{news} Fw: An Open Letter to the Senate (re: Mukasey)-info on authors etc.

Sun Oct 28 22:41:23 EDT 2007

This is a follow-up to my previous post (which is at the bottom of this post).
If anyone wants the Power Point attachment, contact me.
--Ed
----- Original Message ----- 
From: Don Marks 
To: edubrule 
Sent: Sunday, October 28, 2007 9:44 PM
Subject: Re: An Open Letter to the Senate (re: Mukasey)

Hi Ed.

Thank you for responding. I am state coordinator for Connecticut Progressive Democrats which is an arm of PDA. Also, I am on the CT Bill of Rights Defense Committee along with other members of the group and even some Greens. Actually I was invited to the CT Bill of Rights Defense Committee by David Bedell who is a Green in my area. David was there before me and remains in CT-BoRDC.

I was primary author of the letter and Erik Gunther (a Libertarian was secondary author and especially helped with editing). I am more or less a socialist myself but on civil liberties, Erik and I have great agreement. I have nothing but respect for Greens and the key values and would not mind sharing my email address. The open letter itself is not meant to be from any particular organizations as I felt it was important not to make it be about an advertisement of any group, just sheer "concerned citizens" which is what we truly are anyway. 

Some of the anti-USA PATRIOT Act work I have helped with previously (with the CT Progressive Democrats group) has included putting together a petition for a state resolution:
http://www.petitionspot.com/petitions/protexct
Creating a powerpoint presentation--which was shown to Diane Farrell, a Dem running against Chris Shays in my district. I have attached that presentation as a file, if interested.

And we also set up a conference at Quinnipiac University on the USA PATRIOT Act. The recorder of the video mistakenly attributed the conference to DFA instead of PDA, but it did not matter to us and anyway there were some DFA members there. Who cares, really. Here is a link to the video:
http://video.google.com/videoplay?docid=8981818899552019917

Some of the other work our group has done has been analyses of congressional voting records and a presentation on universal health care.

As far as the particular issue of Judge Mukasey, it did not seem like contacting Senator Lieberman would do any good since his mind seems already made up. On the other hand, I did contact Senator Dodd. Here is a listing of all places where I have contacted editors or others with this open letter:
Senators:
_________
Russ Feingold (voted against Pat Act)
Joe Biden (Presidential candidate, member of JudComm)
Chris Dodd (Presidential candidate, trying to remake his image)
Pat Leahy (Chair Senate JudComm, plus VT is anti-Pat Act)
Bernie Sanders (member of Jud Comm, plus VT is anti-Pat Act)
Barak Obama (Presidential candidate)
Barbara Boxer (seems pro-liberty, plus CA is anti-Pat Act)
Sheldon Whitehouse (member of Jud Comm)
Ted Kennedy (member of JudComm, is pro-liberty)
Jon Tester (Montana which had anti-Pat Act legislation)
Ken Salazar (Colorado which had anti-Pat Act legislation)
Olympia Snowe (seems pro-liberty, Maine had anti-Pat Act leg)

Media and Online Writing:
________________________
Wall Street Journal
washington post
hartford courant
new haven advocate
stamford advocate
CT post
ny Times
The Nation
Z Mag
CounterPunch
Democratic Underground

Organizations:
______________
Progressive Democrats of America
Bill of Rights Defense Committee
American Library Association
Connecticut Libertarian Party
ACLU
CCLU
Connecticut Green Party
Electronic Frontier Foundation
Citizens for a Legitimate Government
National Lawyers' Guild

I did not think to pay an advertiser for posting the open letter. However, I will look into that as soon as possible. I hope that my sending the letter out will inspire others to spread it around as well.

Thank you for the idea to advertise it and again thank you for your response.

Don

edubrule <edubrule at sbcglobal.net> wrote:
  Hi Don Marks:  I'm Ed DuBrule, a former secretary of the Connecticut Green Party.  I respond to e-mail sent to the Connecticut Green Party website via greens at ctgreens.org.  I have posted the below on the Connecticut Green Party's News listserve.  I did not include your e-mail address, however, in what I posted, for privacy reasons (I changed the link Don Marks to just the text entry "[Don Marks]".)  I wrote that I have your e-mail address and that I would forward an e-mail to you from anyone on the listserve who wished to communicate with you.
       Would you like me to re-post the below on our News listserve WITH contact information for your group?  (Does your group have a website or blog?  What has your group done, and what does it plan to do?  I mean, I presume you mailed your letter to our two senators, but do you plan to meet with them or their staffs, to put an ad in newspapers, etc. etc.).  I would feel I could make one additional post on this topic to our listserve, providing such contact/planning information.
       I am not authorized in any sense to speak for the Green Party.  However just today I heard something on National Public Radio about how Mukasey has apparently refused to state his position on the legality of waterboarding (the torture technique).  I suspect nearly all Greens would condemn the use of waterboarding.  I have not read your open letter in any detail, but it appears to me to be a well-researched, important, and TIMELY piece of work, which is why I posted your e-mail on the listserve today without having resolved the issue of whether you want contact info for your group posted on the listserve.
       You may contact me further at either edubrule at sbcglobal.net or greens at ctgreens.org.  Thank you for your work on this issue.
  --Ed
    ----- Original Message ----- 
    From: Don Marks 
    To: greens at ctgreens.org 
    Sent: Saturday, October 27, 2007 5:59 PM
    Subject: An Open Letter to the Senate (re: Mukasey)

    Please review and help to publicize, if in favor. Thank you.

