DETROIT –(ACLU) The American Civil Liberties Union and the ACLU of Michigan today urged a federal appeals court to uphold a lower court ruling declaring the government’s warrantless National Security Agency wiretapping program illegal, calling the government’s assertion of unchecked spying powers "radical" and a threat to American democracy.

"Executive spying on Americans without a warrant is precisely the kind of illegal practice that the founders of our country designed the Constitution to prevent," said Ann Beeson, Associate Legal Director of the ACLU. "In a democracy, no one is above the law, not even the President."

At issue is a program, secretly authorized by President Bush in 2001, directing the National Security Agency to listen in on the phone calls and emails of people within the United States, including U.S. citizens, without a warrant.

On August 17, in the first and only ruling by a federal court to strike down the controversial program, the United States District Court for the Eastern District of Michigan ruled that the warrantless wiretapping program is illegal.

"There are no hereditary Kings in America and no powers not created by the Constitution. So all ‘inherent powers’ must derive from that Constitution," Judge Anna Diggs Taylor said in a widely quoted opinion.

Judge Taylor found that the program violated the Foreign Intelligence Surveillance Act (FISA), which was passed in the 1970s to curb executive abuses that included spying on civil rights leaders and Members of Congress. FISA requires a warrant before the executive can wiretap Americans. Judge Taylor also found that the program violated the separation of powers because it circumvented Congress’s power to regulate presidential authority, and that it violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. The government appealed the decision to the Sixth Circuit Court of Appeals, which granted a stay of the decision pending appeal.

According to legal papers filed by the ACLU today, "The government seeks not simply to dismiss this case, but to prevent any court from reviewing the legality of the Program … perhaps most disturbingly, the government’s sweeping theory of executive power would allow the President to violate any law passed by Congress. This theory presents a profound threat to our democratic system. The government complains that the district court overreached, but it is the government’s theory that is radical, not the district court’s rejection of it."

The ACLU also today challenged the district court’s dismissal of claims that the government is illegally data-mining the phone and email records of Americans, arguing that dismissing the claims on state secrets grounds was premature in that the claims could be decided based on publicly available facts.

The ACLU filed its lawsuit in January on behalf of a group of prominent journalists, scholars, attorneys and national nonprofit organizations who frequently communicate by phone and e-mail with people in the Middle East. The ruling found that the NSA program is disrupting the plaintiffs' ability to talk with sources, locate witnesses, conduct scholarship and engage in advocacy.

The case, ACLU v. NSA, was filed in U.S. District Court for the Eastern District of Michigan. Attorneys in the case are Beeson, Jameel Jaffer and Melissa Goodman of the national ACLU, and Kary Moss and Michael Steinberg of the ACLU of Michigan.

In Washington, the ACLU is urging Congress to live up to its constitutional responsibility to provide checks and balances to the executive and judicial branches, de-fund the illegal spying program and undertake a thorough investigation into the NSA warrantless eavesdropping. Between its return on November 13 and its adjournment, the 109th Congress may vote on key issues such as a potential $15 billion give-away to telephone companies which would immunize companies from any liability for participating in the NSA spying program. President Bush has also made clear his intention to push through legislation legitimizing the illegal NSA spying program during the "lame-duck" Congressional session.

Spc. James P. Barker, one of four soldiers accused of raping an Iraqi girl last spring and killing her and her family pleaded guilty Wednesday. Spc. Barker agreed to the plea to avoid the death penalty and will testify against the other three soldiers.

In a series of alleged attacks on civilians, the murders in the village of Mahmoudiya, which is about 20 miles south of Baghdad, were among the worst of abuses by the military in Iraq.

Of the other three soldiers implicated, the alleged leader former Army private Steve Green, 21, pleaded not guilty last week to charges including murder and sexual assault. Green was discharged from the army before the allegations were known and it is still unclear if the prosecutors will pursue the death penalty for Green as he was discharged for a “personality disorder.”  The two remaining soldiers implicated still face the death penalty if convicted.

The details of the alleged murders and rape accuse the four of raping the girl and burning her body, and killing the girl’s family (her parents and a 6 year old sister) at a nearby checkpoint.

Breaking Legal News.com
Robin Sheen
Staff Writer

US Citizen, Mohammad Munaf was denied in his request for a temporary injunction to postpone his transfer to Iraqi custody where he is facing the death penalty for his participation in the 2005 kidnapping and detention of three Romanian journalists for 55 days. Munaf argued that as a US Citizen, the Iraqi trial violated his rights to due process and protection. As an American  Munaf argued that he was never confronted with the evidence brought against him and was prevented from presenting his own evidence. However, the US Supreme Court denied his application for a injunction because Munaf was "in the the custody of a multinational entity and not the United States."

Munaf does not face an immediate transfer as the Court's decision is still pending reconsideration. In October the US District Court for the District of Columbia denied an emergency motion declaration to prevent the US military from surrendering Munaf to Iraqi officials to face the death penalty, saying the court lacked jurisdiction to hear Munaf's appeal. Munaf has been in the custody of the Mulit-National Force- Iraq since last year.

