October 2003

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The Matrix (Interstate Snoop, Not the Movie): Coming to a State Near You

Filed under: Imported

Remember Admiral John Poindexter's proposed Total Information Awareness (TIA) Program, the one which was going to mine all available electronic data on you and me, make it into a nifty profile, and put it out there for the government to use to track "terrorists"?  I thought of it as a government "in search of" ad:  "In search of petite red-head who has a sharp tongue and writes about John Ashcroft; likes dogs and gardening; listens to everything from Brahms to Blues; may not be armed, but should be considered dangerous." Search the data base for all redheads with one or two of the "points" on the profile, then sweep in. Detain for questioning. Find something they did wrong in their pasts, charge them to the max, threaten with enemy combatant status if they don't plead, sentence redheads to 10 years in prison.

Even our pitiful excuse of a Congress did not like TIA. (Speaking of pitiful, did you read how they all slobbered over Arnold Schwarzenegger this week? Even Diane Feinstein (D-CA) said "all is forgiven" as she stood in line for his autograph when he visited the Hill.) So they cut it from the Homeland Security Department Budget, kicked Poindexter out of his cushy Pentagon office, and sent him out to private industry to do his mischief there.

Well, TIA is not gone. It has morphed into MATRIX, an interstate electronic data base started by the State of Florida (of course, money to baby brother Jeb), with FEDERAL FUNDS, that involves states' pooling first their criminal database. Then, who knows what else will go into the mix.

The ACLU is hot on the trail of MATRIX. On October 30 it filed simultaneous state "Freedom of Information Act" requests in Connecticut, Michigan, New York, Ohio and Pennsylvania about those states' participation in the new "MATRIX" database surveillance system.  It also released an Issue Brief explaining the problems with the program, which also operates in Florida and Utah.

"Congress killed the Pentagon's 'Total Information Awareness' data mining program, but now the federal government is trying to build up a state-run equivalent," said Barry Steinhardt, Director of the ACLU's Technology and Liberty Program.  

"In essence, the government is replacing an unpopular Big Brother initiative with a lot of Little Brothers," he added, noting that the program is receiving $12 million from the Departments of Justice and Homeland Security.  "What does it take for the message to get through that government spying on the activities of innocent Americans will not be tolerated?"

The ACLU's requests, which were filed under individual states' open-records laws, come on the heels of a federal Freedom of Information Act request it filed October 17.  A similar request was also filed in Florida, where the program originated.   The goal of the requests is to find out what information sources the system is drawing on — information program officials have refused to disclose — as well as who has access to the database and how it is being used.  

According to Congressional testimony and news reports, The Matrix (which stands for "Multistate Anti-Terrorism Information Exchange") creates dossiers about individuals from government databases and private-sector information companies that compile files on Americans' activities for profit.  It then makes those dossiers available for search by federal and state law enforcement officers.  In addition, Matrix workers comb through the millions of files in a search for "anomalies" that may be indicative of terrorist or other criminal activity.  

While company officials have refused to disclose details of the program, according to news reports the kind of information to be searched includes credit histories, driver's license photographs, marriage and divorce records, Social Security numbers, dates of birth, and the names and addresses of family members, neighbors and business associates.

Raising even more issues, the Matrix is operated by a private company, Seisint Inc. of Boca Raton, Florida.  Ironically, the company's founder was forced to resign after information about his own past came to light: according to Florida police, he was formerly a drug smuggler who had piloted multiple planeloads of cocaine from Colombia to the U.S.

"Members of Congress who voted to close down TIA in the belief that they were ending this kind of data mining surveillance must demand more information about The Matrix," said Steinhardt.  "And then they should shut it down too."

Copies of the ACLU's state and federal FOIA requests as well as the Issue Brief about The Matrix are online.

View a special Web feature about the defunct TIA program at this ACLU site. 

Posted by Elaine Cassel at October 31, 2003 6:18 AM

 

Prosecutors as Therapists, Phantoms as Terrorists

Filed under: Imported

Federal prosecutors in Alexandria, Virginia have been acting as surrogate therapists to scores of families of the September 11 terrorist attacks. As soon as Zacarias Moussaoui was indicted in Alexandria, prosecutors ramped up a staff of assistant U.S. attorneys--more than 60 in all--all across the country to help them stage the drama of the families' losses.

The families were chosen carefully. Who would make the best poster children for their prosecution? They have spent thousands of hours and hundreds of thousands of dollars developing their testimony and planning for a rousing therapeutic catharsis at the trial of the case.

But the trial may never be. For Judge Leonie Brinkema has seen the evidence the government has against Moussaoui and it does not connect him to the September 11 attacks. Thus, she said, the government cannot seek the death penalty against him. It seems that this failure to have the rudiments of a capital case, more than the government's refusal to abide by her order to produce exculpatory witnesses for Moussaoui and his lawyers to question, is the reason for her waving prosecutors off the death penalty.

The government is appealing this order (as they appeal every other court mandate that they cannot "in good conscience" follow). And while they await the decision of the 4th Circuit Court of Appeals about granting their appeal, they are proceeding at a furious pace to continue to prepare the witnesses for their gruesome testimony.

A friend I discussed this with this week suggested that the prosecutors were continuing to prepare for what may never be in order to bolster their plea for the trial to continue. "Sunk costs," he called it. You see, he said, they will argue, we have done so much to get ready for the trial, the families have been through so much to get ready, they simply must tell their story. Sound familiar?  Like, forget how we got into Iraq, we need $87 billion now to continue the job. We can't quit now.

