Civil Liberties Update

A Monthly Post-9/11 News Summary
August 10, 2010

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CIVIL LIBERTIES UPDATE
E-NEWSLETTER OF THE ACLU OF MASSACHUSETTS
August 10, 2010

A. EXECUTIVE ACTIONS

Building the National Security Surveillance State
• Vast national security bureaucracy takes shape in ‘top secret America’
• How will the new director of national intelligence deal with top secret America?
• Times Square plotter pleads guilty; cites war as motive
• An upsurge in ‘homegrown terrorism’?
• Americans tried on terrorism charges in Pakistan
• Cost of wars now $1 trillion as secret operations expand
• CIA drone strikes violate international law: UN
• At least one American citizen on targeted killing list
• Osama opts not to hold CIA of DOD accountable
• Drones may soon patrol US skies
• WikiLeaks’ document trove forces war onto front pages
• White House prefers stopping leaks to achieving transparency
• Cyber command now operational: scope of activity not clear
• Defense Intelligence Agency to build on discredited database
• High-ranking Pentagon officials involved in surveillance download child porn
• ‘Trade-offs’ between security and rights inevitable: Napolitano
• ACLU seeks records about unconstitutional spying
• Political appointees allowed to vet FOIA records requests
• Obama wants to expand warrantless access to Internet records
• FBI conducts ‘dragnet’ warrantless tracking of cell phones
• New GPS technology to increase tracking capability
• Obama promises cooperation in space
• FBI agents cheat on profiling and surveillance tests
• ACLU requests information about FBI ethnic ‘mapping’
• FBI not prepared for attacks involving unconventional weapons
• Former FBI deputy now heads TSA
• Stranded: American citizens cannot fly home
• Six-year-old apparently gets ‘no fly’ status
• TSA screening program really racial profiling
• Detecting ‘mal-intent’ and suspicious ‘micro expressions’ the stuff of future screening?
• Body scanners: $300 million for ineffective machines with potential health risks
• Scanned body images can – and do – get stored by feds
• Yet another database created by TSA
• TSA computer users cannot access ‘controversial opinion’
• Colombian journalist gets visa after government reversal
• Opposition to new mosques in the US on the rise
• NY mayor appeals for tolerance, supports Islamic center
• Obama unpopular in Muslim world
• Some privacy groups criticize Facebook’s ‘massive and stealth data collection’
• ‘Almost every major website you visit is tracking your online activity’
• Mideast governments want to spy on BlackBerry users
• Surveillance cameras proliferating across the US
• China installs millions of surveillance cameras to ensure social control
• New UK government promises to roll back surveillance society
• British prime minister announces inquiry into torture

Extrajudicial Killing, Indefinite Detention, Military Commissions, Torture
• Detainees were ‘guinea pigs’ in torture experiments
• Some CIA torture practices not approved by legal memos
• American Psychological Association wants to strip license from interrogator
• ‘Little Gitmos’ erected in US
• US may hold detainees indefinitely at Bagram after prison transfer
• Task force says most detainees low-level fighters
• Administration gets is first Guantanamo conviction
• Habeas rulings a mixed bag
• Detainee cleared for release in 2004 still at Guantanamo in 2010
• Supreme Court permits Algerians to be sent home despite torture fears
• Attorney appeals to Supreme Court as Canadian detainee rejects plea deal
• Journalists protest Guantanamo restrictions

Targeting Immigrants/Visitors
• Judge blocks enforcement of some provisions of Arizona law
• Legislators think again about passing Arizona-style laws
• Police chiefs say Arizona-style laws would increase crime
• ‘Secure Communities’ screens all arrestees to locate people to deport
• Deportation rate accelerates under Obama
• Nearly 400,000 immigrants in detention
• Number of foreign-born in country declines
• Obama asks for $600 million to strengthen border enforcement
• Obama opts for less visible workplace enforcement
• Obama makes a speech on comprehensive immigration reform
• Letter to Obama gets man detained by ICE agents
• Group compiles list of ‘illegals’ and demands they be detained
• Immigrant detainee petitions United Nations
• Detaining immigrants may be good for local economy
• Facing lawsuits, Nebraska town may suspend immigrant ban
• Green cards can be given to groups of undocumented
• Border patrol asks the public to text when they see suspicious people
• Web tool unveiled to locate immigrant detainees
• Some NY school districts require proof of legal residency

B. IN THE US CONGRESS
• House version of defense bill goes after Guantanamo lawyers
• Bybee revelations made public in push for special counsel
• Republicans want hearings on “birthright citizenship”
• Emergency powers to protect civilian internet in draft bill

C. IN THE COURTS
• Supreme Court criminalizes speech in case testing ‘material support’ for terrorism
• Supreme Court slams door on victim of rendition and torture
• Supreme Court decides former Somali official can be sued for torture
• Appeals court rules detainees in Afghanistan cannot bring habeas claims
• Appeals court upholds conviction of navy lawyer who revealed Guantanamo names
• Five years in detention does not violate the right to a speedy trial
• Lynne Stewart given 10 years in prison by federal judge
• First legal challenge to ‘no fly’ list brought by ACLU of Massachusetts
• ACLU and CCR overcome hurdle in challenge to targeted killing
• ACLU denied documents attesting to CIA methods
• New York police do not have to release surveillance data

D. IN THE COMMONWEALTH

• Fallout from Times Square bombing attempt reaches Bay State
• Police do not contribute information to gang database
• ACLU wants to know more about MORIS device
• Shirley town administrator planted video camera in town hall restroom
• Former school aide did background checks on celebrities
• Massachusetts anti-torture protesters acquitted
• Boston a “Secure Communities” pioneer
• Students lead movement that defeats anti-immigrant legislation
• Harvard student a ‘power child for Dream Act’: Boston Globe
• Judge throws out felony charge against DHS official who hired undocumented worker
• Candidates want crackdown on undocumented
• Governors debate Arizona law in Boston

A. EXECUTIVE ACTIONS

Building the National Security Surveillance State

• VAST NATIONAL SECURITY BUREAUCRACY TAKES SHAPE IN ‘TOP SECRET AMERICA’
In late July, Dana Priest and William Arkin of The Washington Post revealed the results of a two-year investigation into the secretive, massive, unaccountable national security bureaucracy involving 1,200 government agencies and 1,900 private companies now working in counterterrorism, homeland security and intelligence programs at 10,000 sites across the country. According to their report, an estimated 854,000 people (265,000 of them private contractors) –which works out to about one in every 250 working-age Americans - now have top secret security clearance and produce 50,000 reports a year. They work in hidden sprawling clusters of anonymous buildings in what amounts to an “alternative geography of the United States, one defined by the concentration of top-secret government organizations and the companies that work for them.” While David Gompert, the acting director of national intelligence, insists that the government has worked to reduce inefficiencies and that the intelligence agencies “are achieving untold successes every day,” (Latimes.com, July 20), The Washington Post series tells the story of the unmanageable growth of an intelligence community riddled with redundancy and drowning in information where the government has essentially lost control over what its private contractors do and how much money is being spent and the people whose tax dollars pay for this steadily enlarging behemoth to keep them “safe” are left totally in the dark. Both Defense Secretary Robert Gates and CIA head Leon Panetta admitted to The Post that having private contractors play such a prominent role is a problem -- but, as Jeremy Scahill points out in the July 20th Nation, the notorious private contractor Blackwater has just been given a brand new $100 million global CIA contract. Scahill writes that “what is perhaps most telling about the Post series is how little detail is provided on the most sensitive operations performed by contractors: assassinations, torture, rendition and operational planning…what about the ultra sensitive work contractors do for the NSA or the highly secretive National Reconnaissance Office?”

• HOW WILL THE NEW DIRECTOR OF NATIONAL INTELLIGENCE DEAL WITH TOP SECRET AMERICA?
The release of The Washington Post series coincided with the Senate Intelligence Committee’s examination of Ret. Air Force Lt. Gen. James Clapper, who is President Obama’s nominee to be Director of National Intelligence (DNI). Clapper is currently undersecretary for intelligence at the Defense Department, which is home to two-thirds of the nation’s intelligence programs. During the hearing, Clapper accused The Post of “sensationalism, ” denied the intelligence system was out of control and said he did not plan to “be a titular figurehead or a hood ornament” (Washington Post, July 21). If confirmed, he would become the fourth DNI since the office was created in 2005 in an effort to impose order on the 16 government intelligence agencies and numerous offshoots. The previous DNI, Dennis Blair, resigned in May 2010 after being forced to take the blame for a failed airline bombing attempt and for criticizing CIA covert actions and fighting CIA efforts to trump the power of his office and the size of his staff (New York Times, May 22). The Senate Intelligence Committee blamed the National Counterterrorism Center, which is supervised by the DNI, for failing to put on a ‘no fly’ list Umar Farouk Abdulmutallb, the would-be Christmas plane bomber. Journalist David Ignatius meanwhile urged Clapper to adopt a “less is more policy” (Washington Post, July 21). Making the argument for “a leaner and meaner intelligence system,” he commented that “a couple of years ago I wrote that the problem was so bad that perhaps we should blow up the existing structure and start over.”

• TIMES SQUARE PLOTTER PLEADS GUILTY; CITES WAR AS MOTIVE
On June 21, after six weeks in custody during which time he reportedly cooperated with authorities and waived his right to a speedy trial, Faisal Shahzad pleaded guilty to all charges in the Manhattan federal district court. “I want to plead guilty, and I’m going to plead guilty 100 times over because until the hour the US pulls its forces from Iraq and Afghanistan, and stops the drone strikes in Somalia and Yemen and in Pakistan, and stops the occupation of Muslim lands, and stops reporting the Muslims to its government, we will be attacking US, and I plead guilty to that” (New York Times, June 22). He admitted receiving training from the Taliban in bomb making and chose to try to detonate a bomb in Times Square when it was packed with people because the drone strikes “kill women, children. They kill everybody…They’re killing all Muslims.” Shahzad, a naturalized American of Pashtun lineage who came from Pakistan to study at the University of Bridgeport, was particularly incensed by drone strikes in the tribal areas along the border of Pakistan and Afghanistan (New York Times, June 23). Despite the existence of a “public safety” exception to Miranda established by the Supreme Court in 1984 and the absence of any sign that the Miranda rules had inhibited the prosecution, various pundits, politicians and Attorney General Holder suggested that such “homegrown terrorism” signaled the need to make the Miranda warnings more “flexible.” After Shahzad’s arrest, federal agents were deployed around the country, including New England, following up on leads (see “In the Commonwealth,” below).

