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Taking Your Liberties in the Name of Fighting Terrorism

Christmas in the Crosshairs
  • Is there a war on Christmas?
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Wesley Clark on Secrecy and Openness

Democratic presidential contender Gen. Wesley Clark today announced his intention "to reverse Mr. Bush's secrecy policies" and "to create the most open and honest government in American history."

He cited the now-familiar litany of Bush Administration excesses and declared that "On day one of my Administration, I'll sign an Executive Order reversing George Bush's FOIA rollbacks, and restoring the public's right to know."

"We're the party of accessibility and accountability," he said. "They're the party of secrecy and special interests. This is just another way to draw the line between us."

See
the text of his January 16 remarks here.
 
-- by Stephen Aftergood for Secrecy News

Something's Wrong Here:

The PROTECT Act, National Security, and the Threat to Civil Liberties

August 14, 2003 -- The American criminal justice system is built on case law tempered by the US Constitution. We are considered innocent until proven guilty, guaranteed by the constitution to the right to counsel, a speedy trial, the due process of law, and to be protected from excessive bail and cruel and unusual punishments. The body of law and legal precedents are used to bolster and argue the merits of cases by defense and prosecution alike.

When the government enacts new legislation, new definitions allow interpretation of existing case law to be broadened to include new definitions and conditions, as well as changing, limiting, or compelling judicial decisions with new guidelines.

The PROTECT Act is one such legislation. Signed into law by President Bush on April 30, 2003, the PROTECT Act includes the much-applauded AMBER alert, but also allows law enforcement to use existing legal tools "for the full range of serious sexual crimes against children."

According to the government's fact sheet, the PROTECT Act has been designed to revise and strengthen the prohibition on virtual child pornography; prohibit obscene materials that depict children, and provide tougher penalties compared to existing laws; and encourage greater voluntary reporting of suspected child pornography found by internet service providers.

Sounds good -- on the surface. However, the same act cripples prudent application of these positive measures by curtailing the ability of judges to deviate from mandatory sentencing in consideration of mitigating circumstances. If the law is to be interpreted without leeway for judges to use their own good judgment, we will be reduced to treating perceived lawbreakers as being mere case numbers to be processed according to the letter of the law under this act.

Good judgment is generally defined as using a combination of knowledge, discernment, wisdom, experience, and common sense to arrive at conclusions and decisions that determine appropriate action. Judges are supposed to use their good judgment when deciding cases and imposing sentences, that's why we call them 'judge' to begin with. With the strict implementation of the PROTECT Act, there will be no room for considering the individual circumstances of each case.

Under prior law, wiretaps were authorized under certain conditions, but not for many of the various crimes associated with using the Internet. Using the public's horror of child predators on the Internet, the government now has opened the door for spying on public Internet use. Unfortunately, tinkering with the bill didn't end there.

In fact, an amendment was made to the PROTECT Act at the last minute, under less-than-above-board circumstances:

"There was no public hearing, no notice to the judiciary, the bar, the Sentencing Commission or other interested parties, and no debate. A vote against Amber Alert would have been like a vote against motherhood and few legislators were willing to have to defend such a vote to their constituents."

The Feeney Amendment -- named for US Rep. Tom Feeney (R- FL), who is a founding member of Washington Waste Watchers, a group working to "Combat Government Waste, Fraud and Abuse" -- has further complicated the benefits the PROTECT Act was meant to provide crime victims by taking authority away from judges to give reduced prison sentences. The claim was that the amendment would eliminate "much-abused grounds of departure such as 'diminished capacity, aberrant behavior,' and 'family and community ties' in 'downward sentencing,' or sentencing for less than the mandatory minimum.

While there well may have been some cases of abuse or misuse of 'downward' sentencing before this bill was passed, there are certainly a lot of people in prison -- a record of 2.1 million men and women as of 2002 -- belying the claim that without federal legislation, judges are soft on crime, or crimes against children in particular. In fact, the record shows that prosecutors, who presumably take the more adversarial position against defendants, make four out of five 'downward-sentencing' requests.

Justification for sentencing guideline changes within the PROTECT Act was that "last year, the Supreme Court declared unconstitutional a federal law that criminalized the possession of "virtual" child pornography, materials whose production may not have involved the use of real children." This decision has made it immeasurably more difficult to eliminate the traffic in real child pornography," according to the DOJ factsheet.

