April 15, 2008
Standing Up for Justice In the Military Commissions Proceedings
No doubt we’ve been at a critical juncture since September 11. How we respond to the atrocities thrust upon us after that terrible day says everything about who we are as Americans what values we defend, how the world sees us, and how history will remember us.
The manner in which we seek justice against those accused of harming us will determine whether the United States will be seen at home and abroad as a nation of laws. We must decide whether we live the values of justice that make us proud to be Americans, or whether we will forsake those values and continue down a path of arbitrary rules and procedures more befitting those who are our enemies. Because we are a great nation, true to our founders’ vision, we must uphold our core values even in the toughest of times. The right to a speedy trial in a court of law before an objective arbiter; the right to due process; the right to rebut the evidence against you; the right not to be tortured or waterboarded, or convicted on the basis of hearsay evidence are what truly define America and our commitment to the rule of law and our founders’ aspirations.
The military commissions set up by the Bush administration for the men imprisoned at Guantánamo Bay including those it suspects were involved in the September 11 attacks are not true American justice. These trials should represent who we are, what America stands for, and our commitment to due process. America does not stand for trials that rely on torture to gain confessions, or on secret evidence that a defendant cannot rebut, or on hearsay evidence.
For these reasons, the American Civil Liberties Union and the National Association of Criminal Defense Lawyers have taken on the task of assembling defense teams to be available to assist in the representation of those Guantánamo detainees who have been charged under the Military Commissions Act, subject to the detainees’ consent.
Bush Admits to Top-Down Torture
In a stunning admission to ABC news Friday night, President Bush declared that he knew his top national security advisers discussed and approved specific details of the CIA’s use of torture. Bush reportedly told ABC, “I’m aware our national security team met on this issue. And I approved.” Bush also defended the use of waterboarding.
The ACLU is calling on Congress to demand an independent prosecutor to investigate possible violations by the Bush administration of laws including the War Crimes Act, the federal Anti-Torture Act, and federal assault laws.
>>Take Action: Demand that your members of Congress reject torture by holding to account those responsible for approving and implementing these un-American policies.
ACLU FOIA Lawsuit Brings Yoo Torture Memo to Light
A secret memo, declassified recently as the result of an ACLU Freedom of Information Act request, asserts President Bush has unlimited power to order brutal interrogations of detainees and also refers to a radical interpretation of the Constitution’s Fourth Amendment protection from unreasonable search and seizure.
The memo, authored by John Yoo of the Department of Justice’s Office of Legal Counsel (OLC) in March 2003, cites a still-secret DOJ memo from 2001 that found that the “Fourth Amendment had no application to domestic military operations.”
The October 2001 memo was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued. As a component of the Department of Defense, the NSA is a military agency.
“The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law.”
The Bush administration has never argued publicly that the Fourth Amendment does not apply to military operations within the nation’s borders. The released memo publicizes this argument for the first time.
The 2003 memo cites the October 2001 memo but takes its argument even further. Relying on the earlier memo, the March 2003 memo argues that the president has authority as Commander-in-Chief to bypass not only the Fourth Amendment but the central due process guarantee of the Fifth Amendment as well.
Unredacted Documents Confirm Lack of Oversight of Military’s Domestic Surveillance Powers
Newly unredacted documents, released as a result of an ACLU lawsuit, reveal that the Department of Defense (DoD) is using the FBI to circumvent legal limits on its own National Security Letter (NSL) power and may have overstepped its authority to obtain private and sensitive records of people within the United States without court approval.
NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or “gagged,” from disclosing that they have received the letters. While the FBI has broad NSL powers and compliance with FBI-issued NSLs is mandatory, the Defense Department’s NSL power is more limited in scope, and, in most cases, compliance with Defense Department demands is not mandatory.
“If the Defense Department is asking the FBI to get information it is not allowed to access on its own, there is a serious problem within both agencies,” said Melissa Goodman, staff attorney with the ACLU National Security Project.
A newly unredacted copy of the results and recommendations of an internal program review shows that the Navy’s use of NSLs to demand domestic records has increased significantly since September 11; and contrary to prior claims by the military, its NSL use is not limited to investigating only DoD employees.
Since last year, DoD has turned over more than 1,000 pages of documents to the ACLU, including nearly 500 NSLs which show that the military may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests.
Don’t Let Employers Get Away With Pay Discrimination
Last May, the Supreme Court ruled in Ledbetter v. Goodyear that employees who have suffered years of pay discrimination cannot have their day in court if they don’t discover the discrimination within 180 days of their employer’s initial discriminatory pay decision.
The Ledbetter decision not only reversed years of employment law, it also ignored the realities of a workplace. Often employees don’t know what their co-workers are paid. Further, expecting that they learn that information within the first 180 days of a pay decision is unreasonable. Unless Congress intervenes, companies will be able to discriminate for years and unjustly profit from paying women, minorities, the elderly, and people with disabilities, as long as it keeps the discrimination secret for a few months.
The U.S. House of Representatives has passed legislation to correct this problem, and to ensure employers do not profit from years of discrimination based on race, color, religion, sex, national origin, age, and disability, simply because their employees were unaware of the discrimination for 180 days. The bill clarified this wage discrimination is not a one-time occurrence, but rather, that each discriminatory paycheck an employer issues represents an ongoing violation of the law.
A similar bill, the Fair Pay Restoration Act (S.1843), is now before the U.S. Senate. The time has come for the Senate to correct this wrong and let American workers keep their hard-earned dollars.
>>Take Action: Urge your Senators to support the Fair Pay Restoration Act.
Stand Up for Freedom: June 8 — 10 in Washington, D.C.
Everyday, the headlines confirm that the government’s abuses of power ignore fundamental Constitutional principles and undermine our vital system of checks and balances, weakening the hallmarks of American democracy. You cannot afford to miss this important opportunity to protect the civil liberties of all Americans.
Stand Up for Freedom and help us stop the abuse of power at the ACLU 2008 Membership Conference, June 8-10 in Washington, D.C.!
At the ACLU Membership Conference you’ll have the opportunity to hear from a variety of experts, from a wide range of backgrounds, each with an exciting and unique perspective on civil liberties. Confirmed speakers for the conference include: Arianna Huffington, the co-founder and editor-in-chief of The Huffington Post and nationally syndicated columnist; Judy Gold, an Emmy Award winning actress and comedian; and Supreme Court Justices Antonin Scalia, Ruth Bader Ginsburg and David H. Souter will pay tribute to the ACLU’s president, during a celebratory luncheon entitled, Our Lady Liberty: Celebrating Nadine Strossen.