• AN UPSURGE IN ‘HOMEGROWN TERRORISM’?
A flurry of other arrests followed in the wake of the Times Square bombing: Kahlid Ouazzani, a naturalized US citizen from Kansas City, was charged with sending money to al Qaeda (New York Times, May 20); two New Jersey men, Mohamed Mahmood Alessa and Carolos Eduado Alimonte, who are both citizens and had been arrested at Kennedy International Airport, appeared in a New Jersey court on charges that they intended to join an Islamic insurgent group in Somalia (New York Times, June 8); two American converts to Islam, Zachary Chesser from Virginia and Paul Rockwood from Alaska, were charged in separate cases with, in Chesser’s case, making threatening statements and supporting the Somali group al-Shabab and, in the case of Rockwood, making false statements and drawing up a list of people who should be killed for “desecrating Islam” (New York Times, July 21). On August 2, a federal jury found Russell Defreitas, a naturalized US citizen, and Abdul Kadir, a prominent politician from Guyana, guilty of an wholly unrealistic plan to blow up fuel tanks at JFK Airport in New York which “never advanced beyond the conceptual stage” (New York Times, August 3). A few days later, Attorney General Eric Holder announced that the government has brought charges in Minnesota, California and Alabama against 14 people, including at least seven American citizens, believed to be sending money and fighters from the US to the terrorist group al-Shabab in Somalia (Boston.com, August 5). It is unclear whether all “homegrown” incidents of “anti-government rage” are classified as terrorism-related by the US Justice Department. One occurred on May 20, when Jerry Ralph Kane Jr. of Springfield, Ohio, who reportedly was involved with the extremist ‘patriot movement,’ killed two police officers and then died along with his 16-year-old son in the ensuing firefight (New York Times, May 24).

• ATTORNEY GENERAL CALLS FOR TERRORIST EXCEPTION TO MIRANDA RULE
On May 8, Attorney General Holder announced that Faisal Shahzad was trained by the Taliban in Pakistan and that the Obama Administration now supported amending the Miranda rule to allow greater flexibility in interrogations before a terrorist suspect is read his rights (New York Times, May 9). Senator Joe Lieberman and several Republicans – including Senator John McCain – had argued that the Times Square bombing suspect should not have been read his Miranda rights after his arrest and that he should be tried before a military commission, not a federal court. According to the May 5 Washington Post, “He was initially questioned without those rights, under an exemption that allows such interrogation if there is an ‘imminent threat,’ but was given a Miranda warning once it was determined that there was no ongoing threat. Officials said he waived his rights and continued to cooperate.” An editorial in the May 6 New York Times stated: “There is no evidence that vital intelligence has been lost, or a terrorist attack allowed to happen, because a suspect was questioned lawfully....Federal courts have convicted hundreds of people on terrorism-related charges since 2001. The tribunals have obtained one guilty plea from a prisoner who may not have done anything and was subsequently released…. Abandoning democratic institutions in the face of terrorism is an act of surrender. It will not make this country safer. It will make it more vulnerable.” In a May 12 New York Times op ed (“You have the Right to Remain Constitutional”) former Chief Judge Sol Wachtler described why “law enforcement agencies nationwide support Miranda” and added, “To compromise the rule would be counterproductive and destructive to the kind of freedom we enjoy as Americans – a freedom that terrorists would like nothing better than to destroy.”

• AMERICANS TRIED ON TERRORISM CHARGES IN PAKISTAN
Five young men from Virginia whose families had alerted the FBI after they traveled to Pakistan last December were not sent home to face trial on terrorism charges. Instead, they were convicted in a court in Pakistan in late June and sentenced to 10 years in prison for conspiring against the state and helping to finance militants (New York Times, June 25). The men claimed they were tortured in custody.

• COST OF WARS NOW $1 TRILLION AS SECRET OPERATIONS EXPAND
How much does the country spend on “national security”? On top of the more than $50 billion spent annually on intelligence must be added the cost of the wars in Afghanistan and Iraq – which reached $1 trillion at the end of May, according to the National Priorities Project (Yana Kunichoff, Truthout, May 30). According to a Defense Department report, the US has 1,417,747 troops in more than 138 countries, including the US. The US is responsible for 44 percent of global total defense expenditure. Under a Joint Unconventional Warfare Task Force Execute Order signed by Gen. David Petraeus, US covert Special Operations have been authorized to conduct surveillance and work with local forces not just in the two Middle East war zones, but in Yemen, Central Asia and the Horn of Africa (Washington Post, May 25). Special Operations forces numbering 13,000 are now being deployed in 75 countries, compared to 60 at the beginning of last year as the secret war against terrorism expands globally (Washington Post, June 4). Obama has asked for a 5.7 percent increase in Special Operations funding for FY 2011. John Bellinger III, a senior legal advisor in the Bush administration, has criticized its successor for “expanding their operations both in terms of extraterritoriality and aggressiveness” while “contracting the legal authority upon which those expanding actions are based.” Most of those targeted, Bellinger says, have nothing to do with the 9/11 attacks and yet the government is basing its actions solely on the Congressional power given to the president in 2001 to use all appropriate force against those who “planned, authorized, committed, or aided” those attacks.

• CIA DRONE STRIKES VIOLATE INTERNATIONAL LAW: UN
Shortly after the ACLU sent a letter to President Obama stating that the CIA’s use of Predator drone strikes amounted to “bureaucratized killing” which violates international law, Philip Alston, the UN special rapporteur on extrajudicial, summary or arbitrary executions, stated in a report that CIA drone strikes outside the war zones of Iraq and Afghanistan constitute extrajudicial executions which should be investigated and prosecuted by the US and the country in which they occurred (Washington Post, June 8). Alston wrote that the “life and death power” of drone attacks should be in the hands of the regular military, not an intelligence agency like the CIA and that CIA operatives would not be entitled to the same battlefield immunity as soldiers (New York Times, May 28). The UN report was issued the same week as the killing-by-drone in Pakistan of a leader of al Qaeda, Mustafa Abu al-Yazid. According to a May 18 Reuters special report (“How the White House learned to love the drone”), some counter- intelligence officers say that drone strikes to kill militants have sharply increased because with the decision to close Guantanamo and CIA ‘black sites’ there is no place to imprison them. But some CIA operatives are upset with the policy, fearing the ‘blowback’ which will result from the killing of innocent bystanders and other ‘collateral damage’ (Truthout, June 3).

• AT LEAST ONE AMERICAN CITIZEN ON TARGETED KILLING LIST
Among those on the US extra judicial killing list is an American citizen suspected of involvement in the Christmas Day airline bomb plot who now lives in Yemen, Imam Anwar al-Awlaki (Washington Post, June 30). National Public Radio reported on July 29 that after the imam’s father, Dr. Nasser al-Awlaki, called lawyers in the US urging them to build a case against the government for targeting his son for death in violation of his constitutional rights to due process, the US Treasury for the first time put al-Awlaki on the list of designated global terrorists (see In the Courts, below). Unlike another American citizen, Adnan el-Shukrijumah, who is on the run after being indicted for involvement in last year’s plot to bomb New York subways, al-Awlaki has not yet been indicted in court, unless – as NPR speculated - such an indictment had been made in sealed proceedings. It is not known whether el-Shukrijumah is also on the government hit list.

• OBAMA OPTS NOT TO HOLD CIA OR DOD ACCOUNTABLE
Given the agency’s long record of transgressions, the CIA’s Office of Inspector General has performed a necessary – if insufficient – function. The last holder of that office, John Helgerson, retired in February 2009 after facing intense agency opposition for his efforts to investigate the agency’s involvement in torture and destruction of videotaped interrogations. According to Melvin Goodman (Truthout, July 15), President Obama is unwilling to appoint a successor to Helgerson, thus “ensuring the absence of aggressive internal investigations.” The administration has taken this position despite closed door testimony given to the House Judiciary Committee on May 26 by the former Bush official, now appeals court judge Jay Bybee, the author of the infamous torture memo authorizing waterboarding. According to Bybee, some of the methods used by the CIA in their interrogations involved techniques “that were not authorized” (New York Times, July 16). Unlike the CIA, the Department of Defense (DOD) has not always resisted oversight of its intelligence programs. A 2009 DOD directive had stated that information “may be furnished to GAO representatives having a legitimate need to know.” But the White House has threatened to veto an intelligence bill if it includes a provision allowing the GAO to conduct oversight of intelligence programs at Congress’ request (Steven Aftergood, Secrecy News, July 6).

• DRONES MAY SOON PATROL US SKIES
Pilotless planes are already in use along the US border with Mexico. Now there is pressure on the Federal Aviation Administration to give them flying rights to carry out law enforcement functions above the United States (Associated Press, June 14). “State police hope to send them up to capture images of speeding cars’ license plates” while “local police envision using them to track fleeing suspects.” Among the problems that have to be overcome is the danger that they could collide with other aircraft.

• WIKILEAKS’ DOCUMENT TROVE FORCES WAR ONTO FRONT PAGES
The Obama administration may not be prepared to punish government officials for breaking the law on matters like wiretapping and torture, but it is determined to crack down on whistleblowers. In early July, the military brought charges against Pfc. Bradley Manning, an Army intelligence analyst who allegedly leaked to WikiLeaks.org a video of a US Apache helicopter gunning down several civilians, including two Reuters news agency employees, in Iraq in July 2007 and possibly thousands of other files (Washington Post, July 7). Pfc. Manning was turned in by a former hacker, Adrian Lamo, with whom he was in email contact (New York Times, June 8). A few weeks after Pfc. Manning was charged with leaking the material, WikiLeaks deposited on its website an archive of 75,000 leaked military field and intelligence reports about the war in Afghanistan. The massive release was coordinated with the July 20th The New York Times (which emphasized that nothing was published which put troops at risk), the UK Guardian and the German publication Der Spiegel. WikiLeaks reportedly held back a further 15,000 documents in order to redact sensitive information, including the names of informants. With Daniel Ellsberg himself comparing WikiLeaks’ actions to his own leak of the Pentagon Papers, WikiLeaks’ founder Julian Assange has claimed the organization has been acting in the interest of government “transparency” (New York Times, July 20). The White House immediately condemned the leak and the Pentagon announced it was conducting a criminal investigation into its source. On August 1, it was strongly condemned by politicians and Defense Secretary Robert Gates, who said it endangered the lives of Afghans who aided US forces. Among those being investigated for their ties with Pfc. Manning are a software developer in Seattle, Jacob Applebaum, who was detained and questioned at Newark Liberty International Airport, and students from MIT and BU (New York Times, August 2). An unnamed MIT graduate student who acknowledged exchanging emails with Pfc. Manning denied having anything to do with the transfer of information to WikiLeaks (Boston Globe, August 1).

• WHITE HOUSE PREFERS STOPPING LEAKS TO ACHIEVING TRANSPARENCY
Former NSA executive Thomas Drake, another whistleblower who sought “transparency” to reform NSA waste, mismanagement and abuse of power after his internal efforts were unsuccessful, is awaiting trial in a criminal media leak case that could put him in prison for 35 years (Washington Post, July 14). A former Air Force pilot and CIA analyst, Drake favored a terrorist hunting, data sifting project named ThinThread over the considerably more expensive $1.2 billion program called Trailblazer which did not include ThinThread’s privacy protections. Then-NSA head Michael Hayden opted for Trailblazer, which later had to be abandoned as a failure that was hundreds of millions of dollars over budget. Drake had taken his concerns to senior agency officials but got nowhere. He had also testified before two Congressional inquiries about NSA shortcomings that contributed to the 9/11 attacks (Washington Post, July 14). In 2006, according to the prosecution, he sent classified documents to Siobhan Gorman, a reporter for the Baltimore Sun, who wrote articles critical of NSA mismanagement, including one in May 2006 headlined, “ NSA rejected system that sifted phone data legally; Dropping of privacy safeguards after 9/11, turf battles blamed.” He is now working in an Apple Store while awaiting trial.

