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Justice

A Symbol of “Extraordinary Rendition” Returns to the U.S.

By Aziz Huq – 11/25/06

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism

Who Watches the Home Front?

By Aziz Huq – 11/14/06

*Cross-posted from The Huffington Post

Oversight is the rallying cry of the new Democrat Class of '06. But there's a danger that the policy area most obviously in need of real accountability - our domestic national security agenda - will get short shrift in the rush to address the Iraq debacle.

Legislators moved quickly on Iraq. Legislation to revive the Special Inspector General for Iraq Reconstruction has already been flagged for the lame-duck Congress. Inquiry into the myriad iniquities that make out America's Iraq policy is a no-brainer for the new Congress. And Rumsfeld's "resignation" is a sure sign that the Administration is battoning down the hatches in preparation for some heavy weather.

While Iraq is of unquestionable importance, there's also a pressing need for oversight on domestic security issues: How are our intelligence agencies and military behaving closer to home? So far, too little attention has been paid to this question.

For at least the past three years, the American public has been hearing stories of torture, the "extraordinary rendition" of suspects to torture, disappearance, detention, and warrantless surveillance. But to date, Congress has conducted no substantial inquiry into the full facts around any of these policy areas. In consequence, the executive branch has been able to control the narrative.

For example, with respect to torture, a plethora of internal executive branch investigations have produced fragmentary, and likely misleading, reports on the connection between political appointees in Washington, who developed legal justifications for torture, and interrogators out in the field, who put those justifications into practice. There is a need for sustained oversight that goes beyond the current quagmire in Iraq. We need to know not only how we have gone wrong - and violated core individual rights - of innocent men and women over the past five years, but also how we can avoid those same mistakes in the future.

This oversight is especially important because the policies at issue - torture, "extraordinary rendition," wiretapping - were fashioned without congressional input or oversight: So they will likely continue unabated, with the attendant harms this causes, until Congress steps in.

At a minimum, we need serious and substantial inquiries soon into the following topics:

• The activities of all military intelligence gathering agencies in the United States. It's not just the NSA we need to worry about. Several months ago, Walter Pincus of the Washington Post wrote a series of superlative articles about a military agency called CIFA, or the "Counter-Intelligence Field Activities." This agency had been collecting reams of data on civilians in the United States, including anti-war protesters. There has never been a full accounting of CIFA's role or responsibilities - let alone the kind of synoptic overview of what military intelligence is doing in the United States, which the American public are long overdue.
• The actual interrogation policies of the CIA, and any military intelligence agencies that are engaged in detention and interrogation policies. Startling, the White House continues to resist disclosure of even the most generic documents on this matter, documents whose disclosure poses no risk of compromising national security. For example, there is an August 2002 Justice Department memo, a sibling to the infamous "torture memo" of the Office of Legal Counsel, which analysis a series of specific interrogation tactics (Waterboarding? Cold cell? "long time standing"? Is this where the Vice President gets his impression that waterboarding is just dandy--and legal?). Did the Justice Department find these tactics all legal? Ethical? Did it even ask the ethical question? We don't know until we see the memo and see how it was operationalized.
• Our relations with foreign intelligence agencies: The Who's, the What's, and the How's. It is by now clear that the United States maintains standing relationships with the world's most brutal and anti-democratic intelligence agencies, including Syria's, Egypt's, and Jordan's. There has been virtually no disclosure - and scant public debate - about what we are doing supporting the least democratic elements in countries we are supposed to be supporting democracy in.

These are the tips of the proverbial iceberg. Finding out how deep the iceberg runs is the task of oversight. It's about time we started getting some answers.

Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism

The Legacy of Justice Brennan: Ensuring Access to Justice for All

10/30/06

by Laura K. Abel & David Pedulla

*Cross-posted from TortDeform.com

Fifty years ago this month, William J. Brennan took his seat on the Supreme Court. Among his many remarkable opinions was Goldberg v. Kelly, safeguarding the right of low-income people to be treated fairly by the government when they seek to enforce their rights. Likewise, in NAACP v. Button, he affirmed the First Amendment rights of non-profit, public interest lawyers and their clients to join together to assert important rights.

