Sen. Patrick Leahy. Photo: WDCpix

Republicans and Democrats have been sniping about the USA Patriot Act ever since Congress passed the law in the wake of the September 11 terrorist attacks to try to forestall another such disaster. But now, it’s the Democrats who are sniping among themselves about it. While some lawmakers, like Sens. Russ Feingold and Dick Durbin, have insisted that Congress must amend the law to rein in the FBI’s powers to snoop into innocent private activities, other Democratic lawmakers, such as Senators Dianne Feinstein and Patrick Leahy, have resisted significant reforms.

Three provisions of the law will expire by the end of this year if they’re not renewed, and have been the subject of recent hearings. Those are: the “roving wiretap” provision, which allows the government to tap  phones and other electronic devices used by any person suspected of involvement in terrorism; section 215 of the Patriot Act, which allows the government to obtain a broad range of business records and other tangible things, including library records, subscription information and credit card statements, so long as the FBI shows these are “relevant” to some terrorist investigation; and the so-called “lone wolf” provision, which allows the government to wiretap any suspect believed to be involved in terrorism, even if that person has no connection to any known terrorist organization.

The other controversial provisions include the FBI’s authority to issue National Security Letters, or NSLs, which seek a broad range of information from businesses about their customers but do not require a warrant or any other court order; and the “sneak and peak law”, which allows the FBI to search a suspect’s home without informing the target that they’ve been searched.

Civil liberties advocates insist these provisions are all too broad as currently written, and allow the FBI to abuse its authority to conduct wide-scale “data mining” of the general population, searching innocent people’s records and personal information while the government tries to root out wrongdoing. Because in many cases it’s not clear how the government is using its broad authority and who gets access to the information, privacy advocates worry that the government could retain such information and use it in ways unconnected to terrorism investigations.

A 2007 report from the FBI Inspector General concluded that the FBI had issued almost 150,000 NSL requests between 2003 and 2005, often collecting information about people not even suspected of having done anything illegal. The Inspector General also found that the FBI’s record-keeping was so poor that it often didn’t know how many letters it has issued, and requested information it wasn’t entitled to receive.

Advocates worry that many sections of the Patriot Act allow similar abuses. “The concern is that the changes the Patriot Act made were such that so long as the FBI agent certifies that the information they’re seeking is relevant to a terror investigation, they can get it,” explained Farhana Khera, Executive Director of Muslim Advocates, which recently sued the government for more information about FBI surveillance practices. “We argue that’s way too broad. It should be tied to a suspected terrorist or terrorist activity.” The FBI’s current authority “has unleashed concerns about the FBI getting access to data on literally millions and millions of Americans,” she said.

Advocates for Muslim-Americans also worry that the laws are being used to target and harass law-abiding American muslims, landing them on no-fly lists, preventing them from getting hired for federal jobs, or deterring them from contributing to legal charitable organizations that assist needy Muslims in other countries.

To address these problems, in mid-September, Feingold and Durbin, both of whom have long expressed concerns about the Patriot Act, introduced the JUSTICE Act (Judiciously Using Surveillance Tools In Counterterrorism Efforts), which would renew section 215 and the roving wiretap provisions, but would require the government to provide more justification for using them, and to specify more clearly the targets of their investigation.

The bill would also rein in the FBI’s authority to issue National Security Letters by requiring the government to specify what it’s looking for and how the information is relevant to an ongoing national security investigation. Meanwhile, it would repeal the part of the FISA Amendments Act that immunized telecommunications companies such as AT&T that assisted the government in its warrantless wiretapping program.

But a week later, to the dismay of many civil libertarians, Sen. Leahy introduced the USA Patriot and Sunset Extension Act. Cosponsored by Sens. Benjamin Cardin (D-Md.) and Ted Kaufman (D-Del.), it would extend the expiring provisions with only minor modifications, and would leave the “lone wolf” and “roving wiretap” provisions intact. It also would not include any reforms to the FISA Amendments Act.

By the time of the Senate markup session last week, Sen. Leahy, the Judiciary Committee Chairman, had produced a substitute version of his bill, co-sponsored by Sen. Dianne Feinstein (D-Calif.), who chairs the Intelligence subcommittee. This bill became the basis for the markup, effectively destroying the chances for adoption of the JUSTICE bill, although pieces of it could still be introduced as amendments.

