By William Fisher
I’m shocked! No, outraged!
Ann Coulter, the extreme right-wing motormouth who insults everyone left of Ghengis Kahn, is being harassed.
A greeting card delivered to her home that read, “You self-aggrandizing sociopath! The only thing left after a nuclear war are you and cockroaches.” A phone message saying, “Hey, Ann, now that you’ve moved to Florida and you’re in your 40s, did you know that you can join the Florida National Guard? You love war until you have to put your own a** on the line. I don’t call that patriotism. I call it cowardice.”
And more. You get the idea.
So upset by all this was the Goddess with the flaxen hair that she’s had the local property appraiser remove the address of her $1.2 million home in Palm Beach, Florida, from public records.
According to that fount of scholarly discourse, Newsmax, Coulter’s is one of 2,674 properties in Palm Beach County whose owners are confidential in property appraiser records. Homeowners seeking anonymity must submit an affidavit stating why they believe they require it. Exemptions are made for people in occupations that could make them targets — including police officers, judges, prosecutors, and child abuse investigators — and for victims of domestic violence, stalking, or harassment.
I guess “harassment” would be Annie’s beef.
Oh, the shame of it all! To think that such things could happen in a country that so values reason and civil discourse! Whose politics are steeped in the laudable tradition of listening respectfully to views not our own, of making that special effort to walk in someone else’s shoes.
Surely, there can be no more perfect poster child for our devotion to these values than Annie-Get-Your-Gun Coulter. No better example of reason on steroids.
One has only to quickly peruse the titles of Annie’s books to confirm her dedication to walking the high road: "If Democrats Had Any Brains They'd Be Republicans,” “Godless: The Church of Liberalism,” “Treason: Liberal Treachery from the Cold War to the War on Terrorism,” “How to Talk to a Liberal (If You Must).”
Or read some of the quotes from her recent columns and speeches:
On Jews: "We just want Jews to be perfected, as they say." --arguing that it would be better if we were all Christian.”
On terrorists: Or, in responding to terrorists "we should invade their countries, kill their leaders and convert them to Christianity."
On women: "I think [women] should be armed but should not [be allowed to] vote. No, they all have to give up their vote, not just, you know, the lady clapping and me. The problem with women voting -- and your Communists will back me up on this -- is that, you know, women have no capacity to understand how money is earned. They have a lot of ideas on how to spend it. And when they take these polls, it's always more money on education, more money on child care, more money on day care."
On Liberals: "With their infernal racial set-asides, racial quotas, and race norming, liberals share many of the Klan's premises. The Klan sees the world in terms of race and ethnicity. So do liberals! Indeed, liberals and white supremacists are the only people left in America who are neurotically obsessed with race….”
On John Edwards: “I was going to have a few comments on the other Democratic presidential candidate John Edwards, but it turns out you have to go into rehab if you use the word ‘faggot,’ so I — so kind of an impasse, can’t really talk about Edwards.”
Predictably, I don’t agree with Ms. C. all that often. And my guess is that she wouldn’t agree with too many of my views either. Except one: The free speech part of the Constitution.
Because without it, she wouldn’t be living in a confidential Palm Beach mansion.
Tuesday, November 27, 2007
Monday, November 26, 2007
PATRIOT ACT LITE?
By William Fisher
Civil liberatarians are worried that a little-known anti-terrorism bill now making its way through Congress with virtually no debate could be planting the seeds of another USA Patriot Act, which was hurriedly enacted into law after the Al Qaeda attacks of September 11, 2001.
The “Violent Radicalization and Homegrown Terrorism Prevention Act,” co-authored by the former chair of the House of Representatives Intelligence Committee, Jane Harmon (D-California), passed the House by an overwhelming 400-6 vote last month, and will soon be considered by the Senate.
The bill’s co-author is Congressman David Reichert (R-Washington). The Senate version is under construction by Susan Collins of Maine, the ranking Republican on the Homeland Security and Governmental Affairs Committee, which is chaired by the hawkish Connecticut independent, Sen. Joe Lieberman. Harmon is chair of the House Homeland Security Intelligence Subcommittee.
Civil liberties groups including the American Civil Liberties Uinion (ACLU) and the Center for Constitutional Rights (CCR) say the measure could herald a new government crackdown on dissident activity and infiltration of universities under the guise of fighting terrorism.