At the Brennan Center for Justice at NYU Law School, one of the ways we carry out the ideals of Justice Brennan is by working to ensure that low-income people have access to the justice system to ensure that their rights are protected. Throughout the country, non-profit civil legal aid organizations work with low-income individuals, families, and communities to ensure that parents and children remain together, tenants can stay in their homes, and workers receive the wages they deserve. Unfortunately, these organizations don’t have enough funding to carry out their vital work. And even the limited funding that they receive often comes with significant restrictions on the work that they are able to pursue. This post explores some of the difficulties civil legal aid organizations face and some of our attempts to overcome them.

Funding for Civil Legal Services in the United States:

Approximately half of the funding for civil legal aid in the United States comes from a Congressional appropriation for the Legal Services Corporation (LSC). LSC, a private non-profit corporation established by Congress in 1974, distributes federal funding to 138 local legal aid programs throughout the country. The remaining funding for civil legal aid comes from a combination of state, local, and private sources.

Over time, the federal appropriation for LSC has dramatically declined. In inflation adjusted dollars, LSC today receives just 49 percent of what it did in 1981. Unfortunately, the decrease in funding has not coincided with a decrease in need. Respected studies show that over four-fifths of the civil legal needs of low-income families go unmet.

This is a real crisis, because many of the legal needs confronting low-income people affect their most basic human needs: their daily subsistence, their homes, and their families. When organizations that represent low-income people lack adequate funding, entire families and communities suffer.

Legal Services Restrictions:

In 1996, Congress enacted a “private money” restriction prohibiting organizations that receive LSC funding from engaging in certain important activities on behalf of low-income people with both their public and private funding. This restriction bars LSC-funded organizations from bringing class action lawsuits, performing outreach to potential clients who may not be aware of their legal rights, claiming attorneys’ fee awards, providing legal services to many categories of immigrants, or engaging in other work for their clients.

The only exception is a theoretical one. LSC permits its grantees to use their non-LSC funds to engage in these activities, but only if they do so through a legally and physically separate entity, with separate premises, equipment and personnel. This is so expensive that few legal aid programs have been able to do it, and those that do create a physical separate entity find that it exerts a severe strain on their already scarce resources.

The private money restriction has far-reaching and detrimental effects on the lives and well-being of low-income people. For example, the inability of LSC-funded organizations to carry out class action suits has had a negative effect on elderly and low-income homeowners in Chicago, where there was an enormous increase in home foreclosures in the late 1990s and early 2000s. One 75-year-old who had owned her home for 30 years was forced into foreclosure in April 2002 when she refused to repay a bogus $50,000 loan. The loan had been fraudulently taken out in her name by a contractor. The contractor kept the cash; he never did the work. A series of lawsuits brought by an LSC-funded legal services provider in Chicago, and a set of complaints filed by Chicago and by the Illinois Attorney General, didn’t stop the contractor’s lawless activities. For the contractor, these small interferences were just part of the cost of conducting a fraudulent business. A class action lawsuit could have compelled the contractor to disclose the names of all of the victims, led to damages and attorneys’ fees payments to the victims, and even produced a cease and desist order preventing the contractor from further scheming. Even though the LSC-funded organization in Chicago had sufficient private funds to file the class action suit, the restriction barred it from pursuing such a strategy. The consequence has been the continued exploitation of elderly and low-income people.

Working Towards a Solution:

The Brennan Center is challenging the restrictions placed on the private funding of legal aid organizations. Collaborating with us are over 100 civil legal aid non-profits, foundations, state and local bar associations, unions, civil rights organizations, and religious organizations, via a federal lawsuit, Dobbins/Velazquez v. Legal Services Corporation, as well as a national campaign urging public support to repeal the restriction.