However, justification for the Feeney Amendment had nothing to do with children. The case cited in the amendment was Koon v United States, an opinion written by Supreme Court Justice Anthony Kennedy which rejected the District court's departure from guideline sentencing by giving lighter sentences to two ex-policemen convicted in the beating of Rodney King.

Another troubling aspect of the PROTECT Act is how it fits in with the Bush administration's actions to fight terrorism. The Act makes it more difficult for defendants accused of serious crimes against children to obtain bail, similar to other existing provisions for drug, firearms, and violent crimes. This too opens a door, and more people can be kept behind bars for indefinite periods -- a direct violation of our rights under the constitution.

Moreover, who is going to decide what is child pornography? If you take a photo of your new smiling baby lying butt-naked on a blanket, a common portrait sometimes even taken by professional photographers in times gone by, could you be prosecuted for child pornography? The US already incarcerates 476 out of every 100,000 citizens, more per capita than any other developed country. Those inclined to conspiracy theories might assert that the erosion of judicial freedom under the PROTECT Act is a brilliantly calculated solution to protect a Fascist regime in order to deprive enemies of the power to buck the system.

At a press conference in Arizona this week, President Bush was campaigning for his environmental policy which will allow cutting of protected forests by lumber companies under the pretext of fire-prevention. Bush said:

"We believe in bringing people together to try to reach agreement on forest projects. We believe all voices should be heard. But we want to expedite the process to avoid the legal wrangling and the delays that take place in our courts. Delays in our courts prevent us from doing the job necessary to maintain healthy forests."

In other words, he wants the appearance that we are all having our say and that the government is considerate of our concerns. But in reality, his administration has already decided what needs to be done and is going to do it their way over anyone's objections.

This attitude has become abundantly clear in every aspect of his administration's activities, and bodes ill for our rights as citizens and our freedom as individuals. In the case of the PROTECT Act, legislation empowering the government to take them from us was hidden in a bill to protect children. What's next?

The National Security Council has determined that "major institutions of American national security were designed in a different era to meet different requirements. All of them must be transformed." With the events of 9/11, no one disagrees that we need to protect ourselves against terrorism. However, how far should this transformation go?

"We must strengthen intelligence warning and analysis to provide integrated threat assessments for national and homeland security. Since the threats inspired by foreign governments and groups may be conducted inside the United States, we must also ensure the proper fusion of information between intelligence and law enforcement."

In a speech made when he signed the PROTECT Act into law, President Bush said: "Every person who would think of abducting a child can know that a wide net will be cast. They may be found by a police cruiser, or by the car right next to them on a highway. These criminals can know that any driver they pass could be the one that spots them and brings them to justice."

As the "fusion of information between intelligence and law enforcement" takes place, other 'integrations' will surely be in store. We already have cameras pointed at us, wherever we drive, wherever we walk in our cities. The government is under pressure to act to protect us from terrorism. When tools designed for public safety come under the domain of the federal government, will they care about our rights?

In an article published on May 1, 2003, columnist Michael Stephens made this assessment:

"Terrorist acts are theatrical challenges to the status quo. Successful, high-profile strikes like 9/11 cast grave doubts on the government's ability to protect their citizens and maintain order. To strike back, the government must show it can generate control mechanisms that are at least more muscular than the terrorists' power to undermine their control. The shadowy, nomadic character of terrorism, and the continuing ability of Al Qaeda members to elude capture, humiliate the government. The antidote is the theatre of confinement: the creation of internment camps that represent the containment of terrorism and place symbolic limits on the disturbing idea of uncontrollably proliferating terrorist forces. What matters is not that real terrorists are locked up, but that someone is locked up to reassure the public."

The next person facing a judge for sentencing could be you -- would you want the judge's hands to be tied by the federal government? Worse may be yet to come, if the treatment of captives from the war in Afghanistan is any indication.

Under the jurisdiction of the military, we are still holding 680 prisoners at Camp X-Ray in Guantanamo Bay without benefit of legal council, identification to outside sources, or even basic shelter afforded ordinary prisoners in the US. They are not US citizens, though some are British and Australian, according to some sources. They are not afforded the rights of US citizens under the 6th amendment to the Bill of Rights, and even if they were US citizens, they are subject to military trials held in secret because they were captured while, as the Bill of Rights states, "in the militia, when in actual service in time of war or public danger." However, while being treated as military prisoners, the Geneva Convention is not being applied to them and they are not being afforded POW status. There is no accountability for their captors to any outside authority.