The CCR’s Kamau Franklin, a Racial Justice Fellow, told IPS, “This measure looks benign enough, but we should be concerned about where it will lead. It may well result in recommendations for new laws that criminalize radical thought and peaceful dissent, posing as academic study.”
Franklin added, “Crimes such as conspiracy or incitement to violence are already covered by both State and Federal statute. There is no need for additional criminal laws.”
He speculated that Congress “may want to get this measure passed and signed into law to head off peaceful demonstrations” at the upcoming Republican and Demoncratic Party conventions. “And no Congress person of either political party wants to vote against this bill and get labelled as being soft on terrorism.”
Harman’s bill would convene a 10-member national commission to study
“violent radicalization” (defined as “the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change”);and “homegrown terrorism” (defined as “the use, planned use, or threatened, use of force or violence by a group or individual born, raised, or based and operating primarily within the United States […] to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives”).
The bill also directs the Secretary of the Department of Homeland Security (DHS) to designate a “center of excellence,” a university-based research center where academics, policy-makers, members of the private sector and other stakeholders can collaborate to better understand and prevent radicalization and homegrown terrorism. Some experts are concerned that politics will unduly influence which institution DHS Secretary Michael Chertoff will designate.
In the aftermath of the 9/11 attacks, Chertoff was head of the Criminal Division at the Department of Justice (DOJ), and played a key role in implementing the Department’s roundup of hundreds of Muslims who were detained without charge, frequently abused, and denied access to legal counsel.
Critics of Harmon’s bill point out that Commission members would all be appointed by a high-ranking elected official. Those making these appointments would include the President, the Secretary of Homeland Security, the Speaker and ranking member of the House, the Majority and Minority leaders of the Senate, and senior members of the House and Senate committees overseeing homeland security.
Critics also fear that the bill’s definitions of “extremism” and “terrorism” are too vague, its mandate too broad, and government-appointed commissions could be used as ideological cover to push through harsher laws.
Congressional sponsors of the bill claim it is limited in scope. "Though not a silver bullet, the legislation will help the nation develop a better understanding of the forces that lead to homegrown terrorism, and the steps we can take to stop it,". Harman told Congress.
But the bill's purpose goes beyond academic inquiry. In a Nov. 7 press release, Harman said, "the National Commission [will] propose to both Congress and [Department of Homeland Security Secretary Michael] Chertoff initiatives to intercede before radicalized individuals turn violent."
According to the Center for Constitutional Rights, the Commission “will focus in on passing additional federal criminal penalties that are sweeping and inclusive in criminalizing dissent and protest work more surveillance on thought rather than on actions. Further, this bi-partisan attempt can set the ground for an even more acquiescent Congress to Presidential power, never wanting to look weak on terrorism.”
The Commission would be tasked with compiling information about what leads up to violent radicalization, and how to prevent or combat it with the intent to issue a final report with recommendations for both preventative and countermeasures to violent radicalization, homegrown terrorism and ideologically based violence in the United States.
At the end of its 18-month term, it would cede its work to one of the Homeland
Security Department’s university-based Centers of Excellence. The bill also
includes the creation of a new such center -- or the designation of an existing
one --for the study of Violent Radicalization and Homegrown Terrorism in the
United States.
Implementing the bill would likely cost some $22 million over the 2008-2012 period, according to the Congressional Budget Office. But critics point out that the bill would duplicate work already being done in and out of government. For example, the Federal Bureau of Investigation (FBI) already has a domestic terrorism unit; the U.S. intelligence community monitors the homegrown terrorists and overseas networks that might be reaching out to U.S. residents; and many universities and think-tanks are already specializing in studying the subject.
But Harman argues that a national commission on homegrown terrorism could benefit the country in much the same way as the 9/11 Commission, the Silberman/Robb Commission or other high-profile national security inquiries.
The bill defines “violent radicalization” as the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change.”
But groups like the CCR are asking, “What is an extremist belief system? The term is left undefined and open to many interpretations -- socialism, anarchism, communism, nationalism, liberalism, etc. -- that would serve to undermine expressions that don’t fit within the allowable areas of debate. A direct action led by any group that blocks traffic can be looked upon as being coercive.”
The bill says the Internet has aided in facilitating violent radicalization,
ideologically based violence, and the homegrown terrorism process in the U.S. by providing access to broad and constant streams of terrorist-related
propaganda to U.S. citizens.”