To get involved, or to find out more information about our work to remove the restrictions on civil legal aid organizations, please visit the Brennan Center’s website.

If you are interested in receiving updates about what’s going on nationally in the civil legal aid community, please subscribe to the Brennan Center’s Legal Services E-Lert.

Tags: Justice, Civil Justice, Civil Legal Aid, Fair Forums, Non-Profit Rights

Hurry Up and Wait: The Torture Legislation and the November ‘06 Elections

By Aziz Huq – 10/06/06

*Cross-posted from The Huffington Post

Two weeks ago, the White House led a chorus baying for the blood of anyone who stood in the way of the President's Military Commission Act stood in the way of defending America. After five years' inaction on detainees and interrogation issues, the White House discovered a need for speedy action. But a week after the House and Senate voted on the bill, the enrolled bill is still sitting on President Bush's desk... No law has changed--yet. As thousands hit the streets to protest Congress's endorsement of cruel and inhumane interrogation techniques, and detention without end, it's worth asking: Why the delay? What does it tell us about the legislation, or the upcoming election campaign?

First and foremost, the delay illustrates a simple fact: There was no pressing need to act. The only pressing need driving enactment of the Military Commissions Act--with its frontal assault on rules against torture, indefinite detention, and fair trials--was the prospect of November elections.

The Administration pointed to two pressing needs in its campaign for the legislation: First, it wanted President Bush's "program" of coercive interrogations in secret CIA prisons around the world to go forward. Second, it wanted trials by new military commissions for those held at the Guantánamo Bay to begin again.

But were either of these needs in fact pressing? The Administration's own behavior suggests not.

A senior intelligence official quoted in the Washington Post explained that "there is no one in CIA custody today" who could be subject to the coercive techniques allowed by the Act. Setting aside the question whether torture works as a means of securing accurate intelligence--it doesn't--it thus appears that the CIA is not now holding anyone who might have information to prevent an incipient attack. Like many previous announcement about incipient terrorist threats, the timing of the White House's warnings had more to do with politics than threat predication.

The idea that there's a pressing need to begin military commissions is even more transparently false. According to Defense Department spokesman Bryan Whitman, no trials are imminent. It will take at least until next year to rewrite rules, assign judges, and make the necessary arrangements for trials.

This legislation, in other words, had nothing to do with an immediate need. Instead, we now have repeated confirmation that the Administration, when confronted by real evidence of threats to American civilians, has simply failed to act. From the aching minutes that President Bush first took to register and respond to the news of the 9/11 attacks to the painful and disastrously inadequate response to Katrina, this Administration's record speaks for itself.

Recent revelations confirm this. Bob Woodward's new book State of Denial thus exposed the fact that CIA chief George Tenet and Cofer Black (who faced off against bin Laden in Sudan) warned Condoleezza Rice in the starkest terms of the looming assault--in a meeting the Secretary of State cannot even recall. Woodward's revelation echoes Ron Suskind's account in The One-Percent Solution of the CIA's desperate effort to warn President Bush in August 2001 of the impending crisis--only to be completely blown off by the vacationing Chief Executive.

Repeatedly, we learn that our leaders failed to respond to the threats. Repeatedly, these same leaders are all too ready to conjure those same threats for narrow, partisan purposes untethered from the true security needs of the nation.

This year's election season will bring a slew of claims and counter-claims about who is "toughest" on national security. But there's little point in hanging tough if you are facing the wrong way. The Military Commissions Act that sits on President Bush's desk is the worst sort of political showmanship: For reasons I have explained earlier, it will do little to keep us safer in the face of any imminent threat. It is rather a naked attempt to distract us from the gamut of real problems that today go unaddressed by haphazard, heavy-handed, and ineffectual executive branch approaches to national security.

Tags: Justice, Liberty & National Security, Checks & Balances, Domestic Counterterrorism

Suspending Habeas Corpus at Guantanamo and Beyond

By Jonathan Hafetz – 10/04/06

*Cross-posted from Balkinization

One of the most significant aspects of the Military Commissions Act of 2006 (“MCA”) is its repeal of habeas corpus jurisdiction. Section 7 of the MCA eliminates habeas for an “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Does this provision violate the Constitution’s Suspension Clause?

