolerance? Watch out!). You can find a link to the bulletin, as well as the article that leaked it, at www.defendingdissent.org/spying.html in the "Resources" section.
DDF, as well as our sister organization, the Chicago Committee to Defend the Bill of Rights, joined with an ad hoc task force of civil liberties groups and Muslim groups to develop a response to the bulletin and to similar issues around the country.
Civil Activists and Extremists Action Calendar
Take a look at the "Protective Intelligence Bulletin" from the Intelligence Branch, Threat Management Division of the Immigration and Customs Enforcement Agency (ICE), available on our website at www.defendingdissent.org/spying.html. The bulletin is a calendar of lawful political demonstrations scheduled across the country during March 2006, and suggests different organization websites for additional information (ie: CodePink, ANSWER, United for Peace and Justice). Most of the events listed are vigils and protests to mark the 3rd anniversary of the Iraq war, but it also includes events like a dinner celebrating women's leadership in Washington State at the Governor's mansion. The bulletin asserts that the calendar is to provide "situational awareness" but indicates that law enforcement agencies are tracking legal demonstrations, and even includes a call for "law enforcement officers and security partners… to report the various planned activities of these elements within their jurisdiction". DDF has shared the document with members of Congress and is requesting that they investigate how this information is collecting and what "elements" are deemed to be "of interest", meriting inclusion in the calendar.
FBI Breaks Ties with CAIR
FBI field offices have been ordered to break off all relations with the Council on American Islamic Relations because of allegations that CAIR is linked to Hamas. CAIR has played an important role as liaison between the agency and the Muslim community. Senators Schumer (D-NY) and Kyl (R-AZ) wrote a letter to FBI Director Mueller applauding the move and asking for more information. They also suggested that all government agencies should cut off contact with CAIR, and asked about other 'unindicted co-conspirators' in terrorism finance cases. (CAIR was labeled 'unindicted co-conspirators' by prosecutors in the recent trial of the Holy Land Foundation; as you know, an unindicted co-conspirator is not charged with any crime and is therefore unable to clear their name or face their accuser in court.)
FBI Informant/ Provocateur Infiltrates Mosques
In 2007, members of a California mosque were alarmed by a new Muslim convert, who talked about jihad and suggested planning a terrorist attack. They reported him to the FBI and won a restraining order to keep him out of the mosque. The FBI revealed that this new convert was actually a paid informant who infiltrated mosques across Orange County for the FBI. This information came out during a court hearing on immigration-related charges for one of the men who reported the convert to the FBI. We'll follow developments in this story.
CASES Is This the Change We've Been Waiting For?
The Obama administration is sending mixed messages on government secrecy, torture and detainee policy. With strongly worded executive orders and official memos, they are talking the talk, but are they walking the walk?
State Secrets & al-Haramain v. Obama
The Obama administration decided to stand by the Bush administration and continue its fight to throw the al-Haramain case out of court. [With the change of administration, the name of the case automatically changes, so it is now al-Haramain v. Obama.] This is perhaps the strongest case against the Bush warrantless wiretap program because the defendants were in possession of a document (a wiretap log, released to them perhaps inadvertently by the Treasury Dept.) indicating that they were victims of warrantless eavesdropping. The Bush DOJ has been arguing state secrets in order to get the case thrown out and prevent the document from being admitted, and earlier this month the Obama DOJ continued that argument. In the past month, there has been a series of rulings and appeals on this case, where the courts are inching the case forward as the Obama administration tries to stop or delay the case and maintain control over classified information - fighting just as hard as the Bush DOJ to keep details of the warrantless wiretap program secret. Most recently, the Ninth Circuit Court denied the DOJ's appeal to stay the case, clearing the way for the judge to review the wiretap log and decide what should be turned over to al-Haramain lawyers. The DOJ immediately warned that they will fight any attempts to turn any classified documents over to the lawyers. There is much more going on in this case than we have room to discuss here, but we can recommend an excellent blog for those interested in the many issues the case raises: http://emptywheel.firedoglake.com/
State Secrets & Binyam Mohamed
Even a triumphant victory - the first release of a Guantanamo detainee under Obama - is tainted. First the good news: Binyam Mohamed, born in Ethiopia and a British resident was released on February 23 after seven years of detention - four at Guantanamo Bay. Mr. Mohamed was taken into U.S. custody in Pakistan and rendered first to Morocco, then to Afghanistan, where he says he was tortured, beaten and interrogated. In 2004 he was sent to Guantanamo. All charges against him were dropped last October.
Mohamed's statement upon release makes clear that despite his release, there is some unfinished business, "It is still difficult for me to believe that I was abducted, hauled from one country to the next, and tortured in medieval ways - all orchestrated by the United States government". The Obama administration seems as determined as Bush to keep the circumstances of Mohamed's extraordinary rendition and detention secret. Mohamed is one of the five plaintiffs in Mohamed v. Jeppesen, which asserts that Jeppesen DataPlan Inc knowingly flew them to countries where they were tortured. The Bush administration argued that the case should be thrown out of court, based on the state secrets doctrine. In spite of assurances that his administration would review all cases invoking the doctrine, and in spite of the fact that there has been widespread publicity about the extraordinary rendition program (so it's hardly a secret), the Obama administration is sticking with the state secret claim. Bi-partisan bills have been introduced in both houses of Congress to restrict the use of the state secrets privilege (click here for more information).
