home > resources > archive ACLU Reporter: Winter 2004 PDF version >> What’s Inside Director’s “Message” ACLU More Relevant Than Ever Legal Update Ways to Support the ACLU of Utah Opinion: American Discrimination Staff Profiles Director’s “Message” by Dani Eyer In November, voters sent a mixed “message” to elected officials; every year the Utah State Legislature sends a “message” to the citizens of Utah; and the current federal administration wants to send a “message” to terrorists. What are these messages and are their dispatchers aware that the messages have a very real impact on real people? • Sending a message to terrorists has resulted in thousands of innocent people being questioned, detained, and deported, based not upon individual suspicion or probable cause, but solely upon national origin, ethnicity, or simply being in the wrong place at the wrong time. • Defining marriage as between only a man and a woman—for the third time in Utah law and as a state constitutional amendment—elected officials say they are not discriminatory because the “legal incidents’ of marriage can be easily obtained. In other words, gay people can obtain the protections of marriage one-by-one, piece-by-piece, but not easily, not all at once, and sorry if this adversely affects your “family.” We are “pro-family” but not, umm, when it comes to your family. • Utah continues to pass impermissible laws limiting reproductive choice regardless of previous court rulings and millions of dollars wasted in legal battles. In the last legislative session, a ban on a common abortion procedure was passed, mirroring a federal ban that has now been struck down in all three federal courts where it has been challenged. And a law prohibiting public funding of abortion had to be altered within weeks of taking effect because its application resulted in a so-called “unintended consequence,” when an actual woman who sought to terminate her pregnancy because of grave fetal defects could not do so at a local hospital. • Utahns try to send a “tough on crime” message and, as a result, we must build even more facilities for the incarcerated, most of whom are in prison for non-violent drug-related offenses. Meanwhile, we cannot afford the cost of a bi-partisan drug reform program that in the long run is cost-efficient and would actually lower recidivism. • In Utah there are many laws still on the books that have been declared by courts to be unconstitutional. In a brief submitted to the U.S. Supreme Court, our Attorney General argued that it was important to keep unenforceable laws on the books for their “significant pedagogical value.” What exactly does an illegal law teach us? That the promulgators wish there were such a law, even if they’ve been declared contrary to constitution? What kind of notice does the public receive from an unenforceable law? My message is: let’s continue to work toward an America we can honor. Detentions not based upon ethnicity or national origin, but instead upon actual individualized suspicion and due process of the law; equal protection of the laws for everyone; personal choice in matters of deeply held beliefs; and laws on books that are not unconstitutional or discriminatory. Return to top of page ACLU More Relevant Than Ever Now is a particularly challenging time for civil libertarians —the results of last month’s elections mean four more years of a presidential administration that has shown little more than hostility toward fundamental American values like free speech, due process, privacy, and equal protection of the laws. Even with the recent resignation of Attorney General John Ashcroft—a lead promoter of the PATRIOT Act and other policies that seek to grant extraordinary new law enforcement powers to federal and local governments—organizations like the ACLU will be more important than ever. Over the past three years, the national ACLU and its state affiliates have creatively and persistently worked to ensure that the president and his administration not go unchallenged in their efforts to use the war against terrorism as an excuse for weakening our constitutional protections. As civil libertarians gear up for a second round of the Bush administration, a review of the ACLU’s work related to the government’s response to 9/11 might provide us with the perspective and optimism we need to continue fighting for a country that is both safe and free. Working on all fronts From appeals before the secret FISA court to a United Nations’ working group, from direct challenges to unconstitutional policies to Freedom of Information Act (FOIA) requests, the ACLU has been advocating for a fair and just America in a variety of forums. Because the government has remained incredibly secretive about how it is conducting its terrorist investigations, our legal work has been uniquely challenging. While not comprehensive, the following list describes some of our post-9/11 civil liberties work, much of which has been a coalition effort. The ACLU has: • Challenged the federal government’s refusal to disclose basic information about immigrants who are being indefinitely detained on non-criminal immigration violations. • Sought information about government surveillance of college professors and students. • Challenged the constitutionality of Section 215 of the PATRIOT Act, a controversial measure that makes it easier for federal law enforcement agencies to engage in domestic spying by giving them the power to subpoena third party record holders—businesses, persons, or other entities that compile personal information—for “any tangible thing” they believe will aid a terror-related investigation. Under this statute, law enforcement can obtain customer records, library check-out lists, medical records, etc., without an individual target or probable cause. • Challenged a Department of Justice (DOJ) policy that grants city and county law enforcement unprecedented powers to enforce non-criminal immigration laws. •Filed the first nationwide class-action challenge to the government’s “no-fly” list. Compiled by the Transportation Security Administration (TSA), the list is distributed to all airlines with instructions to stop or conduct extra searches of people suspected of being threats to aviation. TSA has not disclosed the basis for one’s inclusion on the list or the process for removing one’s name from the list of suspects. • Filed FOIA requests in multiple states, including Utah, to find out information about the MATRIX, a controversial database that combines confidential information from local and state agencies. • Filed a friend-of-the-court brief before a secret appeals court, urging it to reject the DOJ’s attempts to broadly expand powers to spy on U.S. citizens. The lawsuit was the first of its kind. • Advocated on behalf of a Fresno, California peace group that had been infiltrated by a member of the Fresno County Sheriff’s Department’s anti-terrorism team, despite the fact that there was no specific suspicion of criminal activity. • Challenged a government policy that closed the immigration hearings of people detained after 9/11 to media representatives and other members of the public, including relatives of the detainees. In April 2004, the Department of Homeland Security released new guidelines that rejected the DOJ’s blanket ban and stated that the closing of immigration hearings to the press and public would only be done on a case-by-case basis. • Filed a FOIA lawsuit, the first of its kind, challenging the Department of Defense and other government agencies with illegally withholding records concerning the abuse of detainees in United States military custody in foreign countries. • Represented Arab Americans who were discriminated against by airline companies. • Challenged the citizenship requirement for continued employment that was imposed on airport screeners at the Los Angeles and San Francisco International Airports. • Submitted its first-ever official complaint to the United Nations Working Group on Arbitrary Detention. The submission was on behalf of thirteen immigrants imprisoned and deported from the country after 9/11. • Filed more than a dozen lawsuits challenging the government’s unconstitutional restrictions on the free speech rights of anti-war protesters and other demonstrators. • Filed a friend-of-the-court brief on behalf of a Jordanian-born college student who, for eighty-three days, was held on a material witness warrant, often shackled and in solitary confinement, without being charged with a crime. • Filed a racial profiling lawsuit against the TSA on behalf of a Florida physician who was detained for hours by federal air marshals because they did not “like the way he looked.” As a result of the lawsuit, the TSA substantially altered its policies and training procedures to prevent its marshals from subjecting passengers to arrests solely because of their race or ethnicity. Important court decisions The work of the ACLU and others has resulted in some important court decisions limiting the power of the federal government. Three decisions, all from this year, are of particular note: Doe and ACLU v. Ashcroft Stating that “democracy abhors undue secrecy,” on September 29, a New York federal court struck down Section 505 of the PATRIOT Act on grounds that it violates free speech rights under the First Amendment as well as the right to be free from unreasonable searches under the Fourth Amendment. Section 505 allows the government to issue “National Security Letters’ to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. In addition, Section 505 prohibits recipients of these letters from ever disclosing the fact that information was sought—a gag order that the court found to be an “unconstitutional prior restraint” on speech. Filed under seal to avoid penalties for violating the statute, the ACLU and its New York affiliate labored under a broad gag order under which the government sought at every turn to censor even the most innocuous, non-sensitive information about the case. The September ruling, which is the first to strike down any of the vast new surveillance powers authorized by the PATRIOT Act, enjoins the government from issuing National Security Letters or from enforcing the gag provision. The judge stayed his ruling for ninety days in order to give the government an opportunity to raise objections in the district court or in the Second Circuit Court of Appeals. Rasul v. Bush and Al Odah v. United States On June 28, the U.S. Supreme Court ruled six-to-three that prisoners seized as potential terrorists and held for more than two years at the United States’ military prison camp in Guantánamo Bay, Cuba may challenge their captivity in American courts. A federal appeals court in Washington, D.C. had previously ruled that the Guantánamo camps were part of the “sovereign territory of Cuba” and thus outside the jurisdiction of U.S. laws. The ACLU was part of a broad-based coalition that filed a friend-of-the-court brief supporting an appeal of the federal court’s decision in two related lawsuits filed last year by relatives of sixteen Guantánamo detainees who argued that their continued detention without any legal process violated the government’s constitutional and treaty obligations. The ACLU and the other authors of the brief took no position as to what process is due the prisoners, but argued that the Due Process Clause and the Geneva Conventions require the U.S. courts to ensure some kind of process. As a result of the Supreme Court’s decision, the Guantánamo detainees will now have the right to press their claim of unlawful detention in the lower courts. Hamdi v. Rumsfeld Also on June 28, the U.S. Supreme Court ruled eight-to-one that Yaser Hamdi, an American citizen held as an uncharged “enemy combatant,” is entitled to a court hearing in which he could challenge his detention. President Bush designated Hamdi as an enemy combatant after he was captured with Taliban fighters in Afghanistan in late 2001. For more than two years, Hamdi was held in military brigs, first in Virginia and then in South Carolina, without charges or a trial and, until recently, without access to legal counsel. The government’s position was that it could confine Hamdi in this condition indefinitely so long as it presented “some evidence,” not subject to cross-examination or rebuttal, supporting the enemy combatant designation. In a friend-of-the-court brief, the ACLU argued that arbitrary executive detention has been seen as inconsistent with the rule of law since at least the Magna Carta. Hamdi has since been released and flown to Saudi Arabia. He was never charged with a crime. Fairness and justice for all The ACLU will be as active during the Bush administration’s second term as it has been in the first, working to ensure that our country remains dedicated to its founding principles of fairness and justice for all. Return to top of page Legal Update Girl is able to participate in Spanish Fork wrestling tournament For the second time in less than a year, the American Civil Liberties Union of Utah resolved a dispute involving a girl’s right to participate in a city-sponsored wrestling tournament. On November 18, the ACLU of Utah received written confirmation from Spanish Fork City attorney S. Junior Baker that Candace Workman, a 14-year-old middle school student from Vernal, Utah, will be able to wrestle in the city’s December 4 tournament. In late October, Candace and her family contacted the ACLU of Utah after learning that she would not be allowed to register in one of the tournament’s boys’ divisions, despite the fact that there were no other registrants in the newly created girls’ division. Candace, who has wrestled competitively for seven years and has successfully participated in the Spanish Fork tournament in the past, could not understand why she was in effect being excluded from the event. The ACLU of Utah wrote Spanish Fork City on behalf of Candace, noting that the city’s actions were in violation of the Constitution’s equal protection clause and possibly of Title IX, the federal statute prohibiting sex discrimination by any educational institution receiving federal funds. The Spanish Fork City Council considered the issue at its November 16 meeting and decided to rescind its discriminatory policy. When told of the council’s decision, Candace was excited that she would once again have the opportunity to compete in the Spanish Fork tournament. “I want to go down there and show them I’m just as good as the boys,” she told The Salt Lake Tribune in a November 19 article. “It was wrong of them to try and exclude me like that.” A two-time national championship winner, Candace has trained with the women’s Olympic wrestling team and hopes to be a member of the United States Olympic team in the future. Almost a year ago, the ACLU of Utah received a similar complaint when it was contacted by two Utah County families whose daughters, ages six and eight, were prohibited from participating in a private invitational wrestling tournament held by the Orem Grapplers. Tournament organizers invited city-sponsored wrestling teams from Orem, Provo, Santaquin, Springville, Spanish Fork, and Payson, yet when the teams registered for the event, the girl wrestlers were told they could not compete. Draper repeals unconstitutional campaign sign ordinance In a settlement agreement filed in federal court on October 22, Draper City agreed to repeal an ordinance that the American Civil Liberties Union of Utah claimed unconstitutionally restricted residents’ political speech by limiting the posting of political signs on private property. As part of the agreement, the Draper City attorney wrote to city attorneys in all other cities in Salt Lake County suggesting they review and repeal similar ordinances. The city also agreed to pay the plaintiffs’ attorney fees and court costs. The settlement agreement ended a federal lawsuit brought by the ACLU of Utah and cooperating civil rights attorney Brian Barnard on behalf Robert Latham, Heather Rice, and political candidate Ken Larsen, who wanted to display political signs in Draper. Latham and Rice wished to display campaign signs in yards more than thirty days prior to Election Day, an action expressly prohibited by the Draper ordinance unless the signs were left over from a primary election. Larsen, running for governor under the People’s Choice Party, was prohibited from posting signs before October 3, whereas under Draper’s ordinance, signs supporting the Republican candidate were allowed any time after May 22, thirty days prior to the Republican primary election. In a complaint filed on September 14 in federal court, the ACLU of Utah and Barnard argued that by placing durational time limits on political campaign signs, the ordinance prohibited Draper residents from engaging in otherwise lawful and protected political expression. The suit also claimed a discriminatory classification of candidates based on participation in a primary election. Two days after the suit was filed, Draper City agreed not to enforce the ordinance before Election Day on November 2. For a complete list of our cases, legal advocacy efforts, and legal briefs, please see see our website. Return to top of page Ways to Support the ACLU of Utah Gift Donations Give a “Gift of Freedom.” We now have attractively designed gift cards available for those who would like to give donations or memberships to the ACLU of Utah in the name of a family member or friend. Just send us a check for the total donation and a list of names and how much to put on each card and we will send you the completed cards that you can then give to your list. Memberships start at $20 and are not tax-deductible. Donations can be in any amount and are tax-deductible. For more information, please call Reinard Knutsen at (801) 521-9862 ext. 101 or email aclu@acluutah.org. Gifts of Stock By giving appreciated securities held for one year or more, you can deduct the full market value of your stock, saving income taxes and capital gains taxes on the appreciation. For more information about gifts of stock, contact Carol Gnade at (801) 598-7899 or by email at carolg46@msn.com. In addition, you can contact Mark Quayle from Quayle Assets Management who is the broker who oversees our Schwab Account (SK2180-9009.) Mark can be reached at (801) 533-9581. Return to top of page The ACLU of Utah Activist Want up-to-date information about the ACLU of Utah? Subscribe to our monthly email newsletter. You will receive a short monthly update about ACLU of Utah events, issues, and actions. Your email address will be kept confidential. To subscribe to the email newsletter please visit our web site. Return to top of page Opinion: American Discrimination by John Ditzler When President Bush proposed a constitutional amendment to ban gay marriage last February, I felt personally injured. I was appalled to see a president of the United States leading the movement to build discrimination right into the constitution. I had been raised in a very conservative house where I was brought up to revere the constitution and the President as defenders of democracy and justice. I also come from a strong military family with a rich heritage of military service in just about every war all the way back to the Revolutionary. I felt ashamed as the freedom they fought and died for in behalf of all Americans, was now being stripped away from gay Americans. My ancestor veterans deserve better than this, I thought. And I could not reconcile it with the Christian beliefs my mother had instilled in me from childhood. “Jesus preached unconditional love for everyone,” she would tell me, “and commanded us to judge no one.” Discriminating against gays seemed blatantly unchristian to me. I wondered why I was so personally hurt by President Bush’s remarks, and by the support he had among so many of my fellow Americans. After all I wasn’t gay. I was still going be able to fall in love some day and get married. It was no skin off my back. As I was thinking about these things I wandered past a picture of Abraham Lincoln in my living room. I realized, you don’t have to be black to care about slavery and civil rights. You don’t have to be a woman to believe they were entitled to the right to vote. And you don’t have to be gay to stand up against bigotry and discrimination directed at homosexuals. Like