While civil liberties groups agree that focus on the internet is crucial, they fear it could set up far more intrusive surveillance techniques, without warrants, and the potential to criminalize ideas and not actions could mean penalties for a stance rather than a criminal act.
The bill also uses the term “ideologically-based violence, meaning the use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual's political, religious, or social beliefs.”
But the CCR and other groups ask, “What is force? Is civil disobedience covered under that, if arrested at a protest rally and charged with disorderly conduct, obstructing governmental administration, or even assault, does that now open you up to possible terrorist charges in the future?”
Rep. Harman emphasizes that the bill requires the Department of Homeland Security (DHS) to protect the constitutional and civil liberties of U.S. citizens or lawful permanent residents. But critics point out that it also “directs the DHS to write its own rules to protect civil rights and puts the Department’s office of Civil Rights and Civil Liberties in charge of making the rules for the commission and the research center as well as administering the audits.”
Some of the most egregious terrorist attacks in U.S. history have been carried out by American citizens, including the bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995.
Civil liberatarians are worried that a little-known anti-terrorism bill now making its way through Congress with virtually no debate could be planting the seeds of another USA Patriot Act, which was hurriedly enacted into law after the Al Qaeda attacks of September 11, 2001.
The “Violent Radicalization and Homegrown Terrorism Prevention Act,” co-authored by the former chair of the House of Representatives Intelligence Committee, Jane Harmon (D-California), passed the House by an overwhelming 400-6 vote last month, and will soon be considered by the Senate.
The bill’s co-author is Congressman David Reichert (R-Washington). The Senate version is under construction by Susan Collins of Maine, the ranking Republican on the Homeland Security and Governmental Affairs Committee, which is chaired by the hawkish Connecticut independent, Sen. Joe Lieberman. Harmon is chair of the House Homeland Security Intelligence Subcommittee.
Civil liberties groups including the American Civil Liberties Uinion (ACLU) and the Center for Constitutional Rights (CCR) say the measure could herald a new government crackdown on dissident activity and infiltration of universities under the guise of fighting terrorism.
The CCR’s Kamau Franklin, a Racial Justice Fellow, told IPS, “This measure looks benign enough, but we should be concerned about where it will lead. It may well result in recommendations for new laws that criminalize radical thought and peaceful dissent, posing as academic study.”
Franklin added, “Crimes such as conspiracy or incitement to violence are already covered by both State and Federal statute. There is no need for additional criminal laws.”
He speculated that Congress “may want to get this measure passed and signed into law to head off peaceful demonstrations” at the upcoming Republican and Demoncratic Party conventions. “And no Congress person of either political party wants to vote against this bill and get labelled as being soft on terrorism.”
Harman’s bill would convene a 10-member national commission to study
“violent radicalization” (defined as “the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change”);and “homegrown terrorism” (defined as “the use, planned use, or threatened, use of force or violence by a group or individual born, raised, or based and operating primarily within the United States […] to intimidate or coerce the United States government, the civilian population of the United States, or any segment thereof, in furtherance of political or social objectives”).
The bill also directs the Secretary of the Department of Homeland Security (DHS) to designate a “center of excellence,” a university-based research center where academics, policy-makers, members of the private sector and other stakeholders can collaborate to better understand and prevent radicalization and homegrown terrorism. Some experts are concerned that politics will unduly influence which institution DHS Secretary Michael Chertoff will designate.
In the aftermath of the 9/11 attacks, Chertoff was head of the Criminal Division at the Department of Justice (DOJ), and played a key role in implementing the Department’s roundup of hundreds of Muslims who were detained without charge, frequently abused, and denied access to legal counsel.
Critics of Harmon’s bill point out that Commission members would all be appointed by a high-ranking elected official. Those making these appointments would include the President, the Secretary of Homeland Security, the Speaker and ranking member of the House, the Majority and Minority leaders of the Senate, and senior members of the House and Senate committees overseeing homeland security.
Critics also fear that the bill’s definitions of “extremism” and “terrorism” are too vague, its mandate too broad, and government-appointed commissions could be used as ideological cover to push through harsher laws.
Congressional sponsors of the bill claim it is limited in scope. "Though not a silver bullet, the legislation will help the nation develop a better understanding of the forces that lead to homegrown terrorism, and the steps we can take to stop it,". Harman told Congress.
