Truckin’ to Treason: The Hot Air of Secession

by WALTER BRASCH

A white Ford F-250 pick-up rumbled through town, a Confederate rebel flag on a pole behind the cab; on the rear bumper were a pro-life and three Anti-Obama stickers, two of which could not be revealed in a family newspaper.

It wasn’t a lone wolf protest; several cars, trucks, and homes in the area sport similar flags and messages. During the summer, when a 4-wheel Jamboree and a Monster Truck rally are held at the local fairgrounds, attracting thousands from a multi-state area, many trucks fly rebel flags, insignia, and political statements. During the annual eight-day fair at the end of September, vendors sell all kinds of items with the Confederate battle flag, most of them made overseas.

The rebels say they are fierce independents. But, being a “rebel” doesn’t mean you can complain about paying taxes, while also denying climate change and evolution. Nevertheless, those flying rebel flags, although they may be disenchanted and alienated from the mainstream, are still part of traditional mainstream America.

They may claim they oppose “Government” (also known as “gummint”) intruding upon their lives, but think it’s perfectly acceptable for government to make rules about the people’s sexual practices and to invade women’s bodies.

They also believe government has the duty to create laws to require national identification for every citizen and establish restrictive measures that weaken the rights of all people to vote, especially those who aren’t White establishment Republicans. When the U.S. invaded Iraq for reasons that were questionable at best, chest-thumping jingoistic “rebels” were the strongest supporters of military action. But, they remained largely silent when liberals and social activists spoke out about soldiers not being given adequate body armor, and military hospitals not giving the wounded adequate treatment. They have also remained largely silent about the one-fourth of America’s homeless who were combat veterans.

These pretend-rebels gave standing ovations to the PATRIOT Act that established numerous ways the government could violate citizen rights granted by the 1st, 4th, 5th, 6th, 8th, and 14th Amendments. When the federal courts ruled parts of the Act to be unconstitutional, the “patriotic rebels” complained about activist judges.

They listen to conservative talk radio and Fox News, all of which bash the mainstream media, but don’t recognize that the very sources they turn to for information are also mainstream media, owned by establishment multi-millionaires.

They willingly agree with Mitt Romney, even in defeat, that 47 percent of Americans are takers who “want stuff,” but don’t recognize that one of the biggest takers who wanted more “stuff” was Romney himself, who ran a venture capital company that existed to take over other companies. Even fellow Republicans during the primaries called Romney not a venture capitalist but a vulture capitalist.

In a local newspaper, which daily opens a full page, sometimes two full pages, to dozens of one or two paragraphs of grammatically-scurrilous rants from local citizens, are variations of President Obama being a Kenyan-born Muslim who is leading America into Communism and self-destruction, their thoughts mimicking the screed of conservative talk show hosts, pundits, and bloviators.

But the rebel who drove the white F-250 doesn’t live in the Deep South; this is in the rural red center of blue-state Pennsylvania, home of the Declaration of Independence and Gettysburg, the turning point of the Civil War.

The Civil War-known as the War Between the States among Confederate sympathizers-is still being fought. Almost 25,000 Pennsylvanians have now signed petitions to have the Keystone State secede from the union.

More than 700,000 citizens upset about the re-election of President Obama in the past two weeks have signed petitions calling for their states to secede. The states with most of the signatures are Red States, paralleling the former Confederacy, which receive far more in federal dollars than their citizens pay. They are also the states where numerous polls reveal at least one-fourth of all citizens don’t believe in the separation of church and state. Maybe the U.S. can convince Iran and Saudi Arabia, theocratic dictatorships, to annex those states.

However, Texas, with more than 120,000 signatures, leads all lists of petitions. It would be tempting to send the Lone Star State back to Mexico. They get Texas, and the U.S. gets Acapulco, Cancun, and Mazatlan. In 2009, running for re-election, Texas Gov. Rick Perry, trying to burnish his ultra-conservative credentials, had even suggested that not only did he align himself with right-wing extremists but that Texas could become so mad at the federal government they might consider seceding. But now, he says he disagrees with the citizens who ignorantly claim the 10th Amendment gives them right to secede.

Perhaps it’s because Gov. Perry realizes that the only way a state can secede from the union, according to the Constitution, is not by having a majority of citizens petition the White House or even having an election, but only by an armed insurrection, something that didn’t work in 1861-and won’t work today.

Nevertheless, there is one possibility for those who so willingly signed secession petitions, mouthing off before they understood the penalties for treason.

For more than four decades, these conservative pretend-rebels told everyone who disagreed with them and protested American policy that they were un-American and unChristian. Not knowing even the basics of the Constitution or political philosophy, the conservative “rebels” called protestors for social justice pinkos, Commies, and traitors. They drilled into the public discourse the mantra of “America-love it or leave it.” By their own actions the past two weeks, it may now be time for a few hundred thousand to pack their bags and take their own advice.

[Walter Brasch proudly calls himself a social activist who, although he often disagrees with government actions, believes in the right of the state to exist and to protect its citizens from all forms of terrorism and stupidity, both foreign and domestic. His current book, which looks at the American Revolution and the Revolution of the 1960s, is Before the First Snow, available at amazon.com and www.greeleyandstone.com]

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Walter M. Brasch, Ph.D.

Splitting Hairs in a Multi-Cultural School

by WALTER BRASCH

Sasha Rivera is a 15-year-old sophomore at the Multi-Cultural Academy Charter School (MACS) in Philadelphia.

She’s an honors student who never got into trouble at school, and volunteers at Motivos, a national magazine for Hispanic youth.

She also has blue bangs in her dark brown hair. For that reason, she isn’t attending class.

Sasha and her principal, James Higgins, agree that Sasha came to school on Thursday, May 24, and had blue in her hair.

“In the hallway, he turned to me and said my hair color has to go,” says Sasha. She says that Higgins told her that unnatural hair color is against school rules. “He said it was in the [student] handbook,” she says.