    An Open Letter to the United States Senate

    Michael Mukasey, Questionable Assessments of Executive Power

    Received from concerned citizens of Connecticut

    Dear Senators,

    It is critical that the US Attorney General understand and uphold the Constitution in order to be effective. We are concerned that Michael B. Mukasey, the current nominee for US Attorney General, exhibits legally unsound positions regarding Constitutional Law. Upon reviewing the nominee's credentials, we discovered an op-ed written in the Wall Street Journal by the nominee in 2004 which defended the USA PATRIOT Act.[1] As you are aware, multiple sections of the USA PATRIOT Act have since been declared unconstitutional in court.[2][3][4][5] Because of the nominee's defense of the Act, we have analyzed statements in the article, and propose nine follow-up issues for the nominee that we request you to review and consider discussing with the nominee.

    (1) Judge Mukasey's 2004 Wall Street Journal article was entitled "Before attacking the Patriot Act, try reading it" and so it must be inferred that Judge Mukasey had read it. The USA PATRIOT Act has since been declared unconstitutional several times.[6] Does Judge Mukasey now agree with other judges who have declared multiple sections of the Act unconstitutional or does Judge Mukasey agree with President Bush's declaration that the USA PATRIOT Act was "Constitutional?"[7] Did Judge Mukasey not realize that sections of the Act were unconstitutional upon his reading of the Act?

    (2) In what ways will the aforementioned judicial assessments affect his putative function as Attorney General? Specifically, which, if any, unconstitutional sections of the Act does the Judge conclude should not be followed? If President Bush implements executive procedures which have potentially unconstitutional implications, will the nominee recognize this?

    (3) Judge Mukasey ridiculed the American Library Association for passing a resolution condemning the USA PATRIOT Act's section 215. Does Judge Mukasey now believe the American Library Association has a valid point that section 215 could be interpreted as applicable to library records? To what type of records does section 215 apply and would it have been Constitutional for the Attorney General and his agents to seize library records under section 215? 

    (4) Part of Judge Mukasey's condemnation of the American Library Association included implicitly associating the organization with communism by condemning them for not condemning Fidel Castro. The Judge continued in his criticism of the organization by stating that the USA PATRIOT Act "requires that the Justice Department report to Congress every six months on subpoenas issued under it. At last report, there have been no such subpoenas issued to libraries. Indeed, there have been no such subpoenas, period." How did the Judge conclude that there were no such subpoenas when there is no independent mechanism to ensure the Justice Department follows the requirement to properly report subpoenas issued under the USA PATRIOT Act? Is the Judge concerned in any way about potential jeopardy to the separation of powers and checks and balances posed by the possibility of undetectable failures to report such subpoenas to Congress? USA PATRIOT Act implementation of National Security Letters has been declared unconstitutional in Doe v. Ashcroft and Doe v. Gonzales. Does the Judge agree with these judgments? Is the Judge aware that in one case, a Connecticut librarian, George Christian, received National Security Letters effectively gagging him from mentioning the receipt of the letters or anything pertaining to the search and seizure? [8] Can the Judge conceive of a circumstance where as Attorney General he could issue a National Security Letter to a librarian? 

    (5) Judge Mukasey criticized cities such as Berkley, CA and Amherst, MA which at the time had created non-binding resolutions against the Act that called it "unconstitutional." Today, however, eight states (Alaska, California, Colorado, Hawaii, Idaho, Maine, Montana, and Vermont) thus far have created non-binding resolutions against the USA PATRIOT Act.[9] Does Judge Mukasey still feel that citizens should not be politically active against the USA PATRIOT Act even though it has been declared unconstitutional four times in federal courts? Will the non-binding resolutions be considered in any way by federal agents working for the Attorney General in the aforementioned states?

    (6) Judge Mukasey showed trust in the Bush Administration by writing that rumors "began right after Sept. 11, when some claimed that FBI agents were rounding up Muslim Arabs wholesale and holding them incommunicado. That accusation seems dubious on its face when you consider that the FBI has only about 12,000 agents world-wide." However, it was subsequently revealed that there were extraordinary renditions and President Bush in a press release admitted that there are secret detention centers.[10] According to President Bush, the CIA has been involved in that effort, but we do not know to what extent the FBI, DHS or the DoD have also been involved. Does Judge Mukasey concede at this time that there are in fact secret detention centers where Muslim Arabs are being held "incommunicado?" Does Judge Mukasey believe that there have been extraordinary renditions? If the President or other agencies requested the nominee's assistance as AG with such prisoners or soon-to-be prisoners, would he comply? 

