A Muslim Spiritual Perspective on Palestine/Israel (with a dash of Obama)

The article below is by Omid Safi, a friend and professor of Islamic studies at the University of North Carolina. Omid is one of the leading Muslim public intellectuals in the country, and is committed to social justice, compassion,and pluralism. This article, written for Tikkun magazine, presents an unconventional view of the future of Israel and of the Palestinian people.

By Omid Safi


I begin my reflections on the 60th anniversary of the establishing of the modern nation-state of Israel, alongside with the events commemorated by Palestinians as the Nakba (The Catastrophe), with a reminder of an event that at first sight might seem to be unrelated: the March 2008 speech by Barack Obama on the need to address racial issues in the United States in order to form a More Perfect Union.

In this speech, Barack Obama a Christian spiritual progressive who would surely find a home among many committed to the Tikkun ideals, spoke about how there is no way for us to immediately and magically get beyond our racial divisions. There is, however, a way for us to begin addressing issues of racial justice by confronting systematic injustices inflicted upon black communities as well as the real economic anxieties of white communities. Obama stressed that we can “address our past without becoming victims of our past.” It is in this spirit that I wish to address the Palestinian Israel situation/tragedy.

Jews have historically been persecuted and marginalized as few other communities in the history of the West have been. The rise of Zionism in many ways was a response to this persecution. While Zionism did begin with European Jews, it is in many ways part and parcel of the same milieu that saw the rise of other nationalist movements. For many Jews, the desire to return to what they have seen as their ancestral homeland is also real, and was a joyous cause for celebration after centuries of exile. Furthermore, there is little doubt that the establishing of the state of Israel has had a positive impact on the survival of Judaism—and Jews—in the Western world that for far too long had attempted to eradicate them. Furthermore, the concerns of the Israeli civilian community for genuine and meaningful security are real, and must also be addressed.

And yet part of our attempts to see with two eyes, hear with two ears, and yet feel with one heart is to recognize and remember that the same establishing of Israel is remembered differently, radically differently, by Palestinians. Going back to the 1917 Balfour Declaration, there has been a history of colonial support for the creation of Israel that remains for many Arabs and Muslims a painful reminder of centuries of oppressive foreign occupation and domination. The establishing of Israel in 1948 involved the forceful and violent ethnic cleansing of some 750,000 Palestinians from their ancestral homelands.[1] The homes and lands of these indigenous Arab inhabitants of Palestine were confiscated and handed over to Jewish immigrants. In a matter of two generations, Palestinians who had made up 90% of the inhabitants of Palestine were forced to become a persecuted minority in their own homeland, or perpetually homeless exiles, much as Jews themselves had been for centuries before. The other major act of injustice on behalf of Israel has been the forty-year occupation of West Bank and Gaza, combined with draconian measures that inflict collective punishments upon Palestinians, in both the Occupied Territories and inside Israel itself. These systematic injustices too are real, and the sub-human condition that many Palestinians live in must be addressed if words like justice are to rise above being hollow mockeries of their lofty reality.

All of the above is too well-known to need documentation at this point. And yet our point is quite simple: if we are to have a common future for all of us in this sacred land, there must be a just and compassionate way to atone for these atrocious realities of the past and the present.

I write these words not as a nationalist, but as a person of faith who remains convinced that the Divine qualities of al-Rahman and al-Rahim, the Compassionate and the Forgiving Merciful, are the two greatest Divine qualities that human beings can and should embody. I write as one of many who are certain that forgiveness and reconciliation are indeed possible, as they were in South Africa, so long as the reconciliation is an exercise in Truth and Reconciliation.[2] The truth must be told, as bitter as it might be to some of us, and as unpleasant to hear about it as it is associated with the very events that bring joy to others.

I also write these words as a religious humanist, and a historian, whose issue is not with the existence of Jews, or Muslims, or Christians in this holy land, but with the notion that the state somehow belongs to one ethnic or religious group. It is that arrogance of nationalism that I reject in favor of a pluralistic and historically more accurate vision.

I remember that a thousand years ago, over 85% of all Jews lived among Muslims of Arab and Persian backgrounds. I remember that Jews achieved their “Golden Age” in Andalucia, ruled by Muslims. I remember that it was the Muslims who received the majority of the Jewish exiles from Andalucia. I remember that it was the Muslim Ottomans who provided by the welfare and security of the Jewish community, to the point of voluntarily settling Jewish families in the region, including in Jerusalem. We have lived together in the past, and can live together again.

The problem, therefore, is not that of presence of Jews in the Holy Land, the issue is an unjust interpretation of Zionism that has sought and seeks to rid the land of Palestine and Israel of its Arab inhabitants, and render them second-class citizens in their own ancestral homeland. Only after addressing these issues can there be hope to realize the creation of a community where Jews, Christians, and Muslims can live side by side with one another in full dignity and equality.

Speaking on behalf of all those resonate with the dream of such a new Israel, such a new Palestine, that I say the following: We too dare to dream, we dream of a place, of land, a land of place, where Muslim, Christian, and Jew live side by side, where Jerusalem becomes once again the Holy city, the Sacred City, simultaneously al-Quds and Zion.[3] We too have the audacity to hope and dream that God’s love encompass all of God’s children, Jewish and Muslim, Christian, and others. In that dream, we reject the notion, any notion, that this land belong exclusively to one people, or that others are at best tolerated guests. Rights, if they are meaningful, belong to all, otherwise they are nothing more than privileges guaranteed to a chosen few, which effectively work as frameworks for oppression.