But the bill's purpose goes beyond academic inquiry. In a Nov. 7 press release, Harman said, "the National Commission [will] propose to both Congress and [Department of Homeland Security Secretary Michael] Chertoff initiatives to intercede before radicalized individuals turn violent."
According to the Center for Constitutional Rights, the Commission “will focus in on passing additional federal criminal penalties that are sweeping and inclusive in criminalizing dissent and protest work more surveillance on thought rather than on actions. Further, this bi-partisan attempt can set the ground for an even more acquiescent Congress to Presidential power, never wanting to look weak on terrorism.”
The Commission would be tasked with compiling information about what leads up to violent radicalization, and how to prevent or combat it with the intent to issue a final report with recommendations for both preventative and countermeasures to violent radicalization, homegrown terrorism and ideologically based violence in the United States.
At the end of its 18-month term, it would cede its work to one of the Homeland
Security Department’s university-based Centers of Excellence. The bill also
includes the creation of a new such center -- or the designation of an existing
one --for the study of Violent Radicalization and Homegrown Terrorism in the
United States.
Implementing the bill would likely cost some $22 million over the 2008-2012 period, according to the Congressional Budget Office. But critics point out that the bill would duplicate work already being done in and out of government. For example, the Federal Bureau of Investigation (FBI) already has a domestic terrorism unit; the U.S. intelligence community monitors the homegrown terrorists and overseas networks that might be reaching out to U.S. residents; and many universities and think-tanks are already specializing in studying the subject.
But Harman argues that a national commission on homegrown terrorism could benefit the country in much the same way as the 9/11 Commission, the Silberman/Robb Commission or other high-profile national security inquiries.
The bill defines “violent radicalization” as the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change.”
But groups like the CCR are asking, “What is an extremist belief system? The term is left undefined and open to many interpretations -- socialism, anarchism, communism, nationalism, liberalism, etc. -- that would serve to undermine expressions that don’t fit within the allowable areas of debate. A direct action led by any group that blocks traffic can be looked upon as being coercive.”
The bill says the Internet has aided in facilitating violent radicalization,
ideologically based violence, and the homegrown terrorism process in the U.S. by providing access to broad and constant streams of terrorist-related
propaganda to U.S. citizens.”
While civil liberties groups agree that focus on the internet is crucial, they fear it could set up far more intrusive surveillance techniques, without warrants, and the potential to criminalize ideas and not actions could mean penalties for a stance rather than a criminal act.
The bill also uses the term “ideologically-based violence, meaning the use, planned use, or threatened use of force or violence by a group or individual to promote the group or individual's political, religious, or social beliefs.”
But the CCR and other groups ask, “What is force? Is civil disobedience covered under that, if arrested at a protest rally and charged with disorderly conduct, obstructing governmental administration, or even assault, does that now open you up to possible terrorist charges in the future?”
Rep. Harman emphasizes that the bill requires the Department of Homeland Security (DHS) to protect the constitutional and civil liberties of U.S. citizens or lawful permanent residents. But critics point out that it also “directs the DHS to write its own rules to protect civil rights and puts the Department’s office of Civil Rights and Civil Liberties in charge of making the rules for the commission and the research center as well as administering the audits.”
Some of the most egregious terrorist attacks in U.S. history have been carried out by American citizens, including the bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995.
Wednesday, November 21, 2007
GITMO LAWYERS KEEP TRYING
By William Fisher
The Bush Administration's legal justification for continuing to hold prisoners without charges at the US naval base at Guantanamo Bay, Cuba, will be back in the U.S. Supreme Court - again - early next month.
And the decision of the nine Justices could bring the entire Bush Administration's detention policy down in flames - or not.
On December 5, the High Court will hear oral arguments in a case known as Boumediene v. Bush and al-Odah v. USA. Boumediene and al-Odah have been held in indefinite executive detention at Guantanamo since 2002 without charge or trial.
Boumediene and al-Odeh are Algerian-born Bosnian citizens who were detained in Bosnia in 2001 on the basis of a diplomatic note delivered by the U.S. Embassy in Sarajevo to the Bosnian government. Though the note did not allege any supporting evidence, it asked the Bosnian government to arrest the men because of fears that they were involved in a plan to attack the Embassy. After an extensive investigation yielded no evidence to justify the arrests, the Bosnian Supreme Court ordered the men released for lack of evidence. But they were then immediately arrested and were transferred to Guantánamo.
