ACLU files FOIA suit over government’s
vastly expanded surveillance powers

New York, New York, Oct. 24— The American Civil Liberties Union (ACLU) today filed a Freedom of Information Act lawsuit asking a federal court to order the Department of Justice to account for its use of the extraordinary new surveillance powers granted to it by Congress last year.

“The Justice Department conceded in early September that the information is of exceeding importance to the American public, but it nonetheless continues to stonewall,” said Jameel Jaffer, an attorney with the ACLU’s Technology and Liberty Program. 

The records requested concern the government’s implementation of the USA PATRIOT Act, legislation that was passed in the wake of the Sept. 11, 2002 attacks in New York and Washington, DC. By amending laws such as the Foreign Intelligence Surveillance Act (FISA), USA PATRIOT vastly expands the government’s authority to obtain personal information about those living in the United States, including United States citizens.

In a letter to the ACLU dated Sept. 3, the Justice Department agreed to respond to the FOIA request speedily, acknowledging that the request concerned “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” The FBI made similar promises. Yet to date, Jaffer said, neither agency has disclosed any records in response to the ACLU request nor stated which records, if any, it is going to disclose. 

The ACLU and the Electronic Privacy Information Center filed the lawsuit as attorneys for their organizations and for the American Booksellers Foundation for Free Expression and the Freedom to Read Foundation, citing concerns that the new surveillance laws threaten the First Amendment-protected activities of librarians, library patrons, booksellers and their customers, and investigative journalists.

The FOIA request, which was filed on Aug. 21, seeks general information about the use of new surveillance powers, including the number of times the government has:

• Directed a library, bookstore or newspaper to produce “tangible things,” e.g, the titles of books an individual has purchased or borrowed or the identity of individuals who have purchased or borrowed certain books;
  
• Initiated surveillance of Americans under the expanded Foreign Intelligence Surveillance Act;
  
• Conducted “sneak and peek” searches, which allow law enforcement to enter people’s homes and search their belongings without informing them until long after;
  
• Authorized the use of devices to trace the telephone calls or e-mails of people who are not suspected of any crime;
  
• Investigated American citizens or permanent legal residents on the basis of activities protected by the First Amendment (e.g., writing a letter to the editor or attending a rally).
  

Some of the information was previously sought by the House Judiciary Committee, and last week Rep. James Sensenbrenner, Jr., (R-WI), the Chairman of the Committee, reported that he had received some of the information in classified form. The ACLU said that the government is using its classified stamp too broadly and that the public is entitled to know, at least in general terms, what the government’s policies are.

David Sobel, General Counsel to the Electronic Privacy Information Center, emphasized that the FOIA request does not seek any information that could compromise a terrorism investigation.

“Much of the information that the Justice Department claims is classified consists of statistical information whose release could not possibly endanger national security or any other legitimate government interest,” he said.

In related litigation, the ACLU and other groups last month filed a friend-of-the-court brief urging a secret Foreign Intelligence Surveillance Act appeals court to reject the Justice Department’s radical bid for broadly expanded powers to spy on US citizens. A decision from the FISA Court of Review is expected soon.

The attorneys in the case are Jaffer and Ann Beeson of the national ACLU’s Technology and Liberty Program, Sobel of the Electronic Privacy Information Center and Arthur B. Spitzer of the ACLU of the National Capital Area.

Source: American Civil Liberties Union

Vigilante drug bust reveals deteriorating situation along Mexico-US border

Oct. 25— Armed vigilantes who say they are only protecting property rights and the American way, but whom some border watchers describe as racist thugs, made the news last week when they reportedly seized 280 pounds of marijuana from Mexican drug runners in the desert night. The group, Ranch Rescue, is one of a number of similar groups that have sprung up in recent years along the US-Mexican border to undertake armed patrols against undocumented immigrants and drug smugglers, but which admit detaining and sometimes brutalizing thousand of Mexicans they encounter on the frontier.

According to Ranch Rescue members quoted in the Arizona Daily Star, on the night of Oct. 15 members of the group on a surveillance mission on a San Antonio ranch south of Tucson twice encountered groups of smugglers. The Mexicans, confronted by the camouflage-clad, semi-automatic rifle-toting vigilantes, dropped their loads and fled back across the border.