Further, someone must pay for September 11. Whether Moussaoui had anything to do with it or not, he is the one the government has chosen as the scapegoat. You can't blame the administration, can you?  With Osama and Saddam on the loose, someone has to take the fall. With not one of the thousands of immigrants rounded up for questioning after September 11 panning out as plotters, they needed a whipping boy.

Whether "rightly or wrongly," Alexandria U.S. Attorney Paul McNulty is reported as saying, people have put a lot of hope in the case against Moussaoui as the one who must pay for September 11.

I thought that was what the war in Afghanistan was about. Then the war in Iraq.  Now with the Moussaoui case unraveling, who will the government look to next to shoulder the blame for the deaths of 3000 Americans?  An independent panel would like to know who is responsible, but the White House has been stonewalling. The panel this week threatened subpoenas. White House Press Secretary Scott McClellan says the administration "wants" to cooperate, but "we are dealing with sensitive documents here." Like the "sensitive" documents that said there were WMD's in Iraq?

In the meantime, the "masters of fiction," as Washington Post columnist Richard Cohen calls Bush and Cheney, continue to spin their tales and, doubtless, look for someone or something to blame for September 11 --just as they look for some entity to blame for the mess they have made in Iraq. 

Posted by Elaine Cassel at October 29, 2003 5:52 AM

 

Justice Antonin Scalia's Contempt for Court and Colleagues

Filed under: Imported

Supreme Court Justice Antonin Scalia, who has been heard to say that he thinks he is too smart for the Court, let fly his contempt for his colleagues last week. Speaking of the court's decision in Lawrence v. Texas, which earlier this year struck down Texas's homosexual sodomy law, he lambasted the majority for twisting the Constitution to suit its liberal agenda. Liberal?  Souter, Ginsberg, and Stevens, yes. But Justices Kennedy (who wrote the majority opinion), O'Connor, and Breyer? 

 

When it suits him, Scalia calls himself a "strict constructionist" of the U.S. Constitution. For instance, the death penalty can never be cruel and unusual punishment because the death penalty was in use when the Constitution was drafted. Sodomy must be a crime today, because, he said this week, it was a crime at the time of the country's founding. Of course, the strict constructionist argument runs into trouble when it meets modern technology. In a case decided a couple of years ago, Scalia believed that the Constitution's ban on unreasonable searches and seizures reached to heat-sensing technology that detected the growth of marijuana plants in a house. How could that be unconstitutional when heat-sensing technology was not on the minds of the founding fathers?

According to news reports, Scalia, speaking to the ultra-conservative Intercollegiate Studies Institute, read from the Lawrence opinion in mocking tones. Ironic, inasmuch as the 50-year-old institute has says its mission is to "enhance the rising generation's knowledge of our nation's founding principles - limited government, individual liberty, personal responsibility, free enterprise and Judeo-Christian moral standards." IThe organization, like its famed speaker, draws the line at your individual liberty. They get theirs, you don't get yours if it is contrary to theirs. And there is only one Judeo-Christian moral standard—their own.

Scalia is not alone in his condemnation of his colleagues on the high court. Clarence Thomas has repeatedly talked about the cold and lonely place that is the Court. He shows his contempt for oral arguments by generally refusing to participate.

Why is it that the right, especially the religious right, represented by the likes of Scalia on the court, are so totally unaccepting of another's point of view?  Do they truly believe that they have all of the answers to all legal, legislative, and social issues? This week I gave a legal seminar to attorneys in a part of Virginia where Rev. Pat Robertson seems to have a lock on "truth."  A couple of religious zealots in the seminar derided other attorneys who tried to talk about life and death issues such abortion, end-of-life treatment, stem cell research, and health care for all Americans. We were supposed to be talking about legal conundrums and challenges.

But to some, there was nothing to discuss. "God" decides who lives and dies, and even who is fortunate enough to get health insurance.  As one dissenting lawyer said, "You mean your God? Then if we feel that 'our' God acts on human events in a different way, we lose?"

While Scalia's remarks did not have a religious context, they stem from his religious views that carry bigotry and intolerance to the extreme. It is impossible for Scalia to entertain rational debate and to interpret laws outside the spin of his religiopolitical view of the world. He, not his colleagues that carried the day in Lawrence v. Texas, should be mocked and criticized. But they are more fair-minded, tolerant, and judicious in manner and conduct and would not stoop to the depths of Scalia's ill manners.

As jurists, the majority, and perhaps even dissenters Rehnquist and Thomas (who do not, even in dissent, engage in personal diatribe against their colleagues) looked at the issue of the Texas law as they are supposed to—examining it from historical, social, and legal perspectives. Justice Kennedy's opinion is well-reasoned, thoughtfully argued, and consistent with the equal protection clause's mandate that extends the guarantees of the constitution to people that Scalia hates.

Hateful, cruel, intolerant Scalia. Long may he rant and spew his intolerance across the land. The more Americans hear it, the more, I am convinced, they will reject it.

Posted by Elaine Cassel at October 27, 2003 1:57 AM

 

Legislatures and Women's Bodies: Florida and the Feds Know Best

Filed under: Imported

In one day, the federal government and the state of Florida stepped in to control the physical autonomy of a woman's body.

In Washington, the Senate passed to so-called "partial birth abortion" ban, a gruesomely named procedure for an equally gruesome process that is only used by doctors in the second and third trimester of pregnancy to save the life or health of the mother. The procedure is rarely used, and with good reason. For the doctor and the mother, the procedure is a heartwrenching process in which painful choices have been made.

The Supreme Court in Roe v. Wade makes abortions in the first and second trimesters legal.  Third trimester abortions are banned except to protect the health or save the life of the mother. The new law, expected to be signed by Bush immediately, in effect makes third semester abortions illegal altogether, and may do the same for some second trimester abortions.