Challenges to the MCA’s habeas repeal will be addressed in the Guantánamo detainee litigation, where two lead cases are pending before the D.C. Circuit, Al Odah v. United States and Boumediene v. Bush. In Al Odah (captioned in the district court as In re Guantanamo Detainee Litigation), Judge Joyce Hens Green invalidated the Combatant Status Review Tribunal (“CSRT”), established to determine whether Guantánamo detainees were enemy combatants. Judge Green found that the Guantánamo detainees were protected by the Fifth Amendment’s Due Process Clause and that the CSRT violated due process by denying them access to counsel, preventing them from seeing the government’s evidence, and permitting evidence gained by torture. In Boumediene, by contrast, Judge Leon concluded that Guantánamo detainees had no cognizable rights, notwithstanding the Supreme Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that the detainees could challenge their confinement by habeas corpus.

As a threshold matter, precedent supports the conclusion that Guantánamo detainees have a constitutional right to habeas. In Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), Chief Justice Marshall suggested that even though judges must have a statutory basis to issue the writ, the Suspension Clause obligates Congress to establish habeas jurisdiction, as Congress did in the Judiciary Act of 1789. The Court revisited Marshall’s statement in INS v. St. Cyr, 533 U.S. 289 (2001), suggesting that statutory habeas jurisdiction is constitutionally compelled by the Suspension Clause.

But even so, do aliens detained at Guantánamo fall within the Suspension Clause’s protections? Rasul suggests they do and informs the constitutional analysis in several ways.

First, Rasul drew upon history, explaining that the common law writ remained available to individuals in territory under the control of the English crown. Viewed in that light, Guantánamo is an easy case given more than a century of exclusive U.S. jurisdiction and control. Rasul’s historical analysis is of constitutional salience because, as St. Cyr instructs, the Suspension Clause at least protects the common law writ as it existed in 1789. And, in 1789, the writ would have run to an enclave like Guantánamo.

Second, Rasul distinguished Johnson v. Eisentrager, 339 U.S. 763 (1950), in two ways. For purposes of the habeas statute, the Court concluded that under Braden v. 30^th Judicial Circuit of Ky., 410 U.S. 484 (1973), a habeas petitioner does not need to be within the district court’s territorial jurisdiction (as he did at the time Eisentrager was decided). Hence, the Guantánamo detainees could invoke a district court’s jurisdiction under the plain terms of the habeas statute. The Court, however, also distinguished Eisentrager because, among other things, the petitioners there were conceded enemy aliens who had been tried and convicted by a military tribunal, not held indefinitely without trial. For this reason Eisentrager, as Steven Vladeck and others have pointed out, may be read as a decision on the merits. And, on the merits, Eisentrager is a very different case.

Finally, appellate review of a CSRT finding under last year’s Detainee Treatment Act (“DTA”) does not alleviate Suspension Clause concerns because it fails to provide a constitutionally adequate substitute for habeas under Swain v. Pressley, 430 U.S. 372 (1977). As St. Cyr makes clear, the DTA’s scope of review must encompass legal and constitutional claims, including the lawfulness of the administration’s designation of a prisoner as an “unlawful enemy combatant” and whether the CSRT violates due process. Yet, the statute, as written, arguably precludes that review, asking only whether “the use” of CSRT procedures is unlawful. But even if the DTA permitted that review, it would still fall short of the Suspension Clause’s requirement by foreclosing any meaningful examination of the factual basis for a prisoner’s detention.