Ranch Rescue and associated groups such as the American Border Patrol (not to be confused with the official US Border Patrol) haven’t won a lot of friends on the heavily Hispanic border. The groups are frankly anti-immigrant and tinged with racist sentiment, referring to incoming Mexican workers as “hordes of predatory criminals that pour across our private property every day,” as Ranch Rescue put it on its web site.
The cops would rather see them go away. “Ranch Rescue is a vigilante group, and the Arizona Department of Public Safety does not support vigilantism,” a DPS spokesman told DRCNet. “We believe that the Border Patrol and local law enforcement are quite capable of enforcing our laws,” he said. “When people take the law into their own hands, 99% of the time bad consequences happen. We don’t want to see anyone get shot, we don’t want to see confrontations, and we don’t want to see these people having to go on trial for shooting someone.”
Ranch Rescue did not return calls to DRCNet.

Sheriff Estrada agreed with DPS. “We do not want these people here, especially along the border,” he told DRCNet. “It’s a very dangerous game. These people from outside the area come in looking for confrontations along the border, but there is real potential for an explosion. The smuggling organizations, the cartels that are moving people and drugs across the border understand the risk of law enforcement, but I fear what could happen if they run into armed civilians.”

That could be just what the vigilantes want. A shootout or two between armed vigilantes and Mexican traffickers would strengthen the nativist campaign to bring the US military to the border. That campaign, led by Rep. Tom Tancredo (R-CO) and cheered on by a chorus of conservative commentators, is prominently featured on Ranch Rescue and similar web sites. In May 1997, a young Mexican-American named Esequiel Hernandez was shot and killed by a squad of US Marines on anti-drug patrol while he was herding sheep. The American Border Patrol, based in nearby Sierra Vista, also calls for the deportation of all undocumented workers.

It could also divert attention from the murders of at least 10 Mexicans in Arizona. On Tuesday, the Daily Star reported that police were investigating whether the self-appointed border guardians murdered two Mexican immigrants in the desert last week. A survivor of that incident told police that a dozen immigrants were attacked by men wearing combat fatigues and firing automatic rifles. Authorities found two bullet-riddled bodies. The whereabouts of the other nine immigrants are unknown.

While Pima County officials suggested the Mexicans could have been killed by coyotes (guides helping others cross the border), immigrant advocates scoffed at the notion that coyotes, who usually blend in with their charges so as to avoid detection, were responsible for the killings. “We have never seen coyotes or smugglers dressed in camouflage,” said Isabel Garcia, Pima County public defender and a leading member of the Coalicion por los Derechos Humanos (Coalition for Human Rights). “We can’t yet blame vigilantes for these killings, but this is very frightening,” she told DRCNet. “We’ve asked the federal government to intervene. Nowhere else in the country would armed civilian vigilantes be permitted, not even in Washington, DC, where they’ve been hunting down a mass murderer. These killings crystallize the increasingly hostile and violent atmosphere created by failed US border policies,” she said.

As if those killings weren’t enough, authorities to the north in Maricopa County (Phoenix) are investigating the murders of eight more Mexicans whose bound, gagged, and bullet-riddled bodies have been found in the desert since June. While investigators suggested that smugglers or coyotes could be to blame, they also conceded that it could be the work of vigilantes or hate groups, the Daily Star reported.

“If this had been going on in the Deep South, if someone was attacking blacks like this, something would have been done about it,” said Maria Jimenez of the American Friends Service Committee US-Mexico Border Program, a human rights advocacy organization. “We sent a delegation to the Department of Justice, we asked them to intervene, but nothing has happened,” she told DRCNet.

“We have a huge problem here in Arizona,” said Garcia. “Area rancher Roger Barnett has been the main culprit. He admits detaining thousands of people at gunpoint, and the authorities have done nothing. Now we have the racist American Border Patrol coming in from California and these Ranch Rescue people from Texas. But the fundamental problem is the failed US policy of funneling people into this desert area,” she said. “That is causing the kind of division that leads to this chaos and violence.”

Barnett told the Daily Star on Tuesday that he and his brother, Donald, were allied with the American Border Patrol and they “had detained at least 8,000 illegal immigrants over the past four and a half years and turned them over to the United States Border Patrol. He said that the migrants, who are made to sit on the ground, sometimes ‘get mouthy with us’ and that he was forced to become physically aggressive to control them. ‘If you go out there and you’re not armed, you’re a fool,’ said Barnett, who carries a 9-millimeter pistol. ‘Who’s going to protect you out there?,’” wrote the Daily Star.

Under border control programs such as Operation Gatekeeper, which have made illicit entry into the US more difficult in easier climes, Mexican immigrants have turned to harsh mountain and desert routes to get across. In southern Arizona alone, the Border Patrol reports detaining 333,000 illegal border crossers last year. It also reports that in the past year, 134 migrants died on their way to the US, falling victim to dehydration, heat exhaustion, and exposure in the harsh Arizona desert. That’s up from 11 in 1998, before operations like Gatekeeper spread across the border, forcing undocumented workers-to-be to take ever more dangerous routes.