Also yesterday, that crazy state of Florida enacted a law allowing Gov. Bush to order that feeding tubes be reinserted into 39-year-old Terri Schiavo, a woman who has been in a vegetative state for 13 years. Terry is not in a coma, and could live years longer, but to what end? Court-appointed doctors have reported that she has no cognitive abilities.

Her parents have objected to the removal of life-sustaining fluids, and their supporters have flooded the Internet with videos of Schiavo laughing and talking. When she did that is anyone's guess, but it certainly has not been in recent years. Doctors say any physical responses are reflexive and not intentional acts.

Every court that has heard the case has ruled in favor of the husband. These include all the state higher courts, the  federal courts, and the Supreme Court that refused to grant her parent's appeal of the Florida court order that allowed the removal of feeding tubes.

The legal issue is not as clear as civil libertarians would hope. In 1990, the Supreme Court ruled that a state can impose a high standard of proof on a proponent of removal of life-sustaining fluids when the patient has no advance medical directive. That case, Cruzan v. Missouri, left the door open for the state of Missouri to keep Cruzan alive, in spite of her parents' pleas (Cruzan was not married). 

Baby brother Bush has learned well from his big brother how to be an imperial leader, denying his subjects civil liberties. Gov. Bush earlier this year ordered the appointment of a guardian ad litem for the fetus of a mentally retarded woman who was raped in a Florida home for adults. He wanted to be sure the woman did not have an abortion (she did not, nor did she ever indicate that she would), even though an abortion would have been entirely legal under Florida law. In a statement last night, Bush said he was not "playing God." Maybe he was just playing Machiavelli, then. He was definitely playing all-powerful-panderer to the political right.

Aside from the legal and ethical implications of the Florida and federal legislation, ask yourself this question:  If these were men's lives we were dealing with, would the law be ordering what should be done with their bodies?

I think not. In fact, I am sure that it would not.

 

 

Posted by Elaine Cassel at October 22, 2003 7:02 AM

 

Why Boykin Should Stay On Message

Filed under: Imported

The liberal media is in a furor over remarks by Lt. Gen. William "Jerry Boykin," recently made undersecretary of defense for intelligence.

Over the past couple of years, Boykin, a self-described "born-again" Christian, has promoted "his" God over anybody else's "God" (particularly the Muslim God), said that George Bush was put in the White House to lead the global fight against Satan disguised as Islam, and gave God the credit for protecting him and his troops in a bloody battle in Somalia in 1993 known as "Black Hawk Down." That battle was, he said, a fight between "the principalities of darkness" led by him and his soldiers at God's direction.

I say keep Boykin, and keep him talking. Why? Because his comments are the unvarnished versions of the beliefs held by George Bush, Paul Wolfowitz, John Ashcroft, Tom DeLay, Bill Frist, and others in the administration who hold extremist religiopolitical views. For instance, Boykin's statement that the roots of his faith and "America's" faith is Judaism, and thus Islamic radicals will "hate us forever" is precisely the mindset of the leaders of this country, who for years have supported the terrorist state of Israel in its efforts to destroy Palestine.

The problem with this world view, this religious and political fanaticism, is that ordinary Americans don't hear enough of it. Save for the extreme religious right, this crusading, hate-everyone-but-white-Christians-and Jews-like-me is not the attitude of most Americans, including most Republicans.

Remember how Jerry Falwell and Pat Robertson, those paragons of religious virtue, started calling for war against Islam right after September 11? And remember how the administration tried to distance itself from that? Why did the White House want to shut them up? Because they don't want Americans to know that this is precisely the Administration agenda. In fact, I would not be surprised if Falwell and Robertson had been "planted" to make those remarks as a concession to the religious right, with the understanding that in public the Administration would distance itself from them.

If you doubt that is what the Administration believes or has as its agenda start, start reading and otherwise paying attention. In the course of writing my upcoming book, "The Other War," it has become clear to me that the war against Islam began in earnest 10 or more years ago, and September 11 gave the government the excuse to go after Islamic charities and to target Arabs and Muslims for surveillance and prosecution. Read the transcript or view online (www.pbs.org) the excellent "Frontline" report on the prosecution of six young American-Yemeni men in Lackawanna, New York. Read the articles by Georgetown University Law Professor David Cole in "The Nation" (www.thenation.org) or better yet, read his new book, "Enemy Aliens" (New Press, 2003).

The problem is precisely that the truth of the Administration's agenda in Iraq and the world is not getting out. The agenda is born of greed (corporate and oil interests), extreme politics (Zionism and American imperialism), and fundamental Christian dogma that calls itself the only "truth" and that has as one of its underlying tenets support for the "promised land" of Israel.

Hitler whispered his agenda at first, quietly crafting changes in the law and judicial system that would support his regime. By the time the world woke up, it was too late to stop him. There still may be time to stop Bush and his plot to change the world order through violence, fanaticism, and control of the critical infrastructure that holds the globe together (financial institutions, oil, water, and energy, for instance). But not if the truth does not get out.

Op-ed columnists all over the country are missing the point by warning off his rhetoric. He is "sending the wrong message," they say. It may be the wrong message, but it is the honest message from an administration that hides its mission in the false rhetoric of tolerance, "democracy," and humanitarianism.

Don't muzzle Boykin and don't demote him. The more we hear the truth, the better off we will be. And the sooner, perhaps, Americans will wake up and realize what their government has in mind for them—and the world.