• CYBER COMMAND NOW OPERATIONAL: SCOPE OF ACTIVITY NOT CLEAR
In late May, CYBERCOM – the US Cyber Command – began operations with a team of 560 troops headquartered at Fort Meade, Maryland – the nerve center of Top Secret America, according to the Washington Post series. Soon more than a thousand troops will be involved in cyber units. What will they do? Noah Shachtman writes that “members of the military’s new Cyber Command insist that they’ve got no interest in taking over civilian Internet security – or even in becoming the Pentagon’s primary information protectors. But the push to intertwine military and civilian network defenses is gaining momentum, nevertheless….Inside the military, there’s a sense that CYBERCOM may take on a momentum of its own, its missions growing more and more diverse” (Wired.com, May 28). Also headquartered at Fort Meade is the military’s National Security Agency (NSA), whose Einstein 2 program is supposed to protect government Internet communications and whose head, Lt. Gen. Keith Alexander, is also the head of CYBERCOM. According to security technologist Bruce Schneier, the NSA is hugely hyping the threat of “cyberwar” in order to get the upper hand over civilian agencies when it comes to “protecting” the nation’s networks (CNN, July 7). The NSA has denied a July 9 Wall Street Journal report by Siobhan Gorman that it plans to monitor civilian networks through a secret program code-named (yes) “Perfect Citizen” (Wired.com, July 9). The NSA insists that “Perfect Citizen” is a “vulnerabilities-assessment and capabilities-development” program that does not involve “illegal or invasive domestic activities.”

• DEFENSE INTELLIGENCE AGENCY TO BUILD ON DISCREDITED DATABASE
After it was revealed that the Defense Department’s Counterintelligence Field Activity (CIFA) program had amassed information about legal anti-war protest activity in its Talon database, CIFA was disbanded. But its database was preserved and, according to the June 15 Washington Post, may soon be part of a new repository of information about individuals and groups housed at the Defense Intelligence Agency’s Defense Counterintelligence and Human Intelligence Center. According to the Federal Register, the new repository would have a broad domestic and homeland security mandate and will include personal data, citizenship documentation, biometric data and “reports of investigation, collection, statements of individuals, affidavits, correspondence, and other documentation pertaining to investigative or analytical efforts by the DoD and other US government agencies to identify or counter foreign intelligence and terrorist threats.”

• HIGH-RANKING PENTAGON OFFICIALS INVOLVED IN SURVEILLANCE DOWNLOAD CHILD PORN
Dozens of senior Pentagon officials and contractors with high-level security clearance are being investigated for purchasing and downloading images of child pornography, and often accessing it through Defense Department computers (“Pentagon workers tied to child porn: Security agencies were left at risk, investigators say,” Boston.com, July 23). The officials and some of the contractors are based at the nerve centers of high tech surveillance – the NSA, the National Reconnaissance Office and the Defense Advanced Research Project Agency (DARPA), once the home of Total Information Awareness.

• “TRADE-OFFS” BETWEEN SECURITY & RIGHTS INEVITABLE: NAPOLITANO
Telling an American Constitution Society gathering that it was wrong to believe that liberty was sacrificed when security was embraced, DHS Secretary Janet Napolitano said that even though “the First Amendment protections radical opinions” we need “the legal tools to do things like monitor the recruitment of terrorists via the Internet” (Associated Press, June 18). She stated that “we can significantly advance security without having a deleterious impact on individual rights in most instances. At the same time, there are situations where trade-offs are inevitable,” citing the installation of full-body scanning machines at airports.

• ACLU SEEKS RECORDS ABOUT UNCONSTITUTIONAL SPYING
On June 3, the ACLU filed a FOIA request for records about the implementation of the FISA Amendments Act of 2008, which gives the government the green light to do mass collections of Americans’ international emails and telephone calls without any warrant or suspicion of wrongdoing as the Constitution requires (Press Release, June 3).

• POLITICAL APPOINTEES ALLOWED TO VET FOIA RECORDS REQUESTS
The Department of Homeland Security issued a directive in July 2009 requiring that public record requests dealing with a “controversial or sensitive subject,” or requests from lawmakers, journalists and watchdog groups be vetted by political appointees, including Secretary Napolitano’s top staff members. According to the internal emails about the process obtained by the Associated Press, political appointees were interested in determining “what areas might cause the government trouble in terms of scrutiny” (Kim Zetter, wired.com). The DHS says that only 500 FOIA requests, out of more than 100,000 submitted last year, were scrutinized by political appointees and the White House claims it had nothing to do with the directive. A new policy directive permits records to be released without political vetting but requires them to be sent to senior staff three days before being released.

• OBAMA WANTS TO EXPAND WARRANTLESS ACCESS TO INTERNET RECORDS
Currently, the FBI can use National Security Letters (NSLs) – issued without any judicial consideration and with a gag provision -- to demand certain financial, business and electronic records from third parties. According to a 2008 report from the Justice Department’s Inspector General (IG), it has issued 192,500 between 2003 to 2006 alone, giving it a vast trove of information for its growing databases. IG reports have shown that the NSL authority has been frequently abused and misused. But discrepancies in the wording of the 1993 update of the Electronic Communications Privacy Act (ECPA) and the FBI’s NSL power have led to confusion about exactly what records the FBI can demand without going before a judge and caused some Internet providers to push back when they are served with an NSL. The Obama administration has told Congress it wants to clarify matters by adding the words “electronic communication transactional records” to that authority by amending ECPA. Critics, including the ACLU and Center for Democracy and Technology, do not see this as a technological fix, but a substantial expansion of NSL power and violation of the President’s campaign promise to practice “robust oversight” of warrantless surveillance. According to former Justice Department lawyer Michael Sussman, it would mean “bringing a big category of data – records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information – outside judicial review” (Washington Post, July 29). Senate Judiciary head Patrick Leahy issued a statement on July 29 saying the administration’s proposal “raises serious privacy and civil liberties concerns” and calling for a “timeout” while he organizes hearings into the matter in the fall (Washington Post, August 2).

• FBI CONDUCTS “DRAGNET” WARRANTLESS TRACKING OF CELL PHONES
Do police and the FBI need warrants before tapping into the location information of cell phones? The Obama administration has argued before a Connecticut court that search warrants are not needed as long as law enforcement can show that the records are “relevant” to an ongoing criminal investigation. The ACLU and the Electronic Frontier Foundation, which have accused the FBI of conducting “dragnet” surveillance by tracking cell phones without getting warrants, argued that “because cell site location information implicates an expectation of privacy that society is prepared to recognize as reasonable, the Fourth Amendment requires that the government obtain a warrant based on probable cause prior to collecting this information” (CNET News, June 22). Law enforcement officials have urged Congress to ensure that they do not have to get warrants before being able to track cell phones.

• NEW GPS TECHNOLOGY TO INCREASE TRACKING CAPABILITY
A new GPS satellite launched by the US Air Force in late May is the first of a dozen satellites designed by Boeing and NASA to significantly enhance the quality and accuracy of location-based applications and make it possible for GPS to function in indoor facilities like malls or convention centers (readwriteweb.com, May 31).

• OBAMA PROMISES COOPERATION IN SPACE
In a rejection of the Bush administration’s rejection of “any limitations on the fundamental right of the United States to operate in and acquire data from space,” President Obama has embraced the need for international cooperation, openness and transparency in space operations (New York Times, June 29). The new policy opens the door to the development of an arms control treaty governing the deployment of weapons in space.

• FBI AGENTS CHEAT ON PROFILING AND SURVEILLANCE TESTS
After guidelines adopted in December 2008 allowed the FBI to conduct surveillance for national security purposes without evidence of a crime and to use race and religion as a factor when deciding to open investigations, the agency promised Congress that its agents would be thoroughly trained and tested in the use of the Domestic Investigations and Operations Guidelines so they do not engage in blanket racial profiling. The Justice Department is now investigating reports of cheating by hundreds of FBI agents in practically every FBI office when they were being tested on the new rules (ABC This Week with Christiane Amanpour, July 28). A letter dated May 13 written to the Justice Department’s Inspector General by the head of the FBI Agents Association claims this demonstrates “the pervasive confusion and miscommunication” concerning the training and the administration of the exam and that FBI agents should not be punished “because of a failure to effectively communicate the rules.” On July 28, FBI Director Robert Mueller testified before the Senate Judiciary Committee that the guidelines “do not target based on race” and that he is confident “our work force absolutely understands what can be investigated, how it must be investigated” after undergoing 16 hours of training on the use of the new rules (Associated Press, July 28). The FBI has refused to make public portions of the guidelines that clarify when agents or informants can be sent into mosques and political gatherings.

• ACLU REQUESTS INFORMATION ABOUT FBI ETHNIC “MAPPING”
On July 27, ACLU affiliates in 29 states (including Massachusetts) and Washington DC filed FOIA requests with FBI field offices asking for records relating to the agency’s collection of data on race, ethnicity and cultural traditions. The requests follow the revelation obtained through a lawsuit that a section of the FBI operations guide gives agents authority to map demographic data, including ethnic behaviors, lifestyle characteristics, cultural tradition and other race or ethnic-based criteria.

• FBI NOT PREPARED FOR ATTACKS INVOLVING UNCONVENTIONAL WEAPONS
According to a report from the Justice Department’s inspector general, the FBI is not prepared to respond to a biological, chemical, radiological or nuclear attack, and has no central oversight plan in place if such an attack occurred (New York Times, June 2).

• FORMER FBI DEPUTY NOW HEADS TSA
In late June, the TSA finally got a new head, former FBI Deputy Director John Pistole. The office had been vacant since President Obama took office, with his two former nominees being forced to withdraw after revelations of past misconduct.

• STRANDED: AMERICAN CITIZENS CANNOT FLY HOME
Since the failed Christmas day plot to bomb an airline, several Americans have been stranded overseas because (it seems) their names have been placed on a ‘no fly’ list. They include a military contractor who has been marooned in Colombia since March 2010, a disabled veteran who went to Egypt to learn Arabic and was interviewed there by FBI agents who allegedly informed him that they would not be able to give him clearance to return to the US until they returned from their vacations, and Yahya Wehelie, a Virginian studying Arabic in Yemen whose plight was the subject of articles in The New York Times (June 16) and Washington Post (July 27). Wehelie, who was stopped in Cairo while in transit home last May, was finally permitted to fly back to the US after spending 11 weeks paying for a Cairo hotel room while being interrogated by the FBI at the US Embassy. Among the plaintiffs in the first case challenging the ‘no fly’ list is Nagib Ali Ghaleb, who was told by the FBI he would only be permitted to fly home from Yemen if he became an FBI informant, something he has refused to do (see In the Courts, below). The treatment of these Americans may reflect new thinking in Obama administration circles about the privileges of citizenship and the naturalization process. In the words of White House counterterrorism adviser John Brennan, “Individuals shouldn’t be able to hide behind their US passports, behind their US citizenship…if we were to give US persons…a pass simply because of the passport they hold or their place of birth, we would be making the American people…more vulnerable to those attacks” (Washington Post, May 18).

• SIX YEAR OLD APPARENTLY GETS ‘NO FLY’ STATUS
According to AOL News (June 26), six-year-old Alyssa Thomas from Ohio, who has been flying since she was two months old, suddenly found herself on the ‘no fly list when her family tried to fly from Cleveland to Minneapolis. The problem might have been caused by “a recent change by the Transportation Security Administration, which used to check only international passengers’ names against the no-fly list, but since earlier this month has been checking domestic passengers as well.” Her parents are appealing to the DHS to clear their daughter to travel. About 400 of the approximately 8,000 people on the ‘no fly’ list are thought to be Americans. According to the July 14 Washington Post, “the list is essentially a black hole. No one outside a tight circle of law enforcement and intelligence officials knows for certain who is included. Indeed, according to the FBI, 99.4 percent of those who challenge their presence on the list were never on it to begin with” and that only known or suspected terrorists believed to pose a threat to airline safety are put on this list.

