THE WORLD ACCORDING TO BILL FISHER

Obama's Fifth Category: The "Untriable"

2009-11-25T06:07:00.003-05:00

By William Fisher

In his talk at the National Archives in May, President Obama referred to five categories of prisoners currently held at Guantanamo Bay.

First, there are those who have violated American criminal laws and will be tried in federal courts. There may be as many as a dozen men in this category, five of whose trials were announced last week, including that of Khalid Sheikh Mohammed.

Second, there are detainees who violated the laws of war and who will be tried by the "new and improved" military commissions. Five prisoners were also designated for such trials last week and there is speculation that there are perhaps 25 more who fall into this category.

The third group consists of 21 detainees who have already been released by the courts.

Fourth, there are believed to be some 90 prisoners who are cleared for release and who can be transferred safely to other countries if such countries can be found.
So what is this "fifth category" of detainees? It consists of prisoners who are thought too dangerous to release, but who cannot be brought to trial.

According to The Washington Post, quoting an unnamed official, there are some 75 prisoners in this "fifth category." And the administration's position is that these people are untriable because the evidence against them was obtained through torture or because public trials would involve and potentially expose an unacceptable volume of classified material.

Which leaves the administration with the question of what to do with these people.
The Obama administration gave the human rights community apoplexy when it referred to "preventive detention." Now, it is simply saying that it's not going to seek any additional authority from Congress for such preventive detention. Which perhaps gives us a clue to the approach the administration has in mind. In a study by the Obama-friendly Center for American Progress, analyst Ken Gude suggests that the Obama administration "incarcerate detainees convicted in US criminal courts in maximum-security US prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan." (Emphasis mine.)

That latter group would presumably include the untriable. Which appears to create a neo-GITMO at Bagram in Afghanistan.

In an effort to make sense out of this maze of legal confusions, I contacted a group of people I consider to be some of the best minds in constitutional law. In my simplistic layman's way, I questioned the assertion that certain people can't be tried and opined that it seemed to me that anyone who is accused of a crime can - should, must - be tried for that crime, and can not be held indefinitely without a trial.

Here are some of their responses:

Marjorie Cohn, president of the National Lawyers Guild: The 75 aren't even being accused of crimes. If there isn't enough evidence against them besides statements that have been tortured out of them, they should be released. Judges and prosecutors who have tried terrorism cases in the United States say that the Classified Information Procedures Act effectively protects classified material. If there is probable cause to believe that someone has committed a crime, he should be charged and tried. If not, he should be released. Indefinite detention violates the International Covenant on Civil and Political Rights, a treaty the United States has ratified which makes it part of US law.

Jameel Jaffer, director of the National Security Program for the American Civil Liberties Union: We should be very skeptical of the proposition that there are prisoners who can't be prosecuted but are too dangerous to release. The United States has sweeping detention authority under both domestic law and international humanitarian law - authority that is broad enough to reach both terrorists and battlefield combatants. The criminal laws have been used to successfully prosecute not only people who have planned terrorist attacks but also people who have attended training camps or raised money for terrorist groups.

In criminal trials, the government can protect intelligence sources and methods by relying on the Classified Information Procedures Act. It's true that federal courts are unlikely to allow the government to rely on evidence derived from torture, but that's a problem with the government's evidence, not a problem with the courts. The courts reject that kind of "evidence" not only because torture is illegal but because evidence derived from torture is unreliable. And if such evidence is too unreliable to justify detention after trial, it's surely too unreliable to justify detention without trial.

Michael Ratner, president of the Center for Constitutional Rights: I do not think there is any place for preventive detention in a country that claims it is a democracy under the rule of the law. We opposed it under Bush and it looks no more legal when rewrapped by Obama. The constitution and international law mandates that people be charged and tried or released. The claim that some GITMO detainees can't be tried is a pretext that will usher in a scheme that is contrary to 225 years of US law. There is no middle ground when it comes to human freedom. The claim that some GITMO detainees can be held without charges and trial is an assertion I hoped never to hear in a country claiming it acts under the rule of law. Preventive detention is the road to perdition. It sets a precedent that will haunt our justice system for all time.

Gabor Rona, international legal director of Human Rights First: The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the US does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.

David Cole, professor at the Georgetown University Law Center: I don't think there is an obligation to try an enemy combatant for a war crime while the conflict is ongoing. For example, we did not try many Germans responsible for war crimes until the war was concluded, and issues of secrecy were less complicated. And I'm sure there were many we did not try at all. So I don't think there is an obligation to try. There is an obligation to ensure that anyone detained be provided a full and fair hearing on his status, that the definition of "enemy combatant" be defined narrowly, and that all detainees be treated humanely. But not that they be tried.
Brian J. Foley, visiting associate professor of law, Boston University: Ultimately this shows that the problem is that terrorism is something between crime and war. Though we know that the most effective way of combating terrorism groups is through police method, it seems akin to fighting "organized crime." Given that, then it seems that the court system we use should be geared more toward the criminal paradigm, which ultimately tests the government's claims that a person not wearing an enemy uniform has harmed, or is planning to harm, citizens.

The Obama Administration wants to be able to make those claims about people but not have them ever subjected to testing. We know that police often identify the wrong person; indeed, our court system itself is not perfect at correcting such government errors, as our history of wrongful convictions shows. So there needs to be testing of EVERY government claim that someone is planning an attack and/or is dangerous and therefore must be imprisoned. It is very often disputable whether someone is planning terrorist acts, ESPECIALLY when the only evidence is evidence gained by torture or is so-called "classified" evidence.

Under the Obama plan, a US government acting in error or in bad faith can detain forever anybody it claims is planning a terrorist attack. We have to be clear that the Administration is claiming a sweeping power with no check, a power - lifelong detention - that is rare in criminal law and rare in war (given that, unlike most wars, the GWOT will never end). The GWOT is Big Government's BFF ("best friend forever") and is the mortal enemy of democracy and human rights. This plan is the ultimate version of the government saying, "Just trust us" - a trust that is anathema to the spirit of the Founding Fathers.

The government appears afraid to take any risk at all that someone released might cause harm. But the assumption that someone might cause harm is assumption based on mere faith and belief, not on evidence. The bottom line is this makes no sense: the evidence gained by coercion is likely unreliable, and the secret evidence might be erroneous or even manufactured for political ends. Ultimately it's an epistemological question: How can you know someone is dangerous if it is based on evidence you obtained through coercion and is therefore unreliable, or if it is based on evidence you are afraid to have tested - again, we know our intelligence agencies are not perfect and make mistakes. The fact of the matter is that we have a system and a widely-held norm (among many nations and internationally) that says "prove it" to a government when the government wants to take away somebody's life or liberty. The real question at the heart of this whole dispute - a question that no one seems to want to ask openly, is, "Are we brave enough to adhere to such norm to prevent the many ills that can flow from giving the government the power to detain people indefinitely on its own say-so?" I don't think that the people arguing for this power are brave enough; I think they are cowards. Their cowardice will turn our country into something less than a democracy. "Land of the free, home of the brave" - freedom and bravery go together. You can't have freedom if you are not brave.

David Frakt, professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee: The assertion that there are 75 detainees who are too dangerous to release, but can't be prosecuted, and therefore must be held indefinitely, defies common sense.

It is true that as a matter of the law of war that during an armed conflict, a person who is detained for taking part in the armed conflict may be held until the resolution of the conflict. Each of the detainees being held has been determined in a Combatant Status Review Tribunal to have been an "enemy combatant."

This does not mean that the detainee committed a crime. It could simply mean that the detainee fought against US or allied forces when they invaded Afghanistan or was prepared to do so if they had the opportunity. The government might feel that such detainees should not be released because they would return to the battlefield in an ongoing conflict. What is more troubling is the notion that some of the detainees are believed to have committed crimes but that such crimes can't be proven in a court of law. I find this hard to believe. Virtually any association with Al Qaeda is enough to support a federal charge of material support to terrorism, which would likely lead to a lengthy prison sentence. So why can't these people be tried - because they didn't commit a crime, or because the crimes they are believed to have committed can't be proved in court? If it is that the crimes can't be proven in court, why is that? Is it because of the government's belief that all of the evidence they have against an individual would be suppressed as the product of torture? In my opinion, if the only evidence we have is derived from torture, then we can't have any degree of confidence in the reliability of such evidence.

The government has shown a willingness to try several individuals who have admittedly been tortured based on the alleged existence of independent "clean" evidence, so the mere fact that someone was tortured is clearly not a bar to prosecution in the view of the Obama Administration. If there is independent corroborating evidence, then let the individuals be tried. If there is no non-torture derived evidence, then the government should not be able to even prove by a preponderance of the evidence that an individual should be held. We have seen repeatedly in the habeas corpus litigation that the government's evidence did not hold up to judicial scrutiny.

The Administration needs to come clean on who they believe fits into this category and why. Otherwise, we are just left to speculate.

Chip Pitts, president of the Bill of Rights Defense Committee: You're right about the detention (but not necessarily right about the laws of war enabling us to hold them until "hostilities" come to an end - if by that you mean hostilities in the so-called Global War on Terror or GWOT).

The laws of war apply to the detainees variously (if at all! - don't forget that the GWOT framework is novel and legally and factually problematic in the extreme, and in my view and that of many other international lawyers and scholars it's utterly incorrect and inapplicable both in terms of the traditional law of war and in terms of human rights and constitutional law which apply even at all times even when there is no war).

Real wartime, i.e. battlefield detainees from Iraq or Afghanistan, are POWs and should rightly be seen as in a completely different legal category from civilians suspected of crime or simply rounded up and sent to GITMO, Bagram, or any of the secret prisons or interrogation sites used by the CIA, the government, and its allies. The former may be held until the end of those particular hostilities and the latter must be tried (supposedly under speedy trials as well as the other legal guarantees of fair trials) or promptly released.

You're right that indefinite detention without trial or legal due process of either category - of anyone, in fact - is outlawed both by the law of war and by international human rights law (as well as US constitutional law).

Moreover, there's no question that not all of the people now at GITMO are even accused of being criminals (war criminals or civilian criminals), all of which means that your question goes back again to the conceptual and legal framework with which we're viewing the situation; the legitimacy and legality of detention in general and indefinite detention in particular; and the individual facts of each person's case (to determine whether there are any legitimate legal grounds at all for detention and/or trial) - the interpretation of which becomes so much harder in light of the use of torture to coerce unreliable testimony.

So not even all the Constitutional experts agree precisely on the legal basis for putting a prisoner into that "fifth category" - the ones we're told can't be tried but are too dangerous to release. Largely because the Bush Administration tried to create its own law, the legal landscape is confused and confusing. But that doesn't help the Obama Administration. It still faces the question of what to do with these people.

In doing so, it faces a group - a very small group - of bad options. It can charge a person with a crime and risk being embarrassed by having tainted evidence thrown out of court. A court might also find that its evidence is insufficient or unreliable. A defendant might actually be exonerated or win on appeal - what then?

When, for one reason or another, you reject all but one of these options, you need then to accept that we are on our way to warehousing people.

For Americans, this is contrary to everything we've ever been taught about our system of justice.

Obama Channeling Bush Again?

2009-11-25T06:04:00.001-05:00

By William Fisher

With the health care debate preoccupying the mainstream media, it has gone virtually unreported that the Obama Administration is quietly supporting renewal of provisions of the Bush-era USA Patriot Act that civil libertarians say infringe on basic freedoms.

And they are reportedly doing so over the objections of some prominent Democrats.

When a panicky Congress passed the act 45 days after the terrorist attacks of September 11, 2001, three contentious parts of the law were scheduled to expire at the end of next month, and opponents of these sections have been pushing Congress to substitute new provisions with substantially strengthened civil liberties protections.

But with the apparent approval of the Obama White House and a number of Republicans –and over the objections of liberal Senate Democrats including Russ Feingold of Wisconsin and Dick Durbin of Illinois – the Senate Judiciary Committee has voted to extend the three provisions with only minor changes.

Those provisions would leave unaltered the power of the Federal Bureau of Investigation (FBI) to seize records and to eavesdrop on phone calls and e-mail in the course of counterterrorism investigations.

The parts of the act due to expire on December 31 deal with:

National Security Letters (NSLs). The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people.

The ‘Material Support’ Statute. This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations.

FISA Amendments Act of 2008. This past summer, Congress passed a law that permits the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and
e-mails.

Asked by IPS why committee chairman Senator Patrick Leahy of Vermont and other Democrats chose to make only minor changes, Chip Pitts, president of the Bill of Rights Defense Committee, referred to “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them.” White House pressure, he speculated, “was undoubtedly a huge if lamentable factor.”

He added that some committee members were cautious because of the recent arrests of Najibullah Zazi and others.

Zazi , a citizen of Afghanistan and a legal U.S. resident, was arrested in September as part of a group accused of planning to carry out acts of terrorism against the U.S. Zazi is said by the FBI to have attended courses and received instruction on weapons and explosives at an Al Qaeda training camp in Pakistan.

Leahy acknowledged that, in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”

Pitts told IPS, “Short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach.”

“In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror -- and avoid being accused of being “soft on terror” -- brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed,” he added.

In contrast to the Senate, the House of Representatives Judiciary Committee approved a version of the legislation containing several significant reforms. In a 16-10 party-line vote, the committee’s version curbs some of the government’s controversial surveillance powers.

The Patriot Act, passed by a landslide after the 9/11 terrorist attacks to provide law enforcement and intelligence agencies additional powers to thwart terrorist activities, was reauthorized in 2005.

The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.

Judiciary Chair John Conyers, a Michigan Democrat, said the goal of the new legislation was to “craft a law that preserves both our national security and our national values.”

The proposed new legislation would permit the so-called “lone wolf” provision to sunset. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.

The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.

The proposed new House legislation would also restrict the use of national security letters. According to a Congressional Research Service report, “National security letters (NSL) are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”

Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.

The bill approved in the Senate contains much more modest reforms. It would retain the lone wolf provision, and is, in general, much more in line with the wishes of the administration. Should both bills pass and go into conference to be reconciled, it is unclear which approach would prevail.

House and Senate versions still need to be voted on by each body separately and then reconciled into a single bill to send to the president for signature.

Pitts told IPS, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”

In a report on the Patriot Act, the American Civil Liberties Union (ACLU) said, “More than seven years after its implementation there is little evidence that the Patriot Act has been effective in making America more secure from terrorists. However, there are many unfortunate examples that the government abused these authorities in ways that both violate the rights of innocent people and squander precious security resources.”

When Does Obama’s Transparency Begin?

2009-11-18T05:40:00.001-05:00

By William Fisher

A court case accusing the government of indiscriminately wiretapping ordinary American citizens – coupled with legislation now making its way through Congress – could produce another major headache for President Obama.

The central issue in the latest court case is the government’s use of the so-called “State Secrets Privilege” – the claim that presenting certain evidence in open court would endanger U.S. national security – to suppress evidence of government wrongdoing.

Both the Bush and Obama administrations have invoked the privilege numerous times not simply to suppress particular pieces of evidence – its original intent -- but to have entire lawsuits thrown out altogether.

President Obama’s headache may stem from his pledges -- both during the campaign and currently -- that he would make open government and transparency the hallmarks of his administration. But, in court cases, his lawyers have followed paths identical to those used by George W. Bush’s Justice Department. This approach to secrecy, manifested in his use of the state secrets doctrine, has triggered widespread disappointment among the progressive wing of his supporters.

These supporters are pushing hard for passage of legislation now wending its way through congress that would impose stricter limits on use of the privilege. Obama has not yet endorsed either the Senate or the House legislation.

But, according to Kevin Bankston, an attorney with the Electronic Frontier Foundation (EFF), advocates for both bills are working closely with the White House and it is likely that a bill will emerge that Obama would be comfortable signing.

However, given the legislative calendar for the rest of this session of Congress, whether the legislation will come up for a vote in this sessions remains unclear. And gaining bipartisan support, especially in the Senate, will likely be an uphill hike.

In the latest case, Shubert v. Obama, a class action brought by three Brooklyn residents, the claim is that the National Security Agency (NSA) has an ongoing dragnet surveillance program spying on the telephone and
e-mail communications of ordinary Americans. The case was originally filed in 2007 and recently amended.

The government moved to dismiss the case based on state secrecy – the first use of the state secrets privilege under the Obama Administration's "new" state secrets policy. Attorney General Eric Holder, whose Department of Justice (DOJ) has been conducting a review of the state secrets policy, explained the use of the privilege in the Shubert case.

He said, “The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security. Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.”

But critics were quick to challenge him.

Attorney Bankston said that in the Obama’s court filing, it “attempted to dress up in new clothes its embrace of one of the worst Bush Administration positions — that courts cannot be allowed to review the National Security Agency's massive, well-documented program of warrantless surveillance. In doing so it demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege.”

He added, “The motion amounted to a rehashing of the exact same state secrecy arguments originated by the Bush Administration and pressed by the Obama Administration…that any attempt to have the courts rule on the legality of the NSA program would harm national security and that the courts should be blocked from considering whether the surveillance is legal or constitutional.”

The San Francisco-based Electronic Frontier Foundation focuses on issues of free speech, privacy, innovation, and consumer rights, and has brought many of the lawsuits challenging govenrment secrecy.

Meanwhile, Congressional efforts to curb the use of the state secrets privilege were moving through the House and Senate. In the Senate, the State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence. Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if "public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States."

The bill has been approved by the Senate Judiciary Committee, whose chairman, Democratic Senator Pat Leahy of Vermont, has been a long-time advocate of the measure. The bill was introduced by Leahy, along with felloe Democrats Arlen Specter of Pennsylvania, Russ Feingold of Wisconsin, and, shortly before his death, Edward M. Kennedy of Massachusetts.

In the House, the Judiciary Committee is taking the first steps considering a similar reform measure the form of the State Secret Protection Act of
2009. Its sponsors include Democratic Congressmembers Jerrold Nadler of New York, Thomas Petri of Wisconsin, Judiciary Chairman John Conyers, Jr. of Michigan, Bill Delahunt of Massachusetts, and Zoe Lofgren of California.

Nadler, the powerful Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, was sharply critical of the DOJ action in the Shubert case.

"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a
reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler.

Some of Obama’s most steadfast supporters have publicly disagreed with the president on this issue. For example, Senator Russ Feingold produced a “report card” on Obama’s first hundred days in office and cited the fact that Obama had invoked the state secrets privilege in three cases. He gave Obama a "D" on state secrets, and characterized his record as "troubling."

Obama’s pledge to make the government more open and accountable, coupled with his use of the state secrets privilege and other actions resulting in limiting transparency, have left many of his progressive supporters disappointed.

During his campaign for the presidency, the Obama-Biden website included state secrets as part of "The Problem" that President Obama would address, complaining that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."