As I previously argued for amici in the D.C. Circuit, habeas review traditionally guaranteed a searching inquiry into factual allegations in cases of executive detention without trial (as opposed to the narrower review in post-conviction cases, where the prisoner was afforded due process at trial). These common law protections were later codified in the federal habeas statute, 28 U.S.C. § 2241 et seq., a point noted by both Justice O’Connor in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Judge Muskasey in Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 534 (S.D.N.Y. 2002), who saw the statute as providing a skeletal outline of due process independent from the Fifth Amendment. Indeed, it was when the administration recognized that the D.C. Circuit might actually force it defend its detentions in district court on habeas (including by entertaining allegations that evidence was obtained under duress), that it engineered passage of the DTA. Call it legislation as cover-up. In short, DTA review by the D.C. Circuit of a CSRT finding would not provide what common law habeas provided, but instead sanction indefinite detention without an opportunity to submit evidence or rebut the government’s allegations before a neutral decisionmaker. The CSRT’s basic inadequacy, coupled with the DTA’s narrow scope of review, does not satisfy the constitutional core of habeas.

A habeas case filed on the eve of the MCA’s passage challenging detentions at Bagram Air Base in Afghanistan will also raise issues important Suspension Clause issues. To be sure, Bagram does not possess the same century-long exclusive U.S. jurisdiction and control that makes Guantánamo unique. On the other hand, there is no alternative review scheme for detentions at Bagram since the DTA’s review mechanism applies only to detainees at Guantánamo. Thus, Bagram will force courts to confront the legal black hole they faced at Guantanamo before Rasul. It will also highlight the perverse incentives created by a jurisprudence that provides for review of detentions at Guantánamo but denies it at other off-shore prisons, allowing the administration to transfer prisoners to avoid the reach of the writ, exactly what habeas traditionally sought to prevent.

Tags: Justice, Liberty & National Security, Detention & Habeas Corpus

Junking Checks and Balances?

By Aziz Huq – 09/28/06

*Cross-posted from The Huffington Post

"Checks and balances" has a nice ring. But it's a currency that doesn't go a long way in Washington today.

The Military Commissions Act of 2006, of MCA, passed by the House and Senate and likely to be signed by the President tomorrow is a wholesale assault on the idea of a limited government under law. It will be taken by the Bush Administration as a blank check to torture, to detain indefinitely without just cause, and to trample the values that win America respect in the world. From tomorrow, counter-terrorism is the "land of do as you please" for the President and the wise men of the Defense Department--those savants who brought you Iraq, the gift that keeps on giving (at least if you're a jihadist).

The MCA comprehensively assaults two ideas: The idea of checking executive power by laws. And the idea of a separate branch of government ensuring those limits are respected. These are the basic tools of accountability. The MCA frontally attacks both of these--although only time will tell whether it succeeds.

How does the Military Commissions Act assail checks and balances? Consider the key issues of detention and torture.

The MCA says nothing explicit about the detention power. Indeed, I would argue that nothing in the legislation ought to be read to imply a detention power. Of course, that's not what David Addington and his colleague Alberto Gonzales will tell us. Rather, they will contend--publicly or not, it's hard to predict--that the MCA allows the executive branch power to detain literally anyone it wants provided it complies with a token gesture at procedure.

Here's how the Addington play for detention power will work. The opening definition of the Act describes elaborately what an "unlawful enemy combatant" is. Why? The term is a neologism. The laws of war do not use or define this term. Indeed, it is a mutation of a phrase used in a subordinate clause of a 1942 Supreme Court opinion. Nothing else in the Act directly turns on this definition--although only an "alien unlawful enemy combatant" can be subject to trial by military commission. So why bother with the elaborate definition? And why extend the definition to U.S. citizens as well as non-citizens?

Back in 2004, the Supreme Court, in the now well-known Hamdi v. Rumsfeld decision, stated that an "enemy combatant" captured in hostilities could be held for the duration of those hostilities. The Court made very clear it was talking about only the limited context of the ground war in Afghanistan, not some amorphous and unending "war on terror." But Addington et al. will, however, take Hamdi's sanction of detention--and extend it far, far beyond Hamdi. It will be a detention power that applies anywhere and anytime.

There are two ways in which you--citizen or non-citizen, resident of Topeka or Timbuktu--can become an "unlawful enemy combatant."