Their case has been bouncing around the U.S. courts ever since. Earlier this year, after a series of lower court losses, the detainees sought review of their case by the U.S. Supreme Court. In April, the high court declined to review the case. But two months later, in an unusual action taken only three times since the founding of the US, the Supreme Court reversed its own decision, agreeing to hear the case -- the third time the High Court will consider a case concerning the rights of detainees.
The core issue before the Court is whether the Military Commissions Act (MCA), hurriedly pushed through the Republican-controlled Congress and signed into law by President George W. Bush in October 2006, violates the U.S. Constitution by stripping the courts of jurisdiction to consider habeas corpus petitions from the Guantánamo detainees.
The government will tell the high court that current law provides "is a fully adequate substitute for habeas corpus in this extraordinary wartime context."
Habeas corpus, or "The Great Writ," is one of the most fundamental protections of individual liberty guaranteed by the U.S. Constitution. It has its origins in common law dating back to the time of the Magna Carta in 1215, and is a remedy that protects fundamental human rights, including the right not to be subjected to enforced disappearance, secret detention, arbitrary detention, unlawful transfer, torture and other cruel, inhuman or degrading treatment, and the right to a fair trial by an independent and impartial tribunal established by law. Several U.S. presidents have suspended this ancient right, including Abraham Lincoln during the U.S. Civil War. But it has always been restored by the judicial branch of government.
Embedded in the controversy over the Military Commission Act is the legality of executive bodies known as Combatant Status Review Tribunals (CSRTs), which were established to determine whether the detainees held at Guantanamo were "properly detained" as "enemy combatants". The CSRTs were authorized by an order from the then Deputy Secretary of Defense Paul Wolfowitz in 2004 -- some two and a half years after detentions began at Guantánamo.
Combat Status Review Tribunals consist of panels of three military officers who can consider any information, including information that is hearsay, classified, or that has been obtained under torture or other ill-treatment, in making their determinations. The detainee, held thousands of miles from home (or any battlefield) and virtually cut off from the outside world, does not have a lawyer or access to any classified evidence used against him. Critics charge that there is a presumption in favor of the government's information presented to the tribunal.
The CSRTs were established following one of the Bush Administration's major legal defeats. In 2004, in a case known as Rasul v. Bush, the Supreme Court ruled that the U.S. courts had jurisdiction to consider habeas corpus petitions filed on behalf of the Guantánamo detainees.
The Bush Administration's prisoner detention policies have suffered a number of other legal setbacks. Arguably the most important case was known as Hamdan v Rumsfeld. In 2004, Salim Ahmed Hamdan, the captured and detained former driver for Osama bin Laden, filed suit for a habeas corpus hearing in U.S. court. In 2005 the Supreme Court ruled in favor of Hamdan.
The aggregate result of these various legal setbacks is that to date none of the more than 300 detainees still held in Guantánamo has had his detention reviewed in court. None of the over 400 detainees freed from the base to release or further custody in their own or other countries was transferred by judicial order. And there have been no trials of detainees. There has been one "conviction", based on a plea deal by an Australian detainee, who was quickly transferred back to his home country.
The CSRT process has also come in for harsh criticism by an Army reserve officer who served as a member of one such panel. In an affidavit, Lieutenant Colonel Stephen Abraham said the process is deeply flawed, relying on vague evidence prepared by poorly trained personnel, and is subject to undue pressure from the military chain of command.
Under the Detainee Treatment Act (DTA), passed by Congress in 2005, judicial review of CSRT decisions is limited to a single court, the U.S. Court of Appeals for the District of Columbia.
Many in the legal and human rights communities see the upcoming arguments as potentially the first step in restoring one of America's founding tenets -- the rule of law - even to those whose goal might be to destroy the country.
Prof. David Cole of Georgetown University Law Center told IPS, "If our detentions of enemy combatants are ever to be accepted as legitimate by the rest of the world, we must be willing to conform our actions to basic principles of due process and fundamental fairness. Thus far, we have failed."
Cole's view is echoed by Prof. Peter Shane of the University of Ohio Law School. He told IPS, "When President Bush issued his November 2001 'Notice,' which set in motion the military commissions at Guantanamo, the Administration plainly hoped that the approach would provide a rough-and-ready version of 'Adjudication Lite' that, without anyone's interference, could provide the appearance of adhering to the rule of law without treating too fastidiously the rights of Guantanamo detainees."