• TSA SCREENING PROGRAM REALLY RACIAL PROFILING
A report by the Government Accountability Office (GAO) has concluded that the Screening of Passengers by Observation Techniques (SPOT) program adopted by the TSA has achieved nothing and has no scientific validity. House Homeland Security Committee chair Rep. Bennie Thompson (D-MS) used the report to call for the program to be eliminated as it amounted to little more than “racial profiling” (CongressDaily, May 21). According to the GAO report, 3,000 behavior detection officers trained to spot suspicious behavior have pulled 152,000 people out of airport lines and arrested 1,100 of them, mostly for immigration and outstanding warrants. Not a single one was charged with terrorism. Sixteen travelers later linked to failed terrorist plots in New York and elsewhere were not detected.

• DETECTING “MAL-INTENT” AND SUSPICIOUS “MICRO EXPRESSIONS” THE STUFF OF FUTURE SCREENING?
Welcome to Wonderland. The Homeland Security Advanced Research Project Agency has spent $20 million researching whether high-resolution cameras, low-level lasers, biometric sensors and other high-tech devices measuring eye dilation, blink rate, skin temperature, respiration, fidgeting and heart rate can be used to identify people who harbor malicious intent (LAtimes.com, May 28). “We’re trying to detect a crime before it has occurred,” said DHS team leader Robert Burns about FAST (Future Attribute Screening Technology). FAST has been contracted out to Draper Lab in Cambridge (“Airport security: Intent to deceive?” Nature News, May 36). A further $20 million has been spent on the study of lip curls and muscle flickers that could lead to the detection of terrorists. “We are breaking new ground here,” said the project director Larry Willis.

• BODY SCANNERS: $300 MILLION FOR INEFFECTIVE MACHINES WITH POTENTIAL HEALTH RISKS
TSA plans to install 450 full-body scanning machines costing $170,000 each at airports by the end of this year and as many as 1,800 by late 2014. The $300 million being paid primarily to Rapiscan Systems does not include the cost of hiring and training staff to run them. The TSA is rushing to purchase the machines – sometimes with federal stimulus money - even though a group of University of California researchers has warned that the kind of backscatter full-body scanners produced by Rapiscan have serious potential health risks and even though DHS Secretary Napolitano herself told a Senate Committee that machines do not solve the airport security problem - “no one technology, no one process, no one intel agency is the silver bullet here. It’s layer, layer, layer” (Homeland Security News Wire, June 30). Gary Stoller (USA Today, July 13) has reported a growing public backlash against the use of the machines, which are slowing down screening processes and making many travelers feel their privacy has been invaded. According to the GAO, the TSA was putting the machines in place without fully testing them and assessing whether they would be able to detect “threat items” secreted in various parts of the body.

• SCANNED BODY IMAGES CAN – AND DO – GET STORED BY FEDS
The TSA has sought to assure the public that privacy is being respected by saying that it will not store the body images captured by the scanners. It has even asserted that the machines it is ordering do not have the capacity to store or transmit images. Other federal agencies have made similar claims. But according to a letter from the US Marshals Service obtained by the Electronic Privacy Information Center (EPIC), its agents have stored “approximately 35,314 images” of nude bodies scanned by a Gen. 2 machine used in the Orlando, Florida federal courthouse (CNET News, August 4). Another document obtained by EPIC shows TSA’s procurement specifications. It states the scanner in some modes must “allow exporting of image data in real time” and provide a mechanism for “high-speed transfer of image data.”

• YET ANOTHER DATABASE CREATED BY TSA
A database including names and other personal information of people involved in airport incidents – including witnesses – has been created by the Transportation Security Administration. Its ostensible purpose is to prevent the nation’s 50,000 airport screeners from being attacked or threatened (USA Today, May 24). The list seems likely to swell as travelers find themselves subjected to the virtual strip searches of full-body scans.

• TSA COMPUTER USERS CANNOT ACCESS “CONTROVERSIAL OPINION”
According to CBS News (July 3), the TSA is preventing its employees from accessing five categories of websites including those containing (undefined) “controversial opinion.”

• COLOMBIAN JOURNALIST GETS VISA AFTER GOVERNMENT REVERSAL
The State Department cited the “terrorist activities” section of the USA PATRIOT Act when, in mid June, it denied a visa to Hollman Morris, a reporter and TV producer who was selected as one of 12 foreign journalists to participate in Harvard University’s Nieman program in 2010-11 (Washington Post, July 10). Morris had frequently met with the FARC guerrilla group when covering Colombia’s civil war and there was speculation that the Uribe government, which Morris had often criticized, had a role in what was intended to be his permanent exclusion from the US. On July 27, after the ACLU, the Nieman program, Human Rights Watch, the InterAmerican Press Association and the Committee to Protect Journalists lobbied State Department officials, Morris was told his visa would be granted after all (Washington Post, July 27).

• OPPOSITION TO NEW MOSQUES IN THE US ON THE RISE
Across the country, from Ground Zero in New York to Temecula, California, protests have been mounted against plans to build new mosques and other Islamic centers, with a group called “Stop Islamization of America” putting ads on buses in San Francisco and Miami-Dade (Christian Science Monitor, July 28). According to Ibrahim Hooper of the Council on American-Islamic Relations, “Anytime a Muslim raises his head in society, a cottage industry of Muslim-bashers comes against them.”

• NY MAYOR APPEALS FOR TOLERANCE, SUPPORTS ISLAMIC CENTER
On August 3, as the Islamic community center planned to be built two blocks from Ground Zero cleared a final planning hurdle, Mayor Michael Bloomberg – standing on Governor’s Island with the Statue of Liberty at his back – urged the Cordoba Center’s vociferous opponents to think again : “We would betray our values if we were to treat Muslims differently than anyone else. To cave to popular sentiment would be to hand a victory to the terrorists – and we should not stand for that…. We honor their lives by defending those rights and the freedoms the terrorists attacked” (New York Times, August 4). A memorial to 9/11 is included in plans for the Cordoba Center, which has considerable inter-faith support.

• OBAMA UNPOPULAR IN MUSLIM WORLD
The afterglow of President Obama’s Cairo speech has faded. According to a mid June Pew global survey, there is growing opposition in the Muslim world to Obama’s policies and the man himself. As America’s overall favorability rating declined to its abysmally low 2008 levels (generally well under 20 percent), so did the percentage of people who trust Obama “to do the right thing in world affairs” and his personal approval rating -- which in Pakistan registered at only eight percent (Pewglobal.org, June 17).

• SOME PRIVACY GROUPS CRITICIZE FACEBOOK’S “MASSIVE AND STEALTH DATA COLLECTION”
Responding to an outcry over the number of settings (50) it took to ensure a measure of privacy for its 500 million users, Facebook reduced the settings to around 15, and the description of choices from seven pages to three and was praised for doing so by several civil liberties groups. But the Center for Digital Democracy said this is not sufficient protection. A broad coalition of groups are calling on the federal government to update privacy legislation (CNET News, May 27). Facebook was also in the news for its new feature that uses facial recognition technology to select faces from photos in the site. The motives behind the ongoing research into facial recognition technology concern Marc Rotenberg of the Electronic Privacy Information Center. He foresees the day when “you’re no longer racing through iPhoto to figure out how many pictures of Barbara you have. You’re walking around in public and facing cameras that know who you are. And I think that’s a little creepy” (CNN, July 9).

• “ALMOST EVERY MAJOR WEBSITE YOU VISIT IS TRACKING YOUR ONLINE ACTIVITY”
A Wall Street Journal investigation into spying by private companies on Internet users reveals “that the tracking of consumers has grown both far more pervasive and far more intrusive than is realized by all but a handful of people in the vanguard of the industry” (Wall Street Journal, July 30). Individual profiles are being compiled and then “bought and sold on stock-market-like exchanges that have sprung up in the past 18 months….Now, advertisers are paying a premium to follow people around the Internet, wherever they go, with highly specific marketing messages.”

• MIDEAST GOVERNMENTS WANT TO SPY ON BLACKBERRY USERS
Citing security concerns, the United Arab Emirates, Saudi Arabia and Kuwait have been demanding that the Canadian company Research in Motion, which makes BlackBerry smartphones, change the encryption system that prevents them from having access to customers’ email and text messages. The company says it will not give in to the pressure, which includes the blocking of BlackBerry services beginning in October (New York Times, August 4).

• SURVEILLANCE CAMERAS PROLIFERATING ACROSS THE US
According to CBS News (June 30), the Department of Homeland Security has provided cities and towns with $1 billion in grants to install surveillance cameras in public places. But are they effective? In New York City, where more than 5,000 cameras are monitored by the police and dozens ring Times Square, Police Commissioner Raymond Kelly insists that such surveillance “acts as a deterrent and if of course something happens, it provides us with a record.” However, the cameras failed to capture a clear image of the would=be car bomber last May and the pictures disseminated by the police were of a totally innocent person. The ACLU’s Chris Calabrese told CBS News that “these cameras are completely unregulated, there’s rarely a discussion about whether it’s appropriate to put a camera up, they’re simply installed and we think that’s slowly eroding the way people act in public.” But at least one state has taken a step back from one type of camera surveillance. Arizona, which was the first state to adopt automated cameras fixed to the side of the road or carried in vans to track speeders on highways, has abandoned the program after it failed to bring in anticipated revenue and one operator of a van carrying a mobile speed camera was shot to death. The family of the victim is suing the state’s Department of Public Safety.

• CHINA INSTALLS MILLIONS OF SURVEILLANCE CAMERAS TO ENSURE SOCIAL CONTROL
“China Keeps 7 Million Tireless Eyes on Its People” is the headline of a front page piece in the August 3 New York Times. Since the unrest in Urumqi earlier this year, some 47,000 surveillance cameras have been installed in the city. According to the report, the Chinese government intends to install a further 15 million nationwide on top of its current seven million cameras over the next four years. In 2009, the US purchased 29 percent of all surveillance equipment sold in the world and China purchased 17 percent. China is projected to purchase 70 percent by 2014. Although the government says the cameras are needed to battle crime and terrorism, the cameras are also being deployed for 24-hour surveillance of dissidents and “troublemakers,” including citizens who bring complaints to authorities, and “some human rights advocates say they fear that the melding of ever-improving digital technologies and the absence of legal restraints on surveillance raise the specter of genuinely Orwellian control over society.”

• NEW UK GOVERNMENT PROMISES TO ROLL BACK SURVEILLANCE SOCIETY
Nick Clegg, the deputy prime minister of the new Conservative – Liberal Democrat coalition government in the UK, has said that it will end “the culture of spying on its citizens,” curb the use of surveillance cameras, scrap national identity cards and the new generation of ‘biometric’ passports and its archive of personal data, and restrict the government’s right to intercept email traffic and store DNA from people not convicted of any crime (New York Times, May 20). “It is outrageous that decent, law-abiding citizens get treated as if they have got something to hide,” Clegg said.