The first way is if you engage "in hostilities" or "purposefully and materially support" hostilities. This sounds reasonable enough until you realize that no-one has the slightest clue what it means to "purposefully and materially support" hostilities. Do you need to intend to aid the hostilities? Or is it enough to intend to give the support? Would purposely giving to a charity that then gave money to Hamas count, even if you knew nothing about the Hamas? What about writing an editorial that gave "aid and comfort" to the enemy--say, by criticizing the Administration's Iraq policy?

The second way is--if it's even possible--more dangerous: You are designated an enemy combatant by a Combatant Status Review Tribunal--the Potemkin proceedings jerry-rigged at Guantánamo--or you are designated by "another competent tribunal" created by the Defense Secretary.

It's the latter that catches in the throat, because the MCA does not define what Rumsfeld's "competent tribunal" must look like. Rummy himself with the always-fair-and-impartial Addington? Five Syrian torturers (like the ones to whom the U.S. sent the hapless Canadian Maher Arar)? A bunch of guys who flip coins for your liberty? Sure, why not? The MCA doesn't stop the executive from using any of these, provided Rumsfeld gave them power and hence made them "competent."

At least for non-citizens, moreover, that would be that: For the first time in U.S. history, an Act of Congress singles out a group of persons--non-citizens--and deprives them of any right to challenge their detention wherever they are picked up. No non-citizen would, the MCA seems to say, be able to challenge this detention. And while citizens are certainly entitled to a hearing, the Government will fight tooth and nail to make sure this hearing doesn't allow any effective inquiry into the facts on which a detention is based. So no judicial review--and no accountability.

The same dynamic is at play in the anti-torture rules. The MCA alters a criminal statute called the War Crimes Act, which imposed criminal sanctions for certain violations of the laws of war.

Until recently, the United States could proudly point to a long history of supporting a universal ban on torture, and to a strong record in ensuring that those who in fact tortured did not escape accountability. No longer. Now a gamut of horrendous kinds of treatment will be non-criminal--and, the Bush Administration will argue, within the discretion of the President.

Start with the substantive anti-torture rules themselves (which cover both torture and the lesser "cruel and inhuman" treatment). The MCA contains an incredibly complex and convoluted set of definitions. Despite all the cant about clarity, the rules no longer in plain English--as they were in Common Article 3 of the Geneva Conventions --and they are so full of holes they might have been tortured themselves.

Here are three examples of the duplicitous ambiguity of the MCA when it comes to torture and abuse.

First, "cruel and inhuman" treatment is defined as acts that cause "severe or serious" pain. We know "severe" is worse than "serious" because "severe" is used to define torture (yes, we'll get there in a moment). But then "serious pain" is defined as "bodily injury" that causes "extreme physical pain." So "serious" pain is only "extreme" pain? Isn't extreme worse than serious? It would seem so--but the MCA is deliberately confusing and circular.

And why the reference to bodily injury? Does that mean that hypothermia and long-time standing and those other wretched "enhanced" techniques more fitting for Stalin's gulags than American facilities are not criminal? Well, yes, I reckon it does.

Second, in another convoluted section, "serious mental pain" is defined in terms of "non-transitory" harms. Thus, if a CIA agent threatens to kill a detainee, or to rape his spouse and his children--all long-recognized as forms of torture--that's not torture; it's not even the lesser "cruel and inhuman" treatment.

Finally, the torture statute itself. Almost unnoticed, the Bush Administration has gutted the no-torture rule. It has added the requirement that a person "specifically" intend to cause the pain that amounts to torture. This technical change--foreshadowed in the August 2002 OLC memo--has tremendous implications. It means that any government agent who says his goal was to get information, and not to cause pain, hasn't tortured no matter how bad the things he does. If the person water-boards or knee-caps a person, or buries them alive, if it's to get information--well, that's just dandy.