Marjorie Cohn, a professor at the Thomas Jefferson School of Law and president of the National Lawyers Guild, expressed a similar opinion. She told IPS that the Supreme Court should "determine that the judicial review of the decisions of CSRTs do not provide an adequate substitute for constitutional habeas corpus."
Brian J. Foley, visiting associate professor at Drexel University College of Law, agrees. He told IPS that the CSRTs serve "no purpose other than to expand executive power. The CSRT simply rubberstamps the executive's earlier decision to imprison and interrogate suspects, by making it practically impossible for a prisoner to prove he is not an 'enemy combatant'."
The overwhelming view of the human rights community was expressed by Mary Shaw of Amnesty International USA. She told IPS, "The current system of legal tribunals suggests a lack of independent review, no guarantee of legal counsel, use of secret evidence that may be been obtained through unlawful methods such as torture, and no meaningful way for a defendant to confront the government's case against him. It's a no-win situation."
Some legal observers think there is another factor that might result in a ruling against the government. One source, who declined to be identified because he is not authorized to comment on the issue, told IPS, "The Supreme Court has an institutional aversion to being told by Congress or by the President which cases it can consider and which ones it can't. It's in the high court's DNA."
The Bush Administration's legal justification for continuing to hold prisoners without charges at the US naval base at Guantanamo Bay, Cuba, will be back in the U.S. Supreme Court - again - early next month.
And the decision of the nine Justices could bring the entire Bush Administration's detention policy down in flames - or not.
On December 5, the High Court will hear oral arguments in a case known as Boumediene v. Bush and al-Odah v. USA. Boumediene and al-Odah have been held in indefinite executive detention at Guantanamo since 2002 without charge or trial.
Boumediene and al-Odeh are Algerian-born Bosnian citizens who were detained in Bosnia in 2001 on the basis of a diplomatic note delivered by the U.S. Embassy in Sarajevo to the Bosnian government. Though the note did not allege any supporting evidence, it asked the Bosnian government to arrest the men because of fears that they were involved in a plan to attack the Embassy. After an extensive investigation yielded no evidence to justify the arrests, the Bosnian Supreme Court ordered the men released for lack of evidence. But they were then immediately arrested and were transferred to Guantánamo.
Their case has been bouncing around the U.S. courts ever since. Earlier this year, after a series of lower court losses, the detainees sought review of their case by the U.S. Supreme Court. In April, the high court declined to review the case. But two months later, in an unusual action taken only three times since the founding of the US, the Supreme Court reversed its own decision, agreeing to hear the case -- the third time the High Court will consider a case concerning the rights of detainees.
The core issue before the Court is whether the Military Commissions Act (MCA), hurriedly pushed through the Republican-controlled Congress and signed into law by President George W. Bush in October 2006, violates the U.S. Constitution by stripping the courts of jurisdiction to consider habeas corpus petitions from the Guantánamo detainees.
The government will tell the high court that current law provides "is a fully adequate substitute for habeas corpus in this extraordinary wartime context."
Habeas corpus, or "The Great Writ," is one of the most fundamental protections of individual liberty guaranteed by the U.S. Constitution. It has its origins in common law dating back to the time of the Magna Carta in 1215, and is a remedy that protects fundamental human rights, including the right not to be subjected to enforced disappearance, secret detention, arbitrary detention, unlawful transfer, torture and other cruel, inhuman or degrading treatment, and the right to a fair trial by an independent and impartial tribunal established by law. Several U.S. presidents have suspended this ancient right, including Abraham Lincoln during the U.S. Civil War. But it has always been restored by the judicial branch of government.
Embedded in the controversy over the Military Commission Act is the legality of executive bodies known as Combatant Status Review Tribunals (CSRTs), which were established to determine whether the detainees held at Guantanamo were "properly detained" as "enemy combatants". The CSRTs were authorized by an order from the then Deputy Secretary of Defense Paul Wolfowitz in 2004 -- some two and a half years after detentions began at Guantánamo.
Combat Status Review Tribunals consist of panels of three military officers who can consider any information, including information that is hearsay, classified, or that has been obtained under torture or other ill-treatment, in making their determinations. The detainee, held thousands of miles from home (or any battlefield) and virtