(Originally posted on Daily Kos.)

The House hate crimes bill is pitch-perfect.

It punishes only the conduct of intentionally selecting another person for violence because of that person's race, color, national origin, religion, gender, sexual orientation, gender identify or disability.

House Judiciary Committee Chairman John Conyers and more than 40 bipartisan co-sponsors deserve credit for introducing what could become the first federal law of its kind to protect against violence due to someone's gender, sexual orientation, gender identify or disability.

But this bill doesn't punish bigotry, as ugly as those beliefs are.

So let's really explore concerns that the hate crimes bill will chill free speech and association.

For years, the ACLU was concerned enough to withhold support for this bill.

That problem was fixed in 2005.

Now, the ACLU strongly supports the Local Law Enforcement Hate Crime Prevent Act of 2009. For four years, the ACLU has fought for this legislation as protecting both civil rights and free speech and association.

This bill blocks evidence of speech and association not specifically related to a crime. That means anyone saying Congress will unleashed the "thought" police or "thought crimes" is wrong. Anyone saying people of one group offended by a broadcaster, pastor or Sunday school teach could trigger a federal prosecution is wrong.

These are just some of the red herrings about this bill, so let's be absolutely clear.

This bill will have the strongest protection against the misuse of a person's free speech that Congress has enacted in the federal criminal code.

It's worth taking a look at the short provision in the hate crimes bill that will prevent the possibility of a federal criminal conviction on the basis of speech not related to a violent act:

In a prosecution for an offense under this section, evidence of expression or associations of the defendants may not be introduced as substantive evidence at trial, unless the evidence specifically relates to the offense.

This provision is not new. It is not some untested law.

This provision in the House bill almost exactly copies language in a sixteen-year-old law in Washington state. We checked with litigators involved in hate crimes cases in Washington state. They report no complaints. The provision does not impede prosecutions.

In fact, we have found in our long record of fighting for stronger protections for the First Amendment of the U.S. Constitution and civil rights that the two go hand in hand. Vigilant protection of free speech rights historically has opened the doors to effective advocacy for expanded civil rights protections.

Now, it's time for the Senate to include this protection of free speech and association in their hate crime bill — then it will become pitch-perfect too.

Almost precisely 36 hours after President-elect Obama declared on 60 Minutes that he will shut the Guantánamo Bay prison and end the sham military commission trials, our Air Force cargo prop plane lumbered down the very same runway at Andrews Air Force Base that the new president will use sometimes daily aboard Air Force One. But the "cargo" and destination of our plane today might be a surprise for anyone who voted for change, is reading about the transition, and watched 60 Minutes. The destination was Guantánamo, and the cargo was lawyers, interpreters, and everyone else needed to keep the military commission show going just a little longer.

After years of lobbying Congress to shut the Guantánamo prison and end the military commission trials, I arrived today for my first visit as the ACLU's observer at this week's commission hearings. But I feel as if I'm arriving in the end days of this long nightmare that is Guantánamo. It is impossible to escape the chatter here that the whole thing is about to come to a screeching halt.

The signs are everywhere. Two military officers jokingly tell me that we have to lobby harder to get the prison shut before their deployments are over so they can make an early escape from this island. Another officer says Guantánamo is such a huge mess that Obama will have to work hard to clean it up, but it has to be done.

And everyone notices that attendance is way down. A couple of military personnel shut off the power in empty tents here in "Camp Justice." As the only representative of a human rights group this week, my bed is the only one occupied in my six-bed tent. And the media pool is now down to just one reporter. It seems that all that is left to be done is for the new president to pull the plug on the whole operation on January 20.

When I lobby Congress on this issue, many members of Congress and staff fret about what comes next if the Guantánamo prison is shut. While there may be hard work and some political courage needed by the next president in shutting it down, it clearly needs to be done.

We have focused for years on the damage to the Constitution and the rule of law by sham procedures, secret evidence, and evidence obtained by torture, but as I walk among the tents, latrines, and barbed wire surrounding the makeshift "courthouse" on the tip of Castro's Cuba, I have an even more gut reaction to what is happening here.

At the risk of sounding hokey, I can't get beyond my simple gut feeling that nothing here is American. Instead of a stately marble courthouse in the center of town, we have a windowless metal building sitting on an abandoned runway and surrounded by rolls of barbed wire and a line of orange jersey barriers. Instead of courtrooms open to the public (often including victims) and the press coming in off the street, we have a few human rights observers and any reporter willing to strap himself or herself onto the cargo plane's netting for a total of nine hours in the air. Instead of criminal justice coming from judges and lawyers stepping from law libraries into courtrooms, we have some of those same fine lawyers in t-shirts and tennis shoes hopping over power lines around makeshift tents.

I'm sure that I'm not the first to look around Camp Justice at Guantánamo and think one big hurricane would wipe away the whole thing. But how much better to have our new president be the one to wipe it away and bring back the America that we all cherish.