Once again, it's not just the substantive rules that have been assailed: It's also the mechanisms to ensure the rules are followed. Under the MCA, there is no accountability for torture. The MCA cuts off courts' power to hear claims of torture by aliens held as "unlawful enemy combatants." And it vests the President with power to interpret the relevant laws of war. So if he says that "cold cell" and sexual abuse are not "cruel and inhumane," that's the end of the matter.

There are two reasons for hope. First, any reading of the Act that reaches an untrammeled detention power may be unconstitutional. The Supreme Court in the 2004 case of Rasul v. Bush--in what one day will be called "famous footnote 15"--strongly hinted that even non-citizens captured overseas have Due Process rights. Combined with another clause of the Constitution called the Suspension Clause, this means the unchecked detention power and the jurisdiction-strip are likely unconstitutional.

Second, even if the War Crimes Act has been amended, the Due Process Clause also ought still to protect detainees held overseas: Torture is un-American. It's also unconstitutional--and that doesn't change depending on where it's done. Moreover, the law of war, embodied in the Geneva Conventions, is clear: There is no "specific intent" requirement for torture. Countries--whether it's the United States or North Korea--cannot unilaterally define down the rules against torture.

"Unchecked and unbalanced" government--I argue at length in a forthcoming book--is antithetical to American government. The MCA is also anathema to our best traditions. We must hope it is our traditions that win, and not the selfish partisan posturing that animated this week's votes.

Tags: Justice, Liberty & National Security, Checks & Balances

Fighting Back Against the Attacks on Legal Services

09/05/06

by Laura K. Abel & David Pedulla

*Cross-posteed from TortDeform.com

We’re going to use this space each month to discuss events affecting the ability of low-income people to access the courts. Our first post, and many others, will focus on civil legal aid programs, which represent low-income people in cases concerning child custody, eviction, public benefits and other basic human needs. These programs play an essential role in ensuring that low-income people are able to go to court to defend their rights. They also play a crucial role in helping the courts satisfy their mandate of providing equal justice for all.

Proving the maxim that no good turn goes unpunished, a legal aid program that for decades has represented rural Californians is being forced to fight for its very survival. Earlier this month, California Rural Legal Assistance, Inc. (“CRLA”) came under attack from the Legal Services Corporation’s Office of the Inspector General. LSC is the federal entity that doles out Congressional funding to local legal aid non-profits around the country. Its Inspector General is charged with ensuring that LSC and local programs use their federal funds properly. But sometimes the Inspector General becomes overzealous, becoming an enforcer not of federal law but rather an ally of industries that resent being sued by legal aid programs.

In its September 14, 2006 report, the Inspector General claims that CRLA violated LSC regulations by soliciting clients, handling a fee-generating case, requesting attorney fees, and associating with political campaigns. CRLA has rebutted the charges. We’re not going to weigh in here on who is right. Instead, we want to flag some particularly disturbing aspects of the report that undermine its credibility: 1) it relies on the use of “secret” sources, 2) it attacks the use of “impact” litigation to help large numbers of low-income people, 3) it challenges the ability of low-income people to obtain the protection of the attorney-client privilege, and 4) the accusations are driven, at least in part, by the interests of industries CRLA sues.

Secret Witnesses

The Inspector General’s report is based on conversations with two confidential sources. Without knowing the identities of the sources, there is no way for CRLA, LSC or you, dear reader, to assess the witnesses’ credibility or the truth of their allegations. It will come as no surprise that an organization that sues the powerful on behalf of the weak ends up with enemies. For all we know, the witnesses could be linked to people CRLA has sued. They could be disgruntled former employees. Or they could be upstanding whistleblowers who are telling the truth. We just don’t know. At the very least, it seems wildly unfair that CRLA is being placed under a magnifying glass while the secret witnesses accusing CRLA of wrongdoing remain in the shadows.

Attacks on Attorney-Client Privilege

Alarmingly, the Inspector General is trying to compel CRLA to turn over the names of its clients, even though clients will be wary in the future of approaching CRLA if they know their identities might become public.