There are some Jews and some Arabs who if given a chance would no doubt wish to purge the land of the other. We see this hateful wish written into the charters of movements like HAMAS, which has responded to the Israeli occupation with its own injustice, by inflicting violence upon Israeli society. And as many Palestinians have mournfully reminded us, the creation of Israel has involved the destruction of their own society not as an abstract dream but as an all too vivid reality. It is vital for us to address these past and present realities, and yet we remain hopeful that by addressing them we can avoid the situation of forever remaining their victim.

We dare to dream of a place where the majority of people want to live together, to co-exist, perhaps initially uncomfortably—but we have no choice today other than learning to live together. And We remain convinced that God creates us in love, that love is natural to our state, and it is in fact hate and mistrust that are un-natural. We are taught to hate one another, and if we have been taught hatred, we can un-teach hatred and replace it with an inclusive love. Our hearts are big enough for all of us.

Martin Luther King taught us that we have a choice: nonviolent coexistence or violent co-annihilation.[4] We have gone down the path of attempting to violently annihilate one another, and it has gotten us nowhere but down this vortex of pain and destruction. It is time to try the higher path of nonviolent coexistence, illuminated by love.

We dream of a day where our children, Jewish children and Arab children, go to school together, live in the same communities, and work the same fields together. That day is possible, and our co-existence is possible, but only if we dare to rise above our own worst fears, and reach out to others who wish to co-exist with us. Martin was right: we are all bound up in an inescapable network of mutuality. Buber was right: we achieve our full humanity when the I is projected into the Thou. Jesus and Muhammad were right: that which we do to the least of humanity we do to one another. May it be that when the 100th anniversary of Israel is celebrated, it is also a celebration of how the dreams of multiple communities became realized, not one at the expense of another. It is to that common humanity that we appeal. May the path to Truth and Reconciliation begin with each of us, today.

[1] Ilan Pappe, The Ethnic Cleansing of Palestine, (Oxford: Oneworld: 2006);
[2] For a spiritual perspective, see Desmond Tutu, No Future Without Forgiveness, (New York: Image, 1999).
[3] There are many who share this dream, including Christians like Elias Chacour, the many Israeli peace organizations, and members of the Jerusalem Peace Makers such as Sheikh Abdul Aziz Bukhari.
[4] Martin Luther King, Jr. and James M. Washington, A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (HarperCollins, 1986, 1991).

IRONIES ABOUND

By William Fisher

In one of the more ironic episodes of the Bush Administration, the Federal Bureau of Investigation last week raided the office and home of the senior official in charge of protecting Federal whistleblowers on suspicion of whistleblower retaliation within his own agency – while he was investigating possible criminal acts within the White House.

Since 2005, Scott Bloch, head of the Office of Special Counsel (OSC), has been under investigation by the Inspector General of the White House Office of Personnel Management (OPM), at the behest of the President’s Office of Management and Budget (OMB).

OPM’s investigation centers on charges that Bloch retaliated against whistleblowers who complained they were transferred out of Washington for political reasons because they disagreed with Bloch’s policies. In the raid, FBI agents sized computers and records.

As OPM’s investigation moved forward, Bloch launched an investigation of the White House by combining several unrelated high-profile allegations, including last year’s firing of eight U.S. Attorneys, thousands of missing emails to and from former White House political advisor Karl Rove, and political briefings of General Services Administration managers, in violation of the Hatch Act.

The missing emails – also demanded by the U.S. Congress – are said to relate to Rove’s alleged involvement in the U.S. attorneys’ dismissals. The Hatch Act forbids putting political pressure on career government employees.

In yet another irony, the FBI raid on Bloch’s office and home came as Congress prepared to mark Washington Whistleblower Week, May 12-16, and on the sixth anniversary of the passage of the No FEAR Act in 2002. The act requires the government to compensate whistleblowers for judgments, awards, and settlements in equal employment opportunity (EEO) and whistleblower cases.

The Administration’s investigation of Bloch comes as a result of a complaint filed by his own staff members and whistleblower groups alleging a host of misconduct charges against Bloch. The complaint charged he discriminated against OSC employees by imposing illegal gag orders, cronyism, and retaliation in forcing employee relocations and the resignations of one-fifth of OSC headquarters legal and investigative staff.

Bloch insists that the ‘forced removals’ were part of a reorganization that sent 12 career OSC employees to new assignments in other cities “to improve performance, not punish any employees.”

One part of that complaint concerns Bloch’s improper interference with the handling of Hatch Act cases, the same statute that Bloch is now invoking as the basis for looking at White House political briefings.

Bloch’s investigation of the White House follows allegations that the Justice Department (DOJ) fired eight U.S. Attorneys for political reasons, that senior officials including Rove violated the Presidential Records Act by using an email account of the Republican National Committee and failing to archive these communications, and that Bush appointees delivered politically-charged briefings to career civil service employees.

Bloch contends that one of the fired U.S. Attorneys, David Iglesias, suffered discriminatory treatment because of his 45-day absence for military service.

Public interest groups including Public Employees for Environmental Responsibility (PEER) and the Project On Government Oversight (POGO) have charged that Bloch has irreconcilable conflicts of interest in his investigations of the White House.

Jeff Ruch, Executive Director PEER told IPS, "Scott Bloch gives opportunism a bad name."