MACS has a uniform policy, mandating specific clothes students must wear to class, what kind of jewelry and makeup, and even the only two colors of nail polish allowed. The only statement about hair is that it “should be neatly groomed.” However, there is an ambiguous sentence, “Any appearance deemed by the school staff to be inappropriate in an educational setting is not allowed.” That sentence deliberately leads to arbitrary, discretionary, and capricious interpretation that can pose legal challenges. “The whim of an administrator on one particular day does not constitute a rule or regulation,” Jenée Chizick, Motivos publisher, wrote in Sasha’s defense to the chief academic officer of the School District of Philadelphia.

Nevertheless, Higgins says that students can only have “natural hair color.” He has no objections if students wish to dye their hair honey blonde or raven, since he considers those to be natural hair colors. Apparently, highlights and lowlights in female hair are also acceptable. By that logic, there can’t be any objection to teens having white or gray hair, since they are “natural” colors. But, blue or green streaks, highlights, and bangs are not acceptable.

Higgins says he made the decision to exclude Sasha from classes the first day he noticed she had “unnatural” hair color.

However, Sasha has a different story. In her freshman year, she says she had streaks of orange, green, blue, and even blonde in her hair. “I was just experimenting,” she says. For several months in her sophomore year, she had semi-permanent green streaks, but she says no one confronted her. About a week before she was told to get rid of the color or not attend class, she had the blue highlights on her bangs.

“Every day I come to school I go in the front door,” says Sasha, “and he’s always there to greet us and check our uniforms.” Even if he missed all those days, he might have seen her, with green bangs on the cover of Motivos. Sasha had proudly brought the magazine to school to share with her teachers and guidance counselor. The photograph was taken March 22, so it had been two months that the principal and the teachers either didn’t notice or care about the color of her hair. Her FaceBook picture shows her with the blue color. She doesn’t know why her principal picked that one particular day to tell her she could not attend class because of her hair color.

Sasha was selected to participate as a Youth Media Ambassador to Colombia, with Motivos for 12 days in late June. She didn’t have trouble getting a passport, complete with a picture of her and her blue-streaked hair. Apparently, her hair color posed no threat to the American image abroad.

Higgins claims he told Sasha she was not dismissed from school. “She can come back any time she has natural hair,” he says. He says he even told her that teachers would give her packets of homework, and she could work in the school office and she could take finals there. But she couldn’t attend class. Sasha and her father, Jaime, wonder why having blue color bangs is somehow acceptable if the student can sit in an office, with students, staff, and faculty walking in all the time, but not acceptable for class.

Jaime Rivera, who supports his daughter and vigorously protested the decision, says he told the administration, ‘You’re denying her an education.” He says he tries “to show my daughter what is right and what its wrong, and to stand up for herself.”

Sasha says other students never complained or made fun of her, nor has her grades slipped because of her appearance. But, Higgins and a strict school policy places appearance as a primary condition in education.

“We are a very strict school, and decorum is very important,” he says. He emphasizes that clothes and appearance are important for success. He says the school, which sends almost every one of its graduates to college, must prepare the students for college-level work. But, when told that college students often have hair colors and styles that he may not think “natural,” he changes first to emphasize the quality of the academic program and then to emphasize that students need to get jobs-and “unnatural” hair color “is not appropriate for job interviews.”

Apparently, under his and the school board’s belief, Marilyn Monroe, Pink, and several hundred thousand white-haired ladies with light blue washes are unemployable. Also unemployable, in this administrator’s thinking, could be Marines who wear their hair “high and tight.” Students who wish to emulate Albert Einstein, Kenny G., Bob Marley, Willie Nelson, and Steve Jobs would be told those hair styles are not appropriate, certainly not the kind that some corporate executive and staff at MACS would wear.

Because MACS, a charter school, receives significant public funds it falls within Constitutional jurisdiction on freedom of expression issues. Most student rights issues date to 1969 in the Supreme Court’s ruling in the Tinker v. Des Moines case, which decided that students and faculty do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Adam Goldstein, an attorney with the Student Press Law Center, notes that courts often rule “Speech and dress is a communicative right to transmit that message” as long as it isn’t disruptive. Higgins acknowledges Sasha’s appearance wasn’t disruptive to the educational process.

In the absence of a specific school policy and the disruption of the normal school day, “There is no basis for the administration’s decision,” says Dr. Robert E. Gates, chair of the Department of Educational Studies and Secondary Education.

“There’s strong legal support for the student who wants to color her hair, since in most places the courts place the burden on the public school official who wants to claim the speech/symbolic expression would disrupt the school,” says Dr. Tom Eveslage, professor of journalism at Temple University, and a specialist in First Amendment law.

About half of the U.S. Circuit Courts of Appeals “are receptive to students’ claims of free-expression rights concerning their hair,” according to the First Amendment Center. The other half, including the 3rd Circuit, which covers Pennsylvania, have not been as receptive. Nevertheless, according to the First Amendment Center, “Generally, courts that have found a constitutional issue have ruled . . . that a student’s choice of hair color and style represents either a First Amendment free-expression issue or a 14th Amendment liberty or equal protection issue.”

Adam Goldstein notes that schools could regulate hair color and appearance if “people don’t understand the message.” If Sasha Rivera had a T-shirt with a message that declared blue highlights is a protest against an illogical dress code, “that would be protected speech,” says Goldstein. If she handed out flyers to protest the policies of the school, “that would also be protected” by all courts, he says.

Goldstein suggests that the principal’s demand for “natural” hair color “is monumentally dishonest in that [he believes] students somehow can’t function within presence of someone who has blue in her hair.” The school board and its administrators, says Goldstein, “should be asking, ‘Does this rule make any sense?’ and ‘What is the best way to learn?’ not ‘what is the best way to appear?'”

A letter from Frank L. Mannino, dean of students, on June 4 advised Jaime Rivera that Sasha was subject to administrative failure. Because of previous unexcused absences-some to deal with her mother’s extended illness, the others because of not being allowed in class-Sasha had exceeded the 25 absences the school allows and, thus, according to Mannino, results in “failure to accumulate our minimum credit hours in the classroom.”

MACS, defending its hair color policy and “decorum” issues, suggested she could take finals under special circumstances. However, Sasha now says she doesn’t wish to return to MACS, is willing to accept a school-imposed failure, and would take her entire sophomore year over again at another school, one that supports diversity in all of its forms.