Yet in his first 100 days, the Obama administration invoked the state secrets privilege in three cases: Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA. In each of these cases, the Obama’s lawyers DOJ followed exactly the same reasoning as Bush’s.

The Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA). Following Obama’s election, DOJ lawyers took the same position as their predecessors.

The same is true in another case, Jewel v. NSA, in which the Electronic Frontier Foundation (EFF) is suing the NSA and other government agencies on behalf of AT&T customers to stop what it calls the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. Jewel v. NSA is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

In April, the Obama administration moved to dismiss Jewel, claiming that litigation over the wiretapping program would require the government to disclose privileged "state secrets,” and that they were immune from suit. These are essentially the same arguments made by the Bush administration.

In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – are suing a Boeing subsidiary called Jeppesen DataPlan for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process. In this case, a federal appeals court has rejected the Obama Administration’s assertion of state secrets and ruled that the case can go forward.

And, in one of the rare occasions where judges reject the government assertion of state secrets, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.

The first known use of the state secrets privilege came in a 1953 case called United States v. Reynolds. In that case, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.

The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have said that the government abused secrecy in this landmark case, which was not about national security but about protecting the incompetence of government officials.

Since then, the privilege was rarely used until the administration of George W. Bush, which is generally regarded as one of the most secretive presidencies in U.S. history. The Bush Administration invoked the state secrets doctrine numerous times in a variety of cases. Some of the best known include:

Sibel Edmonds: The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower. Edmonds took her case all the way to the Supreme Court, and lost.

Khalid El-Masri: In May 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.

Maher Arar: The privilege was invoked against a case where Maher Arar, a wrongfully-accused and tortured victim, sought to sue Attorney General John Ashcroft for his role in deporting Arar to Syria to face torture and extract false confessions. It was formally invoked by Deputy Attorney General James B. Comey in legal papers filed in the United States District Court for the Eastern District of New York. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.

In the Shubert wiretapping case, the appellants claim the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and Internet communications without a warrant and without any suspicion that the targets have done anything wrong.

Allegations that this was actually occurring was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds.

Another whistleblower, former NSA Intelligence Analyst Russell Tice, told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

The Jewel case is still pending in the same federal district court in California where the Shubert case has been filed. Oral arguments in the government’s motion to dismiss the Shubert case are scheduled for December 15 before Judge Vaughn R. Walker.

The Obama Administration’s approach to open government has disappointed its supporters in other way as well as in court. For example, just last week,
the government filed a brief in which Secretary of Defense Robert Gates invoked his authority to block the release of photos depicting the abuse of detainees in U.S. custody overseas.

The development came as part of a five-year-old Freedom of Information lawsuit brought by the American Civil Liberties Union (ACLU) demanding the release of records, including photographs, related to the abuse of prisoners. Secretary Gates was granted the authority to exempt certain images from disclosure under the Freedom of Information Act (FOIA) as part of the Homeland Security appropriations bill signed by President Obama last month.

An amendment to the bill grants the Defense Secretary authority to suppress certain photographs deemed harmful to national security. After the bill was signed into law, the ACLU urged Gates not to invoke the authority to block the release of the photos.

“Unfortunately, not only did Secretary Gates invoke the authority, but his blanket certification states that it applies to all of the photos, failing to provide the individualized assessment that the amendment's language requires. The government also failed to provide any basis for the claim that disclosure of the photos would harm national security,” the ACLU said in a statement.” The organization said it plans to file a responsive brief.

On the issue of government transparency in general, it appears that policy-makers on both sides of the aisle, as well as the public at large, are still trying to figure out how their new president thinks about such issues.

His supporters were cheered by his release of the so-called “torture memos” prepared by the Bush Administration’s Office of Legal Counsel. But they were dismayed by his cool reception to a “truth commission” to investigate possible crimes committed by the previous administration, his declaration that there would be no prosecutions of CIA officers who used what they believed to be legal interrogation techniques, and his oft-expressed wish to look forward, not backward.

And they continue to be baffled by his continuing use of the state secrets defense, wondering whether his objective is protecting national security, shielding Bush Administration officials from accountability, or preserving this executive prerogative for himself and future presidents.

MILITARY TRIBUNALS – JUSTICE ‘LITE’?

2009-11-17T14:46:00.003-05:00

By William Fisher

While Sarah Palin and other right-wing opportunists create a cottage industry in drumming up public hysteria about Khalid Sheik Mohammed and four other terror suspects from Guantanamo coming to New York for trial, many legal experts and human rights groups are being equally outspoken in their criticism of the “new and improved” Military Commissions designated to try five other detainees.

And some are particularly incensed that Omar Khadr, Guantanamo’s “child soldier” – a Canadian captured in Afghanistan seven years ago when he was only 15 and imprisoned at GITMO ever since – is slated to be one of the “five others” to be tried before Military Commissions.

The “new and improved” military commissions were part of the 2010 National Defense Authorization Act, which President Obama signed last month. It included some changes in the rules governing military commission proceedings and is intended to replace – and improve upon -- the Bush-era Military Commissions Act of 2006, which the Supreme Court found unconstitutional last year.

Human rights groups and many legal experts are charging that, while the new regulations improve the Commissions to come extent, they remain not only unnecessary but dangerous because they establish a parallel system of second-class justice.
Furthermore, they point out, the actual implementation of Military Commission proceedings could be delayed for years by legal challenges – as were their predecessors.

Much of the early pushback against the Military Commissions is centering on the Khadr case. Khadr is a Canadian citizen who was arrested in Afghanistan when he was 15 years old, accused of throwing a grenade that killed an Army medic, and sent to Guantanamo Bay in 2002, where he has been imprisoned for more than seven years without charge or trial.

The other child soldier, Mohammed Jawad, was released back to Afghanistan after the government failed to produce enough credible evidence to bring charges against him.
Khadr is accused of throwing a grenade that killed an Army medic in Afghanistan. The U.S. government has refused to acknowledge his status as a child or to apply universally recognized standards of juvenile justice in his case.

According to Human Rights First, no international tribunal since Nuremberg has prosecuted a child for alleged war crimes. The United Nations committee that monitors the rights of children found that the United States has held alleged child soldiers at Guantánamo without giving due account of their status as children and concluded that the “conduct of criminal proceedings against children within the military justice system should be avoided.”

The only Western citizen remaining in Guantanamo, Khadr is unique in that Canada has refused to seek extradition or repatriation despite the urgings of Amnesty International, UNICEF, the Canadian Bar Association and other prominent organisations. In 2009, it was revealed that the government had spent over $1.3 million to ensure Khadr remained in Guantanamo.

In April 2009, the Federal Court of Canada ruled that the Charter of Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court heard the case on November 13, 2009 and their decision is pending.
A 2009 review determined that the Canadian Security Intelligence Service failed Khadr, by refusing to acknowledge his juvenile status or his repeated claims of being abused. It was also determined that Minister of Foreign Affairs Lawrence Cannon had lied when he claimed that Khadr had built bombs to kill Canadian soldiers.

Last week, on the same day Holder was appearing before the press, the Supreme Court of Canada was hearing oral arguments in an appeal by the Canadian government on two lower court decisions that found Khadr's rights under the Canadian Charter of Rights and Freedoms had been breached when Canadian officials interviewed him at the prison in Guantánamo in 2003 and shared the resulting information with U.S. authorities. Khadr's lawyers argued that Canada was complicit in his abuse and maintain that the Canadian government is obliged under international law to demand the prisoner's return.

Canadian news outlets are reporting the possibility that Khadr could still be repatriated to Canada and tried in a Canadian court.

The Attorney General believes that the reforms Congress recently incorporated into the Military Commissions Act will ensure that military commission trials will be fair and that convictions obtained will be secure. He said, “I know that the Department of Defense is absolutely committed to ensuring that military commission trials will be consistent with our highest standards as a nation, and our civilian prosecutors will continue to work closely with military prosecutors to support them in that effort.”

But many disagree -- fiercely. One of them is Prof. David Frakt of Western State University law school, the Air Force Reserve officer who successfully served as military defense counsel for a Guantanamo detainee – GITMO’s other child soldier, Mohammed Jawad, who was recently released to return to Afghanistan.

Lt. Col. Frakt has strong views on Military Commissions. He believes that “Allowing some cases to go forward in the military commissions means that some detainees are getting second-class justice.”

He is also unclear about the rationale for a system of parallel justice. He says, “The Administration's justifications for which cases are being send to federal court and which cases to military commissions don't stand up to scrutiny. For example, they claim that the attack on the U.S.S. Cole, allegedly planned by Mr. Al-Nashiri, was a violation of the law of war and therefore should be tried in a military commission, but the government has been claiming for years that the 9/11 attacks were also violations of the law of war. In fact, the attack on the U.S.S. Cole was definitively not a violation of the law of war because there was no armed conflict taking place at the time of the attack. Rather, it was an isolated terrorist attack, the type of murder of U.S. service members during peacetime that we have always tried in federal courts before.”

Frakt is also critical of the “new” Military Commissions because, like their predecessors, they fail to protect juveniles.

“It is appalling that the Obama Administration is allowing charges to go forward in the military commissions against Omar Khadr. Clearly, Omar Khadr, as a juvenile of 15 at the time of his alleged offenses, could not be tried as an adult in federal court, so they are allowing him to be tried as an adult in the military commissions, potentially making him the first child soldier to be tried and convicted as a war criminal in world history.”

He continued: “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”

Frakt said military commissions “are wholly unnecessary.” He told us, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”

He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”

Frakt believes that the criteria being used by the Justice Department to decide between civilian courts or military commissions is entirely opportunistic.

He told us, “It is clear that a significant criteria in determining who gets tried in federal court is the Justice Department's confidence that they can secure a conviction and a death sentence. How many times did Attorney General Holder express in his press conference his confidence of a "successful outcome?"

But those kinds of statements, Frakt contends, constitute “a blatant violation of the ABA Criminal Justice Standards.”

Frakt says, “From the AG's perspective, the only possible successful outcome for the alleged 9/11 plotters is a death sentence, so he was all but guaranteeing that result.” The ABA rules “expressly prohibit prosecutors from making public statements predicting convictions, or expressing an opinion of the merits of the case or the guilt of the defendant. AG Holder repeatedly violated these rules during his press conference by expressing confidence that there would be no acquittal and that there would be a successful outcome.”

Frakt goes on to criticize the government’s approach to detention writ large. He told us, “In the extremely unlikely event of an acquittal, the AG has made it clear that the government will not release anyone they believe to pose a continuing security threat to the U.S. In that sense, these trials are a fraud because the government plans indefinite detention regardless of the outcome of the trial. Because they know that the idea of indefinite detention is unpalatable to many liberals, they are hoping to avoid the issue (and legitimize the prior illegal long-term detention) with criminal convictions.”

Frakt says he still does not accept that there is a category of people who are too dangerous to be release, but yet can't be tried. He says, “Neither the Bush Administration nor the Obama Administration has ever identified any such individual despite alleging the existence of such individuals for years.”

He suggests that, “Perhaps the only possible example of an individual who might fit in this group is Mr. al Qatani, the alleged 20th hijacker, who was charged as the 6th 9/11 co-conspirator in January 2008. However, Susan Crawford, the military commissions convening authority refused to refer the charges to trial, claiming that she was unwilling to try someone who had been demonstrably been tortured.”

But Frakt charges that even this standard is inconsistent. He reminded us that Ms, Crawford also “referred charges to trial against several other individuals who had also been tortured, including Mr. al Nashiri and KSM, suggesting that neither she nor the Justice Department see prior torture as a bar to prosecution. My belief is that if the government has sufficient reliable evidence that an individual is a dangerous terrorist to justify holding them forever, then they should be able to prove the individual's involvement in a court of law.”

Frakt is far from the only critic of Military Commissions. As Dafna Linzer points out in ProPublica, the evidence against those scheduled to be tried by Military Commission “is flimsy.” She writes that most of the remaining Guantánamo detainees “are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.”

She adds, “One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.”

Prof. Francis Boyle of the University of Illinois law school told us, “The Canadian child soldier Omar Khadr gets processed by an Obama Kangaroo Court in violation of the Optional Protocol to the Children’s Convention on that subject, to which both the United States and Canada are contracting parties. Obama/Holder’s hypocrisy and double standards speak for themselves.”

Deborah Perlstein, formerly with Human Rights First and now at the Woodrow Wilson School for Public and International Affairs at Princeton University, points out that, “The Supreme Court has consistently recognized that our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited.”

She writes, “As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)?

“And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998.”

She concludes, “Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.”

Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told us, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”

Gabor Rona, international legal director of Human Rights First, told us, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”

He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”

The ACLU’s Jameel Jaffer said: “The commissions remain not only illegal but unnecessary – the federal courts have proven themselves capable of handling complex terrorism cases while protecting both the government’s national security interests and the defendants’ rights to a fair trial.”

And David Danzig of Human Rights First said, “Even more than seven years after the detention facility at Guantanamo was opened, it is not clear how far basic protections like attorney-client privilege extend. And the military system, unlike the federal courts, has precious little comparable experience to fall back on. As a result, every issue – however small – must be openly debated and new precedent must be hammered out. Meanwhile the years are passing and the chances that justice will be served in a timely fashion (a key legal protection in federal and military courts) seem evermore remote.”

Vincent Warren, the head of the Center for Constitutional Rights – which has mobilized dozens of pro bono lawyers to defend GITMO detainees – probably summed up where the Obama Administration is now on the issue of detention.

He said, “These are now President Obama's military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”

Since the passage of its very first incarnation, the Military Commissions Act has spent most of its time in court responding to challenges to its constitutionality. In 2006, the Supreme Court declared unconstitutional the Military Tribunals set up by the Bush Administration to try terror suspects at Guantanamo. Congress then passed the Military Commissions Act (MCA) of 2006, "To authorize trial by military commission for violations of the law of war.” But the MCA was also declared unconstitutional two years later.

While litigation was ongoing – and that was virtually constant – trials at Guantanamo came to a complete standstill. That is a major reason that there were only three trials in eight years.

Many in the human rights community see a similar fate awaiting the 2009 amended version of the MCA.

Holder Terror Trials Decision Triggers Praise, Condemnation, Confusion

2009-11-15T10:52:00.001-05:00

By William Fisher

The U.S. Government’s decision to bring five high-profile terror suspects to the United States to face trials in a civilian court is triggering reactions that continue to bounce from praise to condemnation to confusion.

While human rights advocates are generally applauding the decision to conduct trials in federal court in New York they are at the same time strongly criticizing the Justice Department for keeping the Military Commissions in place to try some suspects.

There appears to be confusion about how the government is making its decisions about which courts to choose for which defendants. This process remains unclear despite prolonged media questioning of Attorney General Eric Holder at his press conference at the Justice Department on Friday.

Holder announced at that press conference that five suspects allegedly involved in the terrorist attacks of September 11, 2001, would be tried in New York, while five others would be tried before Military Commissions.

The New York trials would include that of the self-proclaimed 9/11 mastermind, Khalid Sheik Mohammed.

And at a partisan political level, members of congress and other Washington heavyweights are either praising Attorney General Holder’s decision or labeling it as handing a victory to Al Qaeda while raising dire security risks for U.S. neighborhoods.

Said House Republican Leader John Boehner of Ohio, “This decision is further evidence that the White House is reverting to a dangerous pre-9/11 mentality -- treating terrorism as a law enforcement issue and hoping for the best. We need a real strategy for fighting and winning the war on America's terrorist enemies that includes an effective, credible, and consistent plan for all terrorist detainees.'

U.S. Senate Republican Leader Mitch McConnell echoed the same theme. He said, “This misguided decision is based on the false belief that the terrorists who killed 3,000 Americans in one day on U.S. soil are common criminals -- not war criminals. But there are needless risks from this decision: classified information can be inadvertently leaked, as it was in the first World Trade Center trial; our cities will face enormous security problems; and our communities will be potential targets for attack.''

Connecticut Sen. Joe Lieberman, former Democrat elected in 2006 as an independent, said, “The terrorists who planned, participated in, and aided the Sept. 11, 2001 attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts. [They] should therefore be tried by military commission rather than in civilian courts in the United States.''

Other politicians appeared to waste no time locating a camera to respond to Holder’s decisions. On her Facebook page, former Alaska Gov. Sarah Palin President Obama and Attorney General Eric Holder.

In a Friday post titled, "Obama Administration's Atrocious Decision," Palin wrote: "Horrible decision, absolutely horrible. It is devastating for so many of us to hear that the Obama Administration decided that the 9/11 terrorist mastermind, Khalid Sheikh Mohammed, will be given a criminal trial in New York. This is an atrocious decision."

She expressed concern that the alleged mastermind "may walk away from this trial without receiving just punishment because of a 'hung jury' or from any variety of court room technicalities. If we are stuck with this terrible Obama Administration decision, I, like most Americans, hope that Mohammed and his co-conspirators are convicted. Hang ‘em high."

President Barack Obama, on an Asian trip, said in Tokyo, “This is a prosecutorial decision as well as a national security decision. Here's the thing that I will say: I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice. The American people will insist on it and my administration will insist on it.''

Families of those who lost loved ones in the 9/11 attacks also expressed mixed emotions about the New York trials.

Military Families United, a Washington D.C. based advocacy group, said, “This decision is a victory for those who perpetrated the attacks of Sept. 11, 2001, not the American people. . . The Sept. 11 accomplices will now receive many of the same constitutional rights and privileges as ordinary Americans.''

But families represented by Kristin Breitweiser, who lost her husband in the World Trade Center attack and who helped push for the establishment of the 9/11 Commission, says New York is ready. She says she plans to attend the trial as often as she can.

“I think New Yorkers are certainly more than capable of handling it. And I think, again, it speaks to the very heart of who we are, not only as New Yorkers, but as American citizens. You know, if a crime is committed on our soil, you are going to be given a trial. You will be given access to an attorney. You'll be innocent until proven guilty,” she said.

Mayor Michael R. Bloomberg of New York said, "It is fitting that 9/11 suspects face justice near the World Trade Center site where so many New Yorkers were murdered."

Numerous human rights leaders and legal scholars have weighed in with opinions on the Holder decision, and have focused largely on the continuing role of military commissions.

Chip Pitts, president of the Bill of Rights Defense Committee and a lecturer at Stanford University Law School, told IPS, “Continuing to rely on military commissions to try those otherwise unable to be convicted on strained and novel ‘war crimes’ charges (that don’t meet the usual definitions of war crimes), by contrast, proceeds from the politically popular but legally inappropriate and counterproductive ‘endless global war on terror’ mindset that has clearly been so destructive to actual national security. The fraudulent nature of the latter process is evident in the unwillingness of the new administration, like the Bush administration, to say that it will release those acquitted or whose danger remains suspected but unproven.”