Civil liberties advocates quickly expressed their disappointment. The American Civil Liberties Union called it “a watered-down version” of the original Leahy bill. Kevin Bankston of Electronic Frontier Foundation similarly described it as having “even fewer PATRIOT reforms than the original Leahy bill.”  Although Feingold and Durbin offered amendments, the only one that succeeded was one amending the “sneak and peak” provision. The amendment would require the government to notify the subject of a search within seven days, instead of 30, as the law stands now. An amendment offered by Senator Durbin to narrow the broad Section 215 powers, which now allows the government to gain access to “any tangible thing,” failed.

Even Sen. Al Franken, who at the recent Senate Judiciary Committee hearing took the time to read the Fourth Amendment to the U.S. Constitution to Justice Department official David Kris, voted to support the Leahy-Feinstein substitute bill, and against the Durbin and Feingold amendments.

Feingold has repeatedly expressed concern that the government is not providing enough information for the public to know how the Patriot Act is being used.

“I remain concerned that critical information about the implementation of the Patriot Act remains classified,” said Feingold at a recent hearing, noting that he believes that much of that classified information “would have a significant impact on the debate.” Although the Justice Department recently acknowledged that the “lone wolf” authority has never been used, said Feingold, “there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know.”

Some representatives in the House, where they’re also debating changes to the Patriot Act and will eventually put forward their own bill, feel the same way. Earlier this week, Reps. John Conyers (D-Mich.), Jerrold Nadler (D-NY), and Bobby Scott (D-Va.) wrote a letter to Attorney General Eric Holder asking for more information about how Section 215 orders have been used to help inform the House debate. (Eventually, the House and Senate bills to amend the Patriot Act will have to be reconciled before they go to the President for his signature.)

Although Feinstein has cited classified information as her reason for supporting the re-authorization of section 215 as is, Feingold disagrees. The Feingold amendment would have limited what kinds of records could be obtained under section 215, and required that the government show that those records are related either to terrorist activities, or to people in contact with a terrorist.

Interestingly, notes Michelle Richardson, legislative consultant to the ACLU, during the Patriot Act reauthorization process in 2005, “Democrats and Republicans supported amendments to section 215 to limit it to terrorist activities,” she said. “But now they don’t.”

The problem with reauthorizing many of these provisions, says Richardson, is that “we don’t know what information they’re getting, how much, and who has access,” she said. “But we believe that anytime you get the information, it’s a violation. These are principles over 200 years old in this country, that government should not be getting this information about you unless they have reason to believe you’ve done something wrong.”

That principle is increasingly being discarded. Attorney General Guidelines issued at the end of the Bush administration, for example, eliminated the requirement that the FBI must have reason to believe the target of an investigation has committed a crime before initiating that investigation.

“Who knows if the information comes back to haunt you,” said Richardson. “If you apply for federal student aid, for a federal job, or end up on a no-fly list. We don’t know who has access to the information, and where it’s supposed to go. That’s not how things are supposed to work in this country.”

On Thursday, the markup session will continue in the Senate Judiciary Committee, as specifics on the bill get hammered out. Much of the critical information necessary to determine how it’s working, though, will remain secret.

Minnesota Teen Challenge's headquarters in Minneapolis' Elliot Park neighborhood. Photo: Andy Birkey, Minnesota Independent

A former crack user says she kicked her addiction because she found Jesus at Minnesota Teen Challenge. A man says that God healed his liver after a prayer service at the Christian drug treatment facility. While its clients sing its praises — some claiming it saved their lives — should such an overtly religious program be receiving taxpayer funding? According to state records, MNTC has gotten more than $2 million from the state of Minnesota in order to run its faith-based chemical dependency treatment centers.

The overtly evangelical nature of the program raises questions about the constitutionality of the large amount of state money flowing into the program. Teen Challenge has received $2,388,947 in state funding since 2007, mainly from the Minnesota Department of Human Services, according to the state’s new Transparency and Accountability Project website.

Teen Challenge has been in the spotlight recently because of concerns about the separation of church and state — and, specifically, the program’s receipt of federal funding. Americans United for the Separation of Church and State sent a letter to U.S. Attorney General Eric Holder in June requesting the department halt federal grants to Teen Challenge.

“In providing these grants, the U.S. Department of Justice is unconstitutionally aiding religion,” the complaint read.

But while much attention has been paid to the program’s federal funding, its receipt of state funds has largely flown under the radar.

Chuck Samuelson of the Minnesota chapter of the American Civil Liberties Union said the program has the appearance of running afoul of the constitutional principle of church-state separation. “Everything they talk about is about God in relation to the program,” he said. “That’s a lot of [state] money.”

Samuelson said ACLU-MN has been looking into the drug treatment center, but it’s difficult to prove whether Teen Challenge is misusing state dollars.

“We don’t have data that is supportable in a court of law,” he said. “What we don’t have is anybody with direct knowledge of the program to come forward.”

Eric Vagle, Teen Challenge’s communications director, acknowledges the religious nature of the treatment centers but says state money is kept separate from evangelical programming.

“The program services that are funded through the government are non-religious in nature, and while we do offer religious programming, it is not funded by government dollars and clients voluntarily choose to participate,” he said.

“It is important to note that a number of studies suggest that spirituality can play an important part of the recovery process for many people, and therefore most treatment programs have some sort of spirituality component to them.”

Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State, sees the program differently.

“Teen Challenge is a program that should not be receiving state money,” he said. “It requires people who participate to convert to Christianity.”

Luchenitser says that the constitutionality of the program depends on the payment process through the state. He noted that court decisions have made voucher payments — state money given directly to the client to choose a treatment service — legal. Minnesota doesn’t use the voucher system and instead reimburses counties that pay Teen Challenge in a fee-for-service system. The state mechanism for that system is the Consolidated Chemical Dependency Treatment Fund (CCDTF).

State authorities conducted an analysis of CCDTF (pdf) in 2006, which described the payment structure:

The payment system is on a fee-for-service basis, but counties, within state-wide guidelines, determine which clients need treatment, and which provider will serve the client. Two thirds of all CCDTF admissions were referred by government social service and criminal justice agencies.

The report acknowledged that the county authorities who choose the treatment centers to provide services aren’t always looking at federal standards for treatment programs. Therefore, faith-based programs, such as Teen Challenge, don’t get carefully vetted.

County monitoring does not assure that certain Federal requirements regarding spending practices are met, and whether performance is adequately monitored. With the CCDTF accounting for 45% of the treatment market share, the county contract can be a powerful tool for change regarding providers that have not yet linked the most modern science to their program design and operation.

Because Teen Challenge is licensed by the state — and has been since 2001 — and is listed as a service provider for Hennepin County, the treatment center will continue to receive state funds in the future.

God is Teen Challenge’s treatment strategy

While MNTC’s Vagle says state funds don’t go to evangelical programming, most of the language about the program — coming from its managers, Web site and clients — references the transformational power of Jesus Christ, as opposed to chemical health and behavior therapy. A glowing review of the program by the Alexandria Echo Press tells of Carlos, Minn., resident Nikol Foss, who sought treatment for crack addiction. Her probation officer recommended Minnesota Teen Challenge, but she rejected the suggestion, saying she wanted nothing to do with a Christian drug program. She eventually relented and signed up.

“I was going to be tough,” she told the paper. “I wasn’t going to let Jesus into my life, but I’d take the treatment.”

But it didn’t work out that way. “I decided that if I accepted Jesus, it was going to be better, so I accepted Jesus,” she said. “I was happy immediately.”

Pastor Rich Scherber, executive director of the program, used similar language when he took Minnesota Teen Challenge’s message of healing to the Minnesota State Fair this summer. During a live show there by Christian talk radio station KKMS, he spoke of the “perfect storm” last fall when the economic recession reduced donations and a scandal involving Tom Petters wiped out a foundation that supported a large chunk of Teen Challenge’s programs.

“God has helped us. I mean, we are operating in the black, not in the red,” he said. “That’s what Teen Challenge is all about. God is working miracles at Teen Challenge.”

Scherber said that Christian teaching is one of two keys to Teen Challenge’s success: “Number one, the Christian approach,” he told KKMS listeners. “That’s by far… The Bible says that any man that be in praise, he’s a new creation, old things are passed away, behold all things are become new.” The other key Scherber says is the fact that the residential treatment lasts longer than the typical 28-day program.

Scherber brought a number of current and former clients on the KKMS show to tell their stories of transformation through Jesus Christ.

Jim, who had a history of abusing alcohol, heroin and pain killers, said, “We have healing [prayer] services at Teen Challenge and God healed my liver.”

“He came into Teen Challenge and God healed his liver,” said Scherber. “What the doctors have said is that he is a walking miracle.”

The KKMS host chimed in to say, “God has blessed the socks off this guy!”