Posted by Elaine Cassel at October 20, 2003 6:30 AM

 

Watch That Cyber Space: Web Sites on Terrorist Watch List

Filed under: Imported

The State Department reached a new low in the naming of terrorist organizations this week by adding websites to the list of terrorist organizations. The sites added to the list are Jewish organizations that are supportive of Palestinian causes.  In fact, if you pay attention, most organizations on the terrorist list are anti-Israel and not particularly anti-American. Makes you wonder what the "war on terror" is all about. 

Under U.S. law, it would be illegal to provide money or other material support to the designated Web sites, the people who run them could be denied U.S. visas and U.S. banks must block their funds. The State Department said it was yet clear how this would work in practice.

But the law may not enable the United States to block access to the Web sites, if only for technical reasons.

The news was published by Reuters News Service and was not widely reported in the U.S. press. That is not a surprise. The government would rather conduct surveillance on you and your computer and arrest you without your being aware that you were visiting a "banned" site. Ignorance of the law is no defense. Take note of the listed websites and frequently check the list for new additions. If you visit any of the visited sites, be prepared to face federal charges for aiding and abetting the organization. A man in Portland, Oregon is going to serve 10 years or more in federal prison for creating a website for a banned organization--before it was banned.

Good luck finding the list online. I found it once yesterday, after looking for an hour, and could not find it today. I am sure Ashcroft wants to know why I want to know. Since telling you about the list could be aiding and abetting terrorism in the distorted way Ashcroft defines the term, watch this space in case I disappear.

 

Posted by Elaine Cassel at October 17, 2003 7:30 AM

 

Supreme Court, Fall 2003: The People - 1; Ashcroft - 0.

Filed under: Imported

In what will was the first of many actions the Supreme Court will take this term to review actions of Attorney General John Ashcroft, on Tuesday, October 14, it let stand a 9th Circuit Court of Appeals ruling that stopped Ashcroft from prosecuting doctors within its jurisdiction.

Ashcroft wanted the feds to prosecute doctors in states that allow marijuana to be used for medicinal purposes for talking (yes, talking!) to their patients about the benefits of medical marijuana. Nine states have such laws--Alaska, Arizona, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. And 35 states have passed legislation recognizing marijuana's medicinal value.

Ashcroft, who apparently believes in states' rights as little as does his boss, George Bush (forget that he campaigned on that platform--what Bush meant to say was he was only for states' rights when the states were "right" about their rights), makes it a habit of meddling in the practice of medicine. (Recall, that he tried to stop Oregon's assisted suicide law by threatening to prosecute doctors under federal drug laws. The same 9th Circuit stopped him in his tracks.)

So, damn the First Amendment and the state's right to regulate the practice of medicine; let's go after doctor's for talking about the benefits of marijuana. By refusing to hear the government's appeal of the 9th Circuit's decision, the Supreme Court sent a message that it is not going to rubber-stamp Ashcroft's insane policies.

Maybe this is the harbinger of good things to come from the Court. This term it may be called on to hear the appeals related to the enemy combatant-no attorney-no charge-no trial-lock 'em up forever Pentagon policies suffered by Yasir Hamdi and Jose Padilla. The petition from attorneys representing the prisoners in Guantanamo Bay, Cuba is pending.

 

 

 

Posted by Elaine Cassel at October 15, 2003 6:17 AM

 

Disgrace in Guantanamo

Filed under: Imported

I started to write about the disgraceful situation in Guantanamo Bay, Cuba Friday morning.  I had read about the International Red Cross's condemnation of the Bush administration's continued detention of 650 or more prisoners, some of them juveniles, captured in Afghanistan two years ago. They have been held in cages on the American military base there, without attorneys, with little access to family, and without any charges being placed against them.

 

Before the war in Iraq fell apart, we heard that Paul Wolfowitz was planning to be in charge of trying some of the men.  Several prisoners were targeted to be the guinea pigs for prosecution and, of course, they were facing the death penalty. But it turned out that one or more of those were British subjects. Tony Blair stepped in and, with support for his wholesale commitment to Bush's war waning, begged Bush not to execute any British citizens. That's the last we heard from Guantanamo. 

 

Until this week when we heard from the Red Cross.  Men are trying to commit suicide repeatedly, physical and mental health is deteriorating. One wonders what the hell we are doing down there—and the answer is probably nothing.

 

It's just as well I did not get the article written Friday morning. For on Friday afternoon, driving home, I heard that Bush may now be planning our next war in Cuba.  Whether that materializes or not, he was placing new restrictions on Americans visiting Cuba, threatening tourists with criminal prosecution on the grounds that taking money to Cuba was money laundering for terrorists, or something along those lines. So being a friend to Cuban people or a fan of Cuban music—well, in the administration's Alice-in-Wonderland world, that makes you a terrorist, I guess. Whatever you do, don't buy the video or CD of Buena Vista Social Club. Ry Cooder, you better watch your back. 

 

So the Bush is administration, is, I guess, going to try to get all the Cubans here who want to get here, and do what it can to destabilize Cuba so that the Cubans left there are as desperate as the Iraqis are now.  Of course we know the reason why—Bush needs desperately to win Florida in 2004. He's counting on this invitation to Cubans in Cuba to win the votes of the Cubans already there. So it is all about politics.  Politics as usual.  And the Bush administration's politics is, at the core, destructive of civil rights and human rights. In fact, that appears to be its one of its main agendas--destruction of human rights. It has already done a damn fine job of destroying civil rights.

                                                                                               

After I heard Bush's announcement Friday, I listened to a replay of White House press secretary Scott McClellan's Friday press briefing. He said that the President "rejects" the report of the Red Cross about the horrible treatment of people in Guantanamo. Rejects it. What the heck does that mean?  We just don't listen to it? We don't care what the international community thinks of us?  It's irrelevant? We are not going to read it?   

 

Later Friday night, I heard a attorney on NPR boast that "we" had to treat the prisoners that way. After all, they caused the September 11 attacks. Honestly, that is what he said!  What? You can be sure if they were even remotely connected to September 11 they would have been brought to trial, in public, and be awaiting death now. Sadly, the interviewer did not question him about his statement. How many listeners heard it and assumed it to be the truth? How many, like me, heard it and were incensed at the lie of it?

 

As for the prisoners of Guantanamo, their chaplain and at least two of their translators have been locked up in military prisons, at least one of them charged with treason.  Their crimes so far have been enumerated as serving baklava to prisoners (on the banned food list, I guess), having on their computers emails intended for prisoners' families, and having "maps" or their cells.  If the government could, it would charge them with the crime of kindness to fellow human beings or treating prisoners humanely. It can't do that, so it trumps up charges to make those who try to help them look like terrorists themselves.  When the prisoners have not themselves been shown to be terrorists.

 

So, in an administration where irony is an understatement, we have George Bush opening up the shores of Florida to Cubans who will, as soon as they can, become citizens and vote for him and his brother. In the meantime, the Cuban lobby in Florida will see that Bush carries Florida. By hook or crook.

 

At the same time, we have Bush presiding over the wholesale mistreatment, even torture, some say, of upwards of 700 men who have been shown to have done nothing wrong. Except to have been on the streets of Afghanistan when Bush wanted to act like a cowboy and get "somebody" for September 11.

 

I guess there is nothing any of can do about any of this. Except face the fact that the Bush administration is, at its core, a cruel, hateful, and mean bully of a government. To put it in psychological terms, it is sociopathic—lacking in empathy, self-absorbed, a sense of entitlement, hatred of all but self, and with total disregard for the rights of others. Bush will, I fear, get what he wants—one way or the other.  Sociopaths do that.                                                                                       

 

In the meantime, the Supreme Court has been asked to review a federal appeals court ruling that forecloses federal courts from hearing the pleas of the Guantanamo prisoners.  The lower courts agreed that the federal courts had no jurisdiction because the prisoners are not on American soil. How's that for a catch-22? We arrested them, brought them to a U.S. military base, classified them as "enemy combatants" so as to try to exempt them (and us) from international law, the laws of war, and U.S. law, and now we have declared them to be outside of the law. I guess, in a sick and twisted way, that does make some sense after all.

 

For the hapless prisoners in the black hole of Guantanamo comes a voice from the past to file a friend of the court brief in their behalf. Fred Korematsu, a American citizen of Japanese descent, who refused to enter a Japanese internment camp in California 60 some years ago, and who was prosecuted, convicted, and imprisoned for challenging the internment order.  The Supreme Court then said it was just fine that he was ordered to be locked up, and even finer that he was prosecuted for challenging the order.                                                                                                                                              

 

In his brief he begs the court to respect the fundamental principle that those deprived of liberty have the right to a fair hearing. Doubtless, the Supreme Court will follow its leader and "refuse to accept" Mr. Korematsu's plea. After all, what does fairness, justice, and decency have to do with anything anymore?

Posted by Elaine Cassel at October 14, 2003 7:17 AM

 

Ashcroft: First Amendment Terminator

Filed under: Imported

Is there no end to what Attorney General John Ashcroft will do to destroy the Bill of Rights?  In a blatant affront to First Amendment rights of free speech and association, and in an action designed to warn and chill dissenters of any government position, Ashcroft's brown boots are prosecuting some Greenpeace protestors under an old maritime law.

As reported in The New York Times, in April of 2002, two Greenpeace activists climbed aboard a cargo ship from their inflatable raft, three miles off the Florida. to protest the ship's cargo of mahogany.  They were "detained" by the Coast Guard, spent the weekend in custody and were sentenced to time served for "boarding without permission." 

Now, 15 months later, federal prosecutors have indicted Greenpeace itself  "authorizing" the boarding. Though Greenpeace, the organization, cannot spend time in prison, the feds, including the Treasury Department and the IRS, can make life hell for the entity and its members.

The group is charged with violating an obscure 1872 law intended for proprietors of boarding houses who preyed on sailors returning to port. It forbids the unauthorized boarding of "any vessel about to arrive at the place of her destination." The last court decision concerning the law, from 1890, said it was meant to prevent "sailor-mongers" from luring crews to boarding houses "by the help of intoxicants and the use of other means, often savoring of violence."

Brushing aside the protests of First Amendment experts and the organization's lawyers, the prosecutor said that Greenpeace exists as an organization solely to engage in unlawful activity.  Say what? Oh, I get it. Next the organization and its members will be charged as terrorists under the PATRIOT and Homeland Security Acts for interfering with a sailing vessel in order to make a political statement. And be on the list of terrorist organizations. And you know what that means? If not, check out the PATRIOT Act.

Posted by Elaine Cassel at October 12, 2003 7:03 AM

 

Tried To Open A Bank Account Lately?

Filed under: Imported

Nearly two years after passage of the USA Patriot Act, another piece of the law kicked in last week, as new regulations designed to combat the financing of terrorist activity and international money laundering began being enforced. However, the uncertain requirements of the rules increase the risk of overzealous efforts at compliance that can especially affect those with common names, particularly common Middle Eastern names.