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Brandon Smith
Staff Writer

WASHINGTON – USDOJ) The Sun Ace Shipping Company, based in Seoul, South Korea, was sentenced today to pay a $400,000 penalty, a $100,000 community service payment to the National Fish and Wildlife Program, Delaware Estuary Grants Program, which will be used to protect and restore the natural resources of the Delaware Estuary and its watershed, and to a three-year term of probation during which its vessels will be banned from U.S. ports and waters. On Sept. 6, 2006, Sun Ace Shipping pleaded guilty to a one-count information for violating the Act to Prevent Pollution from Ships (APPS) in relation to the operation of a bulk carrier vessel the M/V Sun New. A trial date for the Chief Engineer and Second Engineer, who were charged in a three-count indictment with conspiracy, obstruction of justice, and a violation of the APPS, has been set for Dec. 5, 2006, in front of Judge Susan D. Wigenton in Newark, N.J.

Sun Ace Shipping was charged with knowingly failing to maintain an accurate Oil Record Book that fully recorded the disposal of oil residue and bilge into the ocean and then falsifying records to conceal illegal discharges.

Engine room operations on board large oceangoing vessels such as the M/V Sun New generate large amounts of waste oil. International and U.S. law prohibit the discharge of waste oil without treatment by an Oily Water Separator. The law also requires that all overboard discharges be recorded in an Oil Record Book, a required log which is regularly inspected by the Coast Guard.

In addition, the government has petitioned the court for an award under the APPS to be granted to three crew members of the M/V Sun New who reported the use of the bypass hoses and the illegal dumping to the Seamen’s Church Institute of Philadelphia and South New Jersey on Jan. 2, 2006. This report and the subsequent assistance of these three crew men were key to the government's investigation and prosecution of the case. APPS gives the Court the discretion to award up to half of the criminal penalty to the whistleblowers, and the Justice Department has requested that the court divide the $200,000 equally among the three crew men who reported the dumping. The Department’s petition is still under review by the court.

This case was investigated by marine inspectors from Coast Guard Sector Delaware Bay and special agents from the Coast Guard Investigative Service and the Environmental Protection Agency Criminal Investigation Division. The case is being prosecuted by Trial Attorney David Kehoe in the Environmental Crimes Section in the Justice Department’s Environment and Natural Resources Division.

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Robin Sheen
Staff Writer

The Malawi Human Rights Commission is seeking permission from Malawi's High Court to be a party to the assessment of Madonna's parental fitness in her attempt to adopt David Banda, a Malawi toddler, given up for adoption by his still living father. Says Justin Dzonzi, attorney and chairman of the coalition known as the Human Rights Consultative Committee, told journalists after a 1 1/2-hour closed hearing Monday, "Basically what we are asking the court is that we want to be joined as a party to the assessment because we have a lot of legal issues we want to raise." Dzonzi's committee has petitioned the court to make sure no Malawian laws were broken and to allow the committee to help assess Madonna's maternal fitness.

Though the coalition and child advocacy group claims that it is not their intention to stop the adoption, only to ensure that Malawi law is respected and upheld, it has been noted by Donzi that Malawi's current adoption laws are archaic and irregular, routinely allowing foreigners to adopt. "Over 1,000 Malawian children are being adopted illegally every year and yet the laws says international adoption are not permissible," said Dzonzi. "There is no system to monitor how these adopted children are being treated, wherever they are."

Madonna's Malawian lawyer Alan Chinula told journalists as far as Madonna was concerned, all Malawian adoption laws were followed. "If the laws are archaic it's not the Ritchie's fault," Chinula said. Madonna has said she met all the country's requirements. Chinula said apart from complying with Malawian laws, the Ritchie's were complying with adoption laws in Britain.

A High Court judge granted Madonna and her British filmmaker husband, Guy Ritchie, interim custody of David on Oct. 12, pending a decision on permanent adoption after an 18-to-24 months assessment period. Though Malawi regulations stipulate that the assessment period be spent in Malawi, Madonna was allowed to take the boy to her London home.

"We want to use the Madonna case to make sure that the rights of children in Malawi are effectively protected," said Dzonzi.

Said Penstone Kilembe, director of child welfare development, "We will work with child welfare officers in the county where the Ritchies are staying,"

David Banda's father, has said the human rights group's lawsuit threatens his son's future, but child advocacy groups have said the lack of clarity in Malawi when it comes to foreign adoptions could be exploited by child traffickers or pedophiles. Banda placed his son in the orphanage a month after his 28 year old wife died from complications during child birth. Yohane Banda expressed his concern, "As David's father I consented. I see no reason why I should change my mind now," said the 32-year-old farmer. He appealed to the advocacy group to "to back off and leave my son alone."

The singer discovered David at the orphanage after visiting to promote Raising Malawi - a charity she set up to assist orphans in the southern African country where largely due to AIDS, an estimated 2 million children have lost one or both parents and hundreds are adopted by foreigners every year.

Malawi's Department of Gender and Child Welfare Development said a team of Malawian child welfare officers would fly to London to make the first assessment in May 2007 and one more assessment will be done by December 2007 before a report is filed on the suitability of the Ritchies as adoptive parents. The couple has two other children, Lourdes, 10, and Rocco, six.

Malawi's High Court said Monday it will rule in one week's time whether a coalition of Malawian human rights and child advocacy groups should help decide whether pop star Madonna is fit to adopt a motherless Malawian toddler.

Justice Andrew Nyirenda adjourned the case after hearing arguments from the 67-member coalition that includes the state-run Malawi Human Rights Commission. His ruling was likely to have far-reaching consequences.

The judge said he would rule Nov. 20 on whether to admit the coalition as a party in the adoption proceedings.

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Sheryl Jones
Staff Writer