Heidi, a current client at Teen Challenge, also claimed that finding God at Teen Challenge helped her kick a cocaine and heroin addiction. “I was at a low point… and ended up going to a secular drug treatment program,” she said. “When I came out I started using again. It didn’t do what Teen Challenge did for me.”

She continued, “I know now that it’s for [sic] this time, this time that I’m at Teen Challenge. I’m learning about God, I’m learning about Jesus.”

“I know that I have victory in Christ. Thanks to Teen Challenge I’ve been learning about God,” she said.

Virtually every testimonial on the program’s Web site by current and former clients of Teen Challenge say they kicked their addictions because of God, and a number say they converted to Christianity while in the program. For example, “Craig,” a current Teen Challenge client, said, “When the [District Attorney] recommended Teen Challenge, he told the judge he was tired of sending me to jail, because I came out worse every time. But Teen Challenge isn’t just a drug program. It’s a discipleship program. Because of Christ, I have new heart… and I don’t ever want to hurt people again.”

Directors and staff members aren’t shy about calling the program a ministry. Kirk Noonan, news editor of the Pentecostal Evangel, the official publication of the Assemblies of God, spent a weekend at Minnesota Teen Challenge in November 2007 and described the religious curriculum of the program (PDF).

In the television room we gather for the nightly devotion, which is part pep talk, part town hall meeting. With Bibles in hand we hear a devotion. This is perhaps one of the most important routines the residents are developing. “Staying in the Word will keep you grounded,” a staff member tells us. “Having a daily devotion is critical to your success both in here and after you graduate.”

Noonan writes that every Sunday, Teen Challenge clients sing in the Minnesota Teen Challenge choir. They are required to, since “every resident is a member.”

“The choir’s chief purpose is to share the ministry of Teen Challenge and gain support for the program,” Scherber told Noonan. “When we go out and sing, people see good fruit and they want to invest in this ministry. Nearly 85 percent of our budget is raised by the choir.”

The choir’s music is overtly Christian with a style that “varies greatly, ranging from contemporary gospel songs such as, ‘This is How it Feels to Be Free,’ to worshipful hymns like, ‘I Was Made to Worship You.’”

“We license faith-based organizations all the time”

The state did not respond to the Minnesota Independent’s requests for details about how taxpayer money is being spent by Teen Challenge and how the state vets and licenses chemical dependency programs.

But, in 2004, state officials talked to the Star Tribune for its coverage of President Bush’s faith-based initiatives and his push for charitable-choice initiatives, including Teen Challenge.

“We license faith-based organizations all the time,” Donald Eubanks, director of chemical health for the state Department of Human Services at the time, told the paper. “We do not dictate treatment philosophy at all. We make sure that when people choose that form of treatment that they are aware of what they are getting.”

“Mr. Speaker, the problem is that this displays a trend and a tendency that we are seeing where groups like the ACLU strike at one school district after another, one public display of religious expression after another, until they have reached their ultimate goal, which is to purge the marketplace of ideas of any semblance of religious expression,” Bachmann said.

Rep. Randy Forbes, R-Va., brought a letter forward in the House signed by 60 members of the Congressional Prayer Caucus, including Bachmann, supporting Pace High School principal Frank Lay and athletic director Robert Freeman.

If such squelching of religious speech comes to pass, Bachmann said in her floor speech (video below), “we will have turned the First Amendment on its head, and the Founders in turn will be rolling in their graves. I thank Mr. Forbes for bringing this to the attention of this body, and I share his shock, I share his dismay that criminal charges were brought on behalf of … Mr. Lay and Mr. Freeman for the simple act of engaging in prayer.”

Except it wasn’t such a simple act. The school was already in hot water because employees were openly evangelizing to the students.

“The defendants all admitted wrongdoing,” said Daniel Mach of the ACLU, which had filed a complaint against the school. “For example, the Pace High School teachers handbook asks teachers to ‘embrace every opportunity to inculcate, by precept and example, the practice of every Christian virtue.’ ”

“There were some of the most egregious First Amendment violations you’ll see,” ACLU spokeman Will Matthews, told USA Today.

The case was settled out of court in January when the school agreed to a court order barring religious worship at school-sponsored events. But just days after the settlement, the ACLU charges, Lay asked for a prayer over food at a school event during school hours, allegedly in violation that agreement. The school says no students were present. The ACLU says they were.

If the court rules against the school employees, they face up to 6 months in jail and a $5,000 fine.

Video of Bachmann’s statement:

Full text of Bachmann’s statement:

Mrs. BACHMANN. Mr. Speaker, prayer has been an important part of our country since the founding of our great Nation, and attempts to take prayer away from the American people are attempts to take away the essential freedoms that have been guaranteed to every American since the beginning of our United States Constitution.

I thank Mr. Forbes for bringing this to the attention of this body, and I share his shock, I share his dismay that criminal charges were brought on behalf of Mrs. Winkler, Mr. Lay and Mr. Freeman for the simple act of engaging in prayer.

As the court explained in Santa Fe, not all religious speech that occurs in public schools or at school-sponsored events is speech attributable to government. There were no students present at either event.

Additionally, the court held the proposition that schools do not endorse everything they fail to sensor is not complicated. The Supreme Court held that “there is a crucial difference between government speech endorsing religion, which the establishment clause forbids, and private speech endorsing religion, which the free speech and free exercise clauses protect.”

In no way were these individuals trying to associate the school with prayer. They were offering the prayer, one at a privately funded event, the other at an event with private donors. The court held that “private religious speech, far from being a First Amendment orphan, is as fully protected under the free speech clause as secular private expression.”

Teachers and administrators, when they act in their official capacity, may not encourage or discourage or participate in prayer with students. However, teachers may take part in religious activities before or after school or during lunch since the context makes clear they are not acting in an official capacity. Although schools may not direct or endorse religious activities, students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

Mr. Speaker, the problem is that this displays a trend and a tendency that we are seeing where groups like the ACLU strike at one school district after another, one public display of religious expression after another, until they have reached their ultimate goal, which is to purge the marketplace of ideas of any semblance of religious expression. At that point, Mr. Speaker, we will have turned the First Amendment on its head, and the Founders in turn will be rolling in their graves.

At the end of this last legislative session, Pawlenty demanded his Democrat-controlled legislature balance the budget or he would. Not only had Democrats passed budget bills that left a $3 billion gap in income and expenditures, but they wanted to increase taxes on their fellow Minnesotans on everything from alcohol and music downloads, including income taxes for every bracket.Pawlenty outwitted his big-spending legislators and exercised an obscure law on the books that enabled him to remove any state spending for which funding doesn’t exist. In Pawlenty’s last major achievement as governor, he balanced the budget and finally removed Minnesota from the dreaded list of top ten most highly-taxed states. Talk about going out with a bang.

Unallotment — Pawlenty’s unilateral slashing of expenses without input of the full legislature — also gets the guv praise south of the border. Quoted in the Iowa alt-weekly CityView, Linn County Republican Party chair Tim Palmer considers Pawlenty a darkhorse: “He’s a neighboring governor who just pulled off what many call a ‘budget miracle’ in his home state and is leaving on a high note.”

But here in Minnesota, some are less enamored of unallotment. At least two groups are considering court challenges of Pawlenty’s authority to make the sweeping cuts. The state chapter of the ACLU is considering a suit over the elimination of Minnesota’s political contribution refund program and the scrapping of the General Assistance Medical program for poor, single adults. And, as Paul Demko reported here last month, Common Cause will definitely be suing over unallotment. In a filing in the next few weeks, the nonprofit plans to question Pawlenty’s constitutional authority to use the unallotment powers so broadly and challenge whether he can defund programs that are enshrined in state law.

Lawyers for TIZA, Islamic Relief, and the education commissioner argued that ACLU-MN did not have the standing to sue, but U.S. District Judge Donovan Frank sided with ACLU-MN.

“[T]he challenged funding here is to a single charter school which, by the admission of Defendants, is attended by choice largely by Somali students who practice the Islamic Religion,” read the order on the motion to dismiss (pdf). “It seems unlikely that a parent or student of TIZA, who presumably attends the school because of its particularized program, would challenge the program of choice.”

The judge said that because ACLU-MN members are taxpayers, they have a stake in what happens to the funds given to TIZA.

“We are grateful that the judge held that we have standing in this case,” Chuck Samuelson, executive director of ACLU-MN, said Tuesday in a statement (pdf). “We believe that it is important to ensure that taxpayer funds are used appropriately. TIZA has received millions of dollars of taxpayer funds and we have the right to question how these public funds are being used.”

Photo: Jill Brady/The Vigil

Minnesotan Coleen Rowley has emerged in the last few days as a potential “off-the-grid” nominee for the U.S. Supreme Court. Rowley’s addition to unofficial SCOTUS “long lists” (as opposed to shortlists) comes as U.S. Sen. Amy Klobuchar downplays chatter that she might be tapped to replace retiring Justice David Souter.  