Another critic of the military commission system is Air Force Reserve Lt. Col. David Frakt, who served as a military defense counsel to a Guantanamo detainee.

He told IPS, “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.” Frakt now teaches law at Western State University in California.

During the administration of President George W. Bush, Guantanamo became for many a worldwide symbol of U.S. lawlessness and brutality in the treatment of prisoners. The system of justice set up there was rejected by the U.S. Supreme Court multiple times. Many of the unlawful acts committed at Guantanamo were later found at Abu Ghraib prison in Iraq, at Bagram Air Base in Afghanistan, and in other U.S. detention facilities. Despite multiple military investigations, no senior American was ever charged or convicted of wrongdoing.

ARAR REDUX?

2009-11-11T14:15:00.001-05:00

By William Fisher

On the heels of a federal appeals court ruling that only Congress and the executive branch of government – not the courts -- can interfere with government-sponsored “extraordinary rendition, ” a U.S. citizen from New Jersey is asking another court to tell the government it wasn’t OK to secretly imprison and abuse him in three different African countries over a period of four months.

The citizen is Amir Meshal, 24, the son of Muslim immigrants from Egypt.
According to the American Civil Liberties Union (ACLU), which filed the lawsuit in Meshal’s behalf, after fleeing hostilities in Somalia in 2006, Meshal was arrested, secretly imprisoned in inhumane conditions and subjected to harsh interrogations by U.S. officials over 30 times in three different countries before ultimately being released four months later without charge,

"This case challenges the US government’s effort to evade accountability for illegal detention and interrogations in counter-terrorism operations by masking and hiding its involvement," Jonathan Hafetz, a staff attorney with the ACLU National Security Project, told IPS.

According to the ACLU, Meshal was studying Islam in Mogadishu, Somalia, in December 2006, when hostilities broke out. With the airport disabled by bombing, Meshal fled to neighboring Kenya, where he wandered in the forest for three weeks seeking shelter and assistance before being arrested. Following his arrest, he was detained and repeatedly interrogated by U.S. officials who threatened to harm him, denied him access to counsel and accused him of receiving training from al-Qaeda, which Meshal denied.

Following his arrest and detention in Kenya, the suit says Meshal was illegally rendered to Somalia and then to Ethiopia where he was imprisoned in secret for over three months. There, U.S. officials subjected him to harsh interrogations while denying him due process and access to a lawyer, his family or anyone else in the outside world.

“The harsh treatment and mental anguish this individual suffered should never be experienced by anyone, let alone an American citizen at the hands of his own government,” said Hafetz. “This violation of basic constitutional rights must be remedied.”

Court filings say that during his detention, Meshal was kept in “filthy, crowded conditions in cells infested with cockroaches and given inadequate access to food, water and toilets. While in Kenya, the Americans who interrogated him repeatedly threatened him with torture. The interrogators warned Meshal that he could be sent to Somalia or Egypt, where the Egyptians ‘had ways of making him talk’, if he refused to answer questions or agree to the interrogators' allegations. Meshal was also threatened with being sent to Israel, where, the interrogators said, the Israelis would “make him disappear.”

At least one consular affairs official from the U.S. Embassy in Nairobi met with Meshal and was aware of his detention, but later claimed he lost contact with Meshal following his rendition to Ethiopia. Meshal was finally released in May 2007 with no additional explanation.

“This is a U.S. citizen who was caught in hostilities abroad, and instead of
helping him return, U.S. officials abused him and mistreated him and never
charged him with a crime,” said Nusrat Choudhury, one of the lead lawyers from the ACLU representing Meshal. “Should they be allowed to do that without helping a U.S. citizen get home, and instead, denying him access to lawyers?”

The complaint was filed in the U.S. District Court for the District of Columbia against two agents of the Federal Bureau of Investigation (FBI) and two other unnamed U.S. government officials.

Last week, another Federal court ruled that the courts have no jurisdiction over matters relating to the practice known as “extraordinary rendition” – kidnapping a person in U.S. custody and sending him/her to a prison in another country.

In a 7-4 decision in the celebrated case known as Arar v. Ashcroft, the appeals court for the second circuit in New York wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”

Some legal authorities believe Meshal may have a better chance of influencing the court because he is a U.S. citizen. The only other U.S. citizen whose lawsuit against a U.S. official has not been dismissed is Jose Padilla. Deemed an “enemy combatant” and currently serving a prison sentence for providing material support to terrorists, he is suing John Yoo, the former lawyer at the Justice Department who justified torture and Padilla says personally helped to devise his illegal treatment. A federal court in California refused to dismiss his case, in part because there was no other way for a U.S. citizen to hold U.S. officials accountable.

The ACLU also believes its case is stronger because the FBI agents named in the suit were not acting in a high-level supervisory role but were actually in the room, participated, and threatened him, while Meshal was being interrogated.

The Arar case involves a Canadian citizen, Maher Arar, who was detained by U.S. government officials at Kennedy International Airport in 2002 while enroute to his home in Canada following a vacation in Africa. He was held incommunicado for two weeks, then flown to Jordan and finally to Syria, where he was imprisoned in a coffin-size cell and tortured for ten months before being released by the Syrians without charges or explanation.

A two-year-long Canadian Government inquiry established that Canada had provided the US with incorrect information about Arar, and that he was guilty of nothing. He received an apology from the Canadian government and a cash award of $10 million.

The U.S., far from apologizing to Arar, has barely acknowledged that an error was committed. Condoleezza Rice, who was secretary of state at the time, has said only that the matter was not handled as well as it should have been.

The opinion by a majority of the New York appeal judges said, “For decades the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”

It ruled that “Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”

Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

Arar’s attorney, David Cole, indicated that the decision would be appealed to the Supreme Court.

He told IPS, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”

There is at least one other major case involving rendition pending before U.S. appeals courts. In California, four men who claim they were “rendered” to secret prisons where they were tortured are suing a Boeing subsidiary company they say knowingly handled the logistics of their rendition flights for the Central Intelligence Agency (CIA).

Another Problem for Obama: Prison Corruption

2009-11-11T13:25:00.003-05:00

By William Fisher

Amid the near-constant speculation over President Barack Obama’s strategy for Afghanistan, there appears to be virtually universal consensus that rooting out corruption has to be a top priority if the U.S. and its NATO allies are to have a “credible partner” in the Afghan government.

But corruption takes many forms and is found at many levels. To the lawyers of Human Rights First (HRF) understanding the relationship between corruption, how prisoners are treated, and the rule of law, is “critical to the success of any strategy” the Obama Administration may decide to pursue.

Sahr MuhammedAlly, an HRF attorney and author of a new report, “Fixing Afghanistan,” explained. She told Truthout:

“Over the past eight years, the prisoner detention policies and practices of both the Afghans and the Americans and their NATO allies have been totally uncoordinated -- a complete disaster. A man is arrested and confined to a cell. Hours later, that same person is out on the street, having bribed his prison guard to gain his freedom. His next stop is his bomb-making safe house. And the step after that is a crowded marketplace in Kabul or Kandahar littered with dead bodies.”

And that, she adds, “is no more or no less corrupt than a person who gets arrested and imprisoned, is denied a lawyer, is kept for months, even years, in prison conditions that can only be described as medieval, with no hope of ever seeing freedom again – because the guy was in the wrong place at the wrong time or because someone lost his paperwork or because someone with power was able to get money by selling this person into a legal no-man’s land.”

MuhammedAlly says “rule of law” training designed to prevent both kinds of situations has been going on for eight years, but has been “uncoordinated.” She says the U.S., NATO, and the Afghan Government are going have to recognize that “further detention policy reforms at Bagram are critical to achieving U.S. counterinsurgency goals in Afghanistan.” And these reforms, she adds, are going to require substantial resources.

That is the central message of the new HRF policy paper. It outlines steps the United States should take now “to establish legitimacy in the eyes of the Afghan people and to more fully align U.S. detentions with strategic priorities.”

"Successful counterinsurgency depends on U.S. actions being seen as fair, humane, and beneficial to the security of the Afghan people, whose cooperation is needed to ensure a stable Afghanistan," said MuhammedAlly, who wrote the paper.

The paper says, "To achieve this goal, the U.S. government should take further steps now to support U.S. goals of bolstering Afghan sovereignty, increase the capacity of the Afghans to handle detentions on their own, and to establish legitimacy of U.S. detentions in the eyes of the Afghan people by reducing the risks of arbitrary detentions, mistaken captures, and to ensure detainees a more meaningful way to challenge their detention."

The report notes that in April 2009, HRF interviewed former prisoners held by the United States in Afghanistan who at the time of their release were found by the U.S.military not to be a threat to U.S.,Afghan or Coalition forces. The report says that some detainees interviewed had been detained for five years, others from four months to two years.

According to those we interviewed in April, “prisoners held by the U.S. military in Afghanistan were not informed of the reasons for their detention or the specific allegations against them. They were not provided with any evidence that would support claims that they are members of the Taliban, al Qaeda or supporters of other insurgent groups. They did not have lawyers.”

Detainees, it continues, “were not allowed to bring village elders or witnesses to speak on their behalf or allowed to offer evidence that the allegations could be based on individual animosities or tribal rivalries. These prisoners had no meaningful way to challenge their detention. Former prisoners and Afghan government officials told Human Rights First that captures based on unreliable information have led to the wrongful detention of many individuals, which in turn creates friction between the Afghan people and the Afghan government as well as the U.S. military.”

The report continues: “In 2008 and in our follow-up visit to Afghanistan in 2009, we found that individuals transferred from U.S. to Afghan custody for prosecution in the Afghan National Defense Facility are tried in proceedings that fail to meet Afghan and international fair trial standards. Prosecutions were based on allegations and evidence provided by the United States, supplemented by investigations conducted by the Afghan intelligence agency, the National Directorate of Security (NDS),years after the initial capture. Although lawyers defend detainees at the ANDF, during the trials there were no prosecution witnesses,no out-of-court sworn prosecution witness statements, and little or no physical evidence presented to support the charges.”

Specifically, HRF recommends that the U.S. and Afghan governments enter into a public security agreement that sets forth the grounds and procedures for U.S. detentions consistent with international law. In order to avoid mistaken captures, the organization says, the U.S. must improve intelligence that results in detention. It must reduce the risk of arbitrary detentions by providing detainees sufficient ability to challenge their detention.

The U.S. must also work to increase the capacity of the Afghan authorities to handle detentions on their own by involving Afghan judges in a joint-U.S.-Afghan review body. The U.S. should establish more transparency for detention operations by facilitating access to detainees and to U.S. detention facilities by Afghan and international human rights organizations. And
the U.S. should strengthen the fairness of Afghan criminal prosecutions of those captured by the United States by providing resources and training to soldiers to assist them in information and evidence collection at point of capture.

Back in September, the Pentagon announced new detainee review board (DRB) procedures for the 600 detainees being held by the U.S. military at Bagram.

The new guidelines would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.

Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as "enemy combatants" is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced, and ineffective.

Also announced were reforms outlined in General Stanley McChrystal's August 30th assessment on Afghanistan for both U.S. and Afghan prisons, focusing on rehabilitation and skills training of prisoners in order to prevent their radicalization, as well as on evidentiary concerns that hinder successful and fair prosecution of suspected insurgents transferred by international military forces to Afghan courts.

General McChrystal noted that "detention operations while critical to counterinsurgency operations, also have the potential to become a strategic liability for the U.S. and ISAF" and concluded that the "desired endstate" is to transfer all detention operations, including U.S., to the Afghan government provided it has the capacity to run these systems in accordance with international and national law.

"We are mindful of the significant challenges that lie ahead to accomplish the detention goals outlined by the Pentagon and we are gratified to see improved detainee review procedures replace ones that were unfair and detrimental to U.S. counterinsurgency goals. To win back support for its mission and cooperation of the Afghan people, the United States however, must enact further reforms to U.S. detention practices," said MuhammedAlly.

She said, "Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide."

"It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address, " she added.

MuhammedAlly called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.

HRF’s recommendations come as the newly created Joint Task Force 435 in Afghanistan undertakes its mission to oversee new detainee review procedures in Bagram and assess how to effectuate the "endstate" of transferring detention operations to the Afghan government. It also comes as the Obama Administration nears the end of its own policy review and prepares to announce its strategy for Afghanistan operations.

In September, human rights activists and legal experts reacted swiftly to disclosures that the U.S. government is planning to introduce new measures it claimed would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.

Their views ranged from cautious optimism to total condemnation.

Tina Monshipour Foster, executive director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes "a step in the wrong direction."

She told us, "No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice."

She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, "only invites rule-breaking and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors."

"The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees," she said.

David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the administration’s new rules would work.

He told us, "The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama administration after serious criticism by the Supreme Court."

He said, "The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated."

He added," It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention."

In April, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.

Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines "encouraging," she remains concerned about the level of secrecy that surrounds Bagram.

"The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured, and on what grounds they are being subjected to indefinite detention," she noted.

"The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram," she said.

Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism.

He told us, "Whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields."

While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel – they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay, because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.

The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

Chip Pitts supports their position. He told us, "Judge Bates’ decision laudably made that distinction, and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution."

"These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones," Pitts said.

There are some 600-plus prisoners being held at Bagram. Critics charge that President Barack Obama has been turning Bagram into “a new Guantanamo,” since terror suspects are no longer being sent to the prison in Cuba because of plans to close it in January.

Military Commissions Create “Second-Class” Justice System, Lawyers Charge

2009-11-11T12:23:00.002-05:00

By William Fisher

Critics of President Obama’s changes to the regulations governing military commissions are characterizing these changes as “cosmetic improvements,” amid a growing consensus among human rights organizations that these tribunals are designed to produce convictions while trials in civilian courts are far more likely to produce justice.

This is the emerging view, not only from outside advocates opposed to the Bush-era tribunals, but also of many of the military judges, prosecutors and defense attorneys who have seen from the inside how the Commissions have worked – or failed to work – over the past eight years.

One of these is Air Force Reserve Lt. Col. David Frakt, who resigned his post as a defense lawyer for a Guantanamo prisoner, and enjoys a high degree of credibility because of the unique experience he has had.

We spoke extensively with Frakt via email. He told us. “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”

However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law war. Fourth, juveniles may still be subject to trial by military commission.”

Frakt concludes that “Military commissions are wholly unnecessary. There are virtually no examples of true war crimes committed by detainees during the armed conflict that started after 9/11. Almost all the offenses relate either to pre 9-11 activity and involve material support to terrorism, conspiracy and terrorism. These offenses can be effectively tried in federal courts.”

Col. Frakt continues: “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions - the ability to gain easy convictions on tainted evidence - has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”

Frakt referenced an amendment South Carolina Republican Senator Lyndsey Graham sought to insert into the bill. Graham commented that people who are terrorists who don't deserve full Constitutional rights. Col. Frakt responds by charging that Graham “is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”

Frakt concludes that “the criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court is the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”

Frakt speaks from first-hand experience. He served as an Air Force officer and military defense counsel with the Office of Military Commissions. During that time, he called the original military commissions “a catastrophic failure.” He was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement when a military judge ruled his confession was coerced. Frakt has returned to his work as a professor at Western State University College of Law in Fullerton, California.

And he is not alone in condemning the military commissions. Frakt’s former adversary in the Military Commissions, the prosecutor, Lt. Col. Darrel Vandeveld, resigned in September 2008. He told a congressional committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

Vandeveld declared the Commission system unable to deliver justice, and explained how he had gone from being a “true believer to someone who felt truly deceived,

In October and November 2008, his military judge, Army Col. Stephen Henley, refused to accept the confessions made by Jawad shortly after his capture (both in Afghan and US custody), because they had been extracted through threats of torture.

This dramatic assertion was made in a statement by Lt. Col. Vandeveld in January of this year in connection with Jawad’s habeas claim. His lawyers had discovery that Jawad may have been as young as 12 when he was first seized.

This disclosure produced yet another crisis for the Commission system, when an exasperated federal judge condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and statements to a Senate and House Committee in July by Vandeveld and Frakt.

The positions taken by both men dropped like an A-bomb on the uniformed military, the civilian leadership at the Pentagon, the Congress and the White House.

But these positions should have come as no surprise. Perhaps the element that was unique was agreement involving both the prosecutor and the defense counsel in the same single case.

Lt. Col. Frakt testified before a Congressional Committee as an expert witness, being an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul.

The view he expressed was that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.

Lt. Col. Frakt told Congress, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”

“One point on which all sides should be able to agree is that the military
commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted.

Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.

“There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.

“Why, with the entire resources of the Department of Defense, the Justice
Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality.”

“The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail,” Frakt said.

Frakt and Vandeveld were not the first the first – nor are they likely to be the last – to speak out in opposition to the use of Military Commissions. Earlier in the GITMO kabuki theater spectacle, a young Naval officer named Charles D. Swift gained national notoriety by pushing back against the Pentagon powers that be.

Swift was a Lieutenant Commander in the Judge Advocate General's Corps and Visiting Associate Professor of Law at Emory University School of Law. He served as defense counsel for Salim Ahmed Hamdan, a former driver for Osama bin Laden captured during the invasion of Afghanistan. Hamdan was charged in July 2004 with conspiracy to commit terrorism.

As Hamdan's legal counsel, Swift, together with the Seattle law firm of Perkins Coie and Georgetown Law Professor Neal Katyal, appealed Hamdan's writ of habeas corpus petition to the U. S. Supreme Court.

In Hamdan v. Rumsfeld, the justices ultimately held that the military commission to try Salim Hamdan was illegal and violated the Geneva Conventions as well as the United States Uniform Code of Military Justice (UCMJ).

Ultimately, Swift was passed over (the second time) for promotion because the Navy said he failed to have the diversity of experience required of Navy judge advocates and had to retire under the military's "up or out" promotion system which mandates retirement for officers passed over twice. But other informed sources contend Swift was released because of his Hamdan defense. Swift has said he learned of being passed over two weeks after the Supreme Court decided in Hamdan's favor.

Hamdan was but one of many judicial rebukes to President George W. Bush’s detention plans. In Hamdan, the High Court held that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay lacked "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949."

Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.

In another case, Hamdi v. Rumsfeld, the Supreme Court reversed the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant". The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are U.S. citizens must have the ability to challenge their detention before an impartial judge.

Earlier, in 2004, the Supreme Court held in Rasul v. Bush, that the nearly-600 men imprisoned by the U.S. government in Guantanamo Bay, Cuba had a right of access to the federal courts, via habeas corpus and otherwise, to challenge their detention and conditions of confinement.

Subsequent to this decision, the habeas petitions were remanded to the district court for further proceedings. Immediately after the Supreme Court's decision in Rasul, 11 new habeas petitions were filed in the United States District Court for the District of Columbia on behalf of over 70 detainees. These cases eventually became the consolidated cases of Al Odah v. United States and Boumediene v. Bush, the leading cases determining the significance of the Supreme Court's decision in Rasul, the rights of non-citizens to challenge the legality of their detention in an offshore U.S. military base, and the constitutionality of the Military Commissions Act of 2006.