    (7) In a 2006 court case of el-Masri v. Tenet, federal court Judge Ellis dismissed el-Masri's complaints of extraordinary rendition on the grounds of state secrets privilege.[11] In Judge Ellis's decision, he wrote that the "state secrets privilege is an evidentiary privilege derived from the President's constitutional authority over the conduct of this country's diplomatic and military affairs and therefore belongs exclusively to the Executive Branch." However, the Constitution cannot empower the president to engage in unconstitutional acts. Does Judge Mukasey agree that unconstitutional and/or illegal aspects of programs implemented by the Executive Branch might not be protected by the state secrets privilege? If the nominee encounters illegal programs and is asked to take part in these hypothetical programs, what will be his course of action? If a Congressional committee asks about such programs will the nominee comply with a request for information? Will the nominee comply if the investigation is non-public and classified? Does the nominee believe that FISA would require him to give that information?

    (8) On March 9th, 2006, President Bush signed a USA PATRIOT Act reauthorization (HR 3199).[12] In his signing statement, he wrote in part, "The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."[13] Does Judge Mukasey agree that the unitary executive branch can declare exceptions in a signing statement to the passed law?  Does Judge Mukasey generally agree with unitary executive theory and allow for signing statements to potentially reinterpret passed law? If so, how will this impact his role as Attorney General?

    (9) Judge Mukasey wrote in his article that the government's "most basic responsibility under the Constitution" is "to provide for the common defense [and] promote the general Welfare." However, when the Executive branch uses "defense" as a premise to curtail civil liberties, is the defense of the citizen's rights not contradicted? Does Judge Mukasey agree that it is therefore the responsibility of the Executive branch to provide for the common defense while ensuring civil liberties? Does the nominee believe that the President has the authority to override all civil liberties of the individual by alleging defense of the nation? What civil liberties are inviolate in the face of the President's desire to claim provision of the common defense and why? 

    Judge Mukasey's philosophy on executive authority should be questioned due to his writings in defense of an unconstitutional law. In his writings, we observe what might be ridicule, overweening trust in the Executive branch, and failure to look critically at policy. All of these failures may be due to partisanship. His judgment in the Padilla case that a US citizen could be held without trial and could be declared an enemy combatant seem to support this interpretation of his writings.[14] Finally, due to the new law enacted giving tremendous trust to the position of Attorney General and entrusting the Attorney General with reporting to Congress, the nominee's writings and rulings should seriously be scrutinized.[15] 

    We concerned citizens urge Senators to examine closely the nominee's philosophies on executive powers and civil liberties. At this juncture, it seems imperative to do so.

    Sincerely,
    Concerned citizens of Connecticut

    References

    [1] Mukasey, Michael. "The Spirit of Liberty." Wall Street Journal. 10 May 2004.
    [2] Doe v. Aschroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004)
    [3] Humanitarian Law Project v. Ashcroft, Case No.: CV 03-6107 ABC (MCx)
    http://fl1.findlaw.com/news.findlaw.com/cnn/docs/terrorism/hlpash12304ord.pdf
    [4] Doe v. Gonzales, 04 Civ. 2614 (VM) (S.D.N.Y. 2007)
    http://msl1.mit.edu/furdlog/docs/usgov/2007-09-06_nsldecision.pdf
    [5] Brandon Mayfield v. United States of America, Civil No. 04-1427-AA
    http://cbs5.com/reference/local_file_269193524
    [6] ibid.
    [7] Associated Press. "President urges renewal of Patriot Act" Washington/Politics. USA Today. 19 Apr 2004.
    http://www.usatoday.com/news/washington/2004-04-17-bush-terrorism_x.htm
    [8] Alison Leigh Cowan. "Four Librarians Finally Break Silence in Records Case". N.Y. / Region. The New York Times. 31 May 2006.
    http://www.nytimes.com/2006/05/31/nyregion/31library.html?ex=1306728000&en=9f197630a8f4a0a9&ei=5088&partner=rssnyt&emc=rss
    [9] Bill of Rights Defense Committee. 18 Oct 2007.
    http://www.bordc.org/
    [10] White House. Press Releases. "President Discusses Creation of Military Commissions to Try Suspected Terrorists". 06 Sep 2006.
    http://www.whitehouse.gov/news/releases/2006/09/20060906-3.html
    [11] el-Masri v. Tenet. Case 1:05-cv-01417-TSE-TRJ. 12 May 2006.
    http://www.aclu.org/pdfs/safefree/elmasri_order_granting_motion_dismiss_051206.pdf
    [12] Public Law No: 109-177. 09 Mar 2006.
    http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ177.109.pdf
    [13] John T. Woolley and Gerhard Peters, The American Presidency Project [online]. Santa Barbara, CA: University of California (hosted), Gerhard Peters (database).
    http://www.presidency.ucsb.edu/ws/index.php?pid=65326
    [14] Padilla v. Bush, 02 Civ. 4445 (MBM).
    http://www.nysd.uscourts.gov/rulings/02CV04445.pdf
    [15] Public Law No: 110-55. 05 Aug 2007.
    http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_public_laws&docid=f:publ055.110.pdf

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