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FDL Book Salon: In Defense Of Our America: The Fight For Civil Liberties In The Age Of Terror

romerobook.jpg

 [As always with guests here at FDL, please be polite and stay on topic in comments and questions.  Any off-topic comments should be taken to the prior thread.  And with that, I welcome Anthony Romero — please join me in giving him a big FDL welcome — CHS.] 

The individual circumstances are ever-changing, but the underlying refrain remains constant:  in the age of terror, the fight for upholding civil liberties must be a constant one, and it must be vigilant, because the Bush Administration's track record thus far has not been one of upholding the rule of law over whatever they deem to be politically exploitable or expedient in the moment.  Not by a long shot.

Enter In Defense Of Our America:  The Fight For Civil Liberties In The Age Of Terror.  I honestly could not put this book down once I started reading it.  The stories contained within are from ordinary Americans and others caught up in an extraordinary moment in our nation's history. 

But, more than that, they are stories of that moment of decision when these people went from passive recipients of treatment by our government to active citizenship in fighting for the very rights for which our nation's founders had fought so many years before.  And so many of these stories show the nuance and the very humanness that is far too often lacking in reporting on these subjects.  This is how to tell a great story and, at the same time, illuminate the difficult and defining issues of our time.

And it is in these moments, these personal vignettes with their catalogue of everyday details that you realize it:  this could be you.  At any time, this could be you.

Imagine, for a moment, that this is your legal practice:

Government intelligence officials rifled through immigrants' computers, cell phones, and address books in a bid for new leads to track al-Qaeda operatives around the world. Monitoring just one phone number allowed intelligence officers to build a database of "potential terrorists" and build a web of gossamer connections. But in FBI field offices, NSA data was viewed as a distraction in the hunt for terrorist plots. Information gleaned from the NSA program often led to innocent people or dead ends. FBI agents joked that additional tips meant more "calls to Pizza Hut." Anyone calling a suspected dirty number became a potential target. Certainly anyone calling a friend they had no idea was a suspected al-Qaeda operative would likely be targeted.

As Dratel read through the New York Times article, his most immediate concern was about attorney-client privilege. Though the article didn't say specifically that attorneys and physicians were in the sweep, Dratel worried they might be. (The Department of Justice would later say that calls to doctors or lawyers "would not be categorically excluded from interception" as long as there was a suspected link to al-Qaeda and one party was outside of the United States.) More broadly, whether or not Dratel was a target, what the article made clear was that the NSA program flew in the face of the First, Fourth and Fifth Amendments — free speech, protection from unreasonable search and seizure, and due process. There was also the chilling effect the program might have on many Americans if they even suspected that they might be on the receiving end of a wiretap. It would change the way they operate, even subconsciously….

The warrantless wiretaps should have been a wake-up call for Americans who believed they had nothing to fear from the war on terror as long as they were doing nothing wrong. That blind trust in government, Dratel said, was naive. A look at American history showed that programs launched in times of emergency always became part of the larger system and they always left the door open for abuse of power….

"…And whether I was part of their listening program or not, I knew I had to do something."

At what point do public safety and the fight against threats to our national security lawfully and acceptably intersect with an incursion into our civil rights? Is that point here? Are you comfortable with these decisions being made without any public recourse or oversight, as was done when the NSA domestic spying program was implemented while the GOP-controlled Congress nodded yes to the Bush Administration's constant dip into the well of individual liberties? Or is whatever price we pay for safety just the price we pay? Is it at all lawful for a President to unilaterally decide to refuse to follow the law? And, if not, what recourse do we have to prevent further problems?

And then imagine that you are Cecilia Fire Thunder, the first female president of the Oglala Sioux in South Dakota, and the state's abortion ban bill gets signed into law by the state's governor.

…There had been abortion ban bills before. Governors had never signed them. She assumed this time would be no different. But if abortions were outlawed in the rest of the state, even Native American women would lose access to services.