The Department of the Treasury, the Financial Crimes Enforcement Network, and the seven federal financial regulators wrote rules that went into effect October 1, 2003, which were developed jointly by the Treasury Department, Treasury's Financial Crimes Enforcement Network, and the seven federal functional regulators, including the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Federal Deposit Insurance Corporation, the National Credit Union Administration, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, and the Securities and Exchange Commission.

The Administration says the regulations are necessary to implement the  Patriot Act and prevent money laundering, terrorist financing, identity theft, and other forms of fraud while also providing financial institutions the flexibility they need to effectively implement the rules.

These final regulations implement section 326 of the USA PATRIOT Act, which directs that regulations be issued requiring that financial institutions implement reasonable procedures to (1) verify the identity of any person opening an account; (2) maintain records of the information used to verify the person's identity; and (3) determine whether the person appears on any list of known or suspected terrorists or terrorist organizations. 

The regulations apply to banks and trust companies, savings associations, credit unions, securities brokers and dealers, mutual funds, futures commission merchants, and futures introducing brokers.

Institutions subject to the final rules will be required to establish a program for obtaining identifying information from customers opening new accounts.  The regulations will require that institutions implement procedures for collecting standard information such as a customer's name, address, date of birth and a taxpayer identification number (for U.S. persons, typically a social security number and for non-U.S. persons, a similar number from a government-issued document).

A financial institution's program is also required, among other things, to contain procedures to verify the identity of customers within a reasonable period of time.  Many financial institutions may rely on examining standard identification such as a driver's license or passport. However, the final rule gives financial institutions the flexibility to implement procedures to verify identity in other ways appropriate to their individual circumstances.

Early this week, a client in my office, a women member of an ethnic minority, was not allowed to deposit a large check into her account, the proceeds of a real estate settlement. Unaware of the new laws, I said offhandedly, must be the damn Patriot ACT. Upon questioning, the bank said it refused to take the deposit because her husband had not endorsed the check. Yet, she had a valid power of attorney that led to the real estate attorney issuing the check to her in the first place. No rationale existed for the refusal to accept the deposit. She was a current customer of the bank, and the bank's refusal fit none of the categories stated in the law. I figured the bank did it because they could, because she was a woman, because she was a woman of color, and because she had a "foreign" last name.

At my own bank, I had to show identification to deposit my business checks. I have been a customer of the bank for 30 years. What's up with that?

Nothing except exerting power and control for the sake of power and control. It is not enough to have cameras everywhere--now you get to be treated with suspicion and disdain.  Next thing you know they will be freezing our accounts--or those of us with "funny" sounding names.  As if Osama bin Laden is going to deposit a check in a local bank. 

Burying your money in a hole in the ground or putting it in the freezer sounds like a good idea to me.  I hate to refer to Nazi Arnold's theme song, but "we aren't gonna take it anymore" seems like a good rejoinder to the continued encroachments of liberty and the constant erosion of civility and common sense in every institution in American life--all in the name of " fighting terror."  To the point of absurdity.

 

Posted by Elaine Cassel at October 10, 2003 7:08 AM

 

Montgomery County, Maryland Challenges Patriot Act--And Where Was The Washington Post?

Filed under: Imported

The Washington Post, one of the most prestigious national newspapers in the world, has dozens, perhaps scores, of reporters covering local news in the District of Columbia and surrounding Virginia and Maryland counties. In the wake of Hurricane Isabel a couple of weeks ago, the national and local sections of the papers were filled with stories about the storm--from the mundane ("I am so sick of my husband and kids I am going to the office to escape") to the dramatic ("I lost $2 million dollars worth of merchandise and have no insurance").

Recently, Post readers wrote the editor complaining about the failure of its reporters to cover a large Dean for President rally in Falls Church, Virginia. I only learned about the event with its large turnout by reading angry letters to the editor the Post published a week later.

Last week, Montgomery County, Maryland (which some of you may recall was the site of "Beltway sniper" attacks last year this time) joined more than 170 counties and cities around the country who are calling on their officials to resist the anti-civil liberties provisions of the anti-patriotic USA PATRIOT Act.  Not one word of it appeared in the Post.

I, for whom the Post is my "hometown" paper and who read it religiously cover to cover daily, heard about the protest stand from several local readers who sent me email.

The Post reporters had to do little more than pay attention to the press release (the little darlings did not have to actually attend and cover the event). Continuously since September 11, I have wondered about the Post's complicity with the Bush Administration. Save for a handful of employees, its value to the American people in reporting the truth about the Bush administration's assault on civil liberties is diminishing daily.

Here is what the Post did not report on October 1 about what its Maryland neighbor did on September 30. As I recall, it was busy that day defending Robert Novak's role in protecting himself in his role as a White House "operative."

COUNTY COUNCIL URGES CHANGES IN "USA PATRIOT ACT"

The Montgomery County Council today overwhelmingly approved a resolutionurging Maryland's Senators and Representatives to support legislation to modifythe "USA Patriot Act" passed in the wake of September 11 and urging Countygovernment departments to continue to respect all County residents' freedoms and civil liberties. The resolution was sponsored by Councilmembers Nancy Floreen, George Leventhal, Tom Perez, and Steve Silverman. While affirming the need to protect homeland security and combat possibleterrorism, the Council pointed to several provisions in the federal law that crossed the line between needed enforcement tools in the war against terrorism and needless infringement on individuals' rights.

     Section 213, which permits the searching of one's home without the traditional'knock and announce' requirement, allows notification of the search to bedelayed indefinitely and is not limited to crimes of terrorism. 

     Section 215 authorizes searches of records such as library, bookstore,business, medical, university, and Internet Service Provider records without any showing of probable cause that a crime has been committed. It also prohibits any person from disclosing that they have been ordered to produce such letters.

