By William Fisher
Amidst the anger, dismay and depression felt by millions of Americans who see their country’s civil liberties being unnecessarily surrendered in the name of “The Global War on Terror”, there are occasional signs that our justice system is still alive and well.
Recent weeks have brought four such signs.
Sign One: Khaled El-Masri, a German citizen, stood up in a U.S. Federal courtroom to challenge the Bush administration's use of "extraordinary rendition," abduction, detention and interrogation in secret overseas prisons. He told the court, "I have come to America seeking three things. An acknowledgement that the United States government is responsible for kidnapping, abusing and detaining me; an explanation as to why I was singled out for this treatment; and an apology because I am an innocent man who has never been charged with any crime."
In a legal maneuver now familiar, the government tried to use the “state secrets privilege” to keep the case from being heard and thus avoid accountability for its actions. But last week, El-Masri’s lawyers argued that the government's official
recognition of the program and information already available about this case show that the lawsuit does not jeopardize national security and must be allowed to continue.
The last time El-Masri tried to come to the U.S. -- to hear his own court
case -- he was denied entry because he did not have a visa, even though German citizens don't actually need visas to enter the U.S.
Sign Two: A group of human rights advocacy organizations filed a ‘Friend of the Court” brief in the U.S. Court of Appeals demanding justice for Ali Saleh Kahlah al-Marri, a Qatari student, who was arrested in Peoria, Illinois, in 2001, detained in New York City for 18 months as an alleged material witness in the 9/11 attacks, and then, in 2003, just weeks before al-Marri's planned trial in federal court, President Bush declared him an "enemy combatant" in the "war on terror" and ordered him transferred to military custody where he was held incommunicado at a Naval Brig for 17 months while being interrogated under allegedly coercive and abusive conditions.
Al-Marri’s lawyers are arguing in court filings that it is unconstitutional for the government to detain as an "enemy combatant" a person who is not captured on the battlefield and who is not a member of the armed forces of an enemy State. The brief was filed in the United States Court of Appeals for the Fourth Circuit.
His lawyers argue that the general constitutional rule governing detention, per the Supreme Court decision of Hamdi v. Rumsfeld, limits the definition of "enemy combatant" to persons who are captured on a battlefield or are members of the armed forces of an enemy state. This definition is consistent with the traditions laws of war and constitutional precedent prohibiting military trial and the detention without trial or charge of civilians. Without such protections, United States citizens and immigrants can be arrested, deemed "enemy combatants," and detained indefinitely without due process.
The government’s reply briefs are due in January 2007. Oral arguments are expected to take place at the end of January or beginning of February 2007. In the meantime, al-Marri continues to be held in military custody, without charge or trial.
Sign Three: Five years after Muslim immigrants were abused in a federal jail, the guards who beat them and the Washington policymakers who decided to hold them for months without charges are being called to account. In what could turn out to be a landmark case, a panel of three Federal judges turned down a request by FBI Director Robert S. Mueller III and former Attorney Gen. John Ashcroft to dismiss the lawsuit brought against two Brooklyn detainees, and signaled they believed the case should go forward.
In the months immediately following the 9/11 terrorist attacks, some 1,200 Middle Eastern men were arrested on suspicion of terrorism. Many were held in Brooklyn's notorious nine-story Metropolitan Detention Center. In a special unit on the top floor, detainees were smashed into walls, repeatedly stripped and searched, and often denied basic legal rights and religious privileges, according to federal investigations.
Now the federal Bureau of Prisons, which runs the jail, has revealed for the first time that 13 staff members have been disciplined, two of them fired. The warden has retired and moved to the Midwest.
Two of these detainees sued former Attorney General Ashcroft, FBI Director Mueller, and top federal prison officials and individual guards as defendants, seeking an unspecified amount of money from the government.
The suit hopes to hold federal law enforcement authorities responsible for their open-ended, "hold-until-cleared" policy for detainees. If the lawsuit prevails, it will create precedents that will probably bar authorities from carrying out such sweeping roundups in the future.
The government has already settled with one of the plaintiffs – a rare and surprising move -- former Manhattan deli operator Ehab Elmaghraby, who accepted a federal government payout of $300,000.
Elmaghraby, who has returned to Egypt, said he could not forgive the guards who jammed a flashlight up his rectum. "They destroyed me. They destroyed my family," he said in a recent telephone interview. "So I want the officers to stay one week inside those cells. They would kill themselves before the week was finished."
So the case is proceeding with just one of the detainees who sued.
Sign Four: In a significant development on the right of charitable giving, a federal judge ruled that the Bush administration violated the U.S. Constitution when it froze the assets of more than two dozen alleged terrorist groups after the 9/11 attacks. The ruling held that an executive order President Bush issued on Sept. 24, 2001, designating 27 groups and individuals as "specially designated global terrorists", was "unconstitutionally vague" and flawed because it failed to explain the criteria used to make the designations and included no process to challenge the decision.
The challenge brought to the federal courts was based on the premise that domestic political groups in the U.S. can support humanitarian causes in troubled regions without supporting terrorism. Specifically, U.S. District Judge Audrey Collins ruled against freezing the assets of two political organizations with purported ties to terrorist groups based in Sri Lanka and Kurdistan.
Over the past five years, the Bush Administration has named a number of U.S. charities as "specially designated terrorist groups" under Executive Order 13224. As a result, several have had their operations suspended and their assets frozen by the government without any checks or balances from Congress or the Judiciary. To date, such efforts have not yielded a single conviction of anyone involved with the designated charities for terrorist financing or support.
These are all stories the government doesn’t want us to know about. But thanks to our judicial system – no doubt the neocons will accuse the lawyers of supporting terrorists and the jurists of being “activist judges” – we may find out anyway.
David Cole, the Georgetown law professor and renowned civil libertarian, believes there has always a pendulum effect in American civil liberties. We pass Alien and Sedition Acts, suspend habeas corpus, conduct “Red Raids” to root out anarchists and Bolsheviks, intern Japanese-Americans, and create blacklists and use Congress as a circus stage to find Communists in our midst.
For each of these actions, eventually there has been a reaction. Civil liberties get restored. The pendulum swings back.
But that was history before 9/11. And before George W. Bush. We can’t know yet whether the pendulum is still working. But we should be encouraged by small signs such as these.