"I was taken aback," Fire Thunder recalled later. "The way I saw it, Mike Rounds had just signed a law as a Catholic instead of as a governor."

The law's no-exceptions clause for rape or incest hit Fire Thunder particularly hard. Rape and sexual assault crimes were considered the purview of outside law enforcement; they couldn't be prosecuted in a tribal court. When accusations of rape surfaced, the federal authorities or criminal investigators from outside the reservation came in. The response had been lackluster, at best, for more than 15 years, Fire Thunder said. As a result, rape had become almost accepted and something that was swept under the rug because it was a crime without consequences. Women on the reservation had come to think of rape prosecution as a dim possibility, like the light on a flat field, miles off.

"I was furious once I realized what the law did," Fire Thunder said. "A group of white men who know nothing about women of my culture had made a decision that children could be created in an act of violence and women had no options. I don't think God wanted the future of the human race to be created in violence. I couldn't let this stand."

South Dakota was selected as the first test case in the fight to uphold and/or overturn Roe v. Wade because they have a small population, a malleable governor ripe for pressuring to sign the bill and cheap advertising test markets.  Since then, there have been many more chip-away measures taken for reducing a woman's right to choose in America.  Where do you stand on this issue, not just in your heart but publicly?  Would you be willing to put yourself publicly on the line to fight such a law as Cecelia Fire Thunder did?  Because that may be what it takes in the years to come in order to secure an individual's right to make the choices in their own lives about their own situation, after consulting their own heart, their partner, and their God. 

My personal position is that it is no one else's business — that these people have enough to deal with after a violent rape or dangerous medical situation, and the last thing they need is some know-nothing outsider sticking his nose in where it does't belong.  The life of the mother is a life as well, and far too often that is just tossed aside for so much public posturing and fundraising.  It is well past time that the false prophets were called on their luxury office suites while the poor and violently abused still face the worst choices of their lives without the surrounding support that such funding could provide to reduce the need for abortions in the first place.  Let's have THAT conversation more often instead of hurling sanctimonious stones, why don't we?

But it isn't simply things happening on American soil, either.  Imagine that this is your father, your brother, your husband, your son:

…Khaled El-Masri was a German citizen of Lebanese birth, a father of six. When Beeson [his soon-to-be-attorney] was on vacation in Vermont, El-Masri was on his way to a holiday in Macedonia on December 31, 2003, when he was abducted by Macedonian officials and turned over to a team of CIA agents. He was transferred to a hotel room where he would spend the next 23 days in captivity, curtains drawn. The US government suspected him of terrorism. He was questioned about activities he knew nothing about and people he had never met.

On January 23, 2004, El-Masri's nightmare only got worse. Several men entered the room. They handcuffed him, blindfolded him, led him to a vehicle, and drove him to another building. There he was severely beaten and his clothes were sliced off his body. Men in black ski masks placed him in a diaper and a track suit, chained him at his wrists and ankles, placed earmuffs over his ears and eye pads over his eyes, blindfolded and hooded him. He was led to an airplane (leased by US government agents) and forced to its floor, facedown. He was injected with drugs and flown to what he would later find out was a secret base in Afghanstan. He spent months in the notorious "Salt Pit" — a secret US-run prison just north of Kabul — locked in a small, dirty, cold concrete cell. He was interrogated and tortured.

As it turned out, this was a case of mistaken identity. But the CIA continued to hold El-Masri incommunicado in Afghanistan long after it realized its mistake. Five months after his abduction, he was finally led out of his cell, blindfolded, handcuffed, chained to the seat of a plane, flown to Albania and — without explanation — abandoned on a hillside at night. He was never charged with anything. Beeson and her team at the ACLU had filed a federal lawsuit against CIA director George Tenet, the unidentified CIA agents, and the corporations that owned the aircraft used to transport El-Masri.