Moreover, the list continues to grow under Presdident Barack Obama. The high court has accepted a request to hear a case from 13 ethnic Uighur (Chinese Muslim) GITMO inmates who are petitioning for release to the United States, contrary to a measure voted last week by the House of Representatives permitting the transfer of prisoners to the US for trial, but explicitly forbidding their release to the US.

The legislation requires an assessment of potential security risks, including what dangers are involved, how the threat can be diminished, legal arguments and assurances about the detainee's level of risk to the relevant state governor, to be provided 45 days prior to prosecution in the US. Under these measures, the President must provide Congress with the detainee's name, destination, a risk assessment, and transfer terms in order to release them to another country.

Some of the Uighurs are still being detained while the government has found countries prepared to relocate others. A federal judge ruled in February that they be released to the US. However an appeals court overturned the decision in February saying that only the executive branch, not federal judges, had jurisdiction on immigration matters.

In addition to the cases on their way to the Supreme Court, dozens of habeas corpus petitions have been filed, but not yet heard, in Federal Court in Washington, D.C.

Observers of the military tribunals process are predicting that the new amendments may do little to insulate the Commissions from multiple legal challenges. In the past, these challenges have virtually stopped the proceedings at GITMO and have, in large part, been responsible for only three trials being held there in eight years.

One of the more persistent GITMO-watchers since the first prisoners arrived there is Chip Pitts, President of the Bill of Rights Defense Committee, and a lecturer at the Stanford University law school.

Here’s his take-away from this week’s developments.

He told us: “Without gainsaying the undoubted improvements contained in Obama’s military commissions created by the National Defense Authorization Act (NDAA), including an overdue prohibition on use of most (but not all) evidence obtained by coercion, the problem with continuing the unnecessary and suspect Bush-era military commissions in any form is that they perpetuate an overbroad, second-tier system of justice.

“Especially when taken together with continued recourse to novel definitions of ‘war crimes’, indefinite detention, and refusal to prosecute higher-ups who authorized torture, such derogations from the rule of law blatantly violate international human rights and constitutional due process and equal protection: they’ll be used only in a discriminatory fashion, for non-citizens (even some who were children at the time) against whom the evidence is insufficient to try them in the regular U.S. courts that, unlike the military commissions, have a good record of successfully trying terrorists.

“Such a discriminatory, second-tier system of justice not only calls into question the outcomes reached, but will inevitably spill over to taint the U.S. justice system as a whole and continue to tarnish the country’s reputation and soft power – and the nation’s ability to achieve both its human rights goals and its other vital interests in the world.

“It is way past time to reject the discriminatory, disproven, xenophobic, demagogic, and counterproductive notions driving such policy mistakes, including above all the now indisputably wrong idea that the hopelessly overbroad ‘endless global war on terror’ framework can somehow yield better decisions and results than the proven legal approaches that carefully and pragmatically evolved over the last 1000 years as the best ways to produce truth with justice,” he told us.

Changes in Military Commissions Fail to Impress Rights Groups

2009-11-10T06:02:00.001-05:00

By William Fisher

Human rights advocates and legal scholars are voicing sharp criticism of President Barack Obama’s revisions to the Bush administration’s Military Commissions Act of 2006, characterizing them as unnecessary and saying the new law will lead to further delays and create a system of “second-class justice.”

One powerful advocacy group, the American Civil Liberties Union (ACLU), called on the Obama administration to “abandon the fatally flawed military commissions system and, where evidence of terrorism crimes exists, try the Guantánamo detainees in federal courts.”

Said the Center for Constitutional Rights, an advocacy group that has mobilized dozens of lawyers to defend inmates at Guantanamo Bay, “The use of military commissions will only lead to further delays in a process already long overdrawn. Any new system will inherently fall prey to growing pains and missteps, and years of appeals after trial to sort through the new legal uncertainties created today. Fundamental aspects of the system, such as who may be tried before such commissions, remain vague.”

The group added that the new law “includes ‘conspiracy’ and ‘material support’ as war crimes, contradicting the Obama administration’s prior position that they did not qualify as offenses triable by military commission.”

President Obama signed the new bill into law this week, as part of the National Defense Authorization Act (NDAA).

Other critics of the new legislation were able to point to some improvements over the prior measure. One of them is David Frakt, who served as an Air Force officer and military defense counsel with the Office of Military Commissions. Lt. Col. Frakt, who called the original military commissions “a catastrophic failure,” was defense counsel for a young GITMO prisoner, Mohammed Jawad, who was released this summer to his home in Afghanistan after years in confinement after a military judge ruled his confession was coerced.

Frakt, who has returned to his work as a professor at Western State University College of Law in Fullerton, California, told IPS, “Clearly, the new military commissions are a significant improvement, at least on paper, over the previous incarnations. The revisions to the hearsay rules and the establishment of a voluntariness standard for the admissibility of statements are the two most significant improvements.”

However, he added, “The military commissions are still fundamentally flawed in a number of respects. First, there is no requirement of any pretrial investigation, such as a preliminary hearing or grand jury. Second, there is no derivative evidence rule, or ‘fruit of the poisonous tree’ doctrine, so even if coerced statements themselves may be inadmissible, evidence derived from those coerced statements may still be admitted into evidence. Third, the MCA still authorizes the trial of detainees for a variety of offenses that are not traditional war crimes, including material support to terrorism, terrorism, conspiracy, and the invented offense of murder in violation of the law of war. Fourth, juveniles may still be subject to trial by military commission.”

Frakt said military commissions “are wholly unnecessary.” He told IPS, “Now that that the evidentiary rules in military commissions have been tightenened to more closely resemble the rules in federal courts, the real reason for the creation of military commissions -- the ability to gain easy convictions on tainted evidence -- has largely been removed. But the taint of the original process still lingers. The perception that the military commissions are a second-class option remains.”

Frakt cited remarks made by Sen. Lindsay Graham, a Republican from South Carolina, a leading proponent of military commissions. Frakt said, “Comments that these people are terrorists who don't deserve full Constitutional rights reinforces this idea. (Sen. Graham) is clearly prejudging the cases and affording a presumption of guilt, not innocence. The Constitution sets forth the minimum due process that we believe is necessary to ensure a fair trial. Why would we ever want to go below that?”

He said, “The criteria for determining which cases go to commissions and which to federal courts make no sense. Basically, the cases will go to federal court if the Justice Department wants the case and thinks they can prove it, and the rest of the cases will go to the military commissions. This is further proof that the commissions are a second-class option.”

An amendment to the law introduced by Sen. Graham would have blocked transfer of alleged 9/11 planners to federal criminal court. It was defeated 54-45. Christopher Anders, Senior Legislative Counsel for the American Civil Liberties Union (ACLU), told IPS he regarded this as “a big win.”

He said, “Thankfully the Senate has made the right decision by not tying the president’s hands when it comes to prosecuting detainees. Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice.” He pointed out that the U.S. has successfully tried nearly 200 international terrorism defendants in federal courts since 9/11. “We have an American system of justice that works, and there is no reason not to use it,” he said.

The military commissions created by President Bush after the 9/11 attacks and subsequently authorized by Congress tried only three cases.

Others were equally scathing in their criticism of the new commissions. Francis Boyle, a law professor at the University of Illinois, characterized the commissions as “Obama's Kangaroo Courts.”

He told IPS, “The Gitmo Kangaroo Courts constitute war crimes under the Laws of War, the Four Geneva Conventions of 1949, and even the U. S. Army's own Field Manual.”

And Gabor Rona, international legal director of Human Rights First, told IPS, “The assertion that regular courts are for regular crimes and military commissions are for war crimes is false. If it were true, then why do we have a War Crimes Statute that creates jurisdiction in our federal courts?”

He added, “I'm particularly struck by this disconnect: the Task Force (appointed by President Obama) recognizes the historic limitation for use of military commissions, namely situations of ‘military necessity,’ which is properly understood as, for example, in situations of occupation where the usual mechanisms of justice are not operating. But then, despite acknowledging the success of federal court terrorism prosecutions, the Task Force sets out a series of considerations for deciding whether to send a case to military commission without due regard for the fact that federal courts are open and operating.”

Critics also pointed out what they termed other deficiencies in the new law. For example, they point out, the new bill also fails to include a sunset provision, making the system a permanent part of President Obama’s legacy.

Center for Constitutional Rights Executive Director Vincent Warren yesterday made the point even more starkly: “These are now President Obama’s military commissions: he owns them and all of the problems that come with them, and their inevitable failure will scar his legacy and embolden our critics in the world. Military commissions are an unnecessary, jury-rigged creation, second-rate in comparison to our legal system. Obama is tinkering with the Constitution for no good reason.”
The Obama administration is expected to announce its plans for prosecuting a number of Guantánamo detainees either in federal courts or before the Guantánamo military commissions by November 16. Several news organizations have reported that alleged 9/11 planners will likely be sent to federal criminal courts to be prosecuted by the Justice Department.

Most Happy Fella!

2009-11-07T07:29:00.001-05:00

By William Fisher

My friends will probably be surprised to hear me say, “I’m a really lucky guy. I’m happy!” They’ll think I’ve developed a marshmallow brain.

Well, maybe so. But here it is: “I’m a really lucky guy!” And happy about it!

And the source of these newfound feelgoods? No, I didn’t win the lottery. And, no, I didn’t win a Pulitzer either.

So why?

I wake up at five every morning and read six or seven papers online. And they are always full of depressing stuff. Serial killers. Child rapists. Parents murdering their children. Unmanned drones dropping bombs on innocent villagers. Demagogic rants from people too stupid or too craven to get elected to Congress, but elected anyway (by us). Health care prescriptions from folks not shamed by the idea of making a profit off someone else’s poor health. And authoritative nostrums for mending all our foreign policy ailments from fulltime professional critics who never had the responsibility of mending anything.

So this makes me happy?

No. The thing that makes me happy is that I am able to read six or seven newspapers. I’m happy that these newspapers – or, these days, blogs – give people with whom I may disagree profoundly a platform from which to broadcast their ideas. And I’m happy that in the country I live in there’s no government censor, no invisible hand guiding me toward safe self-censorship, and no knock at the door at two in the morning.

The Gestapo didn’t come to deliver your milk. Neither did the Stasi. Or the KGB. Or the apparatchiks of the Middle East despots we continue to fawn over and look the other way because they still have the black gold we need to run our country.

How easy it is for us Americans to forget that in most of the rest of the world those who scribble their way to a living aren’t so lucky. The world’s jails are full of men and women who never dreamed it could be a crime to voice an opinion, no matter how controversial. Or others who knew all too well that there might be a price to be paid, but voiced the opinion anyway.

So this morning I read that Omid Mir Sayafi, a 29-year-old blogger who had been jailed for 30 months for insulting Iran’s ruling clerics, died in Tehran's main prison. The International Campaign for Human Rights in Iran, which advocates for activists in the country, reports that Sayafi suffered from severe depression and had taken extra doses of medication. The group blames Iran's government for unsafe conditions in its prisons.

Then I read that the Committee to Protect Journalists is calling on the Iranian authorities to release the many journalists detained in the aftermath of the disputed presidential election and to lift the onerous press restrictions that are choking information at a time when the country and the world most need it.

Then authorities instruct the BBC's bureau chief to leave the country. The signals of the BBC and U.S.-government backed radio and televisions stations remain jammed. The government shuts the Tehran offices of a major Arab satellite station -- the Dubai-based satellite channel Al-Arabiya – indefinitely. Newspaper censorship is widespread, an Iranian journalism group says..

But the repression is not limited to Iran. It’s happening wherever journalists feel constrained to speak the truth. In the Middle East, the jails of Egypt and many other countries with authoritarian regimes are filled with journalists and bloggers who strayed off the government-dictated path. And it’s not just Egypt; Saudi Arabia has one of the most extensive – and expensive technological systems for selectively blocking Internet access, perhaps second only to the setup in China, which is among the world’s major Internet censors. And in Russia, outspoken journalists just get murdered.

But I confess to being drawn toward the outrages in Egypt, because I used to live and work there. I am struck by the blogger who is sentenced to a four-year jail sentence for calling President Hosni Mubarak a “symbol of dictatorship,” and Al-Azhar University a “university of terror.”

“If we let people like him off without punishment, a wildfire will blaze up that consumes everything in its path,” prosecutor Mohammed Dawud warns. He adds, ”Exactly that is what civil rights activists dream of, many of whom pin their hopes on a grass-roots digital democratization initiated by the country’s bloggers.”

And in Alexandria, blogger Abdel Karim Nabil Suleiman is taken from his home and detained by State Security agents, Bloggers who visited his family report that the family believes Abdel Karim’s political opinions and writings for several outlets, including Copts United, are behind the arrest. Suleiman is a 21-year-old law student at al-Azhar University

(Al-Azhar University is the center of Arabic literature and Sunni Islamic learning in the world and the world's second oldest surviving degree granting university. Its mission includes the propagation of Islamic religion and culture and its Islamic scholars (ulemas) render edicts (fatwas) on disputes submitted to them from all over the Sunni Islamic world regarding proper conduct for Muslim individuals or societies. Al-Azhar also trains Egyptian government appointed preachers in proselytization (da'wa).)

Exactly three years ago, the newly-elected president of the Union of Egyptian Journalists proclaimed that President Hosni Mubarak had promised to abolish prison sentences for journalists in connection with their work. Three years later, nothing has changed.

Despite all the recent rhetoric to the contrary, thirty-five offences, including defamation and insulting President Mubarak or a foreign head of state, continue to be punishable by imprisonment. The ceiling for certain fines has been doubled. In cases of very large fines, journalists can be imprisoned as debtors if they are not in a position to pay the fine immediately.

Prominent journalists are currently being prosecuted for articles they have written and are facing imprisonment. They have been sentenced to a year in prison and fines of 10,000 Egyptian pounds (1,400 euros) for insulting President Mubarak.

Egyptian journalists working for foreign news media have also not been spared. An Al-Jazeera reporter was prosecuted on a charge of “endangering the national interest and the country’s reputation” in connection with a documentary she was making about torture in Egyptian prisons.

Nor has much changed elsewhere in the world’s truth-repression zones. There is no Get Out of Jail Free card for journalists – citizen and otherwise – who happen to have been born in one of these zones. And, sadly to say, they are increasing.

We are not in such a zone. Our newspaper industry may be disappearing, but we’re in the process of reinventing the information business. And ranting and raving – misinformation, disinformation -- is simply a part of that process. Exasperating as that may be!

OK, I acknowledge that I would be happier if those I disagree with at least expressed themselves rationally. And, yes, maybe I could live without the Glenn Becks and Michele Bachmanns of the world.

But, then, where would I go for belly laughs?

Well, I guess there’s always Rush Limbaugh.

But I’m happy enough just knowing I’m one of the lucky ones who doesn’t have to worry about the door knock at 2 A.M. And happy Glenn Beck doesn’t have to worry either.

Changes in Military Commissions Fail to Impress Rights Groups

2009-11-07T07:21:00.001-05:00

Most Happy Fella!

2009-11-06T09:51:00.000-05:00

Is a Re-Do of Post-9/11 Paranoia the Best We Can Do?

2009-11-06T06:20:00.001-05:00

By William Fisher

The USA Patriot Act, rushed into law by a panicky U.S. Congress in the aftermath of the terrorist attacks of September 11, 2001, gave law enforcement sweeping new powers, including broad surveillance powers to spy on innocent Americans. But it also stipulated that three of its more controversial provisions should expire at the end of next month unless reapproved by lawmakers.

And it appears that reapproval may be about to happen – evidently with a green light from the Obama Administration and over strong objections from human rights and civil liberties groups.

Last week, the Senate Judiciary Committee passed the USA Patriot Act Extension Act of 2009. The bill makes only minor changes to the original Patriot Act and was further watered down by amendments adopted during the Committee’s deliberations.

“The Senate Judiciary Committee had the opportunity to pass legislation
to rein in a bill that has become a symbol of out-of-control government invasions of your privacy. They failed -- approving a bill that does little to curtail the sweeping powers embedded in the Patriot Act,” said the American Civil Liberties Union.

The Committee’s actions were driven by “short-term and political considerations,” Chip Pitts, president of the Bill of Rights Defense Committee, told us. The Committee ignored “the need for a more sensible long-term, reasoned, rule-of-law approach,” he said.

Now, civil libertarians are looking to the House of Representatives, where the Judiciary Committee has already begun to consider the measure. Both chambers must produce versions of the legislation, after which differences will be reconciled by a bicameral conference committee.

A number of parts of the law are due to expire at the end of next month. These are:

Section 213, which expands the government's ability to execute criminal search warrants (which need not involve terrorism) and seize property without telling the target for weeks or months.

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.

Section 215, which allows the FBI to seize a vast array of sensitive personal information and belongings – including medical, library and business records – using secret intelligence tools that do not require individual criminal activity. Although the records can only be seized pursuant to a court order, judges are compelled to issue these orders, making such judicial review nothing more than a rubber stamp. Sec. 215 Allows the FBI to use FISA court orders to seize any "tangible thing," including highly sensitive medical, library, business and travel records, from a wide variety of institutions under an extremely weak standard of judicial review. The Section 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.

Section 505, which lowers the evidentiary standard for "national security letters," or NSLs, which are issued at the sole discretion of the Justice Department, impose a blanket gag order on recipients and are not subject to judicial review. NSLs can be used to seize a wide variety of business and financial records, and in certain instances could be used to access the membership lists of organizations that provide even very limited Internet services (message boards on the ACLU's website for instance). Sec. 505 authorizes the government to seize financial, Internet, credit and telephone records without prior judicial review and without articulable suspicion that the target is a terrorist or spy.

The “roving wiretap” provision, which allows the government to tap phones and other electronic devices used by any person suspected of involvement in terrorism; a roving wiretap follows the target of the surveillance from telephone to telephone. Because there is a greater potential for abuse using roving wiretaps compared to traditional wiretaps, which apply to a single telephone, Congress insisted on important privacy safeguards when, prior to the Patriot Act, it first approved this “updated” surveillance power for criminal investigations.

Also being debated is the so-called “Material Support” Statute. This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.

The FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 has also became part of the debate. Passed last summer, Congress amended the FISA law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and e-mails. Section 206 of the Patriot Act created roving wiretaps in Foreign Intelligence Surveillance Act (FISA) investigations. Section 206 erodes the basic constitutional rule of particularization by allow the government to obtain “roving wiretaps” without empowering the court to make sure that the government ascertain that the conversations being intercepted actually involve a target of the investigation. Section 206 also created “John Doe” roving wiretaps – wiretaps that need not specify a target or a device such as a telephone.