“That’s only the bodies they’ve found,” said Garcia.

But it’s not just people coming across the border — it’s drugs, too, of course, and the effort to suppress the lucrative trade has only made the border more dangerous, said Garcia. But drug policy and immigration policy are linked by more than the border, she added; they are driven by the same myopia “that views that border as the point of origin of US social problems. The solution is a change in US policy to demilitarize the border, stop Operation Gatekeeper, Operation Safeguard and all the rest.”

Garcia implicitly pointed out another parallel between the drug war and immigration policy. “It’s easy to say the migrants are criminals, they’re violating the law. Well, they’re not like the Enron executives, who get to write the laws, are they?” she asked. “If there are 11 million people violating the law, that tells you something about the law, doesn’t it?”

Thirty years of ever-increasing law enforcement hasn’t worked for immigration or drug control, said Garcia. “What we are doing isn’t working,” she said. “Instead it has created a human rights crisis on the border. It’s time for America to wake up.”

Source: Drug Reform Coordination Network (DRCNet)

Lawsuit calls police ‘trap and arrest’ tactic unconstitutional

Washington, DC, Oct. 22— Four student journalists and three law students from George Washington University, who were arrested during the International Monetary Fund and World Bank protests, filed a federal lawsuit last week claiming their constitutional rights had been violated by the DC Metropolitan Police Department, the US Attorney General and the National Park Service.

The lawsuit contends that the students were not engaged in any illegal conduct by being present during the Sept. 27 protests at Pershing Park because of their roles as legal observers for the National Lawyers Guild and as photographers for the university’s student newspaper, The Hatchet.

Jonathon Turley, George Washington law professor and attorney for the students, stated in the complaint filed in federal district court that the methods police used to arrest and detain the students violated their First, Fourth, Fifth, Sixth and 14th Amendment rights, as well as some federal statutes.

During the IMF protests, police mass arrested protesters, journalists and bystanders alike with the “trap and arrest” method, Turley said. Using this tactic, police outline a zone that is cordoned off and arrest anyone who is caught within the area. The courts have yet to address the constitutionality of this “trap and arrest” method.

“Under this policy, the police sought to suppress the number of demonstrators by encircling and then arresting hundreds of individuals who were prevented from leaving the arrest zones,” Turley stated in a press release.

The students contend that the police gave no order to disperse before arrests began, Turley said. And they were refused the right to leave the confined area even after they provided identification, such as press credentials.

The lawsuit further challenges the procedures that police officers used in detaining the students and protesters for excessive periods of time, up to 30 hours.

The university students were handcuffed and detained on city buses for several hours before they were transported to the Metropolitan Police Academy for processing. There they were handcuffed wrist to ankle and placed on mats shared with 10 other detainees, Turley said.

Among the long list of violations, the student’s claim the police denied their access to attorneys before entering their plea, Turley said. The George Washington students all pled no contest and paid a $50 to $100 post and forfeit fee in order to end their detainment.

Turley is seeking a jury trial to expunge the students’ police records and is asking for punitive damages. The court also will be posed with the question of the constitutionality of the “trap and arrest” tactic.

Source: Student Press Law Center

NATION BRIEFS

Sen. Wellstone
dies in plane crash

Democratic senator Paul Wellstone, one of the foremost liberals in Congress, was killed in a plane crash in northern Minnesota on Friday, Oct. 25, along with seven others, campaign officials said. Wellstone, his wife, Sheila, and daughter Marcia were on the plane, said Lisa Pattni, an aide who was at the crash site. All were killed.

The plane went down in freezing rain and light snow near the Eveleth-Virginia Municipal Airport, about 175 miles north of Minneapolis. Wellstone, 58, was on his way to the funeral of the father of a state lawmaker.
Wellstone had been locked in a tight race with

Republican challenger Norm Coleman, a former mayor of St. Paul and George W. Bush’s choice to challenge the two-term incumbent in a race that could determine control of the Senate. He cast his vote earlier this month against legislation to authorize the use of force in Iraq – virtually the only Democrat in a competitive race to go oppose Bush on the issue. (NYT, Minneapolis Star-Tribune)

Appeals court
OKs drug tests
of Michigan
welfare recipients

A federal appeals court Oct. 18 cleared the way for Michigan to test welfare recipients for drug use. US District Court Judge Victoria Roberts halted a drug-testing program in 1999 after a group of welfare recipients and the ACLU of Michigan argued that the testing is unconstitutional. A three-judge panel of the 6th US Circuit Court of Appeals reversed Judge Roberts’ decision.