From the same article quoted above, columnist Michael Stephens writes:

"In both Britain and America, dramatic terrorist attacks provoked hastily conceived and poorly thought out legislation that was generated more or less overnight to provide a quick fix for complex, long-standing, historical problems. In both cases, many innocent people have been incarcerated indefinitely to impress a public that cares little about legal niceties and wants to see results. The American government admits that at least 60 of the prisoners that it is currently holding without due process at Guantanamo Bay are innocent."

It's probably safe to say that every American feels dread and horror over the 9/11 attack and wants those who aided and abetted the hijackers responsible for the attack to face justice. The government went into Afghanistan looking for terrorists, and while public sentiment following 9/11 was running hot, not many protested the incarceration of presumed al Qaeda members at Guantanamo Bay. One public opinion poll revealed that 44% of the American public even supported torture of prisoners in order to obtain evidence against terrorists.

Similarly, it's safe to say that everyone cares about catching child abductors before they've killed or molested innocent children. However, the AMBER alert, while it is a wonderful idea with tremendous potential for rescuing abducted children, carries with it a terrible potential for misuse against persons deemed terrorists or 'enemies of the state.' If the rules continue to be stretched to apply to circumstances they weren't designed for in the interest of "expediting the process," this innovation could be used for alleged terrorists designated for "urgent" apprehension.

In the wrong hands, the AMBER alert could carry the image of any one of us across the country in the blink of an eye, with Orwellian potential for seizure with 'extreme prejudice' by the tragically overzealous and calculatingly misled.

I'm a moderate, and have long adopted a wait-and-see attitude toward the Bush administration since 9/11. I know that world conditions are far more complicated than we ordinary people can possibly understand, and have maintained faith that our government will do what is best for its people. But even I can see that something is wrong here.

I used to make fun of conspiracy theorists. Now, I'm beginning to wonder if the extremists who have been predicting a "New World Order" with jack-booted thugs putting down any public protest against the policies of the regime may be right. I'm going to be watching the activities of Ashcroft and the rest of the Bush administration all the way through Election Day -- if there is an actual Election Day, and not just another appointment-by-court-decision.

-- Cat, the Editor

Sources for this article:

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Texas Continues War on Women With Ultrasound Bill
 
In 1920, women won the right to vote. In 1973, after centuries of mutilations & deaths, abortion became safe & legal. Now, the opposition wants to ban it. Their alternative to avoid pregnancy is ludicrous: abstinence. If we don't speak up, all women have won will be lost! Women's lives matter too: OUR bodies; OUR choice.
 
Emotions run high on this issue. I'm not pro-abortion, but I am pro-choice. First & foremost, I advocate for birth control education & access to birth control methods. Even the best contraceptive methods aren't perfect, however, & carrying a pregnancy to term in order to offer the baby for adoption is not always feasible for many reasons, necessitating the option of a safe, humane abortion.
 
Yes, I did say humane. Our society metes out death sentences all the time: for crimes; for war; for cessation of brain function or injuries too severe for any hope of recovery. There are guidelines that ensure that death should come about in a humane way. I ask all who claim to be Pro-Life this question: if all life is sacred, why is an embryo's more sancrosanct than any of these other lives? Until such time that gestation & development can take place outside a female womb, for mercy's sake, let the woman choose!
 
Without reproductive freedom, women ultimately have no real freedom. An ideal world would be where all sex is both informed & consensual & all babies conceived on purpose & without uncorrectible health defects. Adoption referrals should be an important part of counseling for unwanted pregnancies, but sometimes birth for adoption is a more cruel or risky choice, other times it's simply not feasible. Every unwanted pregnancy isn't Muffy the prom queen who doesn't want to be pregnant when she goes on the Grand Tour, or even Laquisha the crack addict. Those are stereotypes. Sometimes it's a 40-yr-old married working mother whose surprise pregnancy includes spina bifida or downs syndrome in addition to risk to her own health. Adoption is not always an option.
 
The war on women & women's reproductive care providers is happening in other states, but I know first-hand what I see in TX: not only is school sex education & access to birth control severely restricted here, but a law was just passed mandating an ultrasound be performed at her own expense on every woman wanting an abortion,in addition to a mandated waiting period afterward to encourage her to change her mind. If education & prevention were more available, this would still seem like strong-arming what are sometimes crime victims or physically- or mentally-ill women.
 
With all conditions taken together, what else could you call it but waging war against women, disguised as the legislation of morality? Those who are responsible for these curriculum restrictions & new laws are vocal about their view that an unwanted pregnancy is God's punishment for fornication. They believe the only kind of sex education kids should get is the creation story where Eve introduced sin into the world & the only way you should practice birth control is abstinence. This is all a pretty long way from constitutionally-protected freedom.
 