Prior to the Judiciary Committee markups, the ACLU and other civil liberties groups had endorsed the JUSTICE Act, an alternative bill that would heavily reform not only the Patriot Act but other overly broad surveillance laws.

Amendments that were offered but failed by voice vote included an amendment by Senator Durbin to curb the abuse of the National Security Letter (NSL) statute and another offered by Senator Feingold to allow the “lone wolf” provision to expire (this never-used provision targets individuals who are not connected to terrorist groups). An amendment also failed that would make it more difficult for recipients to challenge the gag order that comes with receiving an NSL.

However, two amendments offered Senator Feingold were included in the final bill. In one, the Department of Justice would be ordered to discard any illegally obtained information received in response to an NSL. In the second, the government would have to notify suspects of “sneak and peek” searches within seven days instead of the 30 days currently required by the statute. “Sneak and peek” searches allow the government to search a home without notifying the resident immediately.

Now the civil liberties community is stepping up lobbying efforts to ensure that the legislation that emerges from the House Judiciary Committee contains more protections for privacy and other civil liberties. Such legislation has been introduced in the House by three powerful Congressmen: John Conyers of Michigan, Jerrold Nadler of New York, and Robert Scott of Virginia.

Their proposed amendments Act would create more civil liberties protections for many of the Patriot Act powers, including restricting the gag order attached to receiving a subpoena known as a national security letter (NSL), terminating the never-used "lone wolf" surveillance power, and limiting the use of NSLs to collect information on suspected terrorists or spies instead of innocent Americans.

However, the proposed new legislation leaves intact the Patriot Act's so-called "material support" provision, permitting prosecution of those who work with or for charities that give humanitarian aid in good faith to war-torn countries.

The actions of the Senate committee have left human rights advocates and many legal scholars perplexed because the Committee chairman, Senator Patrick Leahy, Democratic of Vermont, is considered one of the most liberal members of the Senate, and its members include such other high-profile progressives as Al Franken of Minnesota, Russ D. Feingold of Wisconsin, Chuck Schumer of New York, Dick J. Durbin of Illinois, and Sheldon Whitehouse of Rhode Island.

Asked to explain their votes, Chip Pitts of the Bill of Rights Defense Committee said “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them -- was undoubtedly a huge if lamentable factor.”

He also cited the recent arrests of Najibullah Zazi and others, noting that Leahy said that in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”

Zazi has been charged with conspiring to bomb targets in the U.S. He allegedly traveled last year to Pakistan, where the FBI charges that he attended terrorist training camps.

“In sum, short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach, ” Pitts told us, adding,

“In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror (and avoid being accused of being ‘soft on terror’) brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed. Even nominal and sometimes actual civil liberties advocates have become more used to the ‘new normal’, seemingly forgetting the less visible but vital benefits of the liberties themselves – including for genuine and effective security, let alone for successful, prosperous, creative, dynamic open societies as opposed to closed societies like the former East Germany that used such approaches to their detriment.”

“The persistent myths and claims that the Patriot Act hasn’t been abused are simply ludicrous after the documentation by (civil liberties groups), regarding the torrent of abuse that has happened since 9/11,” Pitts told us.

Now, all eyes are turning to the House of Representatives, where debate has already begun in the Judiciary Committee.

Congressmen Conyers, Nadler and Scott have introduced the USA PATRIOT Amendments Act of 2009, which reforms a number of Patriot Act provisions. The bill reins in the government’s spying powers and would protect the privacy of records. H.R. 3845 amends the national security letter (NSL) authority so that the government can only access communications, financial and credit records when they pertain to a terror suspect or spy. Under the original Patriot Act, the government can collect the records of innocent people whenever it deems them “relevant” to an investigation – without any oversight by an impartial court. The current standard is so low that independent audits found that approximately 50,000 are issued every year and many are issued against people two or three times removed from an actual suspect.

The Conyers-Nadler-Scott bill amends the Patriot Act’s “roving John Doe” authority to protect the privacy of communications. That authority currently permits wiretap orders even without identifying either the person or the place to be tapped. The new bill would require the government to name either the person or the place.

The Patriot Act made it easier for the government to secretly conduct searches without giving prior notice by authorizing “sneak and peek” searches whenever notice would jeopardize an investigation. H.R. 3845 seeks to protect the privacy of homes and businesses by reining in this authority by removing this broad catch-all, but permits government officials to continue secret searches in emergency or urgent circumstances.

The USA PATRIOT Amendments Act requires that gag orders that come with national security letters or section 215 orders meet traditional First Amendment standards. If a recipient of one of these requests wishes to speak out about the government’s actions, the burden will be on the government to convince a court that national security will be jeopardized if the recipient is not gagged.

But the recent indictment of a suspected New York City terrorist is already being used to stir up paranoia on the Hill. Rep. Peter King, a right-wing New York Republican who is set to challenge Sen. Kirsten Gillibrand’s senate seat in 2010, is a prime example. He says the arrest of Najibullah Zazi proves that lawmakers must renew the Patriot Act permanently.

The FBI arrested Najibullah Zazi this month after investigators collected sufficient evidence proving he was conspiring to create and use weapons of mass destruction on U.S. soil.

But King believes that Zazi's capture and indictment would not have been possible without the Patriot Act.

"All the layers of defense President Bush set up after September 11 are working. The FBI is working more closely with local police, the Patriot Act, which allows roving wiretaps... is essential," King told Fox News. "We have to have this, it's absolutely essential."

Chief among many lawmakers' complaints is that the Patriot Act undercuts privacy and threatens personal freedoms. But Republicans in particular have dismissed those criticisms, asserting the set of statutes has been indispensable in helping law enforcement agencies prevent future terrorist attacks.

As the Patriot Act approaches its sunset date, the Obama administration has signaled its interest in preserving key aspects of law -- including its provisions on the Foreign Intelligence Surveillance Court, the panel that grants federal officials the ability to conduct "roving wiretaps" on suspect terrorists. But Obama is likely to face staunch Democratic opposition to that effort, even as he promises his party members new Patriot Act provisions designed specifically to safeguard Americans' privacy rights.

While that legislative battle heats up, King on Monday reiterated the law in its original form was integral to the country's counter-terrorism strategy.

"That's why we need all these layers, all these tools," King said. "There's no silver bullet here."

Another powerful representative in Congress, Jim Sensenbrenner, wants to make the Patriot Act permanent in almost all respects. Sensenbrenner's measure would leave the hotly debated law largely intact. It also would repeal the law's "sunset" provisions, under which some of its search and surveillance powers are to expire at the end of this year.

But the bill introduced Monday contains no such sunsets and is in keeping with recent comments by Sensenbrenner that he believes the Patriot Act is not overbroad and has not been abused. It also reflects the Bush's administration's desire to make the act fully permanent.

Polling asking whether the Patriot Act should be made permanent produced the following results: No 58%, Yes 26%, Some but not all 14%.

Meanwhile, the House gave itself some breathing room by extending the expiring provisions of the PATRIOT Act until March 10th. This legislation, H.R. 4659, ensures this vital antiterrorism law does not expire and gives the Senate more time to consider the House-Senate conference report that the House passed in December with the support of 44 Democrats and nearly all Republicans. The Senate is expected to pass this legislation this week.

Meanwhile, the ACLU has written to members of the House committees urging them to rein in what it sees as the overbroad provision of the original Patriot Act.

Their letter said, “Congress rightly put sunsets on some provisions of the Patriot Act, so that lawmakers could reexamine the extraordinary powers when cooler heads would prevail.”

Whether there are cooler heads in Congress remains to be seen.

Wouldn’t It be Easier Just to Apologize?

2009-11-05T20:15:00.000-05:00

By William Fisher

A few years back, the FBI mistakenly linked an American lawyer’s fingerprint to one found near the scene of a horrific terrorist bombing in Madrid, Spain. In the tragedy of errors that followed, the lawyer was jailed in Oregon as a “material witness” for two weeks.

And what did the FBI do? It apologized. That doesn’t happen very often, but it did happen this time. The FBI admitted a blunder that had led to Brandon Mayfield’s unlawful imprisonment.

“The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused,” the bureau said in a statement, adding that the agency also said it would review its practices on fingerprint analyses.

Mayfield, a 37-year-old convert to Islam, sharply criticized the government, calling his time behind bars “humiliating” and “embarrassing” and saying he was targeted because of his faith.

“This whole process has been a harrowing ordeal. It shouldn’t happen to anybody,” said Mayfield. “I believe I was singled out and discriminated against, I feel, as a Muslim.”

And maybe that’s what should have happened long before Maher Arar’s case ended up before a Federal Appeals Court. Consider how much money would have been saved by the government and by Arar’s legal team, and think about how such an action by the government would have undoubtedly ceded the U.S. the moral high ground it desperately needs to regain.

Just to refresh your memory: Maher Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. He was held by U.S. authorities incommunicado – no lawyer, no contact with family, no nothing. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.

How do we know what the outcome would have been if the U.S. had taken the Canadian road? We know because that’s the road the Canadian Government took. It decided to find out the details of what happened. It impaneled a high-level commission, which spent two years painstakingly sifting through the information that led to Arar’s unlawful arrest, unlawful detention, and unlawful “extraordinary rendition.” It admitted that its people had passed erroneous information to the Americans that led to this travesty in the first place.

Heads rolled. Senior officials were forced to resign. But the Canadian intelligence services didn’t implode. Their sources and methods were never revealed.

And after its exhaustive two-year public inquiry, which found that Arar had no connection to terrorism, the Canadian Government apologized to Arar for Canada’s role in his rendition, and awarded him a multi-million-dollar settlement.

Could there have been a sharper contrast between the two governments’ responses to their mistakes? The Canadians fessed up to a mistake. And with that admission, their credibility catapulted off the charts.

The U.S. Government, on the contrary, has fiercely fought off inquiry of any kind. It has used every tool in its legal back-back to refuse to hold anyone accountable for ruining the life of an innocent man. And, in so doing it has perfectly positioned a large dark cloud over its head.

Inscribed on that cloud? Secret government. Not credible government. Not to be believed government.

We might have harbored a smidgen of hope for better things from our government on the occasion of two Congressional hearings on the Arar case in 2007. On October 18, 2007, Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time he testified before any U.S. governmental body – individual members of Congress publicly apologized to him. But the government stopped well short of any kind of formal apology. The following week, on October 24, then Secretary of State Condoleezza Rice acknowledged during a House Foreign Affairs Committee Hearing that the U.S. government had mishandled his case.

Mishandled his case? Tone-deaf statement of the Year!

BTW, Arar’s Congressional testimony was via video because Arar was on the “no fly” list of the Department of Homeland Security. And he remains on the list today.

But a lot of us were at least a bit more hopeful when we heard our new president usher in a new era of transparency in government. Not that we were under a bunch of naïve illusions that Obama would let our intelligence sources and methods spill out in plain sight. That’s OK for Code Pink.

No, most of us progressives are grown-up enough to appreciate that countries need to have secrets and that sometimes these secrets have to stay that way.

But perhaps we were naïve and full of wishful “Yes We Can” thinking if we thought our society and our government would become more open, more inclined to reconciliation, and less litigious any time soon.

The bottom line is that, as a result of years of government obfuscation, judicial sandbagging and bureaucratic red tape, a case that could have been settled with a pretty straightforward apology and modest compensation found itself inexorably headed for protracted arguments involving some of our smartest lawyers doing their thing before some of our smartest judges in the most powerful courts in our country.

Huzzah! We Americans seem to love nothing more than seeing a bunch of legal gladiators engaged in pitched battle in much the way the Romans did in the Forum. Conjures up images of Gregory Peck as Atticus Finch. Or Spencer Tracy and Frederick March duking it out as Clarence Darrow and Williams Jennings Bryan.

And we weren’t disappointed. Words flew. Milllions of them. From lawyers on both sides. From Friends of the Court, who joined in the fun, adding millions more words. The case bounced up and down the judicial ladder from disrict court to a three-judge panel in the circuit court of appeals, back to the district court for yet another full-throated advocacy joust before an 11-judge en banc court.

All this took seven years and cost millions of taxpayer and private dollars.

And what did anyone get in the end?

An appeals court decision that left enough people so unhappy and unsatisfied that the Supreme Court has to be the next step in climbing this Himalayan obstacle course.

What did the Appeals Court decision tell us?

The court concluded that the case brought by Mahar Arar against Bush-era Attorney General John Ashcroft and other officials raised too many sensitive foreign policy and secrecy issues to permit relief. The decision leaves the federal officials involved free of any legal accountability for their actions.

In a 7-4 decision, the Court wrote, “If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”

But Arar’s attorney, David Cole, took a decidedly different view as he indicated that yesterday’s decision would be appealed to the Supreme Court.

He told us, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”

Cole added, “If the rule of law means anything, it must mean that courts can hear the claim of an innocent man subjected to torture that violates our most basic constitutional commitments.”

Yesterday’s majority opinion cited previous cases in which the practice of rendition was found to be lawful. It noted that “the renditions of suspected terrorists Ramzi Yousef and Mir Aimal Kansi to the United States and the rendition of Illich Ramirez Sanchez, also known as ‘Carlos the Jackal’, by French authorities from the Sudan to France,” had been upheld by the European Commission on Human Rights.

“For decades,” the Court wrote, the United States and other countries have used ‘renditions’ to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.”

It ruled, “Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that…it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress--and not for us as judges -- to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition…Not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.”

Four judges issued dissenting opinions. One of them, Judge Guido Calabresi, wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

The Obama Administration has said that it would continue the practice of extraordinary rendition, but would seek diplomatic assurances that those it rendered to other countries would be not tortured. This was also the policy of previous U.S. administrations, dating from the administration of President Bill Clinton and including that of George W. Bush. However, such “diplomatic assurances” have been largely worthless, since the U.S. retains relatively little control over what happens inside a foreign prison once a person is turned over to another country.

In a statement issued through the Center for Constitutional Rights (CCR), which brought the suit on Arar’s behalf, Arar said, “After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.”

Now this is where I’m supposed to summon up all my cajones, put out my strongest arguments in my most intrepid voice, and convince one and all that there is only one wisdom – and I have it.

Instead, it seems more appropriate to end this polemic with another look at the wisdom of another:

“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch.” – Maher Arar

And Where Was A.G. Ashcroft? A.W.O.L.

2009-11-04T10:24:00.000-05:00

By William Fisher

Bush-era Attorney General John Ashcroft had a busy day in court yesterday.

A Federal Appeals court ruled he could not be held responsible for kidnapping a Canadian citizen in New York and shipping him off to Syria where he was imprisoned for a year and tortured.

But, in another case, five men who had been living in New York and were ultimately deported won a $1.26 million settlement from the U.S. government in a suit accusing Ashcroft and other officials of racial profiling, illegal detention and abuse of Muslim, Arab and South Asian men in the days following the terrorist attacks of September 11th 2001.

Yasser Ebrahim, one of the men held at the Metropolitan Detention Center (MDC) in Brooklyn, NY after the post-9/11 sweeps and now living in Egypt, said: “We were deprived of our rights and abused simply because of our religion and the color of our skin. After seven long years, I am relieved to be able to try to rebuild my life. I know that I and others are still affected by what happened and that communities in the U.S. continue to feel the fallout. I sincerely hope this will never happen again.”

In the second case, a federal Court of Appeals in New York dismissed Canadian citizen Maher Arar’s suit against Ashcroft and other U.S. officials for their role in sending him to Syria to be tortured. The court concluded that Arar’s case raised too many sensitive foreign policy and secrecy issues to permit relief. It leaves the federal officials involved free of any legal accountability for what they did.

In a 7-4 decision, the Court wrote, ““If a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.”

Mr. Arar, a Syrian-born Canadian citizen, was detained at JFK Airport in September 2002 while changing planes on his way home to Canada. The Bush administration labeled him a member of Al Qaeda and sent him not to Canada, his home and country of citizenship, but against his will to Syrian intelligence authorities renowned for torture. He was tortured, interrogated and detained in a tiny underground cell for nearly a year before the Syrian government released him, stating they had found no connection to any criminal or terrorist organization or activity.

Georgetown university law school professor David Cole, who argued the Arar case, told Truthout, “This decision says that federal officials can conspire to subject an innocent man to torture, block his access to courts who would enjoin them from getting their way, and then avoid all accountability thereafter because the case would be too sensitive to litigate. The court puts executive officials above the law, and tells an innocent torture victim that concerns about foreign relations are so important that his claim cannot even be considered.”

He indicated that the Arar case would be appealed to the Supreme Court.

The case against John Ashcroft and other Bush-era officials was filed in January 2004, just three months after he returned home to Canada from his ordeal. It was brought by the Center for Constitutional Rights (CCR), and was the first to challenge the government’s policy of “extraordinary rendition,” also known as “outsourcing torture.”

The Canadian government, after an exhaustive two-year public inquiry, found that Mr. Arar had no connection to terrorism and, in January 2007, apologized to Mr. Arar for Canada’s role in his rendition and awarded him a multi-million-dollar settlement.

The contrast between the two governments’ responses to their mistakes could not be more stark, say Mr. Arar’s attorneys. “Both the Executive and Judicial branches of the United States government have barred inquiry and refused to hold anyone accountable for ruining the life of an innocent man,” they said.

Two Congressional hearings in October 2007 dealt with his case. On October 18, 2007 Mr. Arar testified via video at a House Joint Committee Hearing convened to discuss his rendition by the U.S. to Syria for interrogation under torture. During that hearing – the first time Mr. Arar testified before any U.S. governmental body – individual members of Congress publicly apologized to him, though the government still has not issued a formal apology. The next week, on October 24, Secretary of State Condoleezza Rice admitted during a House Foreign Affairs Committee Hearing that the U.S. government mishandled his case.

In a strongly worded dissent, Judge Guido Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.”

The racial profiling case, known as Turkmen v. Ashcroft, was filed in September 2002 to challenge the arbitrary detention and mistreatment of immigration detainees by prison guards and high-level Bush administration officials in the wake of 9/11. With no evidence of any connection to terrorism, hundreds of Muslim, Arab and South Asian men were rounded up on the basis of racial and religious profiling and subjected to unlawful detention and abuse.

Among other documented abuses, many of the men had their faces smashed into a wall where guards had pinned a t-shirt with a picture of an American flag and the words, “These colors don’t run.” The men were pushed against the t-shirt upon their entrance to MDC and told, “welcome to America.” The t-shirt was smeared with blood, yet it stayed up on the wall at MDC for months.

All of the men were eventually deported, though several of the plaintiffs returned to New York under strict conditions to participate in depositions for their case against the government in early 2006.

“As with the Japanese internment, history will not look kindly upon the Ashcroft raids,” said CCR Attorney Rachel Meeropol. “This is just the first step, though. To ensure that this never happens again, the former Attorney General and his cronies – the architects of this policy – must also be held accountable.”

The suit named as defendants then-Attorney General John Ashcroft, FBI Director Robert Mueller, former INS Commissioner James Ziglar and officials at the Metropolitan Detention Center in Brooklyn, where the plaintiffs were held.

Some of the abuse included beatings, repeated strip searches and sleep deprivation. The allegations of inhumane and degrading treatment have been substantiated by two reports of the Justice Department’s Office of the Inspector General, and several defendants in the case have recently been convicted on federal charges of beatings and cover-ups of other prisoners around the same time period.

What Ever Happened to "Do No Harm'?

2009-11-02T11:42:00.000-05:00

By William Fisher

The state board responsible for licensing – and disciplining -- psychologists in Louisiana is “fighting awfully hard to turn a blind eye to serious allegations of abuse” brought against one of its members, who is being accused of complicity in beatings, religious and sexual humiliation, rape threats and painful body positions during his service as a senior advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.

That is the view expressed by Deborah Popowski, cooperating attorney with the Center for Constitutional Rights (CCR), part of the legal team representing Dr. Trudy Bond. Dr. Bond, an Ohio-based psychologist, is suing the Louisiana State Board of Examiners of Psychologists to compel it to investigate the behavior of Louisiana psychologist and retired U.S. Army colonel Dr. Larry C. James, a former high-ranking advisor on interrogations for the U.S. military in Guantanamo Bay and Abu Ghraib.

“We wish the Board would devote its resources to investigating unethical conduct instead. Everyone, including the people of Louisiana, would be better served,” she told us.

The chairperson of the Board, Dr. Jillandra Rovaris, who also chairs the complaints committee, did not respond to telephone calls or emails seeking comment and clarification.

Popowski says that, according to Dr. James’ own statements, he played an influential role in both the policy and day-to-day operations of interrogations and detention at the prison camps. She claims that publicly-available information shows that “while Dr. James was at Guantanamo, abuse in interrogations was widespread, and cruel and inhuman treatment was official policy.”

In February 2008, Dr. Bond filed a complaint against Dr. James before the Board, the agency that issued and now regulates his psychology license. Dr. Bond alleged that Dr. James breached professional ethics by violating psychologists’ duties to do no harm, to protect confidential information and to obtain informed consent, and she called on the Board to investigate whether action should be taken against Dr. James.

Dr. Bond’s lawyers contend that the Board summarily refused to investigate her complaint, claiming that the statute of limitations had run, despite what they say is conclusive information to the contrary. Dr. Bond then filed suit against the Board in Louisiana’s 19th Judicial District Court, which in July 2009 dismissed her case without looking at the merits. Now, in a brief before the First Circuit Court in Baton Rouge, Dr. Bond argues that the District Court should have reviewed the Board’s “clearly wrong legal decision.”

Said Dr. Bond, “The five psychologists on the Louisiana Board were given plenty of credible evidence, but they chose not to investigate the head intelligence psychologist of prison camps notorious for their use of psychological torture. I don’t think Louisiana lawmakers intended to give five fellow professionals total, unchecked power to make arbitrary decisions that deeply affect the public welfare.”

Dr. Bond told us, “I began reading of the role of psychologists at detention sites such as Guantanamo and was horrified when the American Psychological Association, by way of the infamous PENS report in 2005, determined that the actions of the BSCT psychologists were ethical.”

She added, “In his biographical statement for the PENS report, Larry James stated that he was the ‘Chief Psychologist for the Joint Intelligence Group at GTMO, Cuba’ starting in January 2003. When the Camp Delta Standard Operating Procedure Manual (dated February, 2003 and implemented March 27, 2003) was released in November of 2007 and included behavioral management of prisoners that violated our psychological ethics codes, that same ethics code required that I report such violations to the licensing board to be investigated. My complaint to the Louisiana Board of Psychologists was dated 2/29/08.”

Allegations of abuse during Dr. James’s January to May 2003 deployment include beatings, religious and sexual humiliation, rape threats and painful body positions.

Canadian citizen Omar Khadr, who is still imprisoned in Guantanamo, is one of the prisoners who has alleged brutal treatment in the spring of 2003, when he was only 16 years old.

Khadr was captured by American forces at the age of 15 following a four-hour firefight with militants in the village of Ayub Kheyl, Afghanistan. He has spent seven years in the Guantanamo Bay detention camps charged with war crimes and providing support to terrorism after allegedly throwing a grenade that killed a U.S. soldier.

A Canadian citizen born in Toronto, he is the youngest prisoner held in the Guantanamo Bay detention camp by the United States and has been frequently referred to as a child soldier. In April 2009, the Federal Court of Canada ruled that the Canadian Charter of Human Rights and Freedoms made it obligatory for the government to immediately demand Khadr's return. After a hearing before the Court of Appeals produced the same result, the government announced they would argue their case before the Supreme Court of Canada. The Supreme Court is expected to hear the case next month.

Dr. James was also stationed in Iraq’s Abu Ghraib prison in 2004 and returned to Guantanamo in 2007. In 2008, he was named Dean of the School of Professional Psychology at Wright State University in Dayton, Ohio.

The CCR says that, as Chief Psychologist of the Joint Intelligence Group and a senior member of the Behavioral Science Consultation Team (BSCT) at Guantanamo, Dr. James had access to the confidential medical records of people he was charged with exploiting for intelligence.

It adds that, according to former Guantanamo interrogators, BSCTs used information from patients’ records to help interrogators increase the patients’
psychological duress, including by exploiting their fears. The very purpose of these mental health professional teams, the interrogators said, was to help
“break” the prisoners. Dr. James denies that claim, but an extensive government paper trail supports the interrogators’ accounts, the organization contends.

The so-called “Biscuit Teams” have sparked controversy ever since their existence became public. The actions taken by team members have called into question the appropriate behavior for physicians, psychologists and other health care professionals who are team members.

The taken by the CCR is, “Despite their universally recognized duty to do no harm, doctors and psychologists have played a key role in the United States government’s policy of torture in its overseas prisons. Some have crafted and justified torture tactics, inflicted pain, overseen abuse and enabled and covered up cruel treatment.”

The group adds, “Freedom of Information Act litigation and a U.S. Senate Armed Services Committee (SASC) inquiry into the treatment of detainees have yielded shed light on the specific role of military intelligence psychologists and psychiatrists at the Guantánamo Bay detention center in Cuba. The names and licensing information of several individuals who may have been involved in prisoner abuse are publicly known. Yet, when presented with credible information that licensees within their jurisdiction may have committed gross breaches of ethics, state licensing boards have refused to take action. To date, not one health professional has been held accountable for their role in torture.”

Justice Delayed…

2009-11-02T07:18:00.001-05:00

By William Fisher

The long road to the proverbial “day in court” just got longer for five men who claim they were ‘disappeared’ and tortured by the U.S. Central Intelligence Agency.

The men, who say they were victims of the ‘extraordinary rendition’ program conducted during the administration of President George W. Bush, have been trying since 2007 to get their cases heard on the merits.

But it is now far from clear that the merits of these cases will heard any time soon – if ever. The reason is that the Department of Justice – first through Bush Administration lawyers, now through Obama Administration lawyers -- has invoked the so-called ‘state secrets’ privilege, claiming that a public trial would endanger U.S. national security.

The latest development in the case came last week, when the Ninth Circuit Court of Appeals set aside an earlier ruling by three of its own judges and said a majority of its judges had voted to refer the case to an 11-judge panel for a new hearing. The request to rehear the case, now scheduled for December 15, came from the Obama Administration.

That decision put on hold the earlier findings of the three-judge panel, which had reinstated the Mohamed suit in April. That 3-0 ruling rejected arguments by the Bush and Obama administrations that the case concerned secrets too sensitive to disclose in court.

In its tortuous journey toward justice, the Jeppesen case has taken on many aspects of an international spy thriller – involving high courts, senior diplomatic officials in two countries, prisoner abuse and threats to withhold intelligence-sharing among allies if the abuse was publicly disclosed.

The case is known as Mohamed et al v. Jeppesen Dataplan. The Mohamed is Binyam Mohamed, an Ethiopian citizen and British resident who, while in CIA custody in 2002, was stripped, blindfolded, shackled, dressed in a tracksuit, strapped to the seat of a plane and flown to Morocco where he was secretly detained for 18 months and interrogated and tortured by Moroccan intelligence services.

In January 2004, Mohamed was once again blindfolded, stripped, and shackled by CIA agents and flown to the secret U.S. detention facility known as the "Dark Prison" in Kabul, Afghanistan, where he was again tortured and eventually transferred to another facility and then to the U.S. Naval Station at Guantánamo Bay, Cuba, from which he was released without charge in February.

The Jeppesen Dataplan named in the case refers to a subsidiary of aerospace giant Boeing, located in the California Bay Area, which is alleged to have knowingly provided the CIA with logistical support for the chartered aircraft used to “render” terror suspects to countries where they were disappeared and tortured.

A Council of Europe report in 2007 described Jeppesen as the CIA's aviation services provider. In a court declaration, a former employee quoted a company official as telling staff members in 2006 that Jeppesen handled the CIA's "torture flights." And, according to published reports, Jeppesen had actual knowledge of the consequences of its activities. A former Jeppesen employee informed Jane Mayer of The New Yorker magazine that, at an internal corporate meeting, a senior Jeppesen official stated, "We do all of the extraordinary rendition flights - you know, the torture flights. Let's face it, some of these flights end up that way."

The three-judge appeals court panel said the government and Jeppesen could take steps to protect national secrets as the case proceeded. The judges said the administration's argument, if accepted, would "cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its contractors from the demands and limits of the law."

Ben Wizner, an attorney with the American Civil Liberties Union (ACLU), which represents the plaintiffs, told us, “Much is at stake in this case. If the CIA's overbroad secrecy claims prevail, torture victims will be denied their day in court solely on the basis of an affidavit submitted by their torturers.

He said he was "disappointed that the Obama administration continues to stand in the way of torture victims having their day in court."

He added, "This case is not about secrecy. It's about immunity from accountability."

"We are disappointed by the court's decision to re-hear this case, but we hope and expect that the court's historic decision to allow the lawsuit to go forward will stand. The CIA's rendition and torture program simply is not a ‘state secret.' In fact, since the court's decision in April, the government's sweeping secrecy claims have only gotten weaker, with the declassification of additional documents describing the CIA's detention and interrogation practices. The Obama administration's embrace of overbroad secrecy claims has denied torture victims their day in court and shielded perpetrators from liability or accountability. We hope that the court will reaffirm the principle that victims of torture deserve a remedy, and that no one is above the law," Wizner said.

The fear is that the 11-judge appeals court panel may agree with the DOJ that disclosure in a trial in a public courtroom would compromise national security. Then, the five petitioners would probably ask the U.S. Supreme Court to review the case – an action the government too would probably take if it lost in the appeals court. If the high court declined to hear the case, that would be the end of the legal road for Mohamed and his co-plaintiffs.

Wizner told us, "To date, not a single alleged torture victim has had his day in court. In this case, most of the evidence is already public. There are no 'state secrets' here. And if there were, our federal courts are well prepared to handle this issue. This is a betrayal of the rule of law. It is not the standard we expected from the Obama Administration."

The San Francisco Chronicle is reporting that six of its 27 judges have disqualified themselves from the case, for reasons that were not disclosed. The six included Judge Jay Bybee who, as a Justice Department lawyer in the Bush administration, wrote a March 2002 memo saying the president could legally transfer captives to foreign custody.

Judge Stephen Reinhardt, whose wife, Ramona Ripston, is the American Civil Liberties Union's executive director in Southern California, also disqualified himself. The ACLU represents the plaintiffs in the case.

Of the five plaintiffs, two are still imprisoned in Egypt and Morocco, and the other three were released without U.S. charges.

Binyam Mohammed, the best-known of the five, was flown back to Britain from Guantanamo in February. He had been on a hunger strike there for several weeks and British Government officials had visited him to determine that he was physically fit to return to the U.K. He claims that up until the time of his release, he was being asked to agree to a no-disclosure agreement in return for charges not being brought against him.

The position taken by the new administration of President Obama took ACLU lawyers by surprise. In their presentation to the Federal appeals court in San Francisco, lawyers from the Obama Department of Justice invoked the same “state secrets privilege” used by the administration of President George W. Bush to argue that the lawsuit brought on behalf of Mohamed and four other alleged victims of the CIA’s “extraordinary rendition” program should not go forward because revealing the evidence would harm national security.

The ACLU was encouraged to believe that the Obama Justice Department would break from the practices of the Bush Administration. Eric Holder, then only recently confirmed as President Obama’s new Attorney General, said at his confirmation hearing, “I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”

But that appeared to be at odds with testimony by Obama’s nominee for Director of the Central Intelligence Agency, Leon Panetta, who told Senators at his confirmation hearing that the practice of rendition would be continued, but that “extraordinary rendition” – sending terror suspects to countries where they are likely to be tortured – would end.

In the past, the U.S. has received “diplomatic assurances” from countries on the receiving end of the extraordinary rendition trips that their new “guests” would not be tortured. These assurances have proved to be demonstrably worthless.

The Jeppesen case has also caused a furor in the United Kingdom and a problem for the U.S. State Department. In a separate case brought on behalf of Mohamed, who is a legal British resident, Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion. The High Court said that the redacted material lent credence to the torture allegations by Mohamed.

The court said it reached its decision because of what it called a threat from the United States to reconsider sharing intelligence with the U.K. But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence “relevant to allegations of torture and cruel, inhuman or degrading treatment, politically embarrassing though it might be.”

The court said the Bush administration had made the threat in a letter to the Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Milliband, denied that there was any threat from the U.S.

But the U.S State Department said that the United States “thanks the U.K. government for its continued commitment to protect sensitive national security information” and that “the United States investigates allegations and claims of torture, and cruel, inhuman, or degrading treatment such as those raised by Binyam Mohamed.”

In the latest ruling from the U.K., the British High Court found that while Mohamed, a British resident, was in American custody, the CIA told British intelligence agents how he was being treated. British agents then wrote memos to record what they were told. Last year, the High Court ruled that Mohamed -- who was then at Guantanamo -- had the right to obtain those documents from the British intelligence service in order to prove that statements he made to the CIA were the by-product of coercion.

The High Court's original ruling in Mohamed's favor contained seven paragraphs which described the torture to which Mohamed was subjected.

The ACLU has written to Secretary of State Hillary Rodham Clinton, urging her to clarify the Obama administration's position on the Mohamed case and to reject what it described as the Bush administration's policy of using false claims of national security to avoid judicial review of controversial programs.

After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.

It has been 50 years since the United States Supreme Court last reviewed the use of the "state secrets" privilege. During the Bush Administration, government lawyers invoked the “state secrets” privilege more often than any prior administration to stop cases from proceeding.

Among such cases was that of whistle-blower Sibel Edmonds, who was fired from her position as a language specialist at the FBI's Washington Field Office in March, 2002, after she accused a colleague of covering up illicit activity involving foreign nationals, alleging serious acts of security breaches, cover-ups, and intentional blocking of intelligence which, she contended, presented a danger to U.S. security.

Her case was appealed all the way to the Supreme Court, which refused to hear it. And in 2007, the Supreme Court refused to review the "state secrets" privilege in a lawsuit brought by ACLU client Khaled El-Masri, an innocent German citizen who was kidnapped and rendered to detention, interrogation and torture in a CIA "black site" prison in Afghanistan.

Ironically, in what is believed to be the first use of the state secrets privilege, it was invoked to cover up a falsehood. In a 1953 case known as United States v. Reynolds, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.

The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. Rather, they contained information about the poor condition of the aircraft itself, which would have compromised to the Air Force's case. Many legal experts have alleged government abuse of secrecy in this landmark case.

Meanwhile, Congress is being pressured to seriously consider legislation to limit the use of the state secrets defense. Major civil rights and open government organizations have written to leaders of the House and Senate Judiciary Committees urging them to pass legislation to restrict the government’s ability to use the privilege to dismiss litigation charging government wrongdoing.

Although the Obama administration yesterday announced a new policy in which it essentially promised to use of the state secrets privilege more sparingly, that promise is not good enough, the organizations wrote.

“Both the Bush and Obama administrations have previously relied upon the state secrets privilege to block litigation challenging policies ranging from warrantless wiretapping to extraordinary rendition, and our organizations welcome the new policy as an important first step in bringing much needed reform to the use of this doctrine,” the letter said.

However, the new policy does not address all the problems, the organizations wrote. “To ensure proper oversight and an independent check on executive discretion, judges must be able to review the evidence, order the creation of non-privileged substitutes where appropriate, and assess whether there is sufficient non-privileged evidence to enable a case to proceed,” the letter said. “Legislation is necessary to implement these key reforms.”

The seven organizations which signed the letter include the American Civil Liberties Union’s Washington Legislative Office, the Brennan Center for Justice, the Center for Democracy and Technology, the Constitution Project, Human Rights First, the National Security Archive, and OMB Watch.

The legislation they’re supporting has been introduced in the Senate as the State Secrets Protection Act: S. 417, sponsored by Senator Patrick Leahy (D-Vt.), and in the House as H.R. 984, sponsored by Representative Jerrold Nadler (D-N.Y.).
In addition to Mohamed, the four other appellants in the Jeppesen case include:

• Italian citizen Abou Elkassim Britel, who In May 2002, was handcuffed, blindfolded, stripped, dressed in a diaper, chained, and flown by the CIA from Pakistan to Morocco where he was tortured by Moroccan intelligence agents and where he is now incarcerated.

• Egyptian citizen Ahmed Agiza, who In December 2001, was chained, shackled, and drugged by the CIA and flown from Sweden to Egypt where he was severely abused and tortured and where he still remains imprisoned.

• Mohamed Farag Ahmad Bashmilah was taken into custody in October 2003 by the Jordanian General Intelligence Department and tortured and interrogated for days. On the morning of October 26, 2003 he was turned over to agents who beat, kicked, diapered, hooded and handcuffed him before secretly transporting him to the U.S. Air Force base in Bagram, Afghanistan. Bashmilah was finally freed on March 27, 2006, never once having faced any charges related to terrorism.

• Iraqi citizen and long-term British permanent resident Bisher al-Rawi was kidnapped in November 2002 and later secretly flown by the CIA to Kabul, Afghanistan. For two months al-Rawi was imprisoned, interrogated and tortured at two separate CIA facilities in Afghanistan, before being transferred to the U.S. detention facility in Guantánamo Bay, Cuba in February 2003. There, he was imprisoned for more than four years until his release on March 30, 2007. On his release, al-Rawi returned to his home in London where he currently resides freely.

No charges have ever been brought against him.