• BRITISH PRIME MINISTER ANNOUNCES INQUIRY INTO TORTURE
In what could not have been good news for the Obama administration, Prime Minister David Cameron announced on July 6 that the new British government will appoint an independent inquiry into allegations that British security services collaborated with the CIA in the rendition and torture of terrorism suspects (NYTimes.com, July 6). He told the House of Commons, “It’s time to clear this matter up once and for all.”

Extrajudicial Killing, Indefinite Detention, Military Commissions, Torture

• DETAINEES WERE “GUINEA PIGS” IN TORTURE EXPERIMENTS
In early June, the Boston-based Physicians for Human Rights issued a report entitled “Experiments in Torture: Human Research and Evidence of Experimentation in the ‘Enhanced’ Interrogation Program” that condemns the work of health professionals involved in monitoring and assessing the impact of brutal CIA interrogations as a violation of ethical and legal protection for human subjects and Nuremberg principles (http://phrtorturepapers.org/). Designed to make torture more effective, “these practices could, in some cases, constitute war crimes and crimes against humanity” (Jason Leopold, “Human Experimentation at the Heart of Bush Administration’s Torture Program, Truthout, June 6). According to Boston psychologist Stephen Soldz, there was another reason to research the impact of torture techniques: “The Justice Department torture memos argued that torturers could be protected from prosecution for their acts of torture if they demonstrated a ‘good faith’ effort to avoid causing the ‘severe pain’ involved in legal definitions of torture irrespective of how much suffering and harm the torturers actually caused. One way they could demonstrate such a good faith effort was to consult with health professionals, the researchers, who could assure them that their actions would not cause harm. Another way to demonstrate good faith was to collect and analyze evidence of prior interrogations demonstrating, allegedly, that they did not cause severe harm. Thus, the quality of the research did not matter. Its very existence would provide the CIA torturers and responsible officials with a get-out-of jail free card” (Counterpunch.org, June 7).

• SOME CIA TORTURE PRACTICES NOT APPROVED BY LEGAL MEMOS
Despite former Bush legal counsel Jay Bybee’s admission that the CIA went beyond the torture techniques permitted by his infamous torture memo, the Obama administration has made no effort to hold torturers accountable. Judge Bybee told a closed door meeting of the House Judiciary Committee on May 26th that his Office of Legal Counsel did not permit the CIA to use diapering, water dousing, extended solitary confinement, and daily beatings, or to hang detainees from ceiling hooks, subject them to loud music or noise or force them to defecate on themselves (Jason Leopold, Truthout, July 15). Some of these techniques were cleared for CIA use after Bybee left the White House. At least one detainee died of hypothermia after being doused with water and left in a cold prison cell in a prison in Afghanistan known as the Salt Pit.

• AMERICAN PSYCHOLOGICAL ASSOCIATION WANTS TO STRIP LICENSE FROM INTERROGATOR
In what appears to be the first of its kind, the APA has sent a letter to the Texas licensing board urging it to remove the license of a retired Air Force psychologist, James Mitchell, for “patently unethical” behavior (Washington Post, July 11). In 2002, Mitchell had been involved in the CIA’s interrogation and torture of Abu Zubaydah. Mitchell had scoffed at the FBI’s rapport-building techniques, arguing that Abu Zubaydah needed to be treated “like a dog in a cage…like an experiment, when you apply electric shocks to a caged dog, after a while he’s so diminished, he can’t resist” (Truthout, June 6).

• “LITTLE GITMOS” ERECTED IN US
Secretive Communications Management Units (CMUs) that resemble Guantanamo Bay in their isolation and other practices and are intended to house prisoners the government considers terrorists have been opened at Terre Haute, Indiana and Marion, Illinois with no public notice. The CMUs are designed to prevent any communication with ‘terrorists’ outside the prison. One prisoner moved to a CMU is Daniel McGowan, an environmental activist and Earth Liberation Front member who had previously been housed in a low-security prison after being given a seven-year sentence for ‘eco terrorism.’ Up to 70 percent of those moved into the new units are Muslim (DCbureau.org, June 21). Meanwhile, plans are reportedly moving ahead to convert Thomson prison in Illinois to a federal supermax with room for 1,600 inmates including Guantanamo Bay detainees (Washington Post, June 21). A month before it had appeared that the House Armed Services Committee had killed plans for the federal government to purchase and convert Thomson when it cut funds for this purpose from the $700 billion war appropriations bill (Washington Independent, May 20). Taxpayers spent $2 billion on Guantanamo between 2002 and 2009 according to a Pentagon study, and shifting detainees to Thomson would represent a substantial saving (New York Times, June 26). But closing Guantanamo appears to have faded as an administration priority.

• US MAY HOLD DETAINEES INDEFINITELY AT BAGRAM AFTER PRISON TRANSFER
The Bagram detention facility is being turned over to the Afghan government early next year. But following a federal court ruling that detainees held there cannot challenge their imprisonment in US courts (see In the Courts, below), there are signs that the Obama administration may decide it is worth keeping as an indefinite detention storage facility. According to an unnamed senior US official, administration officials are reportedly “developing a compromise plan to hand over control, but also to carve out a section of the prison for non-Afghan detainees who would remain under US custody” (Julian Barnes, “US may seek use of Afghan Prison,” LAtimes.com, June 9). There have also been reports of a secret “black prison” at Bagram where detainees have been subjected to sleep deprivation and other “enhanced” interrogation methods (Andy Worthington, The Public Record, June 7). In early June, the first trial was due to be held at Bagram. (Associated Press, May 26). It was not known what would be done with the fraction of the 830 Bagram inmates who were not from Afghanistan (see In the Courts, below).

• TASK FORCE SAYS MOST DETAINEES LOW-LEVEL FIGHTERS
The final report of the inter-agency body President Obama set up to examine who was still being held at Guantanamo maintains that 10 percent of the 240 detainees in the prison when Obama took office are “leaders, operatives and facilitators” involved in plots against the US, but most are “low-level fighters” or people who could not be categorized at all. The report recommends prosecuting 36, sending 126 home or to a third country, and holding 48 indefinitely under the laws of war (Washington Post, May 29). Of the 48 designated for indefinite detention, several could not be prosecuted because of lack of evidence. Thirty Yemeni prisoners who have been cleared for release are being caged indefinitely simply because Yemen seems terror-prone. By the end of May, the Obama administration had sent 33 to third countries, sent 24 home and two to Italy for prosecution. There was no sign that the prison would be shut anytime soon.

• ADMINISTRATION GETS ITS FIRST GUANTANAMO CONVICTION
On July 7, a 50-year old Sudanese detainee, Ibrahim Ahmed Mahmoud al-Qosi, pleaded guilty before a Guantanamo military commission to the charge of conspiring to provide military support for terrorism. Al-Qosi acknowledged serving Osama bin Laden as a cook, bodyguard and driver (New York Times, July 7). He is the fourth detainee to be convicted by a military commission since they were created by President Bush in November 2001. As a candidate for president, Obama had opposed military commissions.

• HABEAS RULINGS A MIXED BAG
After district court judge Gladys Kessler ruled in a habeas hearing that there was no evidence that Guantanamo detainee Mohammed Al-Adahi was a terrorist, appeals court judge Raymond Randolph stated that this was “manifestly incorrect” and he should not be freed as Judge Kessler had ordered (New York Times, July 14). After district court judge Richard Leon ruled in late 2008 that Belkacem Bensayah, an Algerian arrested in Bosnia, could continue to be held as an enemy combatant, appeals court judge Douglas Ginsburg found no direct evidence connecting him to al Qaeda, and asked Judge Leon to re-consider his decision (New York Times, July 3). Thirty-seven detainees have been ordered freed after their habeas hearings while 16 have lost their habeas cases. Among those ordered to be immediately released was a mentally-disturbed Yemeni man who has spent long periods in the Guantanamo psychiatric ward (Miami Herald, July 22).

• DETAINEE CLEARED FOR RELEASE IN 2004 STILL AT GUANTANAMO IN 2010
Among those ordered released is Mohammed Hassan Odaini, who was 18 when he was taken to Guantanamo from a university guest house in Pakistan eight years ago. He had been cleared for release by the Pentagon in 2004 and in June 2010 district court judge Henry Kennedy called his ongoing detention an outrage (CommonDreams.org, June 13). Forty-eight days after Judge Kennedy’s ruling, the Obama administration finally sent him home to Yemen.

• SUPREME COURT PERMITS ALGERIANS TO BE SENT HOME DESPITE TORTURE FEARS
Guantanamo detainee Aziz Abdul Naji was sent back to his native Algeria after the US Supreme Court overruled his request -- and that of another Algerian, Farhi Saeed bin Mohammed -- to stay at Guantanamo rather than face torture and possibly death at home (New York Times, July 17). Naji, who spent eight years at Guantanamo, was arrested on his return but subsequently released, it is unclear for how long.

• ATTORNEY APPEALS TO SUPREME COURT AS CANADIAN DETAINEE REJECTS PLEA DEAL
On August 2, Army Lt. Col. Jon Jackson, Omar Khadr’s appointed attorney, announced that he had petitioned the US Supreme Court to halt his client’s impending trial on the grounds that military commissions offered second-class justice and were unconstitutional (Associated Press, August 2). Khadr, who was captured during a firefight in Afghanistan in 2002 when he was 15 years old, told a military judge in his pre-trail hearing that he rejected a plea bargain that would free him in five years if he admitted killing a US soldier in battle. He said the deal was designed “to make the US government look good in the public’s eye and other political reasons…I will not take any plea offer because it will give an excuse to the government for torturing me and abusing me as a child” (Reuters, July 12). A New York Times editorial headlined “Tainted Justice” (May 24) had condemned the Khadr trial since “he will be the first person in decades to be tried by a Western nation for war crimes allegedly committed as a child.”

• JOURNALISTS PROTEST GUANTANAMO RESTRICTIONS
After four reporters were expelled from Guantanamo in May because they published the (already widely-known) name of an Army interrogator, lawyers for The New York Times, The Associated Press and The Miami Herald and other news organizations have urged the Pentagon to revise its draconian media rules on the grounds that many of them violate the First Amendment without enhancing national security (New York Times, July 21). Reporters have been reprimanded for doodling, chewing gum and stretching during court proceedings and must be escorted by military personnel everywhere they go, including to the bathroom.