“It makes no sense for Scott Bloch to investigate the White House while the White House investigates Bloch,” Ruch said, noting that Bloch has told allies that the White House has twice asked him to resign. Bloch can only be removed for cause. “

The 600 disclosure cases that Bloch has admitted were dismissed are all instances where civil servants came forward to report waste, fraud and abuse, yet OSC decided that there was no need to investigate," Ruch said.

He added, "Dismissing all 600 cases and deciding that not one deserved investigation -- because, in the words of the OSC spokesperson, they were all ‘minor matters or issues previously investigated’ -- stretches credulity."

“Scott Bloch brings the investigative acumen of an Inspector Clouseau to a very complicated and delicate matter,” he said.

POGO’s Director of Investigations, Beth Daley, said “It is not that Bloch has lacked the opportunities to conduct complex investigations since every virtually whistleblower in town goes to the OSC, but Bloch has ignored them all. It is only when a probe serves his political agenda that he latches onto it as if it were the last helicopter leaving Saigon.”

“What we have here is a mutual investigation society. This is the bureaucratic equivalent of a mouse trying to swallow an elephant. The OSC has no standing to conduct the investigation and Scott Bloch cannot possibly investigate the White House while it is investigating him,” Daly declared.

"Bloch has yet to announce a single case where he has ordered an investigation into the employee's charges", PEER charges. The organization says, "in not one of these cases did Bloch's office affirmatively represent a whistleblower to obtain relief before the civil service court system", called the Merit Systems Protection Board.

And Melanie Sloan, executive director of another public interest organization, Citizens for Responsibility and Ethics in Washington, said of Bloch, “Having transformed OSC into a virtual black hole for legitimate complaints of retaliation, Bloch is decidedly not the right person to tackle the issues of misconduct and illegality that surround top White House officials. There is a serious question as to whether Bloch will just provide cover for an administration that has been covering for him.”

The US Office of Special Counsel is an independent federal investigative and prosecutorial agency. Its basic authorities come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.

Its mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. It is intended to provide a secure channel for federal workers -- except those in the FBI and intelligence agencies -- to disclose information about various workplace improprieties, including a violation of law, rule or regulation, gross mismanagement and waste of funds, abuse of authority, or a substantial danger to public health or safety.

The OPM Inspector General’s investigation is the third probe into Bloch’s operation. The Government Accountability Office (GAO) and a U.S. Senate subcommittee both conducted investigations into mass dismissal of hundreds of whistleblower cases, and Bloch’s targeting of gay employees for removal while refusing to investigate cases involving discrimination on the basis of sexual orientation.

President Bush nominated Bloch for a five-year term in 2003. He was unanimously confirmed by the U.S. Senate. From 2001-2003, Bloch served as Associate Director and then Deputy Director and Counsel to the Task Force for Faith-based and Community Initiatives at the Department of Justice.

The Engineering Of Consent Redux

By William Fisher

Who should we blame for retired military men getting themselves hired by TV networks to be talking head cheerleaders for “progress” in Iraq? The Pentagon? The media? Our elected officials and presidential wanabees? The public?

I think my friend Steven Aftergood has it just about right. Here’s what he told me:

“It is unrealistic to expect the Pentagon to do anything other than to advance its own institutional interests in the media and elsewhere. Furthermore, it is not surprising when retired career military officers present a perspective that coincides with that of their former cohort.”

But he added, “Two things are disturbing, however. One is the secret, unacknowledged coordination between the Pentagon and the purportedly independent spokespersons. That stinks. But what’s worse is the failure of the media to come to terms with the way it was manipulated. Media organizations are supposed to be skeptical of authority, and evenhanded in their approach to public policy issues. This story illustrates how badly they failed to justify the public trust.”

But is this shameful compromising of our media just another one-news-cycle story? Maybe not. I think this story should still has some legs left.

Witness what some in Congress are doing.

As America’s television networks continued their silence about their use of retired military officers to “sell” progress in Iraq, members of the U.S. House of Representatives called on the Defense Department Inspector General to investigate the Pentagon-sponsored public relations effort.

Rep. Rosa DeLauro, a Connecticut Democrat, and 40 others members of Congress, called on the Inspector General (IG) to investigate how high-ranking officials within the Defense Department were allowed to operate a program “aimed at deceiving the American people.”

"When the Department of Defense misleads the American people by having them believe that they are listening to the views of objective military analysts when in fact these individuals are simply replaying DoD talking points, the department is clearly betraying the public trust," the lawmakers wrote in a joint letter to Defense Department Inspector General Claude M. Kicklighter.

"Not only must the Inspector General now account for what it did and did not know about this state-sponsored propaganda effort, but they must also explain why, if they knew about the propaganda campaign, it was allowed to proceed," DeLauro said.

"Additionally, we are calling for the Inspector General to launch an investigation to ensure no detail surrounding this program remains hidden," she added. The House members also want to know if the inspector general considers the program to be illegal.

Retired officers who acted as military analysts for major news outlets were given V.I.P. access to the Pentagon, with regular briefings by then-Defense Secretary Donald Rumsfeld and a sponsored trip to the Guantanamo Bay military prison in Cuba.

The operation was abruptly halted after it was reported by The New York Times. The times” massive probe revealed that some 75 retired military officers, prepped by the Pentagon, served as paid television commentators since the run-up to the Iraq war -- and many also have conflicting ties to defense contractors. These business links were seldom disclosed to viewers, and sometimes not even to the networks on which they appeared, the newspaper said.

The Times report said the officers got private briefings, trips and access to classified intelligence meant to influence their comments.

"Records and interviews show how the Bush administration has used its control over access and information in an effort to transform the analysts into a kind of media Trojan horse -- an instrument intended to shape terrorism coverage from inside the major TV and radio networks," the newspaper wrote.

The Pentagon defended its work with the analysts, saying they were given only accurate information.

Ken Allard, a retired Army colonel, pointed out in the Times article that it was “sometimes enough just for the Pentagon's cynical commissars to make retirees feel important, to give them a sense that they were still players.” For other so-called “talking heads,” pleasing the Pentagon was strictly mercenary.

The Times’ revelations have sparked a serious backlash among many journalists and advocates of more transparency in government. But despite an avalanche of similar criticism throughout the blogosphere, and by a handful of journalism veterans and critics, the news chiefs and on-air hosts at CNN, FOX, ABC, NBC, and CBS, have had little reaction to the revelations concerning the "Media Generals." Most declined to comment publicly, but have ceased using the officers on-air. Some are reportedly tightening their guidelines for hiring military commentators.

This is not the first time the Pentagon has engaged in concealed efforts to influence public opinion. In December 2005, at the beginning of the insurgency in Iraq, media reports revealed that a contractor to the Defense Department was paying off Iraqi journalists to write “good news” stories about American progress there.

The Pentagon carried out the effort as part of an organized and well-funded program, and did so in secret. The Los Angeles Times broke the story.

Irony or ironies -- the Defense Department scheme was being carried out at the same time the State Department's exchange program was working to teach foreign journalists about the role and responsibility of a free press.

Some critics saw this as the worst aspect of this situation because it added to the perception of U.S. hypocrisy -- at a time when the government is spending millions of dollars trying to "win hearts and minds" around the world.

Only one senior administration official commented on the “Iraq Payola” scheme. Appearing on ABC's "This Week" program, National Security Adviser Stephen Hadley joined Iraqi journalists in the view that, if the DOD investigation supported the allegations, the idea was bad policy and should be stopped. It is unclear whether the program remains in operation.

Earlier, the media uncovered another DOD program known as "Total Information Awareness." TIA was an advanced form of "data mining," that would have effectively provided government officials immediate access to personal information such as phone calls, e-mails and Web searches, financial records, purchases, prescriptions, school and medical records and travel history.

Disclosure of the program triggered a furor among the public and in Congress and it was shut down. But nobody was fired or reprimanded.

As shameful as this episode surely is, another friend sounds an even more ominous note. Majorie Cohn, president of the National Lawyers Guild, looked back at the run-up to the U.S. invasion of Iraq, and told me:

“During the run-up to the war on Iraq, the Pentagon gave its ‘analysts’ talking points: Iraq has chemical and biological weapons; Iraq is developing nukes; Iraq could give its WMD to Al Qaeda; and an invasion would be quick and cheap. This disinformation campaign was designed to condition Congress and the American people to accept Bush's illegal and unnecessary invasion of Iraq.”

Now, she said, “we are seeing the same pattern as many in the Bush administration prepare for an attack on Iran. Petraeus, Crocker, Gates, Bush and Cheney are mouthing the mantra that Iran has nukes and is a danger to America. Watch for other ‘analysts’ to parrot this line. Since there appears to be a split in the administration about the wisdom of such an attack, public pressure could tilt the balance away from war.”

Let us pray!

In the 1930s, the man considered to be the “father of modern public relations”, Edward L. Bernays, wrote a book called “The Engineering of Consent.” His thesis was that ideas and attitudes can be shaped by messages communicated time and time and time again – enhanced by so-called “third part endorsement” – such as that conveniently provided by retired generals and colonels.

The run-up to the Iraq invasion provided the beautiful evidence to support that thesis. And if you think Bernays is some relic from the past, think again.

The Bernays Doctrine is alive and well – and living in the White House and the Pentagon.

Abuse Claims Rise Against Pentagon, Contractors

By William Fisher

As human rights groups demanded the release of a report on a long-running investigation of the role of the Federal Bureau of Investigation (FBI) in the unlawful interrogations of detainees in Iraq, Afghanistan and Guantánamo Bay, new torture claims were leveled at two U.S. military contractors by a former Abu Ghraib “ghost” detainee who was wrongly imprisoned and later released without charge.

The American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request this week with the Departments of Justice and Defense demanding release of a report by the Justice Department's Inspector General (OIG), which the group says has been completed for months but blocked by the Defense Department.

The OIG investigation was initiated in 2005 after the ACLU obtained documents in which FBI agents described interrogations that they had witnessed at Guantánamo Bay.

While the documents were most notable for their description of illegal interrogation methods used by military interrogators, they also raised serious questions about the FBI's participation in abusive interrogations, the actions of FBI personnel who witnessed abusive interrogations, and the response of FBI officials to reports of abuse.

Testifying before a Congressional committee last week, FBI Director Robert Mueller denied that the FBI participated in any of the interrogations. The Defense Department has said the OIG’s report must be reviewed and redacted to eliminate classified information before it can be made public.

The OIG report and all documents related to this investigation is part of a broader effort to uncover information about the Bush administration's torture policies. To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA
lawsuit enforcing the request -- including the Bush administration's 2003 "torture memo" written by John Yoo when he was a deputy at the DOJ's Office of Legal Counsel.

This week, Yoo – under threat of subpoena -- agreed to testify voluntarily before a congressional committee investigating the legal basis used to justify the Bush Administration’s torture policies.

Jameel Jaffer, Director of the ACLU’s National Security Project, told us, “The Inspector General completed this report many months ago. The problem is with the Defense Department, which is using its classification review as a pretext for delaying the report's release. In this case as in many others, the Defense Department is misusing its classification authority to suppress information about the abuse and torture of prisoners.”

