Top Ten Hits for Civil Liberties Since 9/11

September 6, 2006


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9/11: Six Years Later
> Abuses of Power: Assaults on civil liberties
> Victories for Democracy: Successes in the fight for freedom
> The Road Not Taken: Security measures the Bush Administration has ignored
> Voices: ACLU staff on 9/11 and the fight for freedom since 2001

RELATED FEATURES
> The Challenge to Illegal Spying
> Torture: Seeking Truth and Accountability
> Extraordinary Rendition: CIA Kidnapping
> Reform the Patriot Act
> Video: Stop the Abuse of Power

1. Courts Rejects Illegal Government Surveillance Powers The Patriot Act radically expanded the "National Security Letter" power that authorizes the FBI to demand records without prior court approval. The NSL statute also allows the FBI to forbid or "gag" anyone who receives an NSL, of which an estimated 30,000 are issued annually, from telling anyone about the record demand. The ACLU challenged the NSL power in two cases: one involved an Internet Service Provider; the second, a group of librarians. In both cases, the judges ruled the gags unconstitutional. After two district court rulings, Congress amended the NSL provision to make largely cosmetic changes, but made the "gag" provision even more oppressive. In September 2007, a federal judge struck down the entire NSL statute and found the gag provision to be unconstitutional. In 2006, another federal judge in Detroit declared the NSA’s warrantless wiretapping program illegal. The U.S. Court of Appeals for the 6th Circuit overturned that decision because it found the plaintiffs could not prove with certainty they were wiretapped but they did not rule on the legality of the program. The ACLU is considering an appeal.

2. Right to Judicial Review for Detainees — In June 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions system established by President Bush to try detainees at Guantánamo Bay is unfair and illegal. The court found the military commission rules do not guarantee independent trial proceedings, do not provide for impartial appellate review and do not prohibit the use of coerced testimony despite extensive evidence that coercive interrogation techniques have been used at Guantánamo Bay and elsewhere. The ACLU filed an amicus brief in that case. However, in an election year panic, Congress reversed many parts of this decision when it passed the Military Commissions Act--which codified many aspects of the trial procedures that the Court found illegal, undermined enforcement of the Geneva Conventions, and took away habeas corpus due process protections from hundreds of people that the president and his team, on their own, declared to be enemy combatants. Congress has started to take action to fix some of the problems that it created.

3. Patriot Reauthorization Filibuster — When the expiring provisions of the Patriot Act were brought up for reauthorization, several Senators refused to bow to the White House’s demand that Congress renew and expand the law without adequate protections for the privacy and civil liberties of ordinary Americans. In late December 2005, Senators Russ Feingold (D-WI), Larry Craig (R-ID), Dick Durbin (D-IL), Chuck Hagel (R-NE), Lisa Murkowski (R-AK) and John Sununu (R-NH) threatened to filibuster the unacceptable bill. The Senate filibuster that resulted held up reauthorization of the expiring provisions of the Patriot Act and led to modest improvements in the reauthorizing legislation. Also, more than 400 communities and eight states passed pro-civil resolutions calling for changes to be made to the act. Learn More >>

4. National Security Letter Abuse Becomes Public — In 2007, Inspector General of the Justice Department Glenn Fine released a report that detailed widespread abuse in the FBI’s use of National Security Letters. The report found that the FBI significantly under-reported the number of NSLs issued and the number of violations they found. The FBI also sought information not allowed under the NSL provision. The report found that the FBI repeatedly failed to adhere to their own internal standards as well as the the standards set by the statue and the Attorney General. The report lead to a criminal investigation, which is ongoing. For more information, visit www.aclu.org/nsl

5. Documentation of Torture and Abuse — The ACLU filed a lawsuit to make the government comply with a Freedom of Information Act request seeking internal documentation of investigations into torture and abuse perpetrated in U.S. controlled detention facilities including Abu Ghraib, Guantanamo and others in Iraq and Afghanistan. As a result, the government has been forced to turn over more than 100,000 pages of documents detailing the torture and abuse of detainees.

The ACLU has created a search engine for the public to access the documents at /torturefoiasearch.

6. McCain Amendment — In 2005, Congress adopted as part of the Defense Department spending bill, the "McCain Amendment" which restores the rule of law in military interrogations. So named for the chief sponsor, Senator John McCain (R-AZ), a former prisoner of war, his proposal uses the Army’s field manual on interrogations as the legal standard for interrogation policies and reinforces the ban on cruel, inhuman and degrading treatment. However, when signing the act into law, President Bush issued an ominous signing statement asserting that he might construe the protections the law offers in a limited manner, consistent with his authority to act as commander in chief. Learn More >>

7. CAPPS II — Immediately after 9/11, Congress and the FAA called for airline passenger prescreening based on a traveler’s name and Passenger Name Record. Opposition to sharing PNR data prevented the launch of this program and led to the development of the Computer Assisted Passenger Prescreening System (CAPPS II). The program was to assign each airline passenger a "risk score." However, implementation of CAPPS II was contingent upon review and certification by the General Accounting Office that the program met certain performance and civil liberties standards. The program failed to meet the criteria, and in August 2004, CAPPS II was scrapped. A new proposal, Secure Flight, remains stalled. Opposition to CAPPS II came not only from the ACLU, but also from conservative organizations including the Eagle Forum, the American Conservative Union and Americans for Tax Reform. (See /capps)

8. Total Information Awareness — In November 2002, The New York Times reported the Defense Advanced Research Projects Agency, under the direction of John Poindexter, was developing a massive data-mining program called "Total Information Awareness" (TIA). This super-snoop program would create an infrastructure for the government to use "data-mining" technology to track and monitor, among many other things, innocent Americans' financial, health, travel and credit card transactions. In September of 2003, Congress killed the program in the Department of Defense Appropriations bill. However, even with the demise of TIA, reports indicate the government may be secretly developing other and similar super-snoop programs. Opposition to TIA also came from conservative allies including the American Conservative Union, Americans for Tax Reform, the Eagle Forum and the Free Congress Foundation. Learn More >>

9. Operation TIPS — The Terrorism Information and Prevention System was a proposal to have ordinary citizens and workers who have access to your home, such as meter maids and telephone repairmen, spy on their neighbors and report "suspicious" activity. It was unclear how the data would be collected, screened and stored. Bipartisan uproar over the program, led by Congressman Dick Armey (R-TX) and Senator Patrick Leahy (D-VT), prompted efforts to derail the citizen-spy proposal. The final result: Congress explicitly prohibited the implementation of Operation TIPS. Learn More >>

10. Patriot Act II — In February 2003, it was revealed that the Justice Department had drafted new legislation, "The Domestic Security Enhancement Act of 2003," or Patriot Act II. The draft bill went substantially further than the Patriot Act to erode checks and balances on presidential power and infringe on constitutional rights. Among other things, the bill enhanced the ability of the government to strip naturalized Americans of their U.S. citizenship, encouraged police spying on political and religious activities, allowed the government to wiretap without going to court and dramatically expanded the death penalty under an overly broad definition of terrorism. Opposition to the draft was broad—the bill was never officially introduced and did not gain any traction. However, some provisions have since been introduced in piecemeal form. (Visit http://www.reformthepatriotact.org)

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