Targeting Immigrants/Visitors

• JUDGE BLOCKS ENFORCEMENT OF SOME PROVISIONS OF ARIZONA LAW
On July 28, a day before the anti-immigrant Arizona law SB 1070 was due to take effect, US district court judge Susan Bolton granted much of the preliminary injunction sought by the Justice Department, but did not declare the entire law unconstitutional. She agreed with the federal government that portions of the law usurped its immigration authority, “would divert resources from the federal government’s other responsibilities and priorities” and placed an “impermissible burden” on lawfully-present aliens. The judge ruled that the state of Arizona cannot require its police officers to demand the papers of people they stop and think might be in the country illegally; that it cannot require that people be detained until they can prove they are here lawfully; it cannot give police officers warrantless authority to carry out the arrests of people whom they believe have committed a crime that makes them deportable; that the failure of immigrants to carry papers at all times and the action of the undocumented in seeking work cannot be made state crimes. The judge did not enjoin that part of the law that gives legal residents of the state the right to sue state officials or agencies that restrict enforcement of federal immigration law and left intact the provision making it a crime for drivers to stop their cars to pick up day laborers. Arizona governor Jan Brewer immediately said she would fight the ruling “all the way to the Supreme Court, if necessary” (Washington Post, July 29). On July 29, as protestors from around the nation converged on Phoenix to denounce SB 1070 leading to some 80 arrests for civil disobedience, the governor asked the Court of Appeals for the Ninth Circuit to rescind the preliminary injunction and permit the entire law to take effect. She requested a ruling in September. Meanwhile, the federal district court will look at the merits of the federal government’s case. Six other lawsuits challenging the law have been filed with the court, including one brought by the ACLU. While giving the Obama administration credit for bringing its suit and winning an early victory, the July 29 New York Times editorialized that the administration should go further and abolish two other programs that lead to racial profiling and arrests on flimsy pretexts, the 287(g) agreements deputizing local law enforcement officials as immigration agents, a power which has been grossly misused by Arizona Sheriff Joe Arpaio of Maricopa County, and “Secure Communities” (see below). On the day the truncated law went into effect, Arpaio and his 200 deputies rode out in search of people to round up as part of his latest “Crime Suppression” spree.

• LEGISLATORS THINK AGAIN ABOUT PASSING ARIZONA-STYLE LAWS
In the wake of the preliminary injunction freezing part of the Arizona law, legislators in Ohio and Idaho are re-drafting anti-immigration legislation to exclude sections similar to those that Judge Bolton put on hold in an effort to prevent similar lawsuits (USA Today, August 2). But in Virginia, the state attorney general has issued a legal opinion stating that police officers can look into the immigration status of anyone they stop or arrest, giving a green light to anti-immigrant activists who hope to get a bill similar to Arizona’s through the legislature (Washington Post, August 2). South Carolina, Oklahoma and Utah have similar bills pending.

• POLICE CHIEFS SAY ARIZONA-STYLE LAWS WOULD INCREASE CRIME
While a survey showed that 70 percent of Americans backed the SB 1070 provision that police should be required to ask for documents from anyone they stop and suspect may be in the country illegally, police chiefs from Los Angeles, Houston, Philadelphia, Phoenix, Tucson, San Jose and Montgomery County (among others) told Attorney General Eric Holder that SB 1070 will make their job harder as it undermines community trust. In the words of LA police chief Charlie Beck, “This is not a law that increases public safety…Crime will go up if this becomes law in Arizona or in any other state” (Washington Post, May 27).

• “SECURE COMMUNITIES” SCREENS ALL ARRESTEES TO LOCATE PEOPLE TO DEPORT
The “Secure Communities” program introduced by DHS as a pilot program in Texas and North Carolina in October 2008 and now operating in 480 jurisdictions in 27 states has been called an “excessive dragnet” by immigrant groups which makes communities increasingly insecure, as crime victims are reluctant to cooperate with the police “due to fear of being drawn into the immigration regime” (Huffingtonpost.com, July 26). Under the $550 million program, everyone who is arrested and booked into a jail – before being convicted -- has their fingerprints taken and checked against DHS immigration records and FBI criminal history records to look for non citizens who can be deported. Nearly three million people have been screened through the program, with about 40,000 being found to have committed serious crimes and an additional 223,000 identified as out-of-status immigrants with previous arrest records for less serious crimes including misdemeanors. Some 25,000 have to date been deported (New York Times, July 30). Critics of “Secure Communities” say it promotes racial profiling by encouraging police to conduct low level arrests in order to be able to check a person’s immigration status. The program is being carried out statewide in Arizona, Florida, Virginia and Delaware, and in Suffolk County, Massachusetts {see In the Commonwealth, below). ICE plans to have the program in every jail in the country – that’s 3, 200 - by 2013. Some sheriffs have gone on record shunning ”Secure Communities” and Washington DC, among other city councils, has strongly opposed it. In late June, the Center for Constitutional Rights and other legal groups sent a FOIA request to the federal government to get operational details about the program which have been kept largely under wraps.

• DEPORTATION RATE ACCELERATES UNDER OBAMA
At the same time as the Obama administration is challenging the Arizona law, it is presiding over a sharp increase in the number of people being deported from the country. The total of 400,000 expected to be deported this year represents a 25 percent increase since 2007 (Washington Post, July 26). According to ICE, about half of those deported this budget year have criminal convictions, ranging from driving infractions to major felonies.

• NEARLY 400,000 IMMIGRANTS IN DETENTION
Currently, 383,524 immigrants are in detention in 270 facilities, awaiting a hearing or deportation. More than 3.7 million have been deported since 1994 and the rate of deportation has tripled in the last decade, according to Yana Kunichoff (“A Long Stay,” Truthout, August 2). Private prison corporations like Corrections Corporations of America (CCA) are reaping hefty profits, with CCA now the sixth largest correction agency in the nation, behind the federal government and four states. It is estimated that only 13 percent of facilities housing immigrants are ICE-owned and operated, with 67 percent in local or county jails, 17 percent in private prisons and 3 percent in Bureau of Prisons’ facilities. CCA, which made $1.67 billion in revenue in 2009 and has strong ties to state legislators in Arizona and elsewhere, gets $140 per day for housing a prisoner on average. Since 2003, there have been 111 reported deaths in immigration detention, with CCA being notoriously lax in providing medical care.

• NUMBER OF FOREIGN-BORN IN COUNTRY DECLINES
While an anti-immigration frenzy is fanned by the right, the US for the first time since the 1970 census is experiencing an overall decline in the number of its residents who are foreign-born (LAtimes.com, July 26). The deteriorating economy appears to be one factor. A DHS report issued last February indicates that the number of undocumented living in the US dropped by a million people between 2008 and 2009, the sharpest decrease in 30 years, and according to the Border Patrol, apprehensions are down more than 60 percent since 2000. The Pew Hispanic Center reports that between 2005 and 2008, the number of Mexican migrants declined by 40 percent.

• OBAMA ASKS FOR $600 MILLION TO STRENGTHEN BORDER ENFORCEMENT
In mid June, the Obama Administration asked Congress for emergency funds amounting to $600 million to hire an additional one thousand Border Patrol guards and more Drug Enforcement Administration agents, create more FBI task forces, fund more immigration prosecutors and judges and to purchase two more drones for the Southwest border. The Border Patrol has doubled in size since 2004 to 20,000 (LAtimes.com, June 22). The restructuring of the border has led to a huge increase in mortality, with hundreds dying annually as they try to enter the United States.

• OBAMA OPTS FOR LESS VISIBLE WORKPLACE ENFORCEMENT
Rather than resorting to the kind of militarized, large-scale workplace sweeps carried out by the Bush administration, the Obama administration has preferred “silent raids,” forcing large businesses to do audits of their work forces and firing workers who are deemed unauthorized (NYtimes.com, July 9). The practice has resulted in thousands of workers losing their jobs while employers who hired “illegals” are stiffly fined and in some cases subjected to criminal charges. In the words of Mark Reed, a consultant on immigration law, “Instead of hundreds of agents going after one company, now one agent can go after hundreds of companies. And there is no drama, no trauma, no families being torn apart, no handcuffs.” Especially hard hit has been the agricultural sector, where many growers are unable to find workers to replace those they were forced to fire.

• OBAMA MAKES A SPEECH ON COMPREHENSIVE IMMIGRATION REFORM
With xenophobia on the rise and states and localities moving into the void left by a broken federal immigration policy, President Obama on July 1 lay out the dimensions of the problem and called for comprehensive reform, including a pathway to citizenship for the undocumented, as a “moral imperative.” He cited the strides that had been made by his administration in strengthening enforcement, and urged the Republicans to help craft a federal fix - but he did not announce any new legislative initiative.

• LETTER TO OBAMA GETS MAN DETAINED BY ICE AGENTS
After his wife wrote a letter to President Obama asking for his help to ensure that her husband would not be deported, Herve Foukou Takoulo, a Cameroon national with an outstanding deportation order, was approached by ICE agents who asked him if he had written to the president. When he said his wife had, he was handcuffed and sent to New Jersey to await deportation. But after a New York Times reporter questioned ICE officials about the case, he was released. “While Mr. Takoulo is still subject to the deportation order, immigration officials acknowledged that their actions in the case seemed to violate their standard practice of not using letters seeking help from elected officials as investigative leads” (New York Times, June 19).

• GROUP COMPILES LIST OF “ILLEGALS” AND DEMANDS THEY BE DETAINED
A Utah group calling itself ‘Concerned Citizens of the United States’ has sent the federal government, law enforcement agencies and the media a list of 1,300 Utah residents, giving their personal information and demanding they be detained as “illegal immigrants” (New York Times, July 15). The list included information gleaned from state computers, including notations about pregnancies, and Utah’s Department of Technology Services is investigating whether a digital trail could lead to the perpetrators. It has greatly raised anxiety among residents identified as being on the list and others who wonder if they are listed too.

• IMMIGRANT DETAINEE PETITIONS UNITED NATIONS
For five years Carlyle Leslie Owen Dale, a legal permanent resident from New York, has languished in immigration lock up, while ICE tried to deport him. One deportation order was overruled by the US Court of Appeals for the Fifth Circuit on the grounds that a conviction for attempted assault did not in fact make him deportable as an “aggravated felon.” The 61-year-old man, who has worked for 30 years in the US, is now in the Oakdale, Louisiana detention camp where he has been denied medical care for a range of serious illnesses. In an effort to secure his release to his family members (all of whom are American citizens), his attorneys have petitioned the UN Working Group on Arbitrary Detention in Geneva, detailing his medical problems and the kind of treatment he is getting at the hands of ICE.

• DETAINNIG IMMIGRANTS MAY BE GOOD FOR LOCAL ECONOMY
According to the May 31 Washington Post, people being held in detention facilities may help bring federal funds to the communities that house them, if states decide to count those held in prisons and detention facilities for census purposes, instead of counting people according to the place where they lived before being detained. The largest detention facilities are in Texas, Arizona, Washington and Georgia, which have the most to gain from the new optional arrangement. Cities and towns which host the facilities could get $1,469 per person, even if all their detainees have been deported by the time funds are being allocated.

• FACING LAWSUITS, NEBRASKA TOWN MAY SUSPEND IMMIGRANT BAN
A ban on the hiring or renting of property to the undocumented, which was passed by voters in a referendum after being rejected by the city council, may be suspended by Fremont, Nebraska because of the cost of fighting lawsuits brought by the ACLU and other organizations (Washington Post, July 27).

• GREEN CARDS CAN BE GIVEN TO GROUPS OF UNDOCUMENTED
An internal memo sent to Alejandro Mayorkas, the head of the US Citizenship and Immigration Services, says that hundreds of thousands of undocumented immigrants can be given green cards or have their deportation otherwise delayed. They include the nearly 400,000 holders of Temporary Protected Status and the students who would be covered by the DREAM Act when/if it becomes law (Miami Herald, August 2).

• BORDER PATROL ASKS THE PUBLIC TO TEXT WHEN THEY SEE SUSPICIOUS PEOPLE
In order to stop illegal activity along the Canadian border from Washington to Montana, the US Border Control has asked residents, campers, hunters and hikers to serve as their “eyes and ears” and send them text messages when they see anything suspicious. Immigrant rights groups fear this might lead to racial profiling (Huffingtonpost.com, June 9).