     Section 802 creates a new crime of "domestic terrorism," defined so broadly that it could be applied to acts of civil disobedience wholly unrelated to terrorism.

     "We all understand the need to combat terrorism," said CouncilmemberLeventhal. "But we don't have to violate our citizens' rights in order to fight terrorism. The 'USA Patriot Act' could mean having the federal government asking County librarians what books folks are reading. It could mean using County personnel to monitor the immigration status of County residents, possibly undermining the trust we've work to build among our communities of New Americans."

     "We've heard from County residents with hundreds of letters and petitions onthis issue," said Councilmember Floreen. "They are concerned that the 'USAPatriot Act' contains provisions that potentially threaten the freedoms and liberty that this country was founded on. Since County government employees couldbe called on to enforce these provisions, it's important that we speak up forchanging this law.

     "Today Montgomery County joins 176 other communities that already have voiced their disapproval of parts of the 'USA Patriot Act'," said Councilmember Perez. "Left, right, and center — Americans have a problem with this law. It's time for Congress to take another look."

         The resolution was approved by an 8 to 1 vote.

 

Posted by Elaine Cassel at October 7, 2003 6:56 AM

 

Shock and Awe in the Moussaoui Case: Judge Brinkema Drops a Bomb

Filed under: Imported

Judge Leonie Brinkema dropped a bomb on Thursday. In a shock that reverberated around the beltway, where I live and work, lawyers were buzzing about the news.  Showing independence from the government and the defense, Brinkema announced the penalty for prosecutors' refusal to produce three witnesses for Zacarias Moussaoui and his attorneys to question. She did exactly what this writer had hoped she would do. She did not dismiss the case, but took the death penalty off the table.

 

In a 15-page thoughtful, and well-cited and documented decision, Judge Brinkema noted that the law gives her much latitude in meting out sanctions when a party does not comply with discovery orders.  The most draconian is dismissal of the case. But that never happens in real life—at least I have never know of it in my 24 years of practice and 24 years of reading cases. Typically, the judge will do something commensurate with the content or context of the noncompliance. For instance, a defendant who refuses to answer a question about whether or not he committed adultery may be barred from questioning witnesses his wife would put on the stand to prove the husband's adultery. 

 

Judge Brinkema laid out generally what it had been suggested the government's hidden witnesses would say in Moussaoui's defense. She reasoned that some of the testimony could indicate that he was not involved directly with the September 11 hijackings and that he had not engaged in any direct acts of terrorism.  Further, what she had seen of the government's evidence so far suggested that Moussaoui had done, at worst, little more than plan to do something bad. Perhaps he was involved in some scheming, but that alone would not warrant a death penalty.

 

The appropriate sanction, she said, and one supported by the evidence as she has seen it unfolding, is that the government should not be able to put into evidence any suggestion that Moussaoui was involved in planning the September 11 attacks. And because the lack of direct involvement obviates the death penalty, then the government could not ask for execution.

 

In taking this independent approach, Brinkema has thrown the government, the defense, and the 4^th Circuit Court of Appeals a curve.  The defense attorneys are left somewhat chagrined, I would think, for they joined in the government's request for dismissal, a move this defense attorney thought a bit odd. Surely, we know for a fact that the government will declare

Moussaoui an enemy combatant and move him to Guantanamo or a navy prison if the case is dismissed (they may still do it, for the government makes up its enemy combatant rules as it goes along). They would no longer have a client if he disappeared from federal court. His only chance of getting a fair trial is in federal court. And what better judge could he ever have than Judge Brinkema?  If Judge Brinkema had dismissed the case, the 4^th Circuit might have found that the witnesses should not be made available but that the case had to go forward, violating Moussaoui's 6th amendment right to confront witnesses.  Then their client would be left without exculpatory witnesses and facing death. Had I been Moussaoui's attorneys, I would have asked for what Brinkema did—it would (and did) jam the government where it hurts—the penalty phase.

 

In keeping the case and taking the needle out of the hands of the prosecutors, Brinkema has put them in a bind. The only thing they have to scream about now is that they can't kill the defendant. The case can go forward.

 

Indeed, Brinkema said, it must go forward. She noted that all along the government has insisted that "terrorists" can be tried in federal court. They can, she said, but they will get the rights any federal court defendant gets.  Further, she said, she and everyone else had spent way too much time, money, and energy on this case to walk away from it.

 

The 4^th Circuit will have a hard time overturning Judge Brinkema's ruling. Trial judges have wide latitude in dealing with discovery sanctions and with making evidentiary decisions. Of course, the 4^th Circuit has been known to reach before—they did it recently in the Hamdi case, in saying that no court can question a person's enemy combatant status.  But if they reverse her ruling that Moussaoui cannot face execution, the court, Ashcroft, and the prosecutors will look the bloodthirsty henchmen that they are. 

 

They wanted to gloss over the trail part, and march straight to the execution chamber. Now, they will have to endure a trial and be content with less than death.  Unless, of course, a military helicopter swoops down in Alexandria and hauls Moussaoui away in the dead of night. I wouldn't put that past the prosecutors, but such a move would be so obviously done to avoid the rule of law, that few but the most stalwart of Ashcroft supporters would defend such an action. 

 

I heard Judge Brinkema give a brief talk at a recent attorney gathering. She talked about how times had changed since she first came to federal court in Alexandria 20 or so years ago, then as a prosecutor. She urged attendees to go to the National Archives and stand in awe of the new exhibit—the Declaration of Independence, the Constitution, and the Bill of Rights displayed all in one room, with the entire documents visible for viewing. We are nothing as a nation, she said, without the rule of law. She called on prosecutors to try cases within the law and for defense attorneys to hold the prosecutors to the law. She said nothing of her role. But we saw it yesterday.