all minorities, homosexuals are incumbent upon citizens of the majority with conscience to lend their voice of support and stand beside them in the fight for respect and human dignity that no group should ever have to fight for in the first place. I agree with a wise man who once said any great civilization being judged by future generations will be judged by the level of compassion it displayed towards its most powerless citizens. I hope when future generations look back on America they will remember us for a great many things. I think that they will. But I also think future generations, perhaps as soon as our own children’s generation, will look back on us with incredulity and condemnation when they can’t believe just a few decades prior their parents were even debating this topic. Just as we today cannot believe that in our own parent’s and grandparent’s generation people argued blacks could not marry whites. The great socio-political civil rights battles of the 1960’s and 70’s are not over. I believe in our time homosexuals are fighting their own historic civil rights battle. The Emmitt Tills of yesterday are the Matthew Shepards of today. No one should ever have to fear for their life or their safety just because they are different. Yet gays have too often been the targets of vicious physical violence. No minority should be made to feel subhuman. Yet the level to which we demean homosexuals today is almost unfathomable. Perhaps the only thing more deplorable is the lack of recognition in most people’s minds that it’s even being done. The vilification of gays is so ingrained in our minds that we can’t even trust them with the raising and nurturing of children, they are not good enough to fight and die in the service of the country that they love but that never loved them back, and are not even allowed to sanctify the one trait that perhaps makes us all human—their love. John Ditzler is a junior at Utah Valley State College where he is the Opinions Editor of the College Times and the Vice President and co-founder of the Gender Studies Club. Return to top of page Staff Profiles Executive Director Dani Eyer was a high school social studies teacher, lawyer, and independent bookseller before joining the ACLU of Utah. She began her affiliation with the organization as a legal research volunteer during the week of 9/11, and a year later, became the ACLU of Utah’s sixth Executive Director. She enjoys telemark skiing, mountain biking, reading, traveling with her extended family, and talking with her interesting kids and husband. Part-time Development Director Carol Gnade began volunteering at the ACLU of Utah in 1991 after she moved to Salt Lake City from Madison, Wisconsin. She became the affiliate’s Executive Director less than one year later and held that position for more than ten years. During her tenure at the ACLU of Utah, six grandkids joined her life. Carol has a lifelong interest in nonprofit organizations, civil liberties, and people. Part-time Office Manager Reinard Knutsen grew up in Malaysia, where his family lived in a religious commune. After barely graduating high school and pursuing an early career in restaurant management, Reinard became active in homeless rights, social justice, peace, and anti-nuclear movements during the Reagan era. He has been arrested more than thirty times, largely because of his involvement in protests against nuclear testing in Nevada. He came to the ACLU in December 2002 after fifteen years of working for small environmental nonprofits. One year ago, he and his wife had a baby girl. Part-time Special Projects Coordinator Stephanie Peterson started working as an ACLU of Utah volunteer during the 2003 legislative session and joined the organization as a paid staff member in August 2003. She has a diverse employment history: she spent five years managing the Bennion Center’s Service Learning Project, was the Director of Community Affairs for Mayor Palmer DePaulis, and in the 1980s, developed Neighborhood Housing Services programs around the country. She’s a travel fanatic and spends most summers with her husband in Greece. Staff Attorney Margaret Plane graduated from the University of Utah Law School in 2002 and then spent one year as a clerk for Judge Pamela Greenwood in the Utah Court of Appeals. She went to law school after doing post-graduate work in Germany and receiving a master’s degree in philosophy. She appreciates the ACLU’s principled positions and loves living so close to great skiing. She spends her free time enjoying the mountains, often with her husband and dog. Part-time Communications Director Cori Sutherland joined the ACLU of Utah in January 1997. She worked at the organization for six years, during which time she lived out the dream of many former teenage misfits by being part of a lawsuit against her high school. In January 2003, she took off to live in Spain for eight months. After a brief hiatus from the ACLU of Utah, she is very happy to be back at the organization she has grown to love. Return to top of page

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