Sunday, December 03, 2006


By William Fisher

The New York Times Sunday ran a series of articles by prominent historians who endeavored to answer the question, “Is Bush Our Worst President?” In the interest of balance, there was a “yes” piece, a “no” piece, and a “we don’t know yet” piece.

Fair enough.

But what struck me about these articles is how little attention they devoted to Bush’s second biggest mistake.

His first big mistake, as we all now know, was turning his attention and our resources away from Afghanistan, the country that harbored those who attacked us on 9/11. We’ll be paying a high price for that mistake for decades to come.

His second biggest mistake was the place to which he then turned his attention and our resources -- Iraq, a country that posed no imminent threat to our national security or that of its neighbors. And he did so on the basis of false, exaggerated, and hyped “intelligence.”

That was his second biggest mistake not simply because the Iraq adventure has turned out to be, as Tom Ricks would say, a fiasco.

Another significant reason is that it totally ignored what is indisputably the most serious and intractable problem in the Middle East: The Israeli-Palestinian issue – the 900-pound gorilla in the room.

For the past six years, this administration has been A.W.O.L on this hair-trigger issue. It is one whose solution cannot be advanced by occasional visits to the White House by Ariel Sharon, Ehud Olmert, or Abu Mazen. It cannot be advanced by sporadic visits to the area by Secretary of State Condoleeza Rice. It cannot be advanced by pronouncements from the White House about the wisdom of a two-state solution. It cannot be advanced by hailing Mr. Sharon’ s Gaza initiative, which has effectively turned that strip of land into a prison. It cannot be advanced by the President’s endorsement of yet more West Bank settlements and redrawing the UN boundaries because of “changing reality on the ground.”

Nor can it be advanced by refusing to talk to Hamas because that bunch won the support of many Palestinian voters in the kind of fair election the President keeps pressing nations to hold. The President needs to ask why the Palestinian people voted for Hamas.

Whatever their reasons, the sorry result of U.S. post-election policy is to legitimize yet more suffering for the people who live in the Palestinian territories, thus turning up the volume of the anti-Americanism that already permeates the region.

So dire is this 50-year-old problem that it cried out for a long-term, sustained, on-the-ground diplomatic effort on the part of the Bush Administration. It required the presence, and the skills and patience, of a Dennis Ross or a Richard Holbrooke.

Now, alas, it may be too late. Our virtually total neglect of the problem, our lopsided support of Israel’s protracted incursion into Lebanon, and our unconscionable delay in pushing the UN for a cease-fire, may have robbed us of whatever credibility we once had as an “honest broker.”

Still, President Bush keeps referring to “the road map,” as if he and his people had expended any energy whatever in trying to lay the predicate for its implementation. There is no roadmap. It’s dead.

No one ever thought it would be easy – maybe not even possible – to persuade Hamas to abandon its refusal to recognize Israel’s existence or to give up on driving its people into the sea. And no one ever thought it would be easy to persuade the Israelis to make real concessions.

But lots of people said similar things when Jimmy Carter set out to establish a peace treaty between Israel and its archenemy, Egypt. That treaty is still in force, as is the one between Israel and Jordan.

Every president over the past thirty years has tried to find ways to resolve the myriad of issues that make up the Israeli-Palestinian conflict. Every president, that is, except George W. Bush. His predecessors weren’t famously successful, but at least they tried.

They tried because they understood that the road to Baghdad ran through Jerusalem, not vice-versa.

There is no single issue that energizes the nations and people of the Middle East in the way that the Israel-Palestine cancer does. It is true that many Arab nations in the neighborhood don’t really care if this issue is ever settled, because the longer it festers the easier it is for them to do nothing save using it as a pretext for their anti-American propaganda. Israel always makes a handy agenda item for meetings of the Arab League. But we should by now be used to The Arab League shooting itself in the foot.

Just as the President, now out of all good options, will likely find himself reluctantly having to negotiate with Iran and Syria over Iraq, he will similarly find himself forced to talk with Hamas. That will require tough, sustained, carrot-and-stick diplomacy of a kind that has been sadly absent during the past six years. We can enlist a few credible allies, including the EU and the UN, but the principal responsibility can’t be outsourced. The U.S. still has more leverage over Israel than any other country.

Talking to Hamas won’t be easy or pleasant. But Mr. Bush wasn’t elected to take on the easy or pleasant.

And there is nothing that would offer more promise for a peaceful Middle East than for President Bush to at least be seen to be trying in a really serious way to do something meaningful in his last two years in office.

He may be a lame duck, but that doesn’t mean he has to be a paraplegic.


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.


By William Fisher

As the new Democratic Party majority in Congress considers whether to re-visit the Military Commissions Act of 2006 (MCA), the administration of President George W. Bush is proposing still more restrictions on detainees in American custody.

The government has proposed limiting contact between defense lawyers and detainees at Guantanamo Bay because detainees' communications, such as news of world events, could incite the prisoners to violence.

The U.S. proposal to limit lawyers’ contacts with their Guantanamo was contained in a filing to a federal appeals court in Washington. The case deals with an Afghani detainee but the government wants them to apply to other prisoners at Guantanamo. The prison camp currently holds some 430 detainees.

Among the more controversial provisions of the MCA, which President Bush signed into law in October, is one that strips U.S. courts of jurisdiction to consider writs of habeas corpus filed by detainees classified as enemy combatants. The Administration contends that the president may classify any person, even a U.S. citizen, as an enemy combatant.