Interest in Rowley seems to have originated with Nadine Strossen, a professor at New York Law School and former longtime president of the American Civil Liberties Union.

Strossen was among a dozen experts on constitutional law and the Supreme Court consulted by the National Law Journal for an article on possible nominees that appeared online Tuesday.

She’s first quoted as saying that President Obama should not name a white man: “It would create a negative implication — there are no extraordinary, well-qualified women or underrepresented minorities available.”

Two candidates she proposes also teach law: her New York Law School colleague Annette Gordon-Reed and Stephen Carter of Yale Law School.

Then, as paraphrased by reporter Marcia Coyle, Strossen adds:

And, she asked, why not someone whose understanding of and commitment to the law have been tested in the most difficult circumstances, such as FBI whistleblower and lawyer Coleen Rowley and former U.S. Navy Lt. Cmdr. Charles Swift, who represented Guantánamo detainee Salim Hamdan?

Rowley clearly appeals to Strossen on her merits — but it may not hurt her cause that Strossen hails from Minnesota. (After earning undergraduate and law degrees from Harvard University, Strossen returned to her home state to clerk at the Minnesota Supreme Court in 1975 and 1976 and was in private practice in Minneapolis from 1976 to ‘78.)

On Wednesday, the conservative National Journal added Rowley, along with others from Coyle’s article, to its long list, which now numbers 41 names, from the obscure to such agreed-upon frontrunners as Judge Diane Wood, Elana Kagan and Sonya Sotomayor.

Rowley laughed off the SCOTUS speculation in an email to the Minnesota Independent:

A bit of comic relief?  Long shot would be an understatement!

I did consider, for a couple weeks, trying for head of the Office of Special Counsel just because it has an awful history of being totally ineffective and there are a lot of government whistleblowers who were hoping for someone to reform OSC which would require someone with independence from the agencies and therefore from outside the beltway.  But for a lot of reasons, I declined to pursue it. I would have been an extremely long shot for that position too although OSC is apparently the smallest government agency that exists — it’s only like 100 attorneys or something like that.

I don’t know anyone in the Obama Administration except one of his press people, Dan Burton, who is a former DCCC [Democratic Congressional Campaign Committee] press guy and, interestingly enough, a former congressional staffer for Bill Luther when Luther was [Minnesota] CD 2 Congressman. Burton happened to be in Minnesota for a wedding when I announced my campaign for congress in July 2005 and he came for the event. I’ve only exchanged one short e-mail with him in the last two years. Interestingly enough, a year or so before the election in 2008, Burton saw one of my HuffPosts against torture and said to keep up the good work or something like that.

Photo: Conservapedia

Klobuchar, a former Hennepin County attorney, doesn’t appear on the National Journal list, but she has been received high-profile mentions elsewhere.

Her status as a potential nominee was the first topic of conversation when she appeared for an hour Wednesday on Minnesota Public Radio’s “Midday” program.

Host Gary Eichten asked whether she might soon don judicial robes instead of the two hats she currently wears as Minnesota’s junior and senior U.S. Senator while the Norm Coleman/Al Franken election contest drags on. Klobuchar’s reply:

I would say this: Minnesota has only one senator and it needs at least one senator. So it’s nice to have my name being sort of bantered [sic] about, but I don’t think that that’s in the cards right now. I did talk to the president this week. He called me and talked to me a little bit about, just in general, the Supreme Court nominee and what I think was important in that nominee. We had a very good discussion and I know he’s very interested in getting this through as soon as possible. … Let’s just say we’re focused on moving forward and I’m Minnesota’s Senator. And that’s it.

If there was more to that conversation than Obama is letting on, Klobuchar succeeded at hiding it better than the brazen Christine Arguello, a federal judge in Denver, or the cagey Judge Wood.

Klobuchar went on to say that being a woman shouldn’t be a litmus test for Obama’s choice in a nominee — at least not for this, his first appointment to the Supreme Court.

Here is the audio of Klobuchar on MPR (Supreme Court discussion begins at the 3:08 mark):

ACLU-MN investigated the allegations and in court documents filed in U.S. District Court said the Muslim organizations from which TIZA is leasing its space are illegally benefiting from the leasing arrangement.

According to the complaint, Asad Zaman serves as executive director, trustee and principal of TIZA and is also vice president of the Muslim American Society of Minnesota, the religious organization that leases space to the school.

