Two victories for civil liberties: more to come?

News Analysis

As 2006 winds down, two court victories were racked up for civil liberties against the Bush administration’s authoritarian policies. More such triumphs are likely.

In Los Angeles, Ninth District Federal Judge Audrey Collins gave a partial victory to civil liberties defenders in a case brought by the Humanitarian Law Project, a nonprofit organization active internationally in aiding the peaceful resolution of conflicts.

The attorneys for the HLP, Georgetown University law professor David Cole and Nancy Chang of the Center for Constitutional Rights, asked the court to declare unconstitutional an executive order (EO 13224) issued by President Bush a few days after the Sept. 11, 2001, terrorist attacks. In that order, Bush had given himself the power to declare organizations “Specially Designated Global Terrorists,” and to bar any U.S. person or organization from dealing or “associating” with them.

The plaintiffs claimed that the self-granting of such open-ended power was unconstitutional. To illustrate: the Humanitarian Law Project wanted to provide information to the Kurdish Workers’ Party, PKK, on how to use peaceful methods to reach its goals. It also wanted to provide direct humanitarian aid in Sri Lanka after last year’s tsunami, but the area where it wished to do this is controlled by the Tamil Tigers organization, with which the aid would have to be coordinated.

The U.S. government considers both the PKK and the Tamil Tigers terrorist groups. By “associating” with them in any way, the Humanitarian Law Project would risk being itself designated as a “Specially Designated Terrorist Entity,” in which case its workers would face huge fines and long jail terms.

Judge Collins, who had previously ruled similar sections of the USA Patriot Act unconstitutional, granted some but not all of the plaintiffs’ requests. First, she recognized the HLP’s standing to bring suit because the language of the executive order might exercise an unconstitutional prior constraint on things they might want to do. Second, she ruled unconstitutional the manner which President Bush decides which organizations and individuals are “Specially Designated Global Terrorists,” because it appears to be completely up to the president’s whim.

The judge also granted the plaintiffs’ request to quash as unconstitutional the part of the executive order allowing people to be classified as terrorists and prosecuted because of being “otherwise associated with” designated terrorist organizations, because it could criminalize activities that are protected as free speech and association under the First Amendment.

The judge was careful to limit the scope of the ruling to lessen its precedent-setting value, and she did not overturn more detailed restrictions on specific humanitarian aid activity, including rights training, proposed by the plaintiffs. However, this is still considered a victory, and attorney David Cole plans to appeal the items that were decided in the government’s favor.

In another case, Portland, Ore., attorney Brandon Mayfield negotiated a settlement of $2 million and an apology in a suit against the federal government, which had spied on and arrested him after the Madrid train bombings in the spring of 2005.

Mayfield, a Muslim, was wrongly incriminated by a false fingerprint reading. The Bush administration ignored warnings from Spanish authorities that the reading was incorrect, and blundered on arrogantly. The settlement lets Mayfield pursue a further lawsuit seeking to overturn sections of the Patriot Act giving the government the unchecked powers of surveillance that made the incident possible.

There are signs the Bush administration will face even greater problems on the civil liberties front in the new Congress. Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.) will chair their respective Judiciary committees. Both have said they will examine violations of civil liberties, including the recently passed military commissions legislation, spying by NSA and other government agencies, and incidents such as the Mayfield case.

If major changes occur, much of the credit can go to the grassroots movement to defend constitutional rights, whose tactic of working for passage of city, county and state resolutions on civil liberties have kept these issues on the front burner.