“There's no good reason why the report should be withheld from the public. It's being withheld not for legitimate security reasons, but in order to protect high-level government officials from embarrassment, criticism, and possibly even criminal prosecution,” he said.

In related developments, the Center for Constitutional Rights (CCR), an advocacy group, leveled new torture claims against two U.S. military contractors by a former Abu Ghraib “ghost” detainee, and labeled as “wholly inadequate” a single page unclassified summary of the OIG’s report released on the case of Maher Arar, the Canadian rendition victim “rendered” by U.S. authorities to be tortured in Syria for ten months more than five years ago.

In a letter to the OIG, CCR lawyers contrasted the one-page summary with the Canadian public inquiry, which released two public reports after a two-year investigation. The Canadian Government issued a formal apology to Arar and paid him $10 million. It was the Royal Canadian Mounted Police (RCMP) that provided U.S. authorities with information that Arar was a suspected terrorist .

Arar attempted to sue the U.S. Government, but his case was dismissed after the government invoked the so-called “state secrets privilege,” which bars from the courts information that would compromise national security.

The letter charges that the delay of the OIG report’s release has been reportedly “due to efforts by very senior Department of Justice (DOJ) officials to suppress it” because it would expose “serious misconduct”. It added that “the continued delay in releasing report calls into serious question the independence of the DHS OIG.”

Arar said, “By suppressing the report and issuing one page of publicly available information, this U.S. administration adds insult to injury. This ‘summary’ raises more questions than answers about the government’s behavior, and does not answer the central question— why I was sent to Syria to be tortured. ”

The suit against the contactors, filed last week in Los Angeles federal court on behalf of Emad Al-Janabi, a 43-year-old Iraqi blacksmith, alleges that Al-Janabi was wrongly imprisoned, beaten and forced from his home by people in U.S. military uniforms and civilian clothing in September 2003. He was released from Abu Ghraib without charge in July 2004.

The defendants are contractors CACI International Inc. and CACI Premier Technology, Inc., of Arlington, Va.; L-3 Communications Titan Corporation, of San Diego, Calif.; and former CACI contractor Steven Stefanowicz, a Los Angeles resident known at Abu Ghraib as “Big Steve.”

The suit charges that the contractors subjected Al-Janabi to physical and mental torture in sessions where the defendants acted as interrogators and translators. It alleges the contractors transported him to a detainee site in a wooden box and covered with a hood; scarred on his face when his eyes were clawed by an interrogator; exposed him to a mock execution of his brother and nephew; hung upside down with his feet chained to the steel slats of a bunk bed until he lost consciousness; and repeatedly deprived of food and sleep and threatened with dogs.

In October of 2003, during a surprise inspection of Abu Ghraib, the International Committee of the Red Cross discovered Mr. Al-Janabi naked, chained and bruised in a cell in the “hard site” of the prison. He was a so-called “ghost detainee” who was intentionally hidden from the Red Cross on subsequent inspections and held without appearing on the prisoner lists.

The lawsuit – which alleges multiple violations of U.S. law, including torture, war crimes, and civil conspiracy – notes that CACI provided interrogators used at Abu Ghraib and that L-3 employed all translators used there. Mr. Stefanowicz was linked to Abu Ghraib abuses in military court martial proceedings and was said to have directed low-level U.S. military personnel in detainee interrogations.

The lawsuit also alleges that a newly published book, “Our Good Name”, by CACI Chairman J.P. (Jack) London, reveals that CACI’s internal investigation failed to include any interviews of detainees or of a former employee whistleblower.

According to the lawsuit, “CACI has repeatedly made, and continues to make, knowingly false statements to the effect that none of its employees was involved in torturing prisoners. In fact, co-conspirators have admitted that Big Steve and several other corporate employees were involved in the torture,” and at least one publicly released Abu Ghraib photograph shows a former CACI employee interrogating a prisoner in a dangerous and harmful stress position not authorized by relevant military regulations governing interrogation.

In the U.S. Congress, the Senate Intelligence Committee voted last week to limit Central Intelligence Agency (CIA) interrogators to techniques approved by the military, which would effectively bar them from waterboarding prisoners, congressional officials said.

The vote on an amendment by Sen. Diane Feinstein, a Democrat from California, taken behind closed doors as the committee debated legislation to authorize money for intelligence operations in 2009, marks at least the second attempt by intelligence overseers in Congress to regulate CIA questioning of detainees.

President Bush vetoed the 2008 intelligence authorization bill in March because it included the same curbs on questioning techniques. This interrogation provision, if passed by the full Senate and House, would likely face the same fate.

Prosecutor’s Holy Grail: Another Scalp

By William Fisher

After a four-year legal battle, a Federal judge has dismissed all charges against an avant-garde artist who public officials condemned as a bio-terrorist in a case critics are calling “a persecution, not a prosecution.”

The artist is Dr. Steven Kurtz, a professor of Visual Studies at the University of Buffalo, and a founding member of the award-winning collective Critical Art Ensemble (CAE).

The case started in May of 2004. While Kurtz was preparing for an exhibition of an art installation at MASS MoCA, a museum in North Adams, Massachusetts, his wife of twenty years died in her sleep. When police responded to his 911 call, they noticed a small food-testing lab and petri dishes containing bacteria cultures.

The lab was part of the scheduled installation, which would have allowed museum visitors to see if their store bought food contained genetically modified (GM) organisms. The cultures were part of a multi-media project commissioned by the UK-based art-science initiative, The Arts Catalyst, and produced in consultation with scientists from the Harvard-Sussex Program.

The project used the harmless bacteria Bacillus subtilis and Serratia marcescens in an installation, performance, and film dedicated to demystifying issues surrounding germ warfare programs and their cost to global public health. Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.

Local police called the Federal Bureau of Investigation (FBI). While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was detained under the Patriot Act on suspicion of bioterrorism. The street where Kurtz's home was located was cordoned off, his house searched, and his property seized. Federal agents confiscated Kurtz's art projects, computers, and all copies of a book manuscript Kurtz was working on, as well as his reference books and notes. The book, Marching Plague: Germ Warfare and Global Public Health (New York: Autonomedia), had to be entirely reconstructed and was finally published in 2006.

The then Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then U.S. Attorney in Buffalo, Michael A. Battle -- the lawyer who was later to become the Department of Justice employee who notified eight U.S. Attorneys that they were being fired -- praised the work of the Buffalo Joint Terrorism Task Force.

But after a several-month-long investigation, the FBI and the Department of Homeland Security (DHS) failed to provide any evidence of "bioterrorism" On the contrary, FBI tests revealed within a few days of the incident that there were no harmful biological agents in Kurtz's house and that his wife had died of heart failure.

Forced to drop its charges of weapons manufacture, the government instead accused Kurtz and Ferrell of mail and wire fraud. The government claimed that when Dr. Ferrell gave the cultures to Dr. Kurtz, this violated a contract between the University of Pittsburgh and the supplier, American Type Culture Collection (ATCC). Neither the University nor ATCC had brought any complaint, and observers pointed out that scientists routinely share nonhazardous cultures. The Department of Justice (DoJ) further claimed that this alleged contract discrepancy constituted federal mail and wire fraud.

Because the charges against the two academics were brought under the Patriot Act, the maximum penalty was increased from five years to 20.

Earlier, Dr. Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies. During the legal wrangling, he had two minor strokes and a major stroke that required months of rehabilitation. He was indicted as he was preparing to undergo a stem cell transplant, his second in seven years.

But Kurtz rejected any plea deal, instead demanding a public trial. Most of the art world has rallied behind him. His colleagues in the Critical Art Ensemble set up a website and a legal defense fund, and Kurtz continued to teach at the University of Buffalo.

When the case finally arrived in a courtroom this month, Federal Judge Richard J. Arcara ruled to dismiss the indictment. It is unclear whether the government will appeal the dismissal.

Lucia Sommer, Coordinator of the CAE Defense Fund, which raised funds for Kurtz’ legal defense, told us that the judge’s decision “is further testament to our original statements that Dr. Kurtz is completely innocent and never should have been charged in the first place.”

Kurtz's supporters said, "The government has pursued this case relentlessly, spending enormous amounts of public resources. Most significantly, the legal battle has exhausted the financial, emotional, and physical resources of Ferrell and Kurtz, as well as their families and supporters. The professional and personal lives of both defendants have suffered tremendously."

The case against Kurtz and Ferrell came to a nation still gripped by the terrorist attacks of 9/11 and the 2001 anthrax attacks. The anthrax attacks occurred over the course of several weeks beginning in September 2001. Letters containing anthrax spores were mailed to several news media offices and two Democratic U.S. Senators, killing five people and infecting 17 others. Despite a massive government investigation costing millions and covering several Continents, the crime remains unsolved.

The FBI named a government researcher, Dr. Steven Hatfill, as "a person of interest" in the investigation. His name was widely publicized in the media for months, but he has never been charged with any crime. Hatfill sued the New York Times for libel, contending that that the newspaper erroneously linked him to the anthrax attacks.

In an unusual legal maneuver, the New York Times invoked the “state secrets” doctrine in a motion to dismiss the libel suit. The Times argued that the classification restrictions imposed on the case by the government were tantamount to an assertion of the state secrets privilege.

The “state secrets” doctrine, the newspaper said, “precludes a case from proceeding to trial when national security precludes a party from obtaining evidence that is… necessary to support a valid defense. Dismissal is warranted in this case because The Times has been denied access to such evidence, specifically documents and testimony concerning the work done by (Hatfill) on classified government projects relating to bioweapons, including anthrax.”

The court agreed and the case was dismissed in January 2007.

The Kurtz-Ferrell prosecution has drawn widespread criticism from both the art world and from legal experts. The New York Civil Liberties Union (NYCLU) questioned the propriety of a grand jury investigation into Kurtz's work. "It doesn't appear that this investigation satisfies the FBI standards that the facts and circumstances of the case must reasonably indicate that a crime has been committed," said Donna Lieberman, Executive Director of the NYCLU.

Patricia J. Williams, professor of law at Columbia University, questioned whether the Kurtz-Ferrell prosecution is part of a larger government reaction against anti-Administration expression in the arts. She wrote, "Recently scholars from around the world have been barred from the U. S. for reasons stated and unstated, but all in the name of Homeland Security. They include a South African peace activist, a Canadian antipoverty worker, an Iraqi epidemiologist, most Cuban academics, a Greek economist, a British musician, a Bolivian historian."

Critical Art Ensemble (which Kurtz co-founded in 1987 with Steven Barnes) has won numerous awards for its bio-art, including the prestigious 2007 Andy Warhol Foundation Wynn Kramarsky Freedom of Artistic Expression Grant, honoring more than two decades of distinguished work.