The attack on women's reproductive rights has been ongoing here, the recent law is just the icing on the cake. The TX healthcare system is broken. In TX, it's routine to wait for months & drive 3 or more hours to see a specialist. This already happened when the Legislature gutted funding for mental health & drug rehabilitation programs. Now, general OBGYN services are going to become even harder to come by for the uninsured & underinsured in TX (which is as many as 50% of TX pregnancies) even for families who aren't seeking abortions: Rick Perry's & the Republican Legislatures'new mandates are creating higher demand for resources that are already in short supply, combined by cutbacks to how much the state will pay.
 
This has made specialists in any area relying on publicly-funded reimbursement think twice about working in Texas, affecting all health care: restrictions of who can get services & long waiting lists for them are aready a fact of life for many. Some OBGYN doctors have said that the new ultrasound procedure, while protecting them from litigation, also takes much more time & often is a misuse of ultrasound equipment & technicians that are already in great demand; studies in Britain have shown that pre-abortion ultrasounds have little impact on women's choice to terminate their pregnancy.
 
Money for health care, pregnancy planning, education, & all public programs has been gutted & is instead being funneled into private programs. Private services have been funded which offer in some cases to pay for the ultrasound procedure, but are operated from an aggressive pro-life view that discourages many women from taking advangage of the publicly-funded services. Here is a link to NARAL, a Pro-Choice Texas Foundation, which has a report on line: "The Texas Alternatives to Abortion Program: Bad Health Policy, Bad Fiscal Policy". -- by Catriona Lovett, Editor

We're building. Browse our early articles. Content accepted for publication consideration, email the Editor.

Page Contents:

  • Wesley Clark on Secrecy and Openness
  • More Historical Intelligence Budget Data Disclosed
  • Disclosure of Environmental Hazards and National Security
  • Something's Wrong Here
  • An Assault Against the Federal Courts
  • Related Links

More Historical Intelligence Budget Data Disclosed

Historical intelligence budget appropriation figures for the Defense Intelligence Agency and the National Security Agency for Fiscal Year 1972 have turned up in publicly accessible archives even though they are considered "classified" by the U.S. government.

The FY 1972 appropriations and the FY 1973 requests for DIA and NSA were detailed in the papers of Rep. George Mahon, a former member of the House Appropriations Committee.

They were located by Villanova University scholar Prof. David Barrett, who is preparing a book on congressional oversight of intelligence in the early cold war.

The U.S. Constitution singles out budget expenditures as the one category of executive branch information that must be published from time to time (Article I, section 9).  Yet in seeming defiance of this obligation, the Central Intelligence Agency refuses to disclose even fifty year old budget information, the subject of a pending FOIA lawsuit.  The CIA claims that to do so would damage the national security of the United States and jeopardize intelligence methods.

Even some CIA officials privately concede that this claim is ridiculous, and it is hard to find a responsible person outside of CIA who will defend it.

Prof. Barrett generously provided
a copy of the Mahon documents containing the historical DIA and NSA budget figures, which are posted here.

-- by Stephen Aftergood for Secrecy News

Disclosure of Environmental Hazards and National Security

Does the disclosure of data regarding environmental hazards at chemical facilities threaten national security by providing terrorists with information about potential targets?

While the first impulse of officials at many levels of government has been to clamp down on information regarding the locations and quantities of toxic material inventories and the consequences of their accidental release, there is reason to believe that this approach is counterproductive.

In fact, national security might be strengthened through greater disclosure.

In a recent Master's Thesis, one U.S. Air Force student author investigated the impact of government controls on such information and considered whether environmental secrecy could effectively discourage terrorism.

Air Force Maj. Joseph D. Jacobson conducted his own research "to explore the question of whether reasonably accurate targeting data is obtainable through means other than government-provided environmental information."

"The answer is a disturbing yes.... Even without a computer, telephone books, newspapers, and trade journals could be effectively used as [terrorist] planning tools.  Unless our society is ready to completely suspend several amendments to the U.S. Constitution, we must assume that those planning attacks on chemical facilities have the research tools they need for adequate targeting."

Moreover, there is a "down side" to efforts to restrict environmental information.  Official controls may impede the public's ability to contend with chemical hazards, thereby reducing safety and security, the author wrote.