Among the principles the Multi-Cultural Academy Charter School claims to have are “Celebrating and embracing diversity in cultures and individuals  . . .” and “Viewing each student as an individual while educating and mentoring the whole child . . . ”

Apparently, those principles apply only if the students agree with what the school administration believes a student should look like.

[Dr. Brasch is an award-winning journalist, syndicated columnist, and the author of 17 books. For 31 years, he was professor of mass communications and says he didn’t think student free expression in hair color or appearance detracted from their education. He says he did advise students going into establishment journalism they might wish to consider the modes of the profession, but also advised them that there were many jobs in mass communications and other industries where intelligence, a strong work ethic, and enthusiasm were more important than conforming to a strict dress code. His latest book is Before the First Snow, a critically-acclaimed novel whose heroine wears “funky green-and-white high-top checkered sneaks with rainbow-colored laces.”]

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Walter M. Brasch, Ph.D.

Latest Book: Before the First Snow: Stories from the Revolution

(www.greeleyandstone.com)

www.walterbrasch.com

www.walterbrasch.blogspot.com

www.facebook.com/walterbrasch

http://www.youtube.com/watch?v…

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One Jew’s Christmas

by Walter Brasch

I am a Jew.

I don’t mind receiving Christmas cards or being wished a “Merry Christmas” from friends, clerks, or even in junk mail trying to sell me something no sane person should ever buy. My wife and I even send Christmas cards, with messages of peace and joy, to our friends who are Christians or who we don’t know their religion.

I like Christmas music and Christmas carolers, even if some have voices that crack now and then, perhaps from the cold.

At home, from as early as I could remember, my family bought and decorated a Christmas tree, and gave gifts to each other and our friends. Usually we put a Star of David on the tree, undoubtedly an act of heresy for many Jews and Christians. We learned about Christmas-and about Chanukah, the “feast of lights,” an eight day celebration of joy and remembrance of the rededication of the Temple of Jerusalem at a time when it seemed as if a miracle had saved the Jews from darkness during the Maccabean revolt in the second century BCE.

This year, my wife and I have a two-foot tall cypress tree, decorated with angels and small LED lights, a gift from a devout Christian. We weren’t offended by the gift; we accepted it and displayed it on a table in our dining room in the spirit of friendship. In Spring, we’ll plant the tree in our backyard and hope it grows strong and tall, giving us shade and oxygen, perhaps serving as a sanctuary for birds, squirrels, and other wildlife.

What I do mind is the pomposity of some of the religious right who deliberately accost me, often with an arrogant sneer on their lips, to order me to accept their “well wishes” of  a “Merry Christmas.” Their implication is “Merry Christmas-or else!” It’s their way of saying their religion is the one correct religion, that all others are wrong.

The problem is that although I am secure in my beliefs and try to understand and tolerate other beliefs, the extreme right is neither secure nor does it tolerate difference or dissent.

Right wing commentators at Fox News are in their final week of what has become a holiday tradition of claiming there is a “War on Christmas.” The lies and distortions told by these Shepherds of Deceit, and parroted by their unchallenging flock of followers, proves that at least in this manufactured war, truth is the first victim.

The Far-Right-But-Usually-Wrong claim that godless liberals are out to destroy Christmas, and point to numerous examples, giving some facts but never the truth.  

They are furious that many stores wish their customers a “Happy Holiday” and not a “Merry Christmas,” unable to understand that sensitivity to all persons’ religions isn’t some kind of heresy. The ultra-right American Family Association even posts lists of stores that are open on Christmas, have their clerks wish customers a “Happy Holiday,” and don’t celebrate Christmas the way they believe it should be celebrated. (Of course, the AFA doesn’t attack its close ally, the NRA, which on its website wishes everyone “Happy Holidays.”)

Because of their own ignorance, they have no concept of why public schools may teach about Christmas or even have students sing carols but can’t put manger scenes on the front lawn. Nevertheless, the Extremists of Ignorance and Intolerance parade the Constitution as their own personal shield, without having read the document and its analyses, commentaries, and judicial opinions that define it, and can’t understand there is a strict separation of church and state. The Founding Fathers, especially Franklin and Jefferson, were clear about that. They were also clear that this is a nation where a majority of its people professes to be Christians, but it is not a “Christian nation.” There is a distinct difference.

The ultra-right-some of whom stanchly believe Barack Obama is not only a Muslim but wasn’t even born in the U.S-follow the guiding star of Fox to wrongly claim that the President Obama hates Christianity so much that he won’t even put up a Christmas tree but calls it a “holiday tree.” Perhaps they were too busy imbibing the bigotry in their mugs to know that the President and his family helped light the National Christmas Tree near the White House, wished Americans a “Merry Christmas,” and even told a bit about what Christians believe is a divine birth.

When confronted by facts, these fundamentalists point out that the Puritans, the ones who fled England for religious freedom, demanded adherence to a strict code of Protestant principles-and if it was good enough for the first American “citizens,” it’s good enough for the rest of us. What they never learned, obviously, is that the Puritans banned Christmas celebrations, declaring them to be pagan festivals.

If the Fox pundits, leading their sheep into the abyss of ignorance in a counter-attack in a war that doesn’t exist, would take a few moments to think before blathering inanities, they might realize that the man they worship was called “the Prince of Peace” not the “General of War.”

[Walter Brasch is an award-winning syndicated columnist and multimedia producer. His latest book is the mystery novel, Before the First Snow.]

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Walter M. Brasch, Ph.D.

Latest Book: Before the First Snow: Stories from the Revolution

(www.greeleyandstone.com)

www.walterbrasch.com

www.walterbrasch.blogspot.com

www.facebook.com/walterbrasch

http://www.youtube.com/watch?v…

 

Banning the First Amendment

by Walter Brasch

Parents demanded it be banned.

School superintendents placed it in restricted sections of their libraries.

It is the most challenged book four of the past five years, according to the American Library Association (ALA).

“It” is a 32-page illustrated children’s book, And Tango Makes Three, by Peter Parnell and Justin Richardson, with illustrations by Henry Cole. The book is based upon the real story of Roy and Silo, two male penguins, who had formed a six-year bond at New York City’s Central Park Zoo, and who “adopted” a fertilized egg and raised the chick until she could be on her own.

