By Mark Kramer
On June 17, an overflow crowd of 100 attended a forum titled “Civil Liberties Under Obama: Are We Still At Risk?” at Portland State University. The event was sponsored by the Portland Chapter of the National Lawyers Guild (NLG), the (American Civil Liberties Union) ACLU of Oregon, Peace and Justice Works, the American Constitution Society, and others.Â Participants included Steve Wilker (ACLU cooperating attorney), Tom Nelson (NLG attorney litigating against the NSA for warrantless wiretapping), Jo Ann Bowman (Executive Director of Oregon Action and former State Rep, co-host of KBOO FM community radio), Steven Wax (Federal Public Defender – author of Kafka Comes to America, Fighting for Justice in the War on Terror”), Ashlee Albies (NLG attorney litigating against the government over warrantless surveillance) and David Fidanque (Executive Director of the ACLU of Oregon).
Obama Better Than Bush?
Moderator (former U.S. Senate Candidate) Steve Novick opened the session with a challenge to the panelists, questioning whether in light of recent events, President Bush was as much of a threat to civil liberties as we believed, whether President Obama has decisively turned the page on Bush’s abuses, or whether Obama was just as bad as Bush. While there was not unanimous agreement, there was a consensus that President Bush had fundamentally undermined civil liberties and that President Obama had made some substantial progress in curbing the abuses of the Bush regime, including a commitment to close down Guantanamo, reversing reactionary executive orders, ceasing to refer to the “War on Terror” and a committing to respect the due process rights of detainees. At the same time, all agreed that President Obama had not gone far enough and was pursuing a number of troubling Bush policies, including:
- Maintaining the “State Secrets Doctrine” as a shield against transparency and litigation to hold perpetrators of civil liberties abuses responsible;
- Maintaining the right to use preventive detention without adequate court oversight;
- Maintaining the right to use warrantless wiretaps, in contravention of the Foreign Intelligence Surveillance Act (FISA); and
- Reserving for a select “few” detainees (both at Guantanamo and elsewhere) prosecution through military commissions or secret courts without adequate due process.
Inadequate Protection for the Innocent
ACLU cooperating attorney Steve Wilker reminded the audience that American history is littered with sorry degradations of our civil liberties and that the responsibility for this lies with both political parties.
Jo Ann Bowman spoke about the parallels between racial profiling in Portland (against Blacks and Hispanics) and the preventive detention of Muslims and non-whites on sometimes bogus and other flimsy or unreasonable grounds. She critiqued both Oregon’s new Attorney General John Kroger and Bureau of Labor and Industries chief Brad Avakian for refusing to consider a class action suit to challenge racial profiling.
NLG attorney Tom Nelson spoke about a number of travesties of justice in which innocent citizens and organizations were wrongfully arrested, subject to secret rendition, and, in some cases, tortured, including one of his clients who still awaits justice in the courts. For Nelson, the critical question is whether we will ever find out what was done in our names under the Bush regime. Until we find that out, he said, we are still at risk.
Seeking Due Process for Terrorist Suspects
Steve Wax spoke of his personal experience representing an innocent Guantanamo detainee and the representation of other innocent detainees by the Federal Public Defender’s Office.Â He noted that Guantanamo was just the tip of the iceberg, that there were more than 500 detainees across the world (including at the Bagram Air Base in Iraq) languishing, many of them innocent, and many of them held on exaggerated charges or without any charge, and with little or no prospect of a due process trial. Wax challenged the Obama administration’s opposition to releasing evidence explaining why detainees are held by the government, even to the detainees or their attorneys. Wax forcefully challenged the claim that American courts are unable to handle alleged terrorists. He noted a number of cases in which the courts have adjudicated persons accused of terrorism, mass murder, war crimes, etc. Wax was open to using military commissions for a select few individuals accused of war crimes, but only under the due process afforded by the Uniform Code of Justice, rather than the commissions set up by Congress (both Democrat and Republican), which still hid evidence from the accused.
NLG attorney Ashlee Albies spoke at length about her work on the Al Haramain case, where a Muslim charity is suing the government for secret and warrantless wiretaps. Despite vociferous attempts by the government to kick the case out of the courts, the judiciary has kept the case alive while at the same time keeping secret the document discovered by the charity apparently demonstrating the government’s illegal wiretaps.
ACLU Executive Director Dave Fidanque noted how the ACLU discovered, through courageous whistle blowers and the Freedom of Information Act, prolific evidence (available online at the ACLU website) demonstrating civil liberties abuses, including torture and secret rendition. He criticized both the Bush and Obama administrations and those members of Congress who thwarted attempts to establish transparency and accountability. He called for a special prosecutor and independent inquiry to look into the origins of the policies (some of which began under Democratic administrations) to explore the justifications for such policies so that we can avoid abuses in the future.
All of the speakers agreed that we are still at risk and we will remain at risk until the history of recent civil liberties abuses is brought to light and the architects of those abuses are held accountable. The need for vigilance has not been reduced by the election of a somewhat more progressive President. Φ
Mark Kramer works with the National Lawyers Guild. You can reach him at firstname.lastname@example.org.
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