But Senator Chris Dodd, a Connecticut Democrat, has already introduced legislation that would restore habeas corpus rights to military detainees and make other amendments to the MCA. Dodd's bill, the Effective Terrorists Prosecution Act, would restore those protections. The amendments would also narrow the class of detainees identified as unlawful enemy combatants who are affected by the MCA's habeas restriction.

The Democratic Party won control of both the House of Representatives and the Senate when they defeated Republicans in mid-term elections last month.

Since its passage, the MCA has come under fire not only from Democrats but also from the judiciary, human rights groups, some Republicans, and foreign countries.

Last month, lawyers representing detainees at Guantanamo Bay petitioned the U.S. Court of Appeals for the District of Columbia Circuit to declare the suspension of habeas rights unconstitutional. In an amicus – friend of the court -- brief in the case, seven retired federal judges urged the appeals court to rule that parts of the MCA violate the Constitution.

The principle of habeas corpus, originally contained in the Magna Carta, has been one of the cornerstones of U.S. law since the nation’s founding. It gives a detainee the right to go to court to challenge the authority of the prison or jail warden to continue to hold him or her.

Dodd's bill would also provide for expedited review of the MCA to ensure its constitutionality.

An alternative strategy is being proposed by Prof. Peter Shane of Ohio State Law School and Director of the Center for Interdisciplinary Law and Policy Studies. He told us, “The Constitution limits the suspension of habeas to occasions ‘when in Cases of Rebellion or Invasion the public Safety may require it.’ Because our public safety is not now at risk from either rebellion or invasion, the MCA is unconstitutional in suspending habeas. I'd be happy for Congress to amend the MCA, but they may fear a veto. An alternative strategy would be a concurrent resolution proclaiming ‘the sense of Congress that public safety is not now at risk from either rebellion or invasion.’ This could be a powerful aid to anyone bringing litigation to challenge the MCA.”

The proposed new rules for detainee-lawyer contacts would apply to detainees pursuing court challenges to their designations as "enemy combatants," and would tighten censorship of mail from attorneys and give the military more control over what lawyers can discuss with their clients, according to the filing.

The number of face-to-face meetings between defense attorneys and detainees would be limited to four total. There are now no restrictions on the number of times they can meet, although lawyers' access to the base is already hampered because it is so remote.

The government says current rules have allowed detainees to receive books or articles about terrorist attacks in Iraq, London and Israel, as well as details of the prisoner abuse investigation at Iraq's Abu Ghraib prison.

In the court filing, a military lawyer said security at Guantanamo Bay has been threatened by the introduction of a book on Abu Ghraib, a speech given at an Amnesty International conference about the war on terror, and other materials.

"Such materials could incite detainees to violence, leading to a destabilization of the camp," wrote Navy Cmdr. Patrick M. McCarthy.

The government petition was filed this summer but only recently discovered by The Boston Globe newspaper, relates to the case of Haji Bismullah, an Afghan who is among several Guantanamo detainees represented by the New York-based advocacy group, the Center for Constitutional Rights (CCR).

Currently, mail from lawyers is examined only for physical contraband. The proposed rules call for all of a detainee's mail to be examined for forbidden information.

A CCR attorney said he suspects the proposal is aimed at controlling the information coming out of Guantanamo. Accounts from defense lawyers who have visited Guantanamo have cast doubt on government assertions that most detainees are hardened terrorists.

"What's happening is the government wants to hide this indisputable fact," he said "They're not happy we've been able to bring a lot of these developments to light."

Many other human rights organizations have weighed in on this issue. For example, Mary Shaw of Amnesty International USA told us, “With passage of the Military Commissions Act, human rights violations perpetrated by the Bush administration in the ‘war on terror’ have in effect been given the congressional stamp of approval. This raises serious questions about the U.S. government's commitment to due process and the rule of law.”

She added, “The ‘war on terror’ must not be used as an excuse to deny the basic human rights of any person. Amnesty International will continue to campaign for U.S. ‘war on terror’ detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.”

In 2004, the Supreme Court said detainees can contest the legality of their detentions. But, while the MCA bars detainees from protesting their detentions in court, they still have a right to challenge their designations as "enemy combatants." The new rules would restrict legal representation for those challenges.

Meanwhile, lawyers for dozens of Guantanamo Bay detainees have asked a federal appeals court to declare a key part of President Bush's new military trials law unconstitutional.

The detainees' lawyers challenged the military's authority to arrest people overseas and detain them indefinitely without allowing them to use the U.S. courts to contest their detention.

In written arguments, attorneys for more than 100 detainees who would be locked out of the regular judicial system asked the U.S. Court of Appeals for the District of Columbia Circuit to let the detainees keep their legal challenges going in civilian courts.

President Bush says he would like to close Guantanamo, but shows no signs of so doing. In fact, a new facility for holding trials there is now nearing completion.

In five years, not a single detainee has been charged or tried. And it is extremely unlikely that the fourteen high-value suspects recently transferred to Guantanamo from secret prisons elsewhere will ever come to trial because the evidence against them was probably obtained through coercion.

One can only wonder if President Bush is really being informed by those who advise him of what Guantanamo represents to most of the rest of the world. In simply symbolic terms, it destroys his rhetoric about democracy and the rule of law, and turns against America the very people whose hearts and minds the President says he’s trying to win.