"The road that restricts access to information leads us to a destination where the public is blissfully unaware of the dangers surrounding them while terrorists carefully research targets for maximum potential impact.  The other road allows an informed public to prepare for potential attacks, plan responses, and put pressure on industry to change practices and processes in a meaningful way, thus reducing the likelihood of attacks."

See "Safeguarding National Security Through Public Release of Environmental Information: Moving the Debate to the Next Level" by Joseph D. Jacobson, a master's thesis submitted to the George Washington University School of Law, August 31, 2002, 97 pages (in a very large 3.9 MB PDF file)
 
-- by Stephen Aftergood for Secrecy News

An Assault Against the Federal Courts:
The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo

August 13, 2003 -- On July 28, Attorney General John Ashcroft issued a memorandum to all federal prosecutors outlining the Department of Justice's policies with respect to downward departures, in light of the PROTECT Act. It states that prosecutors should not "acquiesce" to departures except in rare occurrences. In addition, when a judge imposes a departure over the prosecutor's objections, the memo requires the prosecutor, within 14 days, to report the departure to DOJ. In short, DOJ's departure policy is no policy at all.

The result, Senator Edward Kennedy has argued, will be to establish a "blacklist" of federal judges who downwardly depart.

The PROTECT Act and the Ashcroft memorandum indicate a distrust of the judiciary, and a belief that more offenders should be imprisoned for longer periods of time. These beliefs, however, could not be more wrong.

In its state and federal prisons, combined, America incarcerates approximately 1 out of every 143 of its residents (over 2.1 million people). In comparison, England, Italy, France and Germany are only about 1 out of every 1,000. The federal inmate population now exceeds that of any single state. And this is largely due to Congress's Draconian mandatory minimum sentencing laws.

Since the inception of the PROTECT Act, the federal judiciary has voiced grave concern - and even outrage - at its requirements. On May 5, during his address to the Federal Judges Association Board of Directors, the Chief Justice William Rehnquist took issue with parts of the Act. On June 26, US District Court Judge John S. Martin published an Op Ed in The New York Times, announcing that he was resigning from the bench due to the PROTECT Act.

On July 18, Judge Myron H. Bright of the US Court of Appeals for the Eight Circuit, in his concurring opinion in United States v. Flores, urged, "I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.... [And l]et me say further that judges generally do not object to appropriate guidelines for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have said in other sentencing opinions that I have written, 'Is anyone out there listening?'"

The Chief Justice and Judges Martin and Bright are far from alone in their views. Last week, Chief Judge Marilyn Hall Patel of the Northern District of California attacked the PROTECT Act and Ashcroft memo in a published opinion. She complained that, under the new regime, "the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is chucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches."

Next week, the US Sentencing Commission will convene public hearings to receive input regarding how it should amend the Guidelines to substantially reduce departures, pursuant to the dictates of the PROTECT Act. Hopefully, with Congress's cooperation, they will take Justice Kennedy's wise suggestion that lowering the ranges downward, will itself reduce downward departures, by minimizing the instances in which judges are forced by the Guidelines to impose a long sentence that is unjust under the circumstances of the individual case.

Now circulating in Congress, but not yet introduced, is the Vital Interdiction of Criminal Terrorist Organizations Act of 2003, or the VICTORY Act. (Ironically, or appropriately, the 'Y' is missing.)

The Act does have one redeeming feature: It would reduce the much derided 100-1 sentencing ratio between crack and powder cocaine to 20-1. That, at least, is a step in the right direction. But this small softening is accompanied by a large crackdown: With respect to the sentencing of drug offenders, the Act would reduce the impact of certain mitigating factors, and increase the impact of certain aggravating factors - predictably leading to longer sentences.

Otherwise, the VICTORY Act continues the assault on the federal judiciary that the PROTECT Act and the Ashcroft memo embody. It would further reduce the discretion of federal judges when sentencing drug offenders. It would also make it more difficult for federal judges to invoke the "safety valve" - a legal mechanism whereby judges can sometimes sentence a first-time drug offender below the mandatory minimum sentence.


The PROTECT and VICTORY Acts do not do justice. Instead, they rob the federal judiciary of their discretion to impose just sentences. (And meanwhile, they mandate ever more malicious sentences for drug
offenders that will only lead to more Americans languishing in prison.)

This assault on judicial independence must end. Judges, who rarely speak out on matters that involve Congress or the Executive, have spoken out strongly in this instance. If we fail to listen, we do so at our peril.
-- Excerpts from the article written by Mark H. Allenbaugh in FindLaw.com

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