“He is thus subject to conflicts of interest resulting from his roles on behalf of both lessors and lessees with respect to the charter school,” the complaint asserts. “He has been quoted as stating that ‘Islam makes no distinction between public and private life.’”

The complaint lays out a number of other instances of entanglements between religious organizations and the school, improper prayer services, improper exposure of students to religious iconography and the posting of religious materials in public areas.

In addition, the complaint cites cases where Islamic religious traditions are alleged to be encoded in school policy. According to the complaint, the school handbook requires “girls in grades six through eight to wear a skirt or jumper with pants underneath or a ‘full-length dress (jilbaab)’” and states that female teachers must “be covered from neck to wrist and ankle.” Those rules do not apply to boys or male teachers.

The suit seeks a stop to state endorsement of TIZA and a refund of state monies received by the school. It also faults the Minnesota Department of Education for lack of oversight, especially in light of media reports about possible infractions.

“The lack of government oversight is a matter of grave concern, because the Minnesota Department of Education gives over $30 million annually in rent subsidies to charter schools and due to the agency’s lack of supervision, we have no way of knowing how much taxpayers are subsidizing religious organizations,” Chuck Samuelson, executive director of ACLU-MN in a statement Wednesday. “However well-run and academically challenging a religious school may be, it is unconstitutional for public funds to be used for religious education.”

Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig’s mistake wasn’t letting the clock run out on appealing his airport bathroom sex-solicitation case to the Minnesota Supreme Court — it was bringing the wrong case in the first place. That’s the view of Charles Samuelson, executive director at the American Civil Liberties Union of Minnesota (ACLU-MN), who thinks that a refusal to acknowledge his homosexuality impeded Craig’s ability to make his legal arguments.

In an interview with the Minnesota Independent, Samuleson didn’t disagree with Craig attorney Tom Kelly, who said that asking the state’s high court to take the former Idaho senator’s appeal “would have been a futile exercise.”

“[The Supreme Court] can only take what his lawyers bring,” Samuelson said, and Craig had his attorneys bring only “a very small and limited technical issue about his guilty plea.”

But Samuelson said an appeal might have been effective had Craig made civil liberties arguments that the ACLU-MN raised in a friend-of-the-court brief. “Our issues would probably be more attractive to the [state] Supreme Court,” Samuelson said.

The ACLU-MN asserted that Craig’s arrest in a police sting meant to ensnare men seeking gay sex at Minneapolis-St. Paul International Airport men’s room was a classic example of government suppression of unpopular speech.

“The problem is he was reluctant to say he’s a gay man,” Samuelson said, adding that Craig’s recent retirement from office likely lowered the stakes beyond the point at which Craig would press his case, no matter what the issue.

The Metropolitan Airport Commission (MAC), whose police set up the sting and pursued charges against Craig, seems to be in a similar frame of mind. The MAC, which is now fighting hard to extract as many dollars as possible from Delta Air Lines, turned away an apparently serious offer to buy, for $5,000, the bathroom stall where Craig’s alleged foot-tapping sex solicitation took place.

“We would not want to do that to the senator,” MAC spokesperson Patrick Hogan said.

Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig (R-Idaho) cannot withdraw his guilty plea in the infamous 2007 Minneapolis-St. Paul airport bathroom sex case, the Minnesota Court of Appeals ruled today in an “unpublished” opinion. That means Craig is stuck with having copped in District Court to a misdemeanor charge of disorderly conduct for allegedly signaling an interest in engaging in sex via foot taps from one restroom stall to another in which an undercover police officer was staked out.

The decision’s “unpublished” status means the court doesn’t want its ruling used as precedent in future cases — interesting, in view of charges that Craig sought special treatment or was being singled out for preferential or especially harsh treatment because of his status as a U.S. senator. Craig issued this statement:

I am extremely disappointed by the action of the Minnesota Court of Appeals. I disagree with their conclusion and remain steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport. I maintain my innocence, and currently my attorneys and I are reviewing the decision and looking into the possibility of appealing. I would like to thank all of those who have continued to support me and my family throughout this difficult time.

Whether the 28-year Senate veteran who is retiring this year plans an appeal isn’t known; Craig’s office has not yet returned a phone call to the Minnesota Independent. One recorded message said the staff was busy boxing up his files.

