ACLU UPdate

09/17/2007

Source: http://www.aclu.org


Courts Rebuke Bush Administration on Spying Laws

Our federal court victories last week reaffirm that our nation is built on three branches of government, one who makes the law, one who executes the law and another who interprets the law — but none who are above it.

Two federal courts handed down stunning victories for civil liberties last week, starkly rejecting White House abuses of power through the Patriot Act and broad use of secrecy claims to dodge public accountability.

In the only legal challenge ever brought regarding the National Security Letter (NSL) provision of the amended Patriot Act, a New York federal court struck down the current rules. The NSL statute has permitted the FBI to issue secret demands for personal records without court approval. It also empowers the government to gag recipients from even discussing these NSLs.

Not only did District Court Judge Victor Marrero rule that this gag power violates the First Amendment and the fundamental separation of powers, he also found that, because the gag provisions could not be separated from the entire amended statute, the Patriot NSL statute must be struck down in its entirety. This is an historic affirmation of principle that extends beyond even the requests made in the ACLU’s legal brief!

Meanwhile, a federal judge in Washington, D.C. rejected broad claims of government secrecy in our Freedom of Information Act lawsuit over documents related to the Bush NSA wiretapping program. This ruling strikes another blow to the administration's sweeping and often unfounded secrecy claims and compels the Department of Justice, the FBI and the NSA to provide additional explanations for their withholding of many documents about the program, and the legal justifications for the program in particular.

The ACLU is demanding the shut-down of the Department of Homeland Security’s (DHS) illegal Automated Targeting System (ATS) program. The ATS program violates a congressional mandate barring DHS from assigning risk levels to ordinary Americans through secret criteria and computer algorithms intended to calculate whether ordinary Americans are “security risks.”

The program “violates every American’s right to privacy," said Barry Steinhardt, director of the ACLU Technology and Liberty Program. "The judgments about Americans calculated by ATS will be stored for years, and we have no idea how they may be used in the future. The benefit to the government is extremely questionable, but the consequences for Americans are simply dangerous."

In multiple recent appropriations votes, lawmakers have forbidden DHS from developing or testing any program that uses algorithms to calculate the security risks of ordinary Americans whose names are not already on a watch list. ATS ranks citizens using unknown but inevitably imprecise algorithms and draws from databases with known errors. In addition, security officials have said they cannot determine who will be a threat from the characteristics ATS uses.

The program was approved without public or congressional consideration. The government tracked cargo using a similar system, but Congress has repeatedly banned the use of such tracking techniques for human beings.

As Army Documents Reveal the Costs of War, ACLU Sues Pentagon for Records

ACLU staff attorney Nasrina Bargzie, retired Army colonel Michael Pheneger and Chris Hedges of The Nation discuss the revelations in the Army documents released under FOIA.

In a new lawsuit, the ACLU is demanding that the Department of Defense (DoD) comply with our Freedom of Information Act request for documents regarding civilians killed by coalition forces in Iraq and Afghanistan.

"The secrecy that surrounds the human costs of these wars keeps Americans from knowing what is being done in our name," said Nasrina Bargzie, an attorney in ACLU's National Security Project. "When the exigencies of war and the Pentagon’s policies interfere with the free flow of information, we must rely on our own government’s documents and records to help Americans make informed decisions." Army documents already released to the ACLU give evidence of coalition involvement in countless incidents of civilian casualties and deaths. The nearly 10,000 pages released under FOIA include court martial proceedings and other military reports on the possible wrongful death of Iraqi and Afghan civilians.

One court martial report describes a U.S. soldier who shot an Iraqi prisoner at close range in the head. Prior to the shooting, the soldier had told another soldier that he wanted to shoot the prisoner, who was captured after a battle. The second soldier told him not to, but minutes later heard the shot. The first soldier was tried by court martial and acquitted by a jury of officers and enlisted men.

Another file describes an investigation into the killing of two Afghan men allegedly shot and killed while fleeing U.S. soldiers. While noting that the investigators had declined to exhume the bodies or obtain a copy of the local police report on the incident, the investigation concluded that there was "insufficient evidence to prove if [four Special Forces soldiers] committed the offense of Murder."

The ACLU has also secured the release of more than 100,000 government documents concerning the abuse of prisoners held by U.S. forces in Iraq, Afghanistan, and Guantánamo Bay, based on a FOIA request initially filed in 2003.

Learn more about the ACLU's efforts to obtain information on the human costs of war in Iraq and Afghanistan: http://www.aclu.org/civiliancasualties


Take Action to Stop Employment Discrimination

Congress doesn’t slow down very often. But when Brooke Waits of Dallas, Texas, testified before the House Health, Education, Labor and Pensions Subcommittee of the House Education & Labor Committee to urge passage of the Employment Non-Discrimination Act (ENDA), it felt like Capitol Hill stood still.

Brooke was working as an inventory manager for a cell phone company. She had retooled the company’s inventory system and won praise for her work from her supervisors. Work was a passion for Brooke, and she did her job well. Her only offense? Being a lesbian.

On the job, Brooke kept her personal life to herself. She never told her co-workers who often made homophobic jokes about her girlfriend. But a few months into her job, Brooke walked away from her desk and her boss peeked at Brooke’s cell phone screensaver, where she saw a picture of Brooke kissing her girlfriend on New Year’s Eve.

Brooke was fired the next day. Her manager said they needed someone more “dependable.” When Brooke pointed out she frequently came to work early to make headway on her projects, her boss insisted it didn’t matter: She had to go.

Brooke kept her personal life private, but when her boss invaded her privacy, she lost her job.

Believe it or not, what Brooke’s boss did was not illegal. ENDA the Employment Non-Discrimination Act would make it illegal to fire someone based on their sexual orientation.

Without laws like ENDA, prejudice can dress itself up in labels like “undependable work ethic” or “unprofessional attitude” and cost hardworking lesbian, gay, bisexual and transgender Americans their jobs without giving them any way to fight it.