Gays saw the story as a positive reinforcement of their lifestyle. Riding to rescue America from homosexuality were the biddies against perversion. Gay love is against the Bible, they wailed; the book isn’t suitable for the delicate minds of children, they cried as they pushed libraries and schools to remove it from their shelves or at the very least make it restricted.

The penguins may have been gay-or maybe they weren’t. It’s not unusual for animals to form close bonds with others of their same sex. But the issue is far greater than whether or not the penguins were gay or if the book promoted homosexuality as a valid lifestyle. People have an inherent need to defend their own values, lifestyles, and worldviews by attacking others who have a different set of beliefs. Banning or destroying free speech and the freedom to publish is one of the ways people believe they can protect their own lifestyles.

During the first decade of the 21st century, the most challenged books, according to the ALA, were J.K. Rowling’s Harry Potter series, apparently because some people believe fictionalized witchcraft is a dagger into the soul of organized religion. Stephanie Meyer’s Twilight series was the 10th most challenged in 2010. Perhaps some parents weren’t comfortable with their adolescents having to make a choice between werewolves and vampires.

Among the most challenged books is Ray Bradbury’s Fahrenheit 451, the vicious satire about firemen burning books to save humanity. Other books that are consistently among the ALA’s list of most challenged are Brave New World (Aldous Huxley), The Chocolate War (Robert Cormier), Of Mice and Men (John Steinbeck), I Know Why the Caged Bird Sings (Maya Angelou), Forever (Judy Blume), and The Adventures of Huckleberry Finn (Mark Twain), regarded by most major literary scholars as the finest American novel.

Name a classic, and it’s probably on the list of the most challenged books. Conservatives, especially fundamental religious conservatives, tend to challenge more books. But, challenges aren’t confined to any one political ideology. Liberals are frequently at the forefront of challenging books that may not agree with their own social philosophies. The feminist movement, while giving the nation a better awareness of the rights of women, wanted to ban Playboy and all works that depicted what they believed were unflattering images if women. Liberals have also attacked the works of Joel Chandler Harris (the Br’er Rabbit series), without understanding history, folklore, or the intent of the journalist-author, who was well-regarded as liberal for his era.

Although there are dozens of reasons why people say they want to restrict or ban a book, the one reason that threads its way through all of them is that the book challenges conventional authority or features a character who is perceived to be “different,” who may give readers ideas that many see as “dangerous.”

The belief there are works that are “dangerous” is why governments create and enforce laws that restrict publication. In colonial America, as in almost all countries and territories at that time, the monarchy required every book to be licensed, to be read by a government official or committee to determine if the book was suitable for the people. If so, it received a royal license. If not, it could not be printed.

In 1644, two decades before his epic poem Paradise Lost was published, John Milton wrote a pamphlet, to be distributed to members of Parliament, against a recently-enacted licensing law. In defiance of the law, the pamphlet was published without license. Using Biblical references and pointing out that the Greek and Roman civilizations didn’t license books, Milton argued, “As good almost kill a man as kill a good book; who kills a man kills a reasonable create [in] God’s image,” he told Parliament, “but he who destroys a good book kills reason itself, kills the image of God.” He concluded his pamphlet with a plea, “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

A century later, Sir William Blackstone, one of England’s foremost jurists and legal scholars, argued against prior restraint, the right of governments to block publication of any work they found offensive for any reason.

The arguments of Milton and Blackstone became the basis of the foundation of a new country, to be known as the United States of America, and the establishment of the First Amendment.

Every year, at the end of September, the American Library Association sponsors Banned Book Week, and publishes a summary of book challenges. And every year, it is made more obvious that those who want to ban books, sometimes building bonfires and throwing books upon them as did Nazi Germany, fail to understand the principles of why this nation was created.

[Walter Brasch was a newspaper and magazine reporter and editor before becoming a professor of mass communications, with specialties in First Amendment and contemporary social issues. His current book is the mystery novel, Before the First Snow, a look at the 1960s, and how issues unresolved during those years are affecting today’s society.]

         

Former Editor Sues Philadelphia Police for Constitutional Violations in Her Arrest

Editor’s note:  The owner of OpEDNews Rob Kall, is a personal friend.  John

by Walter M. Brasch

A former managing editor for the online newspaper, OpEdNews, has sued the city of Philadelphia and eight of its police officers for violating her Constitutional rights.

Cheryl Biren-Wright, Pennsauken, N.J., charges the defendants with violating her 1st, 4th, and 14th amendment rights. The civil action, filed in the U.S. District Court, Philadelphia, is based upon her arrest during a peaceful protest Sept. 12, 2009, at the Army Experience Center (AEC) in the Franklin Mills Mall.

According to the complaint, Biren-Wright, who was not a part of the demonstration but at the mall as a reporter-photographer, was arrested and charged with failure to disperse and conspiracy, second degree misdemeanors. The charges were subsequently dropped by the Philadelphia district attorney.

The Philadelphia police also arrested and charged six protestors with conspiracy and failure to disperse-Elaine Brower, 55, New York, N.Y.; Richie Marini, 35, Staten Island, N.Y.; Joan Pleune, 70, Brooklyn, N.Y.(one of the original Freedom Riders in 1961); Beverly Rice, 72, New York, N.Y.; Debra Sweet, 57, Brooklyn, N.Y.; and Sarah Wellington, 26, Piermont, N.Y. Two months after Biren-Wright’s case was dropped, the six protestors were found not guilty in Philadelphia Municipal Court.

Paul J. Hetznecker, who represented the six defendants in the criminal trial, and Biren-Wright in her civil suit, believes that police over-reaction to protestors, as well as their lack of knowledge or appreciation for Constitutional protections, may be “a systemic problem throughout the country.” Hetznecker says under Constitutional and state law, “There can not be an arbitrary and capricious decision to end the civil rights of the protestors.”

The civil suit complaint charges that police violated Biren-Wright’s First Amendment rights to “gather information . . . to cover a matter of public interest including the law enforcement activity in public places.” Actions by the police deprived her of 4th and 14th amendment rights that, according to the complaint, protect against “unreasonable search and seizure,” “loss of physical liberty,” and “freedom from excessive use of unreasonable and justified force.”

The suit lists six separate counts:

         * Abridgement of her rights under the First Amendment to observe and record news in a public place.