Obama Urged to Fully Comply with Anti-Torture Treaty

2009-10-26T16:16:00.000-05:00

By William Fisher

The fifteenth anniversary of the U.S. ratification of the United Nations Convention Against Torture passed last week with little fanfare and virtually no press attention from the mainstream media here.

But according to the American Civil Liberties Union (ACLU), "U.S. policy continues to fall short of ensuring full compliance with the treaty."

For example, the organisation said that an appendix to the Army Field Manual (AFM) can still facilitate cruel treatment of prisoners and detainees at home and abroad.

The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment (CAT) is the most comprehensive international human rights treaty dealing exclusively with the issues of torture and abuse. It came into effect in 1987, and has been ratified by 146 countries.

The treaty was initially signed by the Ronald Reagan administration in 1988 and was ratified by the Senate on Oct. 21, 1994, but with reservations, understandings and declarations (RUDs) that failed to make the treaty fully applicable.

The administration of former President George W. Bush exploited these RUDs to justify abusive interrogation policies, including the use of waterboarding, stress positions, extreme isolation and sleep deprivation.

In 2006, the Committee Against Torture, which reviews country compliance with CAT, criticised the U.S. for failure to uphold the treaty and called for full compliance.

After taking office, President Barack Obama issued an executive order prohibiting torture. But under an appendix to the 2006 revised U.S. Army Field Manual – the most recent edition – practices considered incompatible with CAT and international law are still allowed. These include force-feeding, psychological torture, sleep and sensory deprivation.

And under Appendix M to the AFM, detainees can be "separated" or held in isolation from other detainees for 30 days, or longer with authorisation, and allowed only four hours of continuous sleep per night over 30 days, which can be prolonged upon approval.

Jamil Dakwar, director of the ACLU Human Rights Programme, told IPS, "The president's first nine months in office have signaled a policy shift on human rights and commitment to the rule of law. Certainly his speech to the U.N. and his Nobel Peace Prize have raised the bar of expectation as to his commitment to advancing human rights at home and abroad."

But, he added, "There is still much more to do, including honouring and expanding U.S. human rights commitments and fully incorporating them into domestic policy. U.S. credibility abroad and commitment to human rights at home will be judged by deeds, not by words."

"What is needed now is taking concrete actions to translate these commitments to a robust human rights policy. A new presidential executive order to reconstitute the Inter-Agency Working on Human Rights would be an important step forward," Dakwar said.

"To fulfill its human rights requirements, the administration must also fully investigate crimes of torture committed in violation of U.S. and international law and withdraw the Army Field Manual's Appendix M," he added.

Since his inauguration, President Obama has helped restore U.S. standing on human rights by issuing executive orders to close the Guantánamo detention centre, prohibiting CIA prisons and enforcing the ban on torture, joining the U.N. Human Rights Council, signing the Convention on the Rights of Persons with Disabilities (CRPD), and prioritising the ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

While welcoming these steps, the ACLU is calling for additional concrete measures to reassert U.S. leadership on human rights, including the full investigation of torture crimes, abandoning the Guantánamo military commissions and renouncing the practice of holding detainees indefinitely without charge or trial.

The ACLU's Dakwar told IPS that he "expected the administration to announce concrete plans to implement and enforce ratified human rights treaties and the resurrection of the Interagency Working Group on Human Rights - disbanded during the Bush administration - to coordinate and promote human rights within domestic policy."

He said, "There is hope and expectation within the human rights community that the president will make the announcement on resurrection of the Inter-Agency Working Group on Human Rights as soon as Dec. 10 – international human rights day and the day he will be receiving the Nobel Peace Prize."

He noted that shortly after the U.S. elections, the ACLU and more than 50 U.S.-based human rights, civil rights, civil liberties and social justice organisations launched the Campaign for a New Domestic Human Rights Agenda, which identified concrete goals for pushing the administration and Congress to strengthen the U.S.'s commitment to human rights at home.

The campaign have four primary objectives. First is re-creation of the Interagency Working Group on Human Rights, first initiated in 1998 by President Clinton through an executive order, but effectively disbanded by the Bush administration in 2001. The call is for a new executive order to be issued with an improved and strengthened mandate.

Second is transformation of the U.S. Civil Rights Commission into a U.S. Civil and Human Rights Commission. The current commission was created in the 1950s with the mandate of monitoring and enforcing compliance with U.S. civil rights law.

In recent years, it has grown dysfunctional and been largely discredited. Currently there is a push to re-form the commission. The Leadership Conference for Civil Rights has taken the lead on the reform effort, and, along with the Campaign, has called for a new commission with a mandate to monitor the U.S.'s compliance with its human rights (as well as civil rights) commitments.

Third is implementation of recommendations by the U.N. Committee on the Elimination of Racial Discrimination (CERD) and to create a plan of action to enforce them at the domestic level.

Lastly, the Campaign is calling for implementation and coordination of human rights on the state and local level, particularly in partnership with state and local human rights and civil rights commissions.

A Simpleton Tries to Understand the Health Care Debate

2009-10-21T15:32:00.001-05:00

By William Fisher

Now, the first thing I want you to know is that I'm no health care policy expert. Far from it.

But, like the rest of us, I have a body and a mind that can get sick. So I'm a participant in the debate whether or not I want to be.

And being about to mark my eighty-first birthday gives me a shorter time to participate but, arguably, a heightened motivation.

Over these past months, I have been drowning in seas of data and analysis and opinions and lies and spin about health. But very little of it has actually been about health. A lot of it has been about process, such as the process in the sausage factory through which legislation gets crafted. But mostly it has been about money -- money headed for so-called health insurance companies.

Now, maybe I have a simplistic mind, but frankly I don't understand why health care and insurance companies keep appearing in the same sentences.

After all, these two things are not the same. Insurance companies are not in the health care business. They are in the risk business. They assess risk and then charge you a fee -- it's called a premium -- to protect you against that risk. Just like your car or your home insurance. If your car gets wrecked, the insurance company doesn't make it better; it gives you money so that you can make it better. Same with home insurance; if a storm tears your roof off, your insurance company will send a contractor to fix it.

So it is with health insurance. Health insurance companies don't do a thing to make you well if you're sick. That's the work that's done by physicians, nurses, hospitals and clinics. And these two groups -- health care professionals and health insurance companies -- are far from buddies. In fact, they're pretty intense enemies.

The reason is that the health insurance companies, being in the risk business, do whatever they can to reduce their risk. So they are more than likely to deny all or parts of the care your doctor is prescribing to make you better. Their loyalties are to their shareholders. Shareholders who've seen a run of great profits, based on ever-rising premiums, based in turn on generous government subsidies and an almost total lack of competition among all these companies.

Oh, I forgot to mention that our Congress, in its infinite wisdom, gave these health insurance companies the same antitrust exemption enjoyed by major league baseball. This means they can fix prices with impunity. Trouble is they haven't been staying fixed for long; premiums have been increasing exponentially year after year. And there's been no noticeable improvement in our health; in fact, our health has gotten steadily worse.

These companies go still further to reduce their risk. For example, if you get sick you're insurance is quite likely to be dropped -- an action the insurance companies antiseptically call "rescission." They rescind a lot. In other words, just when you're sick and need coverage the most, that's when they tell you "you're out!"

Then there's the "preexisting condition" gambit. I just read about three denials that seem really gross. One was refusing coverage to a victim of domestic violence, which the company ruled was a preexisting condition. The second refusal involved a newborn who the insurance company claimed was too fat. And that was followed by a third refusal -- because the infant was too skinny.

Maybe, like me, you've been reading Karen Tumulty's pieces in TIME on the health care issue. She captures the facts as well as anyone I've read. And she has assembled one hell of a chamber of horrors -- about people with serious but treatable illnesses who were told, essentially, to find a charity to help because we, the insurance company you've been paying to reduce your risk, have been too busy reducing our own. Very few happy endings here: patients have died as a result.

Same thing happens if you get health insurance at work but lose your job. You can buy something called COBRA -- if you can afford to pay three or four times what you were paying when you had a job.
Gee, it must be wonderful to run a company set up to take risks on people getting sick -- but which has only healthy customers!

Now, here's another wrinkle to think about. How'd we get to this place where employers provide health insurance to their employees? And take it away when they fire you. Well, I'm told this practice started back in World War Two when the U.S. had wage and price controls. Your wages couldn't be increased so along came health insurance to make up the difference -- and give employers even more economic power over those who work for them.

Seems downright un-American to me.

In fact, seems to me this whole health care debate is struggling to reconcile two contradictory narratives we Americans invented to help us understand ourselves and our history. One is the narrative of rugged individualism. In this bit of mythology, everyone is John Wayne and nobody needs anyone's help to meet tough challenges -- least of all the government's help.

Then there's that other bit of American mythology, the part that talks about how, when the going gets rough for our fellow citizens, we all rally round and share our energy and our wisdom and our compassion to make things right again.

Neither of these narratives is true, but we like to believe both of them anyway, even if they are myths and contradictory myths at that.

Now, it seems to me there's a third bit of American mythology that's getting overlooked. That's the bit that talks about certain inalienable rights we all have, among which are life, liberty and the pursuit of happiness. That's from our Declaration of Independence, written by our Founding Fathers.

I like to think of life, liberty and the pursuit of happiness not as states of being, but as goals. That's because we've never achieved 100% of any of these three freedoms. So they -- and we -- are works in progress.

But it's pretty hard to imagine pursuing much happiness if you happen to get sick, get cut off by your health insurance company, and find yourself on your way to medical bankruptcy. Isn't that the point where we invoke that other piece of great American mythology -- the one that says now we circle the wagons, pool our resources, and find a way for all of us to help all our fellow citizens?

Well, there's only one way to do that and that way is to use our government. The government is us; we pay for it, we own it. We need to make it work for us.

Sure, there are a lot of folks out there who are telling us we can't go down this road because it will lead us into the dreaded socialized medicine. A government takeover of health care.

So what? Forget the labels; that's propaganda. It's the same sleazy accusation that was used against FDR's New Deal in the Thirties and again in the 1960s in the right-wing efforts to demolish LBJ's Great Society.

But, in fact, it's exactly what we're already doing for our seniors under Medicare, for our men and women in uniform, for our veterans through the VA -- and for every member of Congress. Seems to work just fine for these folks.

So why is it going to be such a disaster for the rest of us?

When you think about how much we pay for health care and health insurance in America -- many times more than the most advanced countries in the rest of the world -- and understand that we get substantially worse results, one has to conclude we must be doing something wrong.

We need to fix a bunch of things beyond predatory, uncompetitive, profit-centered health insurance companies. But neutering these vultures would be a start.

Maybe it's time to tell our Congress persons how we feel.

The Torture Memos: Rationalizing the Unthinkable -- A Must-Read.

2009-09-24T10:13:00.001-05:00

By William Fisher

For me, David Cole has long been the gold standard for his exquisite knowledge of our Constitution and his relentless dedication to its values.

So, when I read that the Georgetown University law school prof had a new book out, I quickly got my copy. I wasn’t disappointed, and you won’t be either.

Cole’s new book is two things: First, a collection of six of the previously-published “torture memos” written between 2002 and 2006 by lawyers at the Bush-era Office of Legal Counsel. Yes, the ones that used law to justify the “enhanced interrogation techniques” now so well known. And, second, Cole’s commentary on this distortion of the law and its implications for our society.

This book is a must-read for the latter alone. In chillingly uncomplicated prose, Cole argues that these memos are the real “smoking gun” in the torture controversy because they demonstrate that the culpability lies not merely with the CIA interrogators who may have exceeded Justice Department legal guidance, but with the legal guidance itself – the “incredible arguments advanced to give them a green light.”

As we all now know, that sloppy and craven legal analysis contorted the law to authorize clearly illegal CIA tactics. And it continued to do so in secret even after the Bush Administration sought to assure the public that it was abiding by the very laws it was breaking.

Yet, at about the same time as the torture memos were being published – and the nation prepared to mark the eighth anniversary of the 9/11 attacks –those who ordered and wrote these memos were busily defending themselves.

Or, more accurately perhaps, using the straw-man of an investigation of the CIA to deflect attention away from their conduct.

Exhibit A is John Yoo, now a law professor at the University of California's law school, who was the Bush Administration’s go-to guy for legal justifications. In a recent op-ed, Yoo warns us about the dire consequences that await the nation as the Justice Department pursues its investigation of CIA operatives.

Yoo invokes Jimmy Carter, who he describes as “a young fresh face” campaigning for the presidency by attacking the CIA: "Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage," Carter says. He promises to never "do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual."

“He wins the election and begins to decimate the intelligence agencies,” Yoo writes, and then recalls, “The Carter administration's national-security record should not serve as a model for any president. But unless Obama changes course, he risks duplicating the intelligence disasters of the '70s, and endangering the nation.”

Yoo reminds us that several of the detainees the CIA tortured “were directly involved with the planning and execution of the attacks on Sept. 11, 2001. They were captured at a time when our government feared a second wave of attacks.”

“Our nation's leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what these hardened al-Qaida operatives knew,” he writes, adding:

“As one of many government lawyers who worked on these counterterrorism programs, I can attest to the terrible pressure of time and events in the months after the Sept. 11 attacks. Knowledgeable officials expected that al-Qaida would try again — soon — and in a more devastating fashion.”

And, then, in true Dick Cheney mode, he admonishes: “As we pause to remember the Sept. 11 attacks eight years later, fair-minded people should take heart that there has been no follow-up attack in the United States. To the contrary, several plots have been foiled and the terrorists are on the run. This was not the result of luck —it is because of the hard work of members of the military and our intelligence agencies.”

“Their reward,” he laments, “is an open-ended investigation, and in some instances the disturbing reopening of cases closed by career prosecutors.”

“Even the most fervent antiwar activists should welcome an effective intelligence service. If the CIA had accurately judged Iraq's lack of WMD in 2003, the war might not have occurred. If the CIA had decapitated al-Qaida's leadership in the 1990s (the plans were vetoed by President Bill Clinton), the 9/11 attacks may have been headed off and the invasion of Afghanistan rendered unnecessary,” he writes.

“Persecuting the CIA risks another (Pearl Harbor) or major intelligence failure,” Yoo concludes.

But, hold on now, this is not about an investigation of the CIA. That’s John Yoo’s smoke-screen. This is about a bunch of highly-educated but ideologically-challenged lawyers who exploited our post-9/11 hysteria to try to rewrite the Constitution.

Paradoxically, it is precisely during times of such hysteria that we most urgently need the Constitution and its principles of fairness and equity. Resisting – not caving to -- the temptation to compromise those principles would have been the benchmark for discovering those who truly believe.

I first came across David Cole several years ago, when he was doing a lot of advocating on behalf of donors to Muslim-oriented charities whose organizations were shut down by our Treasury Department with virtually no legal due process on vaguely-defined suspicions that they were supporting terrorist causes.

Cole likened that situation to the guilt-by-association tactics of the McCarthy era. He never weighed in on the guilt or innocence of those charities. But he was downright bulldoggish in his insistence that this was precisely the time we should apply the rule of law – not the law of the Wild, Wild, West soundbite. A position the Obama Administration has now also embraced.

For me, that defines a lawyer’s lawyer. For our country, it defines the future of our Constitution and the sacred legal structures that keep us from flying apart.

John Yoo is far from any lawyer’s lawyer.

(“The Torture Memos: Rationalizing the Unthinkable”, by David Cole, Published by The New Press, September 8, 2009.)

How New Are Bagram’s “New Rules”?

2009-09-14T09:07:00.001-05:00

By William Fisher

Human rights activists and legal experts reacted swiftly today to disclosures that the U.S. Government is planning to introduce new measures they claim would give inmates at Afghanistan’s notorious Bagram prison more opportunities to challenge their detention.

Their views range from cautious optimism to total condemnation.

There are some 600-plus prisoners being held at the U.S. military facility near Kabul. Some have been held for years without lawyers or any charge filed against them. There have been many allegations involving the torture of prisoners. Critics also charge that President Barack Obama has been turning Bagram into a new Guantanamo, since terror suspects are no longer being sent to GITMO because of plans to close it in January.

The new guidelines expected to be issued by the Defense Department (DOD) would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.

Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.

Tina Monshipour Foster, Executive Director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”

She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military's own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”

She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking, and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”

“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.

“The idea of assigning a non-lawyer 'personal representative' who does not legally represent the detainee, but works for the military, is a step in the wrong direction. We already know that this doesn't result in fair proceedings from the failed experiment at Guantanamo -- called the "Combatant Status Review Tribunals" (CSRTs) -- which the Supreme Court found were wholly inadequate and failed to provide a meaningful opportunity for the detainees to challenge the legality of their detention.”

A more hopeful note was struck by Sahr MuhammedAlly, Senior Associate for Law and Security at Human Rights First, who has interviewed several former Bagram detainees. She told us, “These new procedures appear to be an improvement from the current review regime which a U.S. district court found far worse than the discredited review procedures in Guantanamo.”

But she was quick to add that “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don't provide.”

She said, “It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address.” She called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.

David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the Administration’s new rules would work.

He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush Administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama Administration after serious criticism by the Supreme Court….”

He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”

He added,” It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”

In April, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.

Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram.

“The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured and on what grounds they are being subjected to indefinite detention. The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.

Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism. He told us, “whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”

While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel -- they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.

The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

Chip Pitts supports their position. He told us,“ Judge Bates’ decision laudably made that distinction and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution. These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones.”

Some GITMO Prisoners Fight Release

2009-09-11T07:57:00.002-05:00

By William Fisher

As 13 prisoners held at the U.S. naval Base at Guantanamo Bay, Cuba, appeared set to finally win their freedom, others are asking their release to be deferred.

The problem is that some of those cleared for release fear they will be tortured if they are transferred to other countries, in some cases their home countries.

Their lawyers have asked a federal court to delay their release from Guantanamo until their cases can be reviewed by the Supreme Court.

News of this latest twist in the long-running GITMO-release saga came as the government announced that 13 Uighurs – Turkic Muslims from China – have agreed to be transferred to Palau, a tiny island nation in the Pacific Ocean, some 500 miles (800 km) east of the Philippines.

For the 13, release will end years of imprisonment, abusive interrogations, and legal battles in both U.S. military and civilian courts.

The Uighurs cannot be repatriated to China because domestic American law proscribes deporting individuals to countries where they are likely to be abused.

The Bush administration conducted bilateral negotiations with a number of other countries to accept captives who had been cleared for release, but with limited success. These negotiations have continued under President Barack Obama.

The Uighurs were arrested in the “badlands” between Pakistan and Afghanistan in 2001, near where Osama bin Laden was believed to be hiding at the time, and had been trained to use automatic assault rifles.

The men were taken back to Afghanistan to a U.S. detention center in the city of Kandahar, interrogated for several months, and then flown to Guantanamo Bay.