HOW MUCH FREEDOM OF INFORMATION?

By William Fisher


The U.S. Central Intelligence Agency has refused to release more than 7,000 documents related to its programs of secret detentions, renditions, and torture, and is asking a federal judge to dismiss a Freedom of Information lawsuit demanding disclosure.

The refusal came last week in the CIA’s response to a lawsuit brought by three human rights groups, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR) and the International Human Rights Clinic at New York University School of Law (NYU IHRC).

The CIA filed a motion with the court for a summary judgment to end the lawsuit and avoid turning over more than 7,000 documents related to its secret “ghost” detention and extraordinary rendition programs.

The CIA claimed that it did not have to release the documents because many consist of correspondence with the White House or top Bush administration officials, or because they are between parties seeking legal advice on the programs, including guidance on the legality of certain interrogation procedures. The CIA confirmed that it requested -- and received -- legal advice from attorneys at the Department of Justice Office of Legal Counsel concerning these procedures.

The case is significant for a number of reasons. Among them, said CCR Executive Director Vincent Warren, it marks the first time the CIA “has acknowledged that it has well over 7000 documents that relate to the torture and disappearance of men.”

And Curt Goering, AIUSA senior deputy executive director, said, “Given what we already know about documents written by Bush administration officials trying to justify torture and other human rights crimes, one does not need a fertile imagination to conclude that the real reason for refusing to disclose these documents has more to do with avoiding disclosure of criminal activity than national security.”

He called on the CIA to “stop stonewalling congressional oversight committees and release vital documents related to the program of secret detentions, renditions, and torture.”

The three human rights organizations will file their response brief in court next month.

These organizations filed their Freedom of Information Act (FOIA) requests last June with several U.S. government agencies, including the CIA. These requests sought information about individuals who are -- or have been -- held by the U.S. government or detained with U.S. involvement, and about whom there is no public record.

The requests also sought information about the government’s legal justifications for its secret detention and extraordinary rendition program. Comprehensive information about the identities and locations of prisoners in CIA custody -- as well as the conditions of their detention and the specific interrogation methods used against them -- has never been publicly revealed.

Emi MacLean, a CCR attorney, told IPS, “The CIA has been running a program of enforced disappearance and torture. What we are asking for is fundamental to a democratic society -- some essential transparency and accountability. We need to know what is being done in our name. Indeed, the documents withheld by the government demonstrate that this basic accountability is what they have been worried about from the very beginning.”

“The CIA has employed illegal techniques such as torture, enforced disappearances, and extraordinary rendition,” said Meg Satterthwaite, Director of the NYU IHRC. “It cannot use FOIA exemptions as a shield to hide its violations of U.S. and international law.”

In its legal filings, the CIA acknowledged that this program “will continue.” Some prisoners have been transferred to prisons in other countries for proxy detention where they face the risk of torture and where they continue to be held secretly, without charge or trial. Human rights reports indicate that the fate and whereabouts of at least 30 people believed to have been held in secret U.S. custody remain unknown.

In September 2006, President Bush publicly acknowledged the existence of CIA-operated secret prisons. At the same time, 14 detainees from these facilities were transferred to Guantánamo and several more have arrived since. The administration has admitted to using so-called “alternative interrogation procedures” on those held in the CIA program, including waterboarding. The international community and the United States, in other contexts, have unequivocally deemed these techniques torture.

One of the centers of particular interest in this case is a CCR client, Majid Khan. Khan emigrated from his native Pakistan to the U.S. in 1996 and is a legal U.S. resident. On a trip to Pakistan to visit his wife, Khan was abducted by Pakistani officials and transferred to one of the CIA’s secret prisons. Among those transferred to Guantanamo Bay to be tried before a Military Commission, he was the first of the so-called "high value" detainees to have legal representation.

Congress has also been unable to obtain CIA records. The few documents released in the human rights groups’ lawsuit demonstrate a pattern of withholding information from Congress.

In a pointed 2003 bipartisan letter, then-Chair and Ranking Member of the House Select Committee on Intelligence requested that the then CIA Director George Tenet provide senior level briefings on the treatment of, and information obtained by, three men known to be held in secret CIA detention.” He told the CIA that their committee was “frustrated with the quality of the information” provided in past briefings.

The CIA appears to have avoided answering detailed requests for specific information, responding instead with form letters and references to briefings. In 2005, these practices led to a forceful letter from Michigan Democratic Senator Carl Levin, now the Chairman of the Senate Armed Services Committee, who was attempting to investigate CIA involvement in detainee deaths. In his letter, Levin noted that “The lack of CIA cooperation with the investigations to date has left significant omissions in the record.”

The Freedom of Information Act (FOIA) was signed into law by President Lyndon B. Johnson in 1966. It allows for the full or partial disclosure of previously unreleased information and documents controlled by the U.S. Government. The Act defines agency records subject to disclosure, outlines mandatory disclosure procedures, but grants a number of exemptions to Federal agencies.

WE’VE GOT A (STATE) SECRET

By William Fisher

Congress yesterday moved a step closer to reining in the legal practice that the government has used to block lawsuits by whistleblowers and victims of “extraordinary rendition,” as well as actions that would embarrass the administration.

By an 11-8 vote, the Senate Judiciary Committee passed the State Secrets Protection Act, a measure introduced by Sen. Edward M. Kennedy, Democrat of Massachusetts, and Arlen Specter, a Republican from Pennsylvania. Specter. Specter, the committee’s most senior minority member, was alone among the panel’s nine Republicans to vote in favor of approving the bill.