• WEB TOOL UNVEILED TO LOCATE IMMIGRANT DETAINEES
In late July, the government launched a web application which is intended to help family members locate where in the country their relatives are being held and when they can be visited. But given the amount of information that must be entered into the computer – and the potential for names to be spelled differently – it is unclear how useful the tool will be (New York Times, July 23).

• SOME NY SCHOOL DISTRICTS REQUIRE PROOF OF LEGAL RESIDENCY
The ACLU has found that over a hundred school districts in New York State are requiring evidence that children are in the country legally before they can enroll (New York Times, July 22). In so doing, they are in violation of the 1982 US Supreme Court holding in Pyler v Doe that immigration violations cannot be used to bar children from access to public education. Whether the school districts have taken steps to bar students who lack such documentation is unclear.

B. IN THE US CONGRESS

• HOUSE VERSION OF DEFENSE BILL GOES AFTER GUANTANAMO LAWYERS
Section 1037 of the House version of the National Defense Authorization Act for FY 2011 is a provision added by Rep. Jeff Miller (R-FL) which directs the Pentagon’s Inspector General to conduct an investigation of any attorney representing a Guantanamo detainee for whom there is “reasonable suspicion” that he or she might have violated any Defense Department policy or US law, or interfered with operations at Guantanamo, or put any member of the armed forces at any kind of “material risk.” In the words of former federal prosecutor and retired federal judge Bruce Einhorn, it is “nothing more than a means of deterring defense attorneys from representing detainees at Guantanamo” (ConsitutionProject.org, July 6). Democrats on the House committee had accepted the proposal after several modifications, further outraging Bar associations and writers like Pepperdine Law Professor Einhorn, who urged the Senate not to add something similar to its version of the defense bill.

• BYBEE REVELATIONS MADE PUBLIC IN PUSH FOR SPECIAL COUNSEL
As the Obama administration continues to show no appetite to hold Bush era officials accountable for their illegal actions and criminal behavior, Rep. John Conyers (D-MI), the chair of the House Judiciary Committee, made public on July 15 the transcript of Judge Bybee’s May 26th closed door testimony. “This testimony reveals that many brutal techniques reportedly used in CIA interrogations were not authorized by the Justice Department – the author of these legal memos has now admitted on the record,” Conyers stated in a press release. Rep. Jerrold Nadler (D-NY) urged the Attorney General “to ensure justice and accountability for those potentially grave abuses of executive power” and appoint a special counsel to conduct further investigations. Judge Bybee had told the committee that many of the techniques used by the CIA had not been approved by the Bush administration’s Office of Legal Counsel, and the OLG never approved the “substantial repetition” of other techniques such as waterboarding. He also said that his deputy, John Yoo, had not informed him of secret White House “war planning” meetings and he now felt that Yoo might have been too close to the White House. The ten-year statute of limitations will shortly run out, barring cases being brought challenging the torture of detainees in the aftermath of 9/11.

• REPUBLICANS WANT HEARINGS ON “BIRTHRIGHT CITIZENSHIP”
After Senator Lindsey Graham said he was considering the repeal of “birthright citizenship” by Constitutional amendment, other leading Republican senators – among them John McCain, John Cornyn, and Mitch McConnell – have pushed for holding a hearing on the subject. The Fourteenth Amendment extends citizenship to “all persons born or naturalized in the United States.” Republicans are using the term “anchor babies” to refer to the American-born children of undocumented residents whom, they say, are having babies in the US as a way of anchoring themselves to the country’s ‘welfare state’ (Washington Post, August 5). Among those promoting an end to “birthright citizenship” are Newt Gingrich and Sarah Palin.

• EMERGENCY POWERS TO PROTECT CIVILIAN INTERNET IN DRAFT BILL
As the newly-launched military Cyber Command appears poised to expand its reach from government networks to the protection of private firms, Senators Joe Lieberman and Susan Collins are proposing giving the Department of Homeland Security the authority to intercede to protect the Internet as part of “critical infrastructure” in case of a hack attack. Their draft bill would create a DHS National Center for Cybersecurity and Communications, which would be the agency intervening in the event of a “cybersecurity emergency.”

C. IN THE COURTS

• SUPREME COURT CRIMINALIZES SPEECH IN CASE TESTING “MATERIAL SUPPORT” FOR TERRORISM
For the first time in its history, the US Supreme Court has carved out a “terrorist exception” to the First Amendment, even in the case of speech advocating wholly lawful nonviolent activity. By 6 – 3 the Court on June 21 upheld the 1996 Antiterrorism and Effective Death Penalty Act, later expanded by the US PATRIOT Act, that made it a federal crime to provide “material support” to foreign groups designated as terrorist organizations, punishable by up to 15 years in prison and a $50,000 fine. In the case involving two designated terrorist organizations, the Kurdistan Workers’ Party (PKK) in Turkey and the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka, the plaintiffs, including the Humanitarian Law Project, argued that the law was unconstitutionally vague, and that it criminalized speech or conduct even if the “support” is aimed only at legal activities, peaceful dispute resolution training, or humanitarian actions. The Humanitarian Law Project had been planning to train members of the PKK to use international law to peacefully resolve disputes, and other plaintiffs had wanted to help the LTTE petition the United Nations for humanitarian relief in the wake of the tsunami that had destroyed large areas of coastal Sri Lanka. But the court held that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to the intended activities. Plaintiffs could still engage in “independent advocacy” but could not “coordinate” their activities with terrorist groups. The court majority further argued that such activity could help legitimize terrorist groups, which in turn would help further their violent means. The majority decision, penned by Chief Justice Roberts, was strongly criticized as a violation of the First Amendment in a dissent by Justice Breyer, which Justices Ginsburg and Sotomayor signed.

• SUPREME COURT SLAMS DOOR ON VICTIM OF RENDITION AND TORTURE
On June 14, the Supreme Court let stand a ruling from the Court of Appeals for the Second Circuit in the case involving the 2002 rendition from JFK Airport and torture in Syria of an innocent Canadian citizen, Maher Arar. The Obama administration had invoked “state secrets privilege” to protect the Bush administration officials who had been responsible for Arar’s treatment, and urged the Supreme Court not to hear his appeal on the grounds that it might damage diplomatic relations and harm national security. The US continues to ban Arar from entering the country even after he received an apology and settlement from the Canadian government which, after an extensive investigation, had found him totally innocent of any connection to terrorism. The appeals court had dismissed Arar’s suit after finding that the “special factors” of extraordinary rendition warranted “hesitation” by the court in recognizing his claims (LAtimes.com editorial). Glenn Greenwald wrote: “So congratulations to the US for winning the right to wrongfully abduct people and send them to their torture with total impunity. What a stinging statement about our country’s willingness to right the wrongs it commits and to provide access to our courts to those whose lives we devastate with our behavior” (Salon.com, June 14). But Maher Arar might yet have the last word. The day after the Supreme Court dismissed his appeal, he told Democracy Now! that for the past four years he had been cooperating with the Canadian Mounties in their investigation of his rendition and torture and that the investigation has made a lot of progress: “They are looking to charge those people who tortured me physically, but they’re also looking into…whether my removal to Syria was part of a torture program. And if it was, then they would lay charges against those officials…who did this act of sending me to Syria” (Lisa Hajjar, MERIP, June 24). In the words of a June 16 New York Times editorial, “There is no excuse for the Obama administration’s conduct. It should demonstrate some moral authority by helping Canada’s investigation, apologizing to Mr. Arar and writing him a check.”

• SUPREME COURT DECIDES FORMER SOMALI OFFICIAL CAN BE SUED FOR TORTURE
Two weeks before it refused to allow American officials to be held accountable for Maher Arar’s rendition and torture, the US Supreme Court unanimously gave the green light for a torture claim under the Torture Victims Protection Act of 1991 to proceed against former Somali Prime Minister Ali Samantar, who had retired to Virginia. The justices said the Foreign Sovereign Immunities Act of 1976 did not protect former officials of foreign states from being sued in American courts (LAtimes.com, June 1).

• APPEALS COURT RULES DETAINEES IN AFGHANISTAN CANNOT BRING HABEAS CLAIMS
In another victory for the Obama administration, a three-judge panel of the District of Columbia Court of Appeals ruled on May 21 that detainees being held indefinitely in legal limbo in Bagram have no right to challenge their detention in US civilian courts. The judges drew a distinction between Bagram and Guantanamo, arguing that in Bagram the US does not have “complete control” over the base and there is no sign that it intends to be there “with permanence.” The case was brought on behalf of three non-Afghan citizens who were captured outside Afghanistan and then sent to the Bagram Airfield Base. The appeals court overturned the decision handed down by district court judge John Bates, a Bush appointee who ruled that there was no difference between the three men captured outside Afghanistan and the Guantanamo detainees. In the words of ACLU attorney Melissa Goodman, the ruling “ratifies the dangerous principle that the US government has unchecked power to capture people anywhere in the world, unilaterally declare them enemy combatants and subject them to indefinite military detention with no judicial review” (reuters.com, May 21).

• APPEALS COURT UPHOLDS CONVICTION OF NAVY LAWYER WHO REVEALED GUANTANAMO NAMES
The District of Columbia Court of Appeals, which hears appeals from the Armed Services ,on July 15 upheld the conviction of Lt. Commander Matthew Diaz, a Navy lawyer who had been the deputy staff judge advocate at Guantanamo at a time when the name of detainees were being kept totally secret despite the fact that they had spent two years at the prison camp. After the Supreme Court ruled in Rasul v. Bush (2004) that detainees did have the right to legal counsel and habeas corpus, Lt. Commander Diaz reportedly grew frustrated with the Bush administration’s refusal to comply with the Rasul ruling and decided to make the names of the 551 detainees public by cutting them into more than 20 pieces of paper which he mailed with a Valentine’s Day card to Barbara Olshansky at the Center for Constitutional Rights (Legal Times, July 16). They were eventually turned over to the government and Lt. Commander Diaz was convicted for conduct unbecoming an officer and for removing and communicating classified information. He was dismissed from the Navy and sentenced to six months in jail.

• FIVE YEARS IN DETENTION DOES NOT VIOLATE THE RIGHT TO A SPEEDY TRIAL
So ruled a Manhattan federal district court judge on July 13, clearing the way for a Tanzanian Guantanamo detainee, Ahmed Khalfan Ghailani, to be tri ed in the civilian court system. According to Judge Lewis Kaplan, Ghailani’s lengthy incarceration at Guantanamo had no adverse impact on his ability to defend himself (New York Times, July 14). Ghailani is being charged with participation in the US Embassy bombings in Kenya and Tanzania. He contends that he was tortured during the two years he was in the custody of the CIA.

• LYNNE STEWART GIVEN 10 YEARS IN PRISON BY FEDERAL JUDGE
After the Appeals Court for the Second Circuit had ordered federal judge John G. Koeltl to re-consider the 28-month sentence he had originally given attorney Lynne Stewart for violating prison rules when meeting with her client, Sheikh Omar Abdel Rahman, Judge Koeltl agreed that a sentence of 28 months was “too light.” On July 15, he set aside the weight of an “unprecedented” 400 letters written in her support, rebuked her for her apparent “lack of remorse” and sentenced the 70-year-old cancer sufferer to ten years in prison (New York Times, July 16).