         * False arrest and imprisonment

         * Use of excessive force by the police.

         * False arrest under state law

         * Common Law Assault under state law

         * Failure of the City of Philadelphia to adequately train and supervise its police. The complaint charges that because of accepted practices, the defendants may have believed “that their actions would not be properly investigated by supervisory officers and that the misconduct would not be investigated or sanctioned, but would be tolerated.” The policy, according to the complaint, “demonstrates a deliberate indifference on the part of the policymakers of the City of Philadelphia, to the constitutional rights of persons within the City, and were the cause of the violations of the Plaintiff’s rights. . . .”

Named in the suit in addition to the City of Philadelphia are Lt. Dennis Konczyk, officers Tyrone Wiggins, John Logan, Robert Anderson, Donald West, William Stuski, and two unnamed John Does.

The Philadelphia Police Department refused to comment about the suit as a matter of policy regarding “issues in court,” according to Jillian Russell, Department spokesperson.

In August 2008, the Army opened the AEC, a 14,500 square foot “virtual educational facility” with dozens of video games. The Center, deliberately located near an indoor skateboard park, replaced five more traditional recruiting offices, and was designated as a two-year pilot program. The initial cost was $12 million.

Army recruiters could not actively recruit children under 17, but could talk with the teens and answer any of their questions about the Army. Among the virtual games was one in which children as young as 13 could ride a stationary Humvee and shoot a simulated M-16 rifle at life-like video images of Muslims and terrorists.

Because of the emphasis upon war, and a requirement that all persons had to sign in at the center, thus allowing the recruiters to follow-up as much as four or five years later, peace activists began speaking out against the AEC.

To counter what was quickly becoming a public relations problem, the Army sent out news releases, picked up by the mainstream media, and established a full social media campaign to explain the “benefits” of the AEC. The protests continued.

Elaine Brower, whose son was in Iraq on his third tour of duty, told OpEdNews a day after her arrest: “The AEC is giving guns to 13-year-olds, drawing them in with violent video games. As more and more Afghan civilians and U.S. military are being killed in the U.S. occupation of Afghanistan, we’re saying ‘no’ to these wars. We’ve got to stop the flow of youth into the military, where they’re being used to commit war crimes in our name.”

With a police permit, and escorted by officers from Philadelphia’s Civil Affairs Unit, about 200-250 protestors-most of them middle-aged or senior citizens, many of them veterans-had come to the AEC, believing their First Amendment rights were being protected. The protest, although noisy at times, was peaceful; the counter-demonstration wasn’t.

According to the complaint, “The counter-demonstrators [members of an organization known as The Gathering of Eagles] yelled, jeered and taunted the AEC protestors. At no time did [the police] direct, or attempt to limit the First Amendment activities of the counter-demonstrators,” nor were they ever told to disperse.

Throughout the demonstration, the protestors had not given any indication that they posed any physical threat to others. However, about 45 minutes after the demonstration began, the police, under direction of Lt. Konczyk, ordered the protestors to disperse.

At that point, Biren-Wright, according to the complaint, “placed herself outside the immediate area . . . so as not to interfere with the police activity.” She continued to photograph and report on the demonstration. The complaint charges that Lt. Konczyk, “without just cause or legal justification,” directed several officers to arrest her, walking past several protestors and counter-demonstrators. She says she told the officers she was a member of the press. At no time, she says, did she participate as a demonstrator nor verbally or physically threaten anyone. The officers, says Biren-Wright, arrested her without any warning. The arresting officer’s “degree of anger-he was clearly red-faced-was inappropriate,” she recalls. The police, says Biren-Wright, “were clearly targeting me, trying to keep me from recording the demonstration and their reactions.”

One officer, says Biren-Wright, “unnecessarily twisted my arm.” Another officer seized her camera and personal items. One of the officers put plastic cuffs on her wrists “so tight that it caused significant pain, swelling and bruising, and an injury that lasted for several weeks,” according to the complaint.

Biren-Wright’s 15-year-old daughter was shopping in the mall during the protest, but had reunited with her mother shortly before the arrests. Her daughter, says Biren-Wright, “came closer upon the arrest and I told the officer she was my daughter and a minor and would be alone.” The officer, says Biren-Wright, snapped, “You should have thought of that before.” At the processing center that police had previously set up at the mall, Biren-Wright told several officers that her daughter was alone in the mall and was from out of state. “None of them did anything to ensure her safety,” she says. The daughter, unsupervised, eventually found Rob Kall, OpEdNews editor, who drove her to the jail to take her mother’s keys and then drove her home, where she spent the night alone.

Outside the mall, counter-protestors shouted obscenities as those arrested boarded the police bus. “They were standing at the door to the bus,” says Biren-Wright, “and posed a safety issue to us since we were in handcuffs.”

The six who were arrested and Biren-Wright were initially taken to the 15th District jail. Richie Marini, the lone male arrested, was kept at the district jail. The six women were transferred to the jail at the jail of the Philadelphia Police headquarters, known by locals as the “Roundhouse,” where a nurse took each woman’s vital signs and asked if there were any injuries. “I showed him my wrist and thumb that were already red and swollen” from the restrictive handcuffs, says Biren-Wright. His response, she says, was “That doesn’t count.”

Biren-Wright, along with the other five women, was held for 14 hours. At 5 a.m., she says, they were released from the “Roundhouse” onto a dark and barren street-there were no taxis anywhere near-and locked out of the police station. Although the women had cell phones, they had not been allowed to call for rides while in the jail area. Outside, they called friends, but waited until help arrived. Marini was released from the district jail later that morning.

The only reason Biren-Wright’s pictures of the demonstration survived is because she had secretly removed the memory chip during the arrest. When the camera was finally returned, “all of the settings were messed up and the lens was not replaced properly.”

The Army closed the AEC at the end of the pilot program. It had claimed that because of increased enlistments nationwide, the Center was no longer needed. It never acknowledged that the protestors and the public reaction may have been a reason for the closing.