The measure would establish new rules that would allow judges to review government evidence supporting its claims that bringing a case to civil trial would involve disclosure of classified state secrets and thus compromise national security.

The bill now goes to the full Senate for a vote, though its timing and outcome remain unclear. A similar bill has been introduced in the House of Representatives by Congressmen Jerrold Nadler, Democrat from New York, and Tom Petri, a Wisconsin Republican.

The White House has signaled that President George W. Bush will veto the legislation if it passes both houses of Congress.

The new bill would provide a mechanism for protecting legitimate secrets while also permitting civil litigation to proceed.

The proposed new legislation “will ensure that the litigation process will not reveal state secrets, using many of the same safeguards that have proven effective in criminal cases and in litigation under the Freedom of Information Act," Senator Kennedy said.

Under the proposed measure, when the government claims the state secrets privilege, it will be required to submit an affidavit explaining why the information sought should remain secret. If the court agrees that certain evidence is privileged, it must order the government to produce unclassified or blacked-out versions of the sensitive information if doing so would not harm national security.

Judges would be authorized to rule against the government if it refuses to produce this documentation.

The attorney general would be required to report to the House and Senate Intelligence and Judiciary committees every time the government claimed the state secrets privilege.

The state secrets privilege is a common law right that lets the government protect sensitive national security information from being disclosed as evidence in litigation. The courts have generally accepted such government assertions.

The privilege was first recognized by the U.S. Supreme Court in 1953, in a case later shown to have been bogus. It has been asserted since then by every American administration, Republican and Democratic. But the Bush Administration has increased its use dramatically. It has raised the privilege in over 25 per cent more cases each year than previous administrations, and has sought dismissal in more than 90% of cases.

The privilege has been invoked to dismiss claims of unlawful domestic surveillance, detention, torture, and misconduct by government employees, on grounds that adjudicating them would cause unacceptable damage to national security.

In 1980, Congress enacted the Classified Information Procedures Act (CIPA) to provide federal courts with clear statutory guidance on handling secret evidence in criminal cases. But no such guidance has been available in civil cases. The proposed new law is intended to correct that situation by providing the courts with “clear, fair, and safe rules.”

Legal scholars have long recognized the need for congressional guidance on this issue. A recent report by the American Bar Association urged Congress to “enact legislation governing federal civil cases implicating the state secrets privilege."

The bipartisan Constitution Project found that "legislative action is essential to restore and strengthen the basic rights and liberties provided by our constitutional system of government."

And a group of leading constitutional scholars wrote to Congress emphasizing that there "is a need for new rules designed to protect the system of checks and balances, individual rights, national security, fairness in the courtroom, and the adversary process."

The absence of such rules has resulted in the dismissal of a number of
high-profile lawsuits against the government. For example:

A German citizen, Khaled el-Masri, complained to the court that he was kidnapped, illegally detained and abused by the Central Intelligence Agency (CIA) in a case of "extraordinary rendition." His suit was dismissed because he would not be able to make his case except by using "privileged evidence” that exposed CIA practices -- and the CIA could not defend itself against the allegations "without using privileged evidence."

In another widely publicized case, the Justice Department asserted the state-secrets privilege in successfully seeking to dismiss a lawsuit by Maher Arar, a Syrian-born Canadian citizen who was detained in the U.S. in 2002 and sent against his will to Syria, where he says he was tortured until his release a year later. A Canadian Government commission found after a two-year investigation that Arar had no connection with terrorists and awarded him compensation of $10 million and an apology.

Another case involved Sibel Edmonds, a former translator at the Federal Bureau of Investigation (FBI), who was fired for reporting security breaches and possible espionage within the Bureau. Edmonds unsuccessfully appealed her case to the U.S. Supreme Court. At the time, the Inspector General of the Department of Justice (DOJ) found that Ms. Edmonds’ firing was an act of retaliation.

Legal scholars and civil rights advocates have been outspoken against the Bush Administration’s use of the state secrets privilege as a shield behind which it can conceal virtually any activity.

Prof. David Cole of the Georgetown University Law Center, one of the nation’s preeminent constitutional lawyers, told IPS, “The Administration has argued on the merits that the President has unilateral executive power in the ‘war on terror’ to violate even criminal laws, and when it has been challenged on that assertion, it has argued that the courts can't even rule on that assertion of power because the alleged criminal violation is a ‘state secret’."

Cole’s view is echoed by Prof. Peter Shane of the Ohio University law school. He told IPS that the Bush Administration “has been conspicuous in its defense of the executive's secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest.”

He added, “The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress.”

Steven Aftergood, head of the Government Secrecy Program at the Federation of American Scientists, told IPS, “The state secrets privilege has been used to derail legal challenges to government policies on detention, rendition, and interrogation, among other outstanding issues. There has to be a better way. There is no incentive for the executive to regulate itself or to curtail its use of the privilege.”

And Gabor Rona, International Legal Director of advocacy group Human Rights First, told IPS, “When courts dismiss cases alleging human rights violations on state secrets grounds, and leave no alternative for redress, the U.S. is in violation of its obligation under the International Covenant on Civil and Political Rights to provide a remedy.”

But Attorney General Michael Mukasey said he believes Congress probably lacks the authority to alter the state secrets privilege because it is rooted in the Constitution "and is not merely a common law privilege."

He said the bill would transfer responsibility for making national security
judgments from the executive branch to the courts. He contends that federal judges do not have “the constitutional authority nor the institutional expertise to assume such functions."