• FIRST LEGAL CHALLENGE TO ‘NO-FLY’ LIST BROUGHT BY ACLU
On June 30, the ACLU sued the Attorney General, FBI head and director of the Terrorist Screening Center in a federal court in Chicago on behalf of 10 citizens or legal permanent residents who have apparently been placed on the ‘no-fly’ list and are in some cases stranded in foreign countries (Washington Post, June 30). The ACLU argues that Americans are being deprived of their rights as citizens and of due process and that there is no legal basis for forcing them into involuntary exile: “The government does not provide the individual with an opportunity to confront, or to rebut, the grounds for his possible including on the watch list,” the suit states. The plaintiffs have all been barred from getting on planes since last December, and seven of the 10 were prevented from attempting to fly to the US. They include a former US Marine trying to return to Miami from Egypt with his wife and two children and a naturalized US citizen who was told he could fly home from Yemen if he became an FBI informant.

• ACLU AND CCR OVERCOME HURDLE IN CHALLENGE TO TARGETED KILLING
On August 3, the ACLU and the Center for Constitutional Rights (CCR) filed a lawsuit in the federal district court in the District of Columbia challenging the legality of a scheme requiring lawyers to get a license from the government before they can provide legal counsel to individuals who have been designated as terrorists and whom the government has placed on its targeted killing list. The two organizations had been asked by Naseer al-Awlaki, the father of Anwar al-Awlaki, to represent his son, who had been placed on the “specially designated global terrorist” list by the Treasury’s Office of Foreign Assets Control (OFAC). OFAC’s rules made it illegal for any attorney to provide “legal services” on his behalf without first obtaining a license from OFAC. “In other words, the same government that is seeking to kill a US citizen has taken steps that prohibit attorneys from testing the legality of the government’s decision to kill him” (ACLU Press Release, August 3). They had applied for a license 11 days previously, but heard nothing. However, a day after the lawsuit was filed, the license was approved by the government, permitting the groups to bring a legal challenge to the claimed authority of the executive branch to target people – including American citizens – for death, far from any battlefield and without any kind of due process (New York Times, August 5). The ACLU and CCR will also proceed with their suit to have licensing provision struck down in court.

• ACLU DENIED DOCUMENTS ATTESTING TO CIA METHODS
New York district court judge Alvin Hellerstein refused to order the release of some 580 CIA documents concerning harsh interrogations of detainees since to do so would “confer an unwarranted competence to the district court to evaluate national intelligence decisions” (Washington Post, July 13).

• NEW YORK POLICE DO NOT HAVE TO RELEASE SURVEILLANCE DATA
After a federal district court judge had ruled that New York City had to release some 1,800 pages of records detailing surveillance activities before the 2004 Republican National Convention, that decision was set aside by the Court of Appeals for the Second Circuit. A three-judge panel ruled that releasing the material “could undermine the safety of law enforcement personnel” and their ability to conduct future investigations (New York Times, June 10).

D. IN THE COMMONWEALTH

• FALLOUT FROM TIMES SQUARE BOMBING ATTEMPT REACHES BAY STATE
Two Pakistani men, Aftab Ali Khan, a gas station attendant, and taxi driver Pir Khan, both of Watertown, were detained in mid May by a squad of FBI and ICE agents in connection with Faisal Shahzad’s failed attempt to blow up a car in Times Square, New York. They were held for civil immigration violations without being charged while investigators tried to build up criminal cases against them (Boston.com, May 22). Initially, US Attorney General Eric Holder said there was evidence that they had given money to Shahzad (Boston Globe, May 14). Framingham attorney, Saher Marcarius, told an immigration judge that “all they did wrong is both of them were leaving together to Pakistan to fix their immigration status and come back…going the same route as the attempted bomber” (Boston.com, May 19). Barry Hoffman, Pakistan’s Consul General in Boston, had complained that Pir Khan was being “treated like Osama bin Laden” while being held without being charged in maximum security at the Plymouth County House of Correction. Khan was wearing leg irons, chains and handcuffs when the Consul General went to visit him: “It seems kind of excessive for someone who has never been in jail before and lived in the US for almost 20 years and has an American wife” (The Boston Globe, May 18). He faces an immigration hearing in August. On May 28, Aftab Ali Khan was ordered deported by an immigration judge. Although not charged with any crime, he was subsequently given a court-appointed lawyer in New York so he could testify before a grand jury and was transferred to a New York jail. The Boston Globe reported on June 23 that Shahzad came to Boston to pick up $5,000 in cash sent by a member of the Taliban shortly before his failed terrorism attempt.

• POLICE DO NOT CONTRIBUTE INFORMATION TO GANG DATABASE
The $1.2 million MassGangs intelligence system was funded 18 months ago with a Department of Justice grant so investigators could share gang-related information in real time. The system was also supposed to provide police with hand-held devices and facial recognition software to gather and record information ranging from criminal history to the possession of tattoos. The database included records on 6,000 “gang members” provided by the Department of Correction and 2,000 members entered by the State Police. Sheriff’s departments were also getting ready to provide data on inmates who might qualify as gang members. According to Jonathan Saltzman’s Boston Globe piece (Boston.com, June 15), the Lowell police never used it because they had no time to enter data. The Boston police didn’t use it because of “security concerns.” Investigators were worried about “who’s maintaining and updating the intelligence, who would be privy to it, and what security measures would be taken” to keep the information securely in the hands of police.

• ACLU WANTS TO KNOW MORE ABOUT MORIS DEVICE
The ACLU of Massachusetts has sent a public records request to the Brockton police, the Plymouth County sheriff and the Massachusetts Sheriffs Association seeking information about the Mobile Offender Recognition and Identification System (MORIS) which the Brockton police unveiled in June. The iPhone system, purchased as part of a $200,000 federal grant given to the Massachusetts Sheriffs Association, enables the police to take photos of suspects in the field that are then compared to photos in a database by using facial recognition technology. In the future, iris and fingerprint identification are expected to be combined with facial recognition technology in the MORIS device (PatriotLedger.com, June 15 and June 22). The Brockton police are piloting the system nationwide. MORIS devices will eventually be provided to 28 police departments and 14 sheriff departments across the state.

• SHIRLEY TOWN ADMINISTRATOR PLANTED VIDEO CAMERA IN TOWN HALL RESTROOM
For about a decade, town administrator Kyle Keady secretly collected images from the women’s restroom in the Shirley Town Hall, including a host of “close-up photos of various body parts” (boston.com, June 15). He also bugged the offices of his fellow workers. He has been charged with illegal recording and video recording a person in a state of nudity in Ayer District Court.

• FORMER SCHOOL AIDE DID BACKGROUND CHECKS ON CELEBRITIES
Mark Rivera, a former aide to the fired Lawrence school superintendent, Wilfredo Laboy, had used a school computer to do background checks on various celebrities and on Lawrence police chief John Romero. According to the June 15 report on Boston.com, he may have done so at the request of “individuals who were higher than him.” The background checks were run through the schools Lexis Nexis account. Rivera was fined $5,000 in a settlement with the State Ethics Commission.

• MASSACHUSETTS ANTI-TORTURE PROTESTERS ACQUITTED
Four activists from western Massachusetts were among the two dozen members of Witness Against Torture who were acquitted by a District of Columbia judge of charges of unlawful assembly (Masslive.com, June 14). They had protested on the steps of the US Capitol after the Obama administration failed to keep its promise to close Guantanamo within a year and were arrested when they disobeyed an order to disperse.

• BOSTON A “SECURE COMMUNITIES” PIONEER
On August 5, Boston’s NPR station featured a segment on Boston’s participation in the “Secure Communities” program (see Targeting Immigrants/Visitors, above). Although the Boston police refused to admit they taken part in the effort to deport immigrants who have violated immigration or other laws by checking fingerprints of arrestees with ICE and other federal agencies, Jim Martin, the deputy field director of Boston’s ICE office, said that “Boston was actually part of a pilot back in 2006 that first tested interoperability.” Of the 32,119 fingerprints checked in Boston between October 27, 2008 and June 2010, 2,013 were flagged and 102 people deported, Half had been charged with low level crimes, including minor drug charges, driving without a license or just being “removable.” Critics of the program worry that it will erode community trust and harm public safety by making people afraid to go to the police to report crimes. Suffolk County is currently the only Massachusetts jurisdiction participating in Secure Communities. ICE is hoping to expand it across the state as soon as possible, focusing on places they consider “high-risk.”

• STUDENTS LEAD MOVEMENT THAT DEFEATS ANTI-IMMIGRANT LEGISLATION
On June 24, after members and supporters of the Student Immigration Movement had maintained a round-the-clock vigil at the State House for three weeks, all but one of the anti-immigrant amendments that had been attached to the state budget were dropped. The Senate had endorsed the measures in late May, by a 28-10 vote, after a local poll showed that more than half of the state’s voters supported the Arizona anti-immigrant law (“Immigration Crackdown Advances in a Surprising State,” New York Times, June 11). Democrats then joined the five Republicans in the Senate to embrace “a stricter crackdown than even the most conservative advocates believed possible” (Boston.com, May 29). The provisions that were dropped a month later would have established a hotline to report people suspected of being undocumented, underscored the denial of in-state tuition to otherwise qualified undocumented students, and reduced access to services such as food stamps and unemployment benefits for the documented as well as the undocumented. An amendment barring state contractors from hiring the undocumented was retained.

• HARVARD STUDENT A “POSTER CHILD FOR DREAM ACT”: BOSTON GLOBE
Eric Balderas, a 19-year-old Harvard student who had come to the US from Mexico as a four-year-old when his parents crossed the border illegally, was detained in San Antonio on immigration charges when he was boarding a flight to Boston (Boston Globe, June 20). After a Facebook-coordinated international campaign on his behalf and lobbying of federal immigration officials by Harvard officials and Illinois Senator Richard Durban, he was given a temporary reprieve from deportation so he can continue to study. It is unclear how long the reprieve will last.

• JUDGE THROWS OUT FELONY CHARGE AGAINST DHS OFFICIAL WHO HIRED UNDOCUMENTED WORKER
Calling it “overreaching” on the part of prosecutors, federal district court judge Douglas Woodlock said that Lorraine Henderson should not have been charged with a felony for encouraging her out-of-status housekeeper to stay in the United States by giving her a job. Henderson, who is suspended from her job as Boston area port director for Customs and Border Protection, was convicted in March and faces five years in prison. Her attorneys have asked Judge Woodlock to acquit her (Boston.com, June 19, 2010).

• CANDIDATES WANT CRACKDOWN ON UNDOCUMENED
Both Republican gubernatorial candidate Charles Baker and Independent Timothy Cahill have endorsed giving police the authority to arrest out-of-status immigrants. Cahill would go further and authorize the state and local police to check the immigration status of people they stop (Boston.com, May 27).

• GOVERNORS DEBATE ARIZONA LAW IN BOSTON
When the National Governors Association met in Boston during the weekend of July 10-11, it wasn’t just the Republican governors who expressed their opposition to the challenge to the Arizona anti-immigrant law brought by the Obama administration. According to the July 12 New York Times, Democratic governors also voiced “deep anxiety” about the government’s challenge to the law in a closed door meeting. As Republicans rallied around Governor Jan Brewer, Democratic governors fretted about what the impact of the challenge to the Arizona law would mean for their re-election hopes.

Nancy Murray
ACLU of Massachusetts
(617) 482-3170 x 314
nancy@aclum.org

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