Al-Marri to Get His Day in Court
At first glance, this seems like an unequivocal win. You'll remember that Ali al-Marri has been detained on a Navy brig for more than five years as an enemy combatant. On his second day in office, President Obama ordered a review of al-Marri's case [http://www.whitehouse.gov/the_press_office/Review_of_the_detention_of_Ali_Saleh_Kahlah/]. The Obama DOJ has filed criminal charges against al-Marri, returning him to civilian courts. He is charged with conspiracy and material support for terrorists, and faces up to 15 years in prison. This is definitely a victory for al-Marri - he can now face his accusers and presumably will have a fair trial.
The case was on its way to the Supreme Court, however, where the Court would have ruled on the constitutionality of the Bush premise that a President can declare anyone, even a U.S. citizen, an enemy combatant and therefore detain them indefinitely without charging them with any crime. Unfortunately, the DOJ has petitioned the Supreme Court to drop the al-Marri case, arguing that it is no longer an active dispute. This turn of events will let stand a Fourth Circuit Court ruling from 2005 which validated the Bush enemy combatant premise. In response to the filings, al-Marri's lead lawyer, Jonathan Hafetz of the American Civil Liberties Union, commented "The administration has failed to renounce the government's power to designate legal residents and American citizens as enemy combatants and detain them indefinitely without charge. Its response underscores why the Supreme Court must make clear that the government does not have this power under our laws and Constitution." We concur.
Freedom of Information
"A democracy requires accountability, and accountability requires transparency", from the White House Memorandum of Freedom of Information, January 21, 2009. Unfortunately, in case after case over the last month, the Obama administration has belied that sentiment. Here are a few examples:
On February 11, the Obama Department of Justice asked for a 90 day delay in deciding whether to release three crucial memos from the Bush administration's Office of Legal Counsel. The DOJ was responding to a FOIA request from the ACLU asking for memos written to justify the Bush torture and rendition programs. The DOJ cited national security and the confidentiality interests of the executive branch, ignoring the legitimate claims of the American public to have timely access to vital information [http://aclu.org/safefree/torture/38741prs20090213.html]. Asking the American public to wait at least three months to read these pivotal memos is not our idea of transparency.
In another court case, the Obama DOJ is seeking to keep unclassified documents about Guantanamo court cases out of the hands of news agencies. The records sought by the AP, the New York Times and USA Today detail the government's justification for keeping detainees at Guantanamo. The Obama DOJ took the extreme position that news organizations have a right of access only in criminal proceedings, not civil proceedings or habeas corpus cases.
Bagram: Afghan for Guantanamo
The U.S. military opened up a detention facility at Bagram airbase in Afghanistan in 2001. About 650 detainees are held there; most are Afghan, but some have been transported to Bagram from other countries. The Bush administration had maintained that all detainees at the facility are enemy combatants, and therefore not entitled to any constitutional rights. Relatives of four of the detainees challenged that stance in a lawsuit asking for the right to challenge their detention in U.S. courts. We were shocked when, on February 20, the Obama administration maintained the Bush position, denying the plaintiffs the right to challenge their detention, although they have been on indefinite detention at Bagram for years without trial.
Electing to adopt the Bush position is both a human rights and a political disaster for the Obama administration. There are already well-documented reports of mistreatment and torture at Bagram, and we can expect that even more harrowing stories will come out as the spotlight shifts from Guantanamo to Bagram.
ACTIVISTS Republican Convention
Seven individual civil suits against the city of St. Paul and its police department and against the city of Minneapolis have been filed, charging misconduct including police brutality and invasion of privacy during the RNC.
Los Angeles Agrees to Pay Almost $13 million
The City Council of Los Angeles agreed to pay out $12,850,000 to activists injured during a May Day rally in 2007. Hundreds of people were hurt during a peaceful permitted immigrant rights rally in MacArthur Park when, without provocation, and without having given an order to disperse, police charged the crowd and began shooting with rubber bullets and striking people with batons. As part of the agreement, the Los Angeles Police Department policies and training on crowd control issues will be revised, including how and when an unlawful assembly may be declared and the use of less-lethal munitions on demonstrations.
Scabby the rat, a giant balloon often used at union rallies or picket lines, ran into trouble in Lawrence Township, New Jersey. The International Brotherhood of Electrical Workers brought Scabby to a protest outside Gold's Gym, but a police officer told them to deflate the rat, citing a township ban on inflatable or portable signs on public property. The Union sued, lower courts upheld the ban, but it was overturned by NJ's highest court early in February.
LEGISLATIVE Take Action
Encourage your Representative and Senators to help President Obama achieve his pledge for a transparent, open government. Ask them to sign on as co-sponsors of The State Secrets Protection Act!
The state secret privilege is a legal doctrine whose purpose is to prevent public disclosure of information that would threaten our national security, but the Bush administration has shamelessly used the privilege to hide embarrassing or unlawful conduct in cases ranging from extraordinary rendition and torture to warrantless wiretaps. H.R. 984 in the House and S.417 in the Senate would ensure that trial judges independently examine the evidence claimed to be subject to the state secret privilege to determine if the claim is valid. The Obama administration disappointed us all by sticking with the Bush administration's claim of the privilege in two important cases:
• Mohamed v. Jeppesen - Obama DOJ has asked the judge to terminate the case because the very subject, extraordinary rendition was a state secret (in spite of hundreds of news stories about the practice);
• al-Haramain v. Obama - Obama DOJ is fighting to keep evidence of Bush's illegal warrantless wiretap program out of court.
This amounts to a cover-up of rendition, torture and warrantless wiretaps.