Robert Sedler, the attorney who sued the state Family Independence Agency on behalf of several welfare recipients, said he would appeal to the full court.
Michigan was the first state to pass such a program, and many other states have been watching the case progress, the ACLU said.

In Michigan, the state wants to require welfare applicants in a handful of communities to provide urine samples for drug screening before they can be considered for benefits.

Under the rules of the pilot program, the drug-test results wouldn’t affect access to food stamps and police wouldn’t be notified, but applicants who tested positive for drugs would be sent to treatment and could gradually lose benefits if they failed to go. (News World Communications)

ACLU: Black voters disenfranchised
in Sept. primary

A report by the ACLU of Florida says hundreds of black voters in Miami-Dade County showed up to vote on Sept. 11, but did not get to, or had their votes go uncounted. The report, released Oct. 21, says African-American voters were disenfranchised at a disproportionate rate, with eight out of every 100 votes thrown out.

The ACLU’s legal team focused on 31 of 198 precincts that reported voting machine problems during the primary. The study found that 8.2 percent of the votes cast by blacks were lost. In some precincts, the rate of lost votes was as high as 21.5 percent.

The study shows 18,752 people signed voter rolls at the precincts, but only 17,208 votes were recorded, leaving a 1,544-vote shortfall, the ACLU said. Of that total, approximately half of the votes were from African-Americans.

Anticipating the possibility of additional problems during the November elections, black leaders held a get-out-to-vote-early campaign Oct. 21. Monitors from the non-partisan Centers for Democracy began arriving in Miami on Oct. 21 to monitor the election in the county. The federal government is also sending monitors from the Dept. of Justice. (NBC6.net)

CIA is expanding domestic operations

The Central Intelligence Agency is expanding its domestic presence, placing agents with nearly all of the FBI’s 56 terrorism task forces in US cities, a step that law enforcement and intelligence officials say will help overcome some of the communications obstacles between the two agencies that existed before Sept. 11.

Separately, the CIA is undertaking what one intelligence official called a “concerted effort” to increase the number of case officers working in the agency’s domestic field offices. Those offices, directed by the National Resources Division, are staffed by officers from the clandestine service.

The CIA’s domestic field offices recruit foreigners living temporarily in the United States – for example, scientists at universities, diplomats at embassies, and business executives – to work as agents for the CIA when they return home. They also conduct voluntary debriefings of Americans, mainly business executives and academics, who have recently returned from abroad. The division also is responsible for handling some defectors and for limited counterintelligence targeting. (Washington Post)

Protester’s
arrest could
result in lawsuit

On Oct. 24, Brett Bursey, 54, a longtime antiwar activist and director of the SC Progressive Network, was arrested for protesting at a rally in Columbia, SC. Bursey was charged after police told him to leave the area near the Jimmy Doolittle hangar where the rally was held.
Bursey and three other protesters were directed to a “free speech zone” at the airport’s entrance, about a half-mile from the hangar.

The arrest could lead to a First Amendment lawsuit, said Eldon Wedlock, a University of South Carolina Law School professor, said Oct. 26.

Bursey, whose trial is set for Dec. 8, was carrying a sign reading “No War For Oil.”

Neal Dolan, special agent in charge of the Columbia Secret Service office, said an Airport Authority rule prohibited protesters from gathering near the building where Bush addressed 4,400 people.

An Airport Police spokesman said the authority has rules against “picketing and protesting” on airport property.

The authority also requires that people obtain a permit before they post or carry any signs on the property.
Wedlock said the airport’s decision to banish protesters from the rally site may have violated Bursey’s First Amendment rights. (The State)

Mexicans protest racism in new
Hollywood film

Mexican activists staged a rowdy protest in Los Angeles Oct. 27 against a new Hollywood film about Mexican artist Frida Kahlo that they say perpetuates colonialism and racism.

Around 20 angry activists gathered outside one of the cinemas where Mexican-born film star Salma Hayek’s new movie “Frida” was due to debut, decrying the picture and its stars. Protest leader Olin Teztatlipoca decried the exclusion of Mexicans from the starring roles in the film, and recalled Hayek’s now ironic complaints that Madonna and Jennifer Lopez, both of whom had expressed interest in the starring role, were not Mexicans and thus should not play the part. Teztatlipoca accused Hollywood of racism and neo-colonialism because of its continued practice of representing Mexican characters with actors who are Spanish, Puerto Rican, and Cuban.