In an unrelated case, the U.S. Court of Appeals for the Third Circuit ruled in October 2010 [Kelly v. Borough of Carlisle] that recording police activity in public places is protected by Constitutional guarantees. This month, the ACLU settled a case, for $48,500, in Pittsburgh when a University of Pittsburgh police officer arrested Elijah Matheny and charged him with felony violation of the state’s Wiretap Act for using a cell phone to record police activity. Matheny spent a night in jail following his arrest. [See: Matheny v. County of Allegheny, et al.] The ACLU charged that the district attorney’s office “had engaged in a pattern of erroneously advising law enforcement that audio taping police officers in public violates Pennsylvania’s Wiretap Act.” Following the Third Circuit’s decision in the Kelly case, a conviction against Matheny is expected to be overturned.

The arrests in Philadelphia, Carlisle, and Pittsburgh underscores two major problems, both prevalent throughout the country. The first problem is a lack of understanding and respect for the Constitution by a large number, although not a majority, of police officers. For that reason, all police forces and district attorneys offices, from small isolated rural communities to the largest urban departments, need to have constant education about civil rights and Constitutional guarantees-and the penalties for violating those rights.

The second major problem is inherent within the mass media. Reporters need to know how and when to challenge authority to protect their own and the public’s rights. A camera crew from the PBS “Frontline” series was at the protest, but abruptly stopped recording the demonstration after Brower was arrested and either before or during Biren-Wright’s arrest. Rob Kall later said that a member of the “Frontline” crew told him the police informed them they would be arrested if they continued to film the demonstration.

Police threats, which violate Constitutional guarantees, place a “chilling effect” upon the media to observe and record actions by public officials. Even without a direct order by a public official, reporters may do what they perceive to be what others want them to do. The media, like police and public officials, also need constant education to know when police orders are lawful and when they are not. An order to move away from a scene may be lawful. An order to stop filming a scene upon threat of arrest is not.

In federal court, in the case of Biren v. City of Philadelphia, et al., these issues, and others, will be raised. But had there been an understanding of the Constitution by the police, the case would never have gotten to the point of a federal civil suit.

 

Tea Party Congressman Doesn’t Know Constitution From the Declaration of Independence

Wisconsin Tea Bagger Sean Duffy doesn’t know the difference between the Declaration of Independence and the Constitution.  Perhaps he needs to come to Philadelphia where both were written and take a stroll through the National Constitution Center.  Then, perhaps, he can take a stroll through the emergency rooms of the City’s hospitals and see whether access to medical care is a basic human right.

Congressman Duffy says the only rights in the constitution are life, liberty and the pursuit of happiness.  Of course any educated American understands that phrase is from the Declaration not the constitution.  The constitution actually does enumerate numerous rights, the right to free assembly, the right to a free press, the right of free speech, the right to due process, the right not to have the government station soldiers in your home (King George did that) to many, many other rights.  The document actually has a section called The Bill of Rights and that was expaned to include the right to equal justice under law, the right not to be enslaved and the right of women to vote.

Tea baggers really ought to read and comprehend those copies of the constitution they’re so fond of carrying.  They can read can’t they? It makes me wonder…

I saw a flyer for the Berks County Patriots at a local market yesterday and it got me wondering…hasn’t America had enough of these morons and their radical agenda?

X  End Medicare

X  Privatize Social Security

X  Slash Medicaid

X  End public schools

X  Eliminate programs for the poor

X  Endless wars

I have a new slogan for the country:  Enough Already!

On Monday Morning Philosophy, Or, Founders Tell America: “You Figure It Out”

In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing “liturgical foundation” to the adherents of the point of view that the Constitution is like The Bible: that it’s somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent Of The Founders, that summer in Philadelphia…was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent…was that we work it out for ourselves as we go along?

“…you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal…”

–From the song Gasoline, by Sheryl Crow

The reason this is coming up today is because I’ve been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.

To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it’s to be done at all, it’s something that should be left to the States. (The 10th Amendment is used to reinforce this point.)

A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no “foreign entanglements” or National Banks…a time when men of the soil worked their farms with no fear of Debt or The Taxman….a time when government worked best by using local wisdom to deal with local problems.

In other words, we’re basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787-and for those who don’t recall, Hamilton won, which reflects the reality that we don’t all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.

To reinforce their arguments “fundamentalists” fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today’s problems would be found by simply allowing the Original Intent to shine through.

I’m here to tell you that couldn’t be more wrong-and to prove my point you need only consider the Civil War.

Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.

Those Founders who supported ending that “peculiar institution” were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by “the various States” there were compromises made, including the 3/5ths Compromise and Article Four’s requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.

The Intent Of The Founders, on the question of slavery, was to let time work it out.

The same kind of “let time work it out” thinking led us to Article 1, Section 8, and the “general welfare” clause.

Congress is empowered to enact legislation that provides for the “common defense and general welfare of the United States”…but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, “unclear phrasing”).

Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders’ Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.

We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to “accept” Federal laws…or not.

Over time, of course, we’ve come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop-and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would “find their center”.

The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we’ve seen fit to change that-and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.

Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?

The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn’t really exist as an issue in 1789.

I’m guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)-but they did put that “general welfare” clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.

The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government’s powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.

Can you guess why?

That’s right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of “leave things open” and let time work it out.

Here’s an example of how one of the Founders tried to tried to kill the “Original Intent” argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he’s also credited with being the principal author of the document, possibly because his were the best notes).

Why did he do that? It appears to be because that Founder’s Intent was to make the Constitution’s words stand on their own, without his notes to frame the debate-and in fact the document had been in force for almost 50 years before those notes saw the light of day.  

The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you’ll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders-and all of that brings us right back to Social Security.

It is true that the Constitution, as it was written in 1789, does not contain the words “you may establish Social Security”-but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.

Congress, acting with the authority to provide for the general welfare, took Roosevelt’s proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here’s part of what they had to say:

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.

Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it’s to kick a problem down the road so that something can get done today.

The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful-and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn’t change that even one little bit.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger’s Network Project.

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In Retrospect: Who is Really Un-American??

Crossposted from Hillbilly Report.

You know, one thing I get so sick of hearing from all the right-wing loons is how Progressives like myself and many of you are un-American. We have our patriotism questioned on a daily basis. Right-Wing idiots on the radio rail about how we do not believe in the Constitution and the values this country was founded on. Well, details that have emerged in the last couple of days show that the Bush Administration and their shameless enablers in the Republican Party and the former Republican Congress are the ones who really do not believe in the Constitution, or the freedoms granted by it.