 

She judges according to the law. Ironic, though, that her applying the rule of law to a Muslim "terrorist" is a shock to what we have grown to expect in trials post-September 11.  And thus, all the more awe-inspiring.

Posted by Elaine Cassel at October 3, 2003 5:45 AM

 

Chicago City Counsel Condemns PATRIOT ACT

Filed under: Imported

As reported by attorney Noah Leavitt, with Chicago's Jewish Counsel on Urban Affairs, Aldermen Helen Shiller (Ward 46), Joe Moore (Ward 49), Freddrenna Lyle (Ward 6) and Ricardo Munoz (Ward 22) introduced a resolution to the City Council supporting Chicago's immigrant population and condemning the excesses of the USA PATRIOT Act.  The resolution "reaffirms the rights of all people living within the City under the U.S. Constitution and calls for the City to work for the repeal of the Act and associated Executive Orders which violate our fundamental rights and liberties. City Council passed the resolution at this morning's meeting."

Chicago Arabs and Jews, represented by the Jewish Counsel on Urban Affairs (JCUA) and the Muslim Civil Rights Center (MCRC), worked together to get the resolution passed.  Said Rasheed Ahmed, President of the MCRC, "This is a huge victory for all people who care about civil rights. As Muslims, we feel the sting of suspicion and the fear of a knock on our doors. The practice of guilt by association, perpetrated against American Muslim and Arab-American communities, undermines the fundamental meaning of the Bill of Rights and sets the legal precedence for the same fate for all Americans. The nefarious USA PATRIOT Act is leading to the creation of a second tier justice system that could be used against any American for political purposes and weakens the fabric of our democratic society."

Jane Ramsey, Executive Director of the Jewish Council on Urban Affairs, shared these. "We at JCUA are proud to be counted on the side of people who have spoken out against this violation of our fundamental rights. As Jews, who are so familiar with the immigrant experience and the unfortunate suspicions placed upon 'outsiders,' we understand the need to protect those who are not yet citizens.  We also recognize that the PATRIOT Act threatens the Constitutional rights and freedoms of all of America's residents - citizens and non-citizens alike. Today's PATRIOT Act is reminiscent of other infringements on civil liberties in America's history such as the internment of Japanese-Americans during World War II and the Red hunts of the McCarthy period in the 1950s."

The USA PATRIOT Act compromises the civil liberties of all Americans, but particularly affects Muslim and Arab-American communities. In Chicago, large numbers of immigrant workers have been arrested on numerous occasions, including in raids at O'Hare and Midway airports as well as the Sears Tower. These raids have led to the detention and deportation of many Latino immigrant airport workers.

A joint statement released by JCUA and MCRC indicates that violence against Arabs in Chicago increased from four in the year 2000 to 60 in the year 2001 to 124 last year. The PATRIOT Act, it reasons, poisons Chicago by creating a climate of xenophobia, distrust, and paranoia. It alienates the very communities that could provide crucial assistance to our national security and law enforcement bodies.

Because of the PATRIOT Act's broad scope and its many negative effects, communities across the country are joining together to voice their opposition. Three states and more than 160 municipalities from 28 states --approximately 20 million people-- have passed resolutions criticizing the Act. Similar efforts are underway across the country.

 

Posted by Elaine Cassel at October 2, 2003 6:44 AM

 

The Patriot Act's Dirty Little Secret (Subpoenas)

Filed under: Imported

Last year, hacker extraordinaire Adrian Lamo broke into The New York Times web site. For his trouble, he faces a two-count federal indictment in New York, unauthorized access of a computer and unauthorized possession of "access devices" (LexisNexis database passwords).

 

Don't cry for Lamo, but cry for how the FBI and the Department of Justice are using the USA Patriot Act--surprise!-- to threaten journalists and obtain data under the USA Patriot Act.

 

The FBI has sent out letters to reporters who wrote about the Lamo case. The letters warn that subpoenas under the USA Patriot Act will be forthcoming for all of their notes, emails, interviews, content of conversations and investigations, and expense and travel reports related to stories they wrote about Lamo. The journalists are ordered to preserve these records for three months, this in spite of the fact that the articles were written a year ago.

 

Using the Patriot Act for forthcoming subpoenas is an effort to circumvent journalists' privilege of preserving confidential sources under the First Amendment. Furthermore, reporters who talk to anyone—including their editors or lawyers (!) about the subpoenas will be subject to criminal prosecution under the Act. The gag order that violates the 1^st Amendment right of speech, the 5^th Amendment right to due process, and 6^th Amendment right to counsel. .

 

The demand that journalists preserve their notes is being made under

laws that require ISP's and other providers of electronic communications services to preserve, for example, e-mails stored on their service, pending a subpoena, under a statute modified by the USA-PATRIOT Act.

 

You thought the USA Patriot Act was just to be used to prosecute "terrorism"?  Wrong! The Patriot Act was an Executive branch power grab that took place in an atmosphere of hysterical reaction to the September 11 hijackings. Ashcroft seized the day, while the Congress slept. The dirty little secrets of the extent of the Administration's intentions for the law are only just now coming to light. 

 

More than likely, you won't when the law is being used against you.  We only know about these subpoenas because a Wired News reporter reported that the FBI contacted him, no doubt trying to get the word out before the gag order kicks in. Secret subpoenas, secret evidence, secret trials. That's patriotism today.

 

Posted by Elaine Cassel at October 1, 2003 4:28 AM

 

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