Prop 8 in Court, CIA Destroys Tapes, Accountability and more‏

California’s Prop 8 Goes to Court
by Matt Coles, Director, LGBT Project

	This link will take you to Youtube.com. >>Watch: ACLU Executive Director Anthony Romero documents the debate for and against same-sex marriage outside the California Supreme Court.

Late last week, the California Supreme Court heard oral arguments in Strauss v. Horton, the case brought by the ACLU, Lambda Legal, the National Center for Lesbian Rights urging the Court to invalidate Proposition 8 -- the ballot initiative that stripped gay couples of the right to marry.

Our lawsuit says that Proposition 8 is an improper revision rather than an amendment of the California Constitution because it eliminated a basic right, but just for one minority -- a minority which has been a target for discrimination again and again (the very title of the initiative was "Eliminates the right to marry for same-sex couples").

This case is not just about marriage or gay people. If a simple majority of the voters can take this core right away from gay people, it can take any right away from any other group as well (Kenneth Starr who argued for the supporters of Prop 8 acknowledged this in court last week.)

If Prop. 8 is upheld, then Californians could, for example, vote to take religious freedom away from Muslims, or free speech rights away from women, or the right to vote away from Chinese-Americans. This case is important for every Californian: it’s about whether the limits we’ve set on the power of the majority have meaning.

The California courts have a solemn responsibility to enforce the state constitution to protect the rights of all people, regardless of popular opinion. We hope the court will recognize that it is not just the rights of lesbian and gay people, but the rights of all Californians that it must protect by striking down Proposition 8.

The court is expected to rule within 90 days.

>> Check out the Tell 3 Campaign -- an effort to move people on LGBT issues by having personal one-on-one conversations. The ACLU launched the Tell 3 Campaign with Join the Impact, one of the grassroots groups that started as a response to Proposition 8.

CIA Acknowledges Destruction of 92 Interrogation Tapes

Early last week, as part of an ACLU lawsuit, the CIA acknowledged it destroyed 92 tapes recording harsh interrogations of detainees held in U.S. custody abroad. The sheer number of videotapes destroyed indicates that the CIA engaged in a concerted effort to hide evidence of illegal activity.

The CIA’s systematic tape destruction also provides further confirmation that the agency violated a 2004 court order -- in the ACLU’s Freedom of Information Act (FOIA) lawsuit -- to produce or identify all materials related to the interrogation of prisoners overseas. Under that order, the CIA should have acknowledged the existence of the tapes and either disclosed them or explained how they could be lawfully withheld. The CIA did neither of those things. And that’s why the ACLU filed a motion over a year ago to hold the agency in contempt for violating the court’s order. That motion is still pending.

The tapes aren’t the only visual evidence of detainee abuse. We are also trying to unearth photographs depicting abuse at military facilities in Iraq and Afghanistan through the same lawsuit. And all the unanswered questions about who developed the torture policies, why they were developed and how they were implemented underscore how much we still don’t know.

>> Learn more about the ACLU's contempt motion and related legal documents.

It's Time for Accountability

The ACLU is urging the establishment of a Select Committee in the House of Representatives to conduct a congressional review of executive branch detention and surveillance abuses during the Bush administration. Such a review of ongoing national security policies would be much like the select committee chaired by Senator Frank Church in the 1970s.

The ACLU believes that the legendary Church Committee, formed by Congress to investigate the egregious abuses of executive power of the 1970s, is a good model for a Select Committee to investigate Bush administration policies. In nine months, the Church Committee interviewed 800 individuals and conducted 250 executive and 21 public hearings. Its report had far reaching impact and resulted in the creation of the permanent Select Committee on Intelligence and the passage of the Foreign Intelligence Surveillance Act, among other reforms. A new Select Committee could have similar results, ensuring that future administrations would follow the law and respect individual rights, regardless of the party in power.

“Americans’ faith in government has been deeply shaken,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “Congress’ complacent approach to national security oversight, especially during the early years of the Bush administration, has done our country irreparable harm and legitimized illegal and counter-productive intelligence programs. It’s time for Congress to step up and assert its role of oversight.”

Additionally, the ACLU is also encouraging the Department of Justice to appoint a special prosecutor to conduct its own investigation into detention issues and, if warranted by the facts, to bring any criminal charges.

>>Read Caroline Fredrickson's testimony on the Truth Commission in front of the Senate Judiciary Committee.


Supreme Court Vacates Lower Court Decision That Gave President Indefinite Detention Power

	>>Learn more: ACLU Attorney John Hafetz discusses the implications of the al-Marri case.

Last week, the U.S. Supreme Court vacated a lower court decision giving the president the extraordinary power to seize and indefinitely detain U.S. citizens or residents without charge or trial.

The case was brought by the ACLU on behalf of Ali Saleh Kahlah al-Marri, who, after being held for almost six years in military detention, was finally indicted in federal court last month and charged with two counts of material support for terrorism.

In July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a fractured decision that the president had legal authority to imprison al-Marri indefinitely without charge. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution—and the country." After al-Marri was criminally charged, the Supreme Court vacated that decision and dismissed the case as moot.

"While we would have preferred a Supreme Court ruling that U.S. citizens and lawful residents detained in the U.S. cannot be held in military custody as 'enemy combatants' without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower court decision that had upheld the Bush administration's authority to designate al-Marri as an 'enemy combatant,'“ said Janathan Hafetz, staff attorney with the ACLU National Security Project and lead counsel in al-Marri’s case. “Congress never granted the president that authority and the Constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration's actions in this case."

>> Learn more about Al-Marri v. Spagone.


ACLU Marks 40th Anniversary of Landmark Student Free Speech Decision

	>>Watch a video about one of the latest cases in which Tinker v. Des Moines was relied upon to uphold students' right to free speech.

February 24th, 2009, marked the anniversary of the landmark free speech decision, Tinker v. Des Moines Independent School District. Cases across the country still rely on this ruling to uphold students' right to free speech, even as school officials routinely ignore the rule of law and attempt illegal censorship, especially against lesbian, gay, bisexual, and transgender students.

Tinker v. Des Moines, decided by the U.S. Supreme Court on February 24, 1969, came about after Mary Beth Tinker, her brother, and another student in Des Moines, Iowa decided to wear black armbands with peace symbols on them to school in protest of the Vietnam War and in support of the Christmas Truce called for by Robert Kennedy. After hearing about the students' plans, the school board announced it was banning wearing armbands to school.

Represented by the ACLU of Iowa, the students took their case all the way to the Supreme Court and won. In the court's 7-2 majority opinion, Justice Abe Fortas wrote, "It can hardly be argued that either students or teachers shed their constitutional rights [...] at the schoolhouse gate."

"When I was a 13-year-old student in Des Moines, Iowa, I certainly wasn't thinking that my small action would help students have a voice 40 years later,” said Mary Beth Tinker, one of the plaintiffs in the historic Supreme Court case. “But some of us had a strong opinion about peace, and we didn't think it was right for the schools to stop us from expressing it. Young people, like everyone, need to be aware of their rights and speak up when those rights are violated. I'm glad our case still helps students express their First Amendment rights."

>>Listen to Mary Beth Tinker discuss what motivated her to stand up for student free speech in 1965 and how she has continued to fight for social justice throughout her life.

>>Learn about other cases Tinker has influenced in the last 40 years.