Despite all the accusations against Progressives and our ideals and candidates the sad truth of the matter is that Conservatives by blindly following the worst President in American history did more to shred the Constitution and the protections contained therein than any Democrat or Progressive would have ever dreamed.

Now, most Progressives were dead-set against granting such an ideologue, and reckless irresponsible man such as George W. Bush with unprecedented powers not granted him by our Constitution because of his own incompetence in stopping the terrorist attacks on 9-11. We had serious problems with rolling back generations of Constitutional protections for anyone. For that, our patriotism was questioned and we were branded as cowards, or worse yet traitors.

Details now not only should scare all Americans half to death but show that Progressives who opposed Bush, Cheney and all their enablers within our government were not only patriotic in their actions, but were dead-on right about the Republican shredding of the Constitution through their own failures and propoganda.

A team of Inspectors General has determined that the true unpatriotic and un-American actions came from the Republican side of the aisle and were much more widespread than we had feared:

WASHINGTON – Not enough relevant officials were aware of the size and depth of an unprecedented surveillance program started under President George W. Bush, let alone signed off on it, a team of federal inspectors general found.

The Bush White House pulled in a great quantity of information far beyond the warrantless wiretapping previously acknowledged, the IGs reported. They questioned the legal basis for the effort but shielded almost all details on grounds they’re still too secret to reveal.

The report, mandated by Congress last year and delivered to lawmakers Friday, also says it’s unclear how much valuable intelligence the program has yielded.

http://news.yahoo.com/s/ap/200…

These Inspectors General found not only that the Bush Administration was spying on an unprecedented level, but that these programs were not sufficiently monitored and leads generated had nothing to do with terrorism:

The report, compiled by five inspectors general, refers to “unprecedented collection activities” by U.S. intelligence agencies under an executive order signed by Bush after the Sept. 11, 2001, terror attacks.

Just what those activities involved remains classified, but the IGs pointedly say that any continued use of the secret programs must be “carefully monitored.”

Most of the intelligence leads generated under what was known as the “President’s Surveillance Program” did not have any connection to terrorism, the report said. But FBI agents told the authors that the “mere possibility of the leads producing useful information made investigating the leads worthwhile.”

Now, I do not know what FBI agents found this activity “worthwhile” but they should immediately be dismissed. Just like the failed Bush Administration they seem to think that shredding the Constitution is all right as long as it may make their jobs a little easier. I thought their job was to protect the Constitution, not shred it.

Even scarier is that it appears that only one person got to determine who could know about programs that desperately needed oversight by elected officials and of course, the Bush Administration did not admit to most of the spying they did:

The IG report said that Bush signed off on both the warrantless wiretapping and other top-secret operations shortly after Sept. 11 in a single presidential authorization. All the programs were periodically reauthorized, but except for the acknowledged wiretapping, they “remain highly classified.”

Former Bush Attorney General Alberto Gonzales made a terse reference to other classified programs in an August 2007 letter to Congress. But Rep. Jane Harman, D-Calif., said that when she had asked Gonzales two years earlier if the government was conducting any other undisclosed intelligence activities, he denied it.

Despite the claims of the Bush Administration it appears that these programs had little to do with counter-terrorism:

Former CIA Director Michael Hayden – the primary architect of the program – told the report’s authors that the surveillance was “extremely valuable” in preventing further al-Qaida attacks. Hayden said the operations amounted to an “early warning system” allowing top officials to make critical judgments and carefully allocate national security resources to counter threats.

Information gathered by the secret program played a limited role in the FBI’s overall counterterrorism efforts, according to the report. Very few CIA analysts even knew about the program and therefore were unable to fully exploit it in their counterterrorism work, the report said.

This report also shows that the Bush Administration ignored the illegal nature of these programs by interpreting the law how they wanted it to be, not how it was written:

The report questioned the legal advice used by Bush to set up the program, pinpointing omissions and questionable legal memos written by Yoo, in the Justice Department’s Office of Legal Counsel. The Justice Department withdrew the memos years ago.

The report says Yoo’s analysis approving the program ignored a law designed to restrict the government’s authority to conduct electronic surveillance during wartime, and did so without fully notifying Congress. And it said flaws in Yoo’s memos later presented “a serious impediment” to recertifying the program.

Yoo insisted that the president’s wiretapping program had only to comply with Fourth Amendment protections against search and seizure – but the report said Yoo ignored the Foreign Intelligence Surveillance Act, which had previously overseen federal national security surveillance.

But to me, the most disturbing part is that although Democrats in the House seem to want to bring more oversight to these operations the White House seems determined to keep them going without oversight:

In the wake of the new report, Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt, renewed his call Friday for a formal nonpartisan inquiry into the government’s information-gathering programs.

House Democrats are pressing for legislation that would expand congressional access to secret intelligence briefings, but the White House has threatened to veto it.

Now, we all know that the Bush Administration will be remembered as a dark stain on freedom and American history. We all know they saw the Constitution as toilet paper, and nothing that should have stopped them from doing whatever the hell they wanted to do. What is quite perplexing to me is why our current administration would see fit to veto a bill that would give the Congress oversight over these programs.

Unlike the Republicans, we simply cannot fall behind a leader of our party blindly and follow him like sheeple no matter what is done. We need Congressional oversight over these programs no matter whether Republicans or Democrats are in the White House. I for one want no part in the shredding of our Constitution and the robbing of American freedoms. That is Republican territory.

What we desperately need is for the Congress to enact legislation that allows our elected Representatives to provide oversight over these programs which the Republicans were all to eager to just trust their failed “god-king” on. Every Administration is subject to the protections of the Constitution no matter what letter is behind their names.

The Obama Administration would do well to bear this in mind:

Although the report documents Bush administration policies, its fallout could be a problem for the Obama administration if it inherited any or all of the still-classified operations.

We simply cannot afford to inherit facism and not end it.

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Senate Passes Wiretapping Law

The U.S. Senate, with aye votes from both Bob Casey and Arlen Specter, approved a new federal wiretapping law which clearly violates the Fourth Amendment.  So much for that oath to uphold the constitution both Pennsylvania Senators swore…

The bill gives retroactive immunity to telecommunications companies without even discovering first exactly what they did.  This is like arresting a serial murderer and giving him full immunity before finding out the extent of his crimes.