Their cases were eventually heard by the U.S. military’s Combat Status Review Tribunals, which determined that they were not enemy combatants and posed no threat to the U.S.

Five of the Uighurs were released to Albania in 2006. One of the five subsequently was granted asylum in Sweden. In June of this year, the Obama administration negotiated the release of four additional Uighurs to Bermuda.

Meanwhile, in 2008, in a plea to a federal court for a writ of habeas corpus, lawyers for the remaining Uighurs challenged their continued detention. A federal judge ordered them released into the U.S., but that decision was reversed by an appeals court in February, 2009.

In April, lawyers for the Uighurs asked the Supreme Court to recognize that the right to habeas corpus requires a remedy when a court finds that an individual is wrongly detained. The petition asks for the Uighurs’ release.

"We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge's learned essay but something meaningful – their release," said Sabin Willett, of the Boston law firm of Bingham McCutchen, an attorney for the Uighurs.

In an effort to restore habeas petitions to their traditional status, a federal circuit court this week issued a one-line order in the Uighurs’ case (known as Kiyemba, et al., v. Obama, et al) giving the government sweeping authority — without “second-guessing” by the courts — to move detainees out of Guantanamo.

As a result, lawyers for the Uighurs are soon expected to file a second appeal to the Supreme Court. The key issue will be whether judges have any power to impose any controls on detainee transfers.

That is also a key issue for an Algerian national, Ahmed Belbacha, who has asked the Circuit Court to hold in abeyance his potential transfer to his home country, where he fears he will be tortured either by the government for past political activity, or by a terrorist organization he says has threatened him in the past.

His lawyer, Zachary Katznelson, senior counsel with Reprieve, the London-based legal charity, says his client describes his cell in Guantanamo as “like a grave.” He says, “Although it sounds crazy he would rather stay in those conditions than go back to Algeria.”

The 38-year-old Belbacha fled Algeria in 1999 at the height of the civil war between the Armed Islamic Group (GIA) and the Algerian Government. He and his family received death threats from the GIA, which killed thousands during the 1990s.

Belbacha fled to France and then to Britain, where he applied for asylum. He was given exceptional leave to remain pending the outcome of his application.

He says that in July 2001 he traveled to Pakistan to undertake religious study. While there he crossed the border into Afghanistan and, when the US-led invasion began, crossed back into Pakistan. He claims that in December 2001 he was apprehended by villagers near Peshawar, in northwest Pakistan, and sold to the authorities for a bounty.

American agents first sent him to a prison camp near Kandahar and then, in March 2002,to Guantanamo, where a military tribunal alleged that he had associated with the Taleban in Afghanistan and ruled that his detention was justified. But in February of this year, the U.S. said he was fit for release.

His lawyers say they are prepared to go to the Supreme Court to prevent his transfer.

According to Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized legal defenses for dozens of Guantanamo detainees, “This issue has come up in the context of the 60-odd detainees who have no safe home country to be returned to. The government is resisting bringing them into the U.S. by arguing that the courts have no power to order a detainee released into the United States even if the government has no legal right to hold him and can’t find a safe country to take him.”

He told us, “Paradoxically, that argument – which the government is making so it can avoid taking even a single detainee into the U.S. -- is standing in the way of finding other countries to take the majority of the detainees, as foreign governments ask themselves why they should take in Guantanamo’s refugees when the U.S. will not contribute to the effort.”

Uighers’ attorney, Sabin Willett, says the courts are making “a hash” of the habeas corpus tradition. He told us, “The remedy for indefinite detention by the executive jailer turns out to be to direct the executive jailer to enter into diplomacy with third parties beyond the court's jurisdiction to try to free the prisoner on whatever terms it chooses.”

Major David Frakt, a law professor at Washington State University, and formerly a lead defense counsel at the Office of Military Commissions, agrees.

He told us, “In most cases, either the detainee is unwilling to go back to his country of origin either because we are concerned that country will torture the individual, or we are concerned that the country won’t adequately monitor or control the individual, leaving him free to ‘return to the battlefield’ (or perhaps, more accurately in many cases, go to the battlefield for the first time).”

“The fearmongers in Congress have created an atmosphere in which it is not politically feasible for the Obama Administration to release any detainees in the U.S. This is both unfair and unfortunate, because the single most significant thing the U.S. could do to encourage other countries to accept detainees is to accept a few for resettlement in the U.S.,” he said.

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El-Masri: Not Giving Up

2009-09-07T07:49:00.000-05:00

By William Fisher

Thwarted by U.S. Courts, a German citizen who claims he was “rendered” by the U.S. and secretly detained and tortured for three months is taking his case to the Inter-American Commission on Human Rights.

The IACHR has accepted a petition filed by the American Civil Liberties Union (ACLU) on behalf of Khaled El-Masri. The U.S. government has two months to respond to allegations of kidnapping and torture which U.S. courts summarily rejected in 2007.

"The United States has an opportunity to reverse one of the most shameful legacies of the Bush administration and finally give an innocent victim of the extraordinary rendition program his day in court," said Steven Watt, senior staff attorney with the ACLU Human Rights Program.

"The State Department should fully engage in this process and comprehensively address the gross violation of El-Masri's human rights, including his forcible disappearance and torture. To date, the United States hasn't so much as acknowledged its involvement in El-Masri's extraordinary rendition."

In 2003, El-Masri, a German citizen, was kidnapped and flown to a CIA-run "black site" in Afghanistan, where he was secretly detained and tortured. Although his innocence was clear soon after his detention, the CIA continued to hold El-Masri for four months before flying him to Albania and abandoning him on a hillside in the dead of night. El-Masri has never been charged with a crime.

In 2005, the ACLU sued former CIA Director George Tenet and three U.S.-based aviation corporations that owned or operated the aircraft used by the CIA to render El-Masri to Afghanistan. The lawsuit charged Tenet and others with violating the U.S. Constitution and universal human rights laws.

In March 2007, a federal appeals court dismissed the lawsuit because of the government's assertion of the "state secrets" privilege. The U.S. Supreme Court let that decision stand when it refused to hear the case in October 2007.

"The United States, which has historically been a leader in ensuring access to justice for human rights violations around the world, has effectively closed the courtroom door to all victims of the Bush administration's torture regime," said Ben Wizner, staff attorney with the ACLU National Security Project.

"To date, not a single victim of torture by the U.S. has had his day in court. A review of Mr. El-Masri's case by the IACHR will shed much-needed light on the abuses perpetrated against him and will finally offer a victim of the U.S. torture and rendition program a venue in which his claims can be meaningfully addressed."

The Obama administration recently announced that it will continue to render individuals it suspects of involvement in terrorism to detention in other countries, but that it will monitor all cases to ensure that suspects are not mistreated. There is little difference between this policy and that of the previous administration. Neither stated what it would do if it found that “diplomatic assurances” were being violated.

"Any transfer of detainees in U.S. custody to other countries must fully comply with domestic and international human rights law," said Jennifer Turner, researcher with the ACLU Human Rights Program. "Examining the Bush administration rendition program and holding accountable those who broke the law will help to ensure that the same mistakes aren't repeated by the Obama administration."

The IACHR is an autonomous body created by mandate of the Organization of American States to promote and protect human rights in the Americas. The ACLU petition asks that the IACHR declare that the extraordinary rendition program violates the American Declaration of the Rights and Duties of Man; to find the U.S. responsible for violating El-Masri's rights under that declaration; and to recommend that the U.S. publicly acknowledge and apologize for its role in violating El-Masri's rights through forcible disappearance, arbitrary detention and torture.

The El-Masri case is beginning to attract almost as much media attention as perhaps the best-known rendition case: that of Maher Arar.

Arar, a dual Canadian-Syrian citizen, was detained during a layover at John F. Kennedy International Airport in September 2002 on his way home to Canada from a family vacation in Tunis. He was held in solitary confinement in the U.S. for nearly two weeks, questioned, and denied meaningful access to a lawyer. The US government suspected him of being a member of Al Qaeda and deported him, not to Canada, his current home, but to his native Syria, even though its government is known to use torture.

He was detained in Syria for almost a year, during which time he was tortured, according to the findings of a commission of inquiry established by Canada.

The commission concluded that Aar had been tortured. It publicly cleared Arar of any links to terrorism and gave him a $10.5 million settlement. The Syrian government reports it knows of no links of Arar to terrorism.

Despite the Canadian court ruling, the U.S. government has not exonerated Arar. It has made public statements to state their belief that Arar is affiliated with members of organizations they describe as terrorist, though former Secretary of State Condoleezza Rice acknowledged in testimony to Congress that the Arar affair was “not handled very well.” As of February 2009, Arar and his family remain on the U.S. “no-fly” watchlist.

His U.S. lawyers at the Center for Constitutional Rights (CCR) continue to pursue his case, Arar v. Ashcroft, which seeks compensatory damages on Arar’s behalf and also a declaration that the actions of the U.S. government were illegal and violated his constitutional, civil, and international human rights.

Appeals Court Rebuffs Ashcroft

2009-09-05T18:44:00.001-05:00

By William Fisher

In what is being hailed as “an unprecedented ruling,” a federal appeals court has concluded that the Bush Administration’s first attorney general, John Ashcroft, can be held personally responsible for the wrongful detention of an innocent American.

In the panic that followed the terrorist attacks of September 11, 2001, the Department of Justice rounded up several thousand “Middle Eastern-looking” men and women and detained them, frequently in harsh prison-like facilities, without charges, access to their families, or attorneys.

These round-ups continued well after 9/11, as the government continued to take exceptional measures to locate and arrest people they thought posed a threat to U.S. national security. Many of those detained were U.S. citizens; others were immigrants, whose only crime might have been overstaying a visa. Among middle-Eastern-looking men were Sikhs and others from South Asia.

Many others were arrested as “material witnesses” as Attorney General Ashcroft transformed the law into a ‘preventive’ detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

He said at the time, “These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street . . . Aggressive detention of law-breakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”

Caught up in this environment of fear was Abdullah Al-Kidd, a U.S.-born African-American citizen who had converted to Islam. Al-Kidd was on his way to Saudi Arabia to study on a Saudi scholarship when he was detained and arrested in Washington's Dulles Airport on March 16, 2003. He was held as a “material witness in the trial of Sami Omar Al-Hussayen.”

For 15 days he was treated as if he were terrorism suspect rather than a material witness. He was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers.

Al-Kidd was held for more than 13 months under these conditions without ever being charged with any crime or asked to testify.

Federal authorities said al-Kidd had to be detained to provide information germane to the prosecution of fellow University of Idaho student Sami Omar Al-Hussayen on terrorism charges. But al-Kidd was never called to testify at Al-Hussayen's trial, leading al-Kidd to charge that federal authorities were more interested in investigating him than using him to build their legal case.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment. For six months prior to his arrest, al-Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

A jury later acquitted Al-Hussayen of four charges and deadlocked on eight others. He was deported to Saudi Arabia.

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of al-Kidd, charging that the federal material witness law cannot be used to preventively detain or investigate suspects and that then Attorney General Ashcroft can be held personally responsible for al-Kidd's wrongful detention.

The federal court’s ruling in this case places responsibility squarely on government officials who, after 9/11, championed polices clearly outside the boundaries of the law, the ACLU asserts.

"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt, who argued the appeal. "Regardless of your rank or title, you can't escape liability if you personally created and oversaw a policy that deliberately violates the law."

Prior to 9/11, the federal material witness law had been used sparingly – especially with U.S. citizens – to ensure that witnesses would be available to testify in criminal cases. Arrests, under the statute, took place in rare cases to secure testimony where there was hard evidence that an individual had material information but would not testify voluntarily.

The Al-Kidd ruling came after a U.S. district court in 2006 found that the material witness law may only be used when an individual is genuinely sought as a witness and where there is a real risk of flight. The district court also ruled that the law does not allow an end-run around the constitutional requirements for arresting someone suspected of a crime. Former Attorney General John Ashcroft appealed the ruling and asked for complete immunity from liability.

Writing for the majority in the Appellate Court’s decision, Judge Milan D. Smith, Jr., said, "Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a ‘material witness' under the circumstances, and for the immediate purpose alleged, in al-Kidd's complaint.”

He continued: “Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history."

Judge Smith also noted that, “By the time al-Kidd’s confinement and supervision ended, 15 months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.”

He wrote: “Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, to investigate or preemptively detain him.”

The judge said, “Ashcroft asserts that he is entitled to absolute and qualified immunity” against al-Kidd’s claims. But in his ruling, the judge wrote, “We hold that on the facts pled Ashcroft is not protected by either form of immunity.…”

Judge Smith was joined by Judge David Thompson in ruling that Ashcroft does not enjoy prosecutorial immunity in the case. Judge Carlos Bea said qualified immunity should shield Ashcroft from the lawsuit. Judge Smith and Judge Bea were appointed to the court by President George W. Bush. Judge Thompson was nominated by President Ronald Reagan.

Titillating the News Business

2009-09-05T10:07:00.000-05:00

By William Fisher

Thanks to America Online – the nation’s “news channel” -- we’ve just hit a new low in the dumbing down of news.

Not a bottom, mind you, just a new low. Because the lowest of the low is probably some years off.

In its widely publicized push for more “quality content,” AOL recently presented one of its intensely probing investigative reports. It was titled: The Top 19 Hottest Newscasters in America. It was created by Asylum.com.

The introduction to this journalistic gem said:

“As media professionals, we understand how tough it can be to be, even though on our best days we're merely lobbing spit balls. So we have some sympathy for the lady journalists of the world who have to do everything we do plus look hot doing it. Not that that'll stop us from lobbing gobs at them as well.”

Warming to their task, these intrepid defenders of the public interest asked us to “Delve with us, if you will, into the world of hot journalists. The roundup includes everything from short skirts on pogo sticks and wet T-shirt contests to creepy, titillating YouTube compilations of crossing and uncrossing legs.”

Digging beneath the skinny, as it were, the authors presented their list with appropriately titillating (no pun intended), newsy, thoughtful and informative comments. Here are some of them:

Catherine Bosley (No.19): Catherine Bosley was an anchor in Youngstown, Ohio, until she went on vacation to Key West, got drunk and stripped completely naked in a wet T-shirt contest. Of course, with the Internet being what it is, a video made it online and went viral. Bosley resigned her post and now works for Action News 19 in Cleveland. Interesting tidbit: Sharon Reed (who got naked for a news segment) interviewed Bosley about her "scandal" in a piece titled "Naked News." We were shocked and depressed when we couldn't find a video of this interview on YouTube.

Robin Meade (No. 16): CNN’s Robin Meade may be the the anchor of the eponymous show "Morning Express With Robin Meade" and she may have covered the wars in Afghanistan and Iraq for CNN, but what really impressed us is that she too works in a miniskirt and, as this YouTuber noticed, has great legs.

Jane Skinner (No. 13): (Fox News) Skinner may be the co-anchor of "Happening Now" and producer of the Skinnerville segment on "Studio B with Shepard Smith," yet the most famous entry on her résumé is a gaffe that launched a thousand YouTube videos. Two words: "Top cock."

Jillian Barberie (No 11): (FOX) Playboy proved long ago that if a woman is hot enough, she can pose in swimsuits and lingerie regardless of her profession. Thank you, Jillian Barberie, for helping to bring this trend to broadcast journalism. Your contributions have not gone overlooked on the Internet.

Sharon Reed (No.7): (Action News 19) Sharon Reed is a local news journalist in Cleveland who caused a stir in 2004 by reporting nude on Spencer Tunick's "Naked States" project. Her report, called "Body of Art," was heavily promoted and was one of the most-watched news stories of the year. We at Asylum admire her stunt-journalism pluck, among other things.

Lauren Sanchez (No.5): (Formerly KTVK-TV, Extra, and Fox Sports Net) Emmy-nominated Lauren Sanchez is known for hosting "So You Think You Can Dance," as well as numerous sports and entertainment shows. Perhaps she's not a "news journalist," but lay off, you scoop snobs, and consider the more important story: Would you rather date Sanchez or an award-winner from The New York Times?

Barbara Bermudo (No.1): (Univision) If you needed a reason to learn Spanish, now you have one. This Puerto Rican beauty makes us wish that all of the news channels would take a page from Univision's playbook and hire ferociously hot Latinas.

And under a video of Julie Banderas (No. 14), appeared this caption:

Julie Banderas -- Lady newscasters must hate "tribute videos" such as this cleverly titled, porno-music filled, slow-mo video, "julie banderas legs."

You can take it to the bank: Legs are NEWS!

And what are the other stories these anchors are covering these days? The war in Afghanistan, the Iraq disaster, Dick Cheney, our economic meltdown, health care, cap and trade, immigrant detention, torture, wild fires, not to mention the usual menu of car chases, murders, rapes, kidnappings, kittens up a tree – well, you get the picture.

But, viola, thanks to the skill of these dogged TV newsdiggers, all these yarns somehow get magically transformed into “good news” stories we can’t wait to watch.

This is the future of television news.

And, since most of the American public gets its news via television these days, it’s our future as well. Which explains why America has such a well-informed citizenry.

An Ecuadoran economist named Sebastian Hurtado Perez has apparently been doing a lot of thinking about role of “hot” women in our society. He wrote a funny piece in this morning’s Washington Post entitled, “Workers of the World, Exfoliate!”

Perez’s proposition: “Much attention has been paid of late to whether the United States is trending toward socialism. Alleviating socioeconomic differences through the federal government's active intervention in the economy is a common aim of all socialist movements. Nonetheless, most champions of the less privileged have never made a practical effort to mitigate the social differences caused by the inequitable distribution of what, nowadays, is a factor with an enormous socioeconomic impact: beauty.”

He goes on to write, “It is unacceptable for physical attractiveness to be the birthright of a very small proportion of the population.” For this reason, he suggests that “the civilized nations of the world consider incorporating a few policies based on the most traditional economic principles of socialism.”

One of those principles: “Political constitutions should define beauty as a ‘strategic natural resource’. They should state that citizens may not be discriminated against on the basis of their physical attractiveness and that the protection of ugly people and their integration into society should be an unalienable duty of governments.”

“To that end,” he concludes, “governments should nationalize beauty industries in order to ensure the supply of low-priced makeup, anti-wrinkle creams, aesthetic plastic surgery, etc. This would help to improve people's appearance, thus reducing the differences between the beauty icons and the common people. This would have a significant cost, which, according to a clear principle of solidarity, should be financed through a tax on the beautiful people in each country.”

If the Obama Administration would only take up Dr. Perez’s challenge, it wouldn’t be too long before you could get your news from, say, Elizabeth Warren!

Hey, as reported by Sam Stein on HuffPo, it worked for Jon Stewart, who was instilled with confidence and left feeling at ease after the Harvard prof did a guest turn on The Daily Show.

The TARP overseer would certainly not qualify as one of AOL’s hottest newscasters. But the question is whether you watch TV news for information or cleavage!