Tags: Justice, Civil Justice, Civil Legal Aid

History’s Lesson about Domestic Surveillance

By Jonathan Hafetz – 05/23/06

*Cross-posted from ACSBlog

 The plot thickened in the domestic spying controversy with the recent disclosure that the National Security Agency has been collecting phone call records of tens of millions of Americans. This revelation, by individuals familiar with the program, follows the President's admission in December that the NSA has been eavesdropping without warrants on international calls and emails of individuals with suspected links to terrorism if one party is in the United States.

Whose telephone calls is the NSA listening to? Whose phone records is it subjecting to "data mining" to develop more comprehensive profiles? We do not know the precise targets of secret NSA surveillance since the administration has blocked any congressional investigation into the agency's operational details. To be sure, the President says the NSA investigates only those with "known links" to al Qaeda and other terrorist groups. But history cautions against accepting that explanation at face value.

Throughout the Cold War, presidents of both parties spied on American citizens, and did so with increasing frequency and audacity.

Created by secret presidential directive in 1952, the NSA soon grew into a vast intelligence-gathering machine which spread ever-deeper into Americans' private lives and communications. One NSA program, known as Operation Shamrock, intercepted millions of telegrams to and from the United States. The NSA placed the names of law-abiding American citizens on 'watch lists,' and then disseminated their private communications to other government agencies such as the FBI and CIA.

It's easy now to dismiss these Cold War-era abuses as the product of misguided communist hysteria. But that would obscure the dangers unchecked surveillance poses to free speech and privacy rights today.

The NSA will inevitably view wholly legitimate activity through the lens of national security if permitted to operate in secret and without external checks. The agency's definition of "terrorist threat" will become increasingly elastic, causing it to target an ever-expanding range of lawful activity.

During the 1950s and 60s, the NSA and other agencies looked at the struggle for racial equality in vague, Cold War terms like "subversive activity." National icons like Dr. King -- whom we now think of as American as apple pie -- were considered security threats. Dr. King and other civil rights and anti-war leaders were not only subjected to illegal surveillance, but the information gathered was used to undermine their work.

If history is any guide, today's surveillance dragnet will inescapably sweep in those at the forefront of this generation's civil and human rights struggles. Intelligence agencies, for example, may view legitimate advocacy on behalf of Arab and Muslims in the United States or against the war in Iraq in terms of the administration's amorphous and ubiquitous "war on terrorism." Similarly, journalists and others investigating politically sensitive topics such as abuse at Guant√°namo Bay or secret CIA-run prisons are prone to an ever-expanding net of government spying.

Constitutional freedoms have already been chilled by fears that the government is eavesdropping on private conversations. Civil rights organizations worry their outreach and advocacy efforts are being monitored; human rights lawyers avoid talking to clients and witnesses; and journalists and their sources are afraid to communicate with each other.

History not only highlights the dangers of unchecked surveillance; it also points to a solution. In the mid-1970s, the Church Committee conducted a far-reaching Senate investigation into U.S. intelligence agencies, including the NSA. The Committee's fourteen reports helped prompt significant legislative reforms, including the Foreign Intelligence Surveillance Act of 1978, which carefully regulates intelligence-gathering, including of suspected terrorists.

An investigation of this administration's intelligence activities is necessary to vindicate the principles of openness and accountability on which a democratic society depends. Thus far, however, the only people being investigated are the officials who helped make the existence of the secret spying program known to the American public.

In addition, any further surveillance must be conducted in accordance with the statutory framework established by Congress and the Fourth Amendment. The NSA, for example, must obtain a warrant from the Foreign Intelligence Surveillance Court before eavesdropping on telephone calls of American citizens and residents. If current procedures need to be fine-tuned, then any necessary changes must be made by the legislature, not by executive fiat.

Circumventing legal checks ultimately does not protect America's security. Instead, it jeopardizes the country's tradition of constitutional freedoms and commitment to the rule of law.

Tags: Justice, Liberty & National Security, Domestic Counterterrorism