Wiretapping telephone calls between Americans and people abroad means anyone with children traveling in Europe, attending schools as exchange students or going to university somewhere like Oxford, can be eavesdropped without any probable cause or warrant.

This is an extreme over reaction to the attacks of 9/11.  Although 3000+ lives were lost in that attack its real victim has been our free, open and democratic society.  We have readily thrown away our cherished liberties and freedoms in the name of preserving them.

If you study any democracy which reverted to autocratic government the steps we’ve witnessed the past seven years are a classic recipe.  These have happened over and over in history and the scene is set to discard the entire constitution with the stroke of a pen.  

For those who claim these measures can only be used in limited circumstances I have a question:  how do you know?  We don’t even know how the illegal wiretapping was done, how extensive, how pervasive, or how illegal did it go?  Why would we ever consider legalizing this (though it is still clearly unconstitutional) before investigating what was done which was conveniently immunized by today’s vote?

What’s to stop a government newly empowered with sweeping new powers to turn those against innocent people and organizations?  We know its happened before, including the last seven years.  Peace groups were infiltrated and spied upon illegally.  We know this yet we just allowed even more sweeping powers invested in a White House engulfed in secrecy.

Secrecy at this level is scary, undemocratic and fearful.  Bush and Cheney refuse to divulge the extent of their extralegal activities, illegal military tribunals and other extraconstitutional actions.  Only totalitarian government soperate in such an atmosphere of secrecy.  We’re supposed to be a nation of open government but we are not any longer.

As another example reminds us, this administration uses state secrets excuses to block investigations and litigation into their activities they don’t want revealed.  The Brennan Center at NYU is filing an amicus brief in the cases of the CIA extraordinary renditions.  This secret program kidnapped people off streets and threw them into secret prisons where the detainees were tortured.

The Brennan Center, along with outside co-counsel, is representing a group of former United States ambassadors and diplomats filing brief as amicus curiae on the diplomatic impact of CIA extraordinary rendition practices in the case of Mohamed v. Jeppesen Dataplan Inc. Amici include former Ambassador Morton Abramowitz and former Deputy Assistant Secretary of State Michael Southwick.

The case is a damages action for Jeppesen Dataplan’s involvement in providing aircraft, pilots, and logistical support for CIA rendition flights involved in transporting detainees to U.S. secret prisons and black sites where they were subjected to torture. The case was dismissed on the basis of the state secrets privilege, which was invoked by the CIA after it intervened in the case.

The Brennan Center’s amicus brief addresses only the impact of using the state secrets privilege to dismiss the case at the very outset, and argues that denying any judicial forum compounds the diplomatic harm caused by the rendition program itself and impedes international cooperation in combating terrorism. The brief argues that national security concerns lie on both sides of the decision of when and whether to dismiss a case based on the state secrets privilege and should be considered accordingly.

George W.Bush has been using this state secrets shield to block any sunshine exposing his worst activities.  We cannot tolerate such actions in an open democracy.  These are NOT national security secrets but illegal programs which must be revealed so sunshine can disinfect them of their putridity.

Its nice to see that Sen. Clinton is seeing the light on such matters.  While Barack Obama voted for the FISA outrage Hillary issued this statement:

One of the great challenges before us as a nation is remaining steadfast in our fight against terrorism while preserving our commitment to the rule of law and individual liberty.  As a senator from New York on September 11, I understand the importance of taking any and all necessary steps to protect our nation from those who would do us harm.  I believe strongly that we must modernize our surveillance laws in order to provide intelligence professionals the tools needed to fight terrorism and make our country more secure.  However, any surveillance program must contain safeguards to protect the rights of Americans against abuse, and to preserve clear lines of oversight and accountability over this administration.  I applaud the efforts of my colleagues who negotiated this legislation, and I respect my colleagues who reached a different conclusion on today’s vote.    I do so because this is a difficult issue.  Nonetheless, I could not vote for the legislation in its current form.

The legislation would overhaul the law that governs the administration’s surveillance activities.  Some of the legislation’s provisions place guidelines and restrictions on the operational details of the surveillance activities, others increase judicial and legislative oversight of those activities, and still others relate to immunity for telecommunications companies that participated in the administration’s surveillance activities.

While this legislation does strengthen oversight of the administration’s surveillance activities over previous drafts, in many respects, the oversight in the bill continues to come up short.  For instance, while the bill nominally calls for increased oversight by the FISA Court, its ability to serve as a meaningful check on the President’s power is debatable.  The clearest example of this is the limited power given to the FISA Court to review the government’s targeting and minimization procedures.

But the legislation has other significant shortcomings.  The legislation also makes no meaningful change to the immunity provisions.  There is little disagreement that the legislation effectively grants retroactive immunity to the telecommunications companies.  In my judgment, immunity under these circumstances has the practical effect of shutting down a critical avenue for holding the administration accountable for its conduct.  It is precisely why I have supported efforts in the Senate to strip the bill of these provisions, both today and during previous debates on this subject.  Unfortunately, these efforts have been unsuccessful.      

What is more, even as we considered this legislation, the administration refused to allow the overwhelming majority of Senators to examine the warrantless wiretapping program.  This made it exceedingly difficult for those Senators who are not on the Intelligence and Judiciary Committees to assess the need for the operational details of the legislation, and whether greater protections are necessary.  The same can be said for an assessment of the telecom immunity provisions. On an issue of such tremendous importance to our citizens – and in particular to New Yorkers – all Senators should have been entitled to receive briefings that would have enabled them to make an informed decision about the merits of this legislation.  I cannot support this legislation when we know neither the nature of the surveillance activities authorized nor the role played by telecommunications companies granted immunity.    

Congress must vigorously check and balance the president even in the face of dangerous enemies and at a time of war. That is what sets us apart. And that is what is vital to ensuring that any tool designed to protect us is used – and used within the law – for that purpose and that purpose alone.  I believe my responsibility requires that I vote against this compromise, and I will continue to pursue reforms that will improve our ability to collect intelligence in our efforts to combat terror and to oversee that authority in Congress.