Hayek, who produced the film, stars in it opposite Alfred Molina, a British actor of Spanish origin who plays Kahlo’s painter husband Diego Rivera. Spanish star Antonio Banderas also has a starring role. The film tells the tragic story of the artist’s life and her relationships with people like Russian communist leader Leon Trotsky, as well as with various female lovers. (AFP)

Senator fighting
to make 9-11
bombshell public

US Senate Intelligence Committee Chairman Bob Graham said Oct. 20 that he is seeking to declassify “the most important information” obtained in a congressional probe of the Sept. 11 attacks.

Graham’s panel and the House Intelligence Committee have conducted a joint investigation of the Sept. 11 attacks, holding a series of open and closed hearings.

The committees are to issue a draft report by the end of this year, with a final report due in February. In the meantime, they are seeking to declassify much of what they learned.

“Frankly, there is a piece of information which is still classified which I consider to be the most important information that’s come to the attention of the joint committee,” Graham said on CBS’s “Face the Nation.”

“We hope that it will be declassified,” he continued. “There’s been a pattern in which information is provided on a classified basis, and then what is declassified are those sections of the report that are most advantageous to the administration.” (Reuters)

Hundreds in LA
protest against
police shootings

Black-clad marchers converged on police department headquarters Oct. 22 to demand an end to police brutality in one of a series of rallies scheduled on a national day of protest. A loose coalition of civil rights activists, anarchists, revolutionaries, and relatives of those killed by police staged the rally, which was poorly attended last year after the events of Sept. 11.

Speakers at the rally said more than 140 people have been killed by law enforcement officers around the nation since Sept. 11. They also condemned the videotaped beating of a black teenager by police in Inglewood, a suburb of Los Angeles, in July. Two police officers face criminal charges in the case.

Justin Jordan, 10, of Anaheim, clutched a white rose. “I’m here for my dad, because he was murdered,” he said. “He wasn’t wanted for anything… They thought he was somebody else.”

John Francis Jordan, 26, was shot to death in 1999 by Long Beach police who mistook him for an armed robbery suspect. He was unarmed. “I think that the cops who shot my dad should go to jail,” Justin said.

Last month, jurors in a $10 million wrongful death suit found officers did not act negligently or use excessive force against Jordan. (AP)

ACLU, Justice
Dept. wrangle
over Hamdi case

Justice Dept. lawyers set the stage for a landmark courtroom battle in Virginia on Oct. 21, telling the 4th Circuit Court of Appeals in Richmond that a federal judge in Norfolk did not have the authority to conduct an inquiry into George W. Bush’s decision to imprison Yaser Esam Hamdi as an “enemy combatant” without charges, a lawyer, or a trial.

On Oct. 25, the national American Civil Liberties Union filed a friend-of-the-court brief with the Court on behalf of Hamdi, an American citizen who was captured in Afghanistan last November and who has been held indefinitely and in isolation on a military brig in Norfolk for the last six months.

“There is no legal or constitutional basis for allowing the government to detain someone indefinitely without charges or a trial,” said ACLU of Virginia executive director Kent Willis. “If Mr. Hamdi is a prisoner of war, then treat him accordingly. If there is a basis for a criminal prosecution, then proceed with that.”

The case pitting the constitutional powers of the president against the constitutional protections afforded individual Americans is expected to reach the Supreme Court.

Justice Dept. lawyers insisted that a two-page declaration about Hamdi’s battlefield activities submitted to US District Judge Robert Doumar provided “an adequate factual basis to justify the military’s wartime detention” of Hamdi without additional judicial review. The sworn declaration was submitted by a Pentagon lawyer. The ACLU counters that the US does not have the right to create a new category of detainee in order to indefinitely detain and deny counsel to an individual, especially an American citizen. “That is an ominous step that violates the core protections of the Constitution,” said Lucas Guttentag, an ACLU senior staff attorney who helped write the amicus brief.

Hamdi, 22, born in Baton Rouge, LA, to Saudi parents and raised in Saudi Arabia, has been in military custody since being turned over to US forces Dec. 1. According to Michael H. Hobbs, a lawyer working for the Pentagon, Hamdi trained with and fought for the Taliban in Afghanistan.

In July, a federal district court judge in Norfolk ruled that the government had not provided sufficient evidence to show that Hamdi was an enemy combatant. The Justice Department appealed that decision to the 4th Circuit Court of Appeals, which will hear arguments in the case in Richmond on Oct. 28. (ACLU, AP)