The case hinged on Craig’s plea, as cited in today’s ruling:

I am pleading guilty to the charge of Disorderly Conduct as alleged because on June 11, 2007, within the property or jurisdiction of the Metropolitan Airports Commission, Hennepin County, specifically in the restroom of the North Star Crossing in the Lindbergh Terminal, I did the following: Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or [sic] others, which conduct was physical (versus verbal) in nature.

And the offense that’s at the root of all this? As cited in today’s opinion:

The complaint stated that appellant “peered” into the restroom stall occupied by the officer for as long as two minutes and that the officer “observed the Defendant tap his foot several more times and move his foot closer to the stall occupied by [the officer.  The officer] moved his own foot up and down slowly.  [The officer] observed the Defendant move his right foot so that it touched [the officer‟s] left foot, at which point the Defendant‟s foot was within the stall area of the stall occupied by [the officer].”

Hudson, Toussaint and Kalitowski

A three-judge panel consisting of Judge Natalie E. Hudson, Chief Judge Edward Toussaint, Jr., and Judge Thomas J. Kalitowski issued the decision. The opinion has two parts. First, the panel denied Craig’s arguments that his plea wasn’t specific about what action he was pleading to, and that there wasn’t an adequate judicial record of the hearing where his written plea was entered. (There is a record, the judges said; Craig simply didn’t provide them with a transcript.) It was Craig’s fault, the judges wrote, that he didn’t ask for a second hearing to establish what had occurred at the first — but at the time, Craig was still hoping to keep the case hush-hush.

The court didn’t buy Craig’s insistence that no “others” were bothered by his conduct (besides the officer in the next stall) as the charge requires. The judges said they took “others” to mean people who were also in the restroom at the time, and anyway the presence of “others” beyond one other person can be theoretical.

Craig’s late-in-coming entrapment defense also didn’t move the judges, who found that, for one thing, the senator initiated the bathroom dialog, and for another, failing to assert entrapment isn’t grounds to take back a guilty plea.

In the second part of the opinion, the Court of Appeals panel found that the law under which Craig was charged does not inhibit free speech to an overly broad extent. The senator knew that his foot-tapping might “arouse ‘alarm, anger or resentment’” as required under the law, and also that it was an invasion of privacy.

The American Civil Liberties Union of Minnesota (ACLU-MN) filed an amicus brief in the appeal at the request of Craig’s attorneys, ACLU-MN Executive Director Chuck Samuelson told MnIndy in an interview today. Samuelson conceded that the Court of Appeals “didn’t like our arguments,” which focused on the free-speech aspects of the case. But he contends, “Their reasoning is wrong.”

They talked about the language ‘to arouse’ … that inciting language. They say [Craig] was doing it. But they ignored that the guy who started it [the airport police sergeant] was not Craig [the official charge quoted above notwithstanding].

Frankly the court is really conflicted on this one. My gut tells me they just wanted this case to go away. The ACLU’s position in these sorts of laws have been used against gay men for a long, long time. If the police were concerned about public sex in the bathroom, then they should have followed best practices of police departments — put a sign on door, send cops through … the activity will probably disappear from that restroom and move someplace else. …

This really is entrapment, in our opinion. There is a line there that we think this sergeant crossed. By [the court's] reasoning the police officer is more guilty than Craig.

This a classic first amendment case of government suppression of unpopular speech. If this is inappropriate, what’s the status in heterosexual pickup bars? They [Craig and the officer] weren’t engaging in or planning on having sex in the bathroom. They were planning it [for somewhere else].

There is a double standard. Speech is speech. This never got more than speech. You can’t regulate this speech and then not regulate the speech of heterosexual people. … We don’t have police officers posing as [sexually available] women or whatever. …  The antidote to bad speech is more speech — the sign on the door [prohibiting bathroom sex].

With this ruling, Craig regains his rightful place as Minnesota’s most prominent issue of public-sex-in-a-bathroom-stall — eclipsing the more recent occurrence at the Metrodome during a University of Minnesota football game, where a sex act actually took place in a bathroom stall.

“The conduct at the football game,” Samuelson says, “now that was conduct.”

In a nine-page FOIA request (pdf), the ACLU states that CCMRF’s new role — “the first time an active military unit has been given a dedicated assignment to Northern Command” — “raises important questions about the longstanding separation between civilian and military government within the United States.” It cites the Posse Comitatus Act and states “the deployment raises concerns about the possibliity that the program may be used to facilitate domestic surveillance by the Defense Department.”

The FOIA request asks for records pertaining to the decision to deploy the unit within the U.S., including documents about the legal justification for doing so and discussions about possible uses of such units.