Maybe we should get Attorney General Michael Mukasey a couple of countdown calendars. If he had checked the calendar yesterday before heading out to give a speech at the American Enterprise Institute, he would have realized that there were only 182 days left of the Bush Administration and roughly five weeks left in the congressional calendar (which translates to about 20 days on Capitol Hill).

The problem for Mukasey is that no one is lining up behind someone who will be in forced retirement in a little more than six months. And certainly Congress isn't going to drop everything and follow Mukasey's crazily ambitious proposal for Congress to both declare a new war and gut habeas corpus protections.

Mukasey offered a multi-part plan to violate the Constitution. He demanded that Congress declare a new "armed conflict" (which is Bush-speak for a new declaration of war) that would give a president worldwide power to declare anyone a terrorist and hold the person forever - without ever charging anyone with a crime. Mukasey also asked Congress to enact the Bush Administration's scheme for undermining the recent Supreme Court decision restoring constitutional habeas corpus protections to the detainees at Guantanamo. The main goal of the proposed new Bush rules restricting habeas rights is to try to block federal judges from ever learning the truth about the deliberate and widespread use of torture and abuse inflicted on detainees. Judges would not be allowed to see evidence of torture and abuse and would instead simply have to trust that a president is holding the right people as terrorists.

That is far more power than any president should have. No president should be able to simply declare someone picked up anywhere in the world (including in the United States itself) to be a terrorist or associated with a terrorist, imprison the person forever without charge based on the determination of a president alone, and then hide from courts the evidence being used to hold the person - even if it was beaten out of a witness. The Supreme Court has already said no four times to past Bush Administration schemes to violate the law in holding detainees. Mukasey is looking for slap-down number five.

The only good news in all of this is that not only is there almost no time left in this Congress to pass this sweeping violation of the Constitution, but the House and Senate Judiciary Committees are hostile committees for this scheme. Senate Judiciary Committee Chairman Patrick Leahy politely, but firmly, told the Bush Administration yesterday that he is not pulling his committee into another Bush plan to violate the Constitution (and the Ranking Republican on the Senate Judiciary Committee, Arlen Specter, has spent years working with Chairman Leahy to try to restore the very habeas protections that Mukasey wants to gut). Meanwhile, in the House of Representatives, House Judiciary Committee Chairman John Conyers has been leading a year-long probe into whether high-level Bush Administration officials committed or authorized crimes of torture and abuse - and he has repeatedly demanded that Mukasey appoint an independent prosecutor to investigate any torture crimes ordered at the top levels of government. Conyers is certainly not going to have his committee be complicit in the latest Bush Administration plan to cover-up torture and abuse crimes.

As the clock ticks down, there certainly is a lot of work for Congress to do. But the work is in repairing the damage done to the Constitution over the past seven years, not in causing more harm.

UPDATE: Sign our petition to tell Congress to reject endless war and a torture cover-up.

Torture and America

The report does not reflect any change of heart for Attorney General Michael Mukasey. Instead, the Inspector General is the internal watchdog, the only office in the Justice Department that isn't controlled by the Bush Administration politicos.

The stunning 370-page IG report is a tour-de-force of new facts about perhaps the most serious, deliberate, and systematic plan to violate due process and human rights in our nation's history. For anyone who still believes that the torture seen at Abu Ghraib or Guantanamo was simply the work of a few bad eggs, reading just two or three pages—almost any two or three pages in the lengthy report—will show that torture was a widespread and deliberate practice.

Written in a Washington version of a stream-of-consciousness style, with facts packed together but without any real themes or much organization, there are important revelations and many nuggets of new truths throughout the report. Things you can learn by flipping through the report include:

• the first government report ever to identify Condoleezza Rice as playing a role in the torture issue describes then-Attorney General John Ashcroft expressing his concerns about a particular interrogation with then-National Security Advisor Rice
• regular meetings of the White House National Security Council Policy Coordinating Committee (then chaired by Rice's top lawyer John Bellinger) in which top Justice Department Criminal Division managers told about FBI agents reporting abuse of detainees and explaining concerns about "gravely damaging . . . the rule of law" at Guantánamo,
• a meeting held in the office of then-Criminal Division chief Michael Chertoff with the current Criminal Division chief Alice Fisher (who resigns her job this Friday—is this a coincidence?) and a top FBI official with Chertoff saying that he believed that abusive interrogations would make it hard to ever use the evidence in court, even if FBI "clean teams" later got the same admissions through legal means,
• a report of FBI agents who kept their records of torture and abuse that they observed in a file called "War Crimes",
• page after page after page showing that, despite critical reports from FBI agents filtering all the way up to the White House and to FBI Director Mueller himself, no one putting a stop to it or actually trying to enforce the laws that they were charged with enforcing.

The Inspector General collected lots of facts, but now it's left to all of us to unpack his report—and to demand that Congress and the next president get to the bottom of who did what on torture, whether crimes were committed, and make sure that a special counsel will decide that, where warranted, any crimes are criminally prosecuted.

There's no better read this upcoming Memorial Day weekend.