The El-Masri case came more than a year after the pictures of torture at Abu Ghraib prison in Iraq came to light. But this was different. This was a case of a German citizen whisked off the streets in Macedonia and "rendered" to a military base to be tortured by his American jailers.

Think it couldn't happen to you because you aren't a Muslim American and whatever you are doing is within the bounds of law?  Think again.  Read this about what happened in a small town in Pennsylvania when a religious man on the school board hooked up with a well-funded group whose purpose was to overthrow scientific theory in the name of God.

The Seattle-based organization's [The Discovery Institute] intelligent design crusade started with an article in the Wall Street Journal by a professor at a Christian college in Spokane, Washington, that focused on a biologist who was chastised for discussing intelligent design in the science classroom. The professor, Dr. Stephen Meyer, was friendly with conservatives Howard and Roberta Ahmanson, wealthy religious philanthropists, and together they hatched the idea of creating the Discovery Institute's Center for Science and Culture. Dr. Meyer is its director. Other backers include stalwarts in the conservative movement like Philip Anschutz and Richard Mellon Scaife. The Ahmansons were by far the biggest supporters of the Discovery Institute, having provided some 35 percent of the $9.3 million the science center raised from its inception. Mr. Ahmanson is on the Discovery Institute's board….

What later became crystal clear was that the Discovery Institute had a very specific agenda in mind. In 1999, an internal document from the organization, known as the Wedge Document, suddenly appeared on the Internet. It described not only the Discovery Institute's goals but how the group was prepared to accomplish them. The document said that the idea that human beings are created in the image of God was "one of the bedrock principles on which Western civilization was built." People like Darwin, Marx and Freud had "infected virtually every area of our culture" and their ideas needed to be "overthrown."

And then imagine that you are a high school science teacher in that community. Could you stand and fight for science and not pure theology dressed up as pandas being taught in the classroom as Bert Spahr did?  Even in a community caught up in the religious fervor stirred at the time by a long-term campaign to convert your town to the way of thinking of the tiny group of evangelicals who had worked their way onto a majority on the school board — even as they were not close to a majority in the community?

What In Defense of Our America taught me more than anything else is that we must have an engaged and active electorate in this nation of ours.  We must find a way to wake them up and get them to pay attention.  For that is the only way that things will begin to change — a collective demand.  We are better than this, and it is past time that we stood up and said so.

Many of the Bush administration's post-9/11 strategies have upset the basic system of checks and balances that we learned about in fifth-grade social studies. The genius of Hamilton and Madison was to build a necessary check against abuse of power. They knew that if you concentrated too much power in any one branch, that power would lead to abuse. That's why they designed three coequal branches of government, with each serving as a check on the other two. But that delicate balance has been upset in ways large and small. We had the president's unilateral decision to use the NSA to intercept phone calls and e-mail of Americans without any judicial review or congressional approval, in violation of of the Constitution and federal law. We find portions of the USA Patriot Act that allow the FBI to seize a person's internet records with no judicial review at all. And the Military Commissions Act of 2006 stripped detainees of their habeas rights and undermined the Supreme Court's ruling in Hamden v. Rumsfeld that had restored some semblance of checks and balances. The fact that President Bush could climb back on his horse after being thrown by the largely conservative U.S. Supreme Court showed the extent to which this president was able to cudgel a quiescient Congress. And it remains to be seen whether the new, Democratic-controlled, Congress will be any different beyond the rhetoric.

Our civil liberties are fluid so long as we allow the government alone to define them for us.  It is only where we, as an active public, stand up for our Constitution, for the Bill of Rights, for the rule of law, and our own rights as individuals that the true power of the American public is felt.  We do so each and every time we vote.  And we do so through our daily actions, and our interactions with those who are elected to represent us and who we expect — or who we ought to expect anyway — to live up to the fiduciary obligations that they undertake on our behalf as part of the social contract inherent in a representative republic such as ours.  We are better than this, and we would all do well to live up to what we ought to be and not what we are at any given moment in our nation's history. 

We are, in America, that ever possible potential, moving ahead so long as we strive to meet both our aspirations in consideration of what is fair and just, not just for the short term, but for a long time to come, and our obligations to uphold what is right not just for ourselves but for every generation that follows us.

And with that, I welcome Anthony Romero, Executive Director of the ACLU, and open the floor to questions.

Book SalonCommunity

FDL Book Salon: In Defense Of Our America: The Fight For Civil Liberties In The Age Of Terror

romerobook.jpg

 [As always with guests here at FDL, please be polite and stay on topic in comments and questions.  Any off-topic comments should be taken to the prior thread.  And with that, I welcome Anthony Romero — please join me in giving him a big FDL welcome — CHS.] 

The individual circumstances are ever-changing, but the underlying refrain remains constant:  in the age of terror, the fight for upholding civil liberties must be a constant one, and it must be vigilant, because the Bush Administration's track record thus far has not been one of upholding the rule of law over whatever they deem to be politically exploitable or expedient in the moment.  Not by a long shot.

Enter In Defense Of Our America:  The Fight For Civil Liberties In The Age Of Terror.  I honestly could not put this book down once I started reading it.  The stories contained within are from ordinary Americans and others caught up in an extraordinary moment in our nation's history. 

But, more than that, they are stories of that moment of decision when these people went from passive recipients of treatment by our government to active citizenship in fighting for the very rights for which our nation's founders had fought so many years before.  And so many of these stories show the nuance and the very humanness that is far too often lacking in reporting on these subjects.  This is how to tell a great story and, at the same time, illuminate the difficult and defining issues of our time.

And it is in these moments, these personal vignettes with their catalogue of everyday details that you realize it:  this could be you.  At any time, this could be you.

Imagine, for a moment, that this is your legal practice:

Government intelligence officials rifled through immigrants' computers, cell phones, and address books in a bid for new leads to track al-Qaeda operatives around the world. Monitoring just one phone number allowed intelligence officers to build a database of "potential terrorists" and build a web of gossamer connections. But in FBI field offices, NSA data was viewed as a distraction in the hunt for terrorist plots. Information gleaned from the NSA program often led to innocent people or dead ends. FBI agents joked that additional tips meant more "calls to Pizza Hut." Anyone calling a suspected dirty number became a potential target. Certainly anyone calling a friend they had no idea was a suspected al-Qaeda operative would likely be targeted.

As Dratel read through the New York Times article, his most immediate concern was about attorney-client privilege. Though the article didn't say specifically that attorneys and physicians were in the sweep, Dratel worried they might be. (The Department of Justice would later say that calls to doctors or lawyers "would not be categorically excluded from interception" as long as there was a suspected link to al-Qaeda and one party was outside of the United States.) More broadly, whether or not Dratel was a target, what the article made clear was that the NSA program flew in the face of the First, Fourth and Fifth Amendments — free speech, protection from unreasonable search and seizure, and due process. There was also the chilling effect the program might have on many Americans if they even suspected that they might be on the receiving end of a wiretap. It would change the way they operate, even subconsciously….

The warrantless wiretaps should have been a wake-up call for Americans who believed they had nothing to fear from the war on terror as long as they were doing nothing wrong. That blind trust in government, Dratel said, was naive. A look at American history showed that programs launched in times of emergency always became part of the larger system and they always left the door open for abuse of power….

"…And whether I was part of their listening program or not, I knew I had to do something."

At what point do public safety and the fight against threats to our national security lawfully and acceptably intersect with an incursion into our civil rights? Is that point here? Are you comfortable with these decisions being made without any public recourse or oversight, as was done when the NSA domestic spying program was implemented while the GOP-controlled Congress nodded yes to the Bush Administration's constant dip into the well of individual liberties? Or is whatever price we pay for safety just the price we pay? Is it at all lawful for a President to unilaterally decide to refuse to follow the law? And, if not, what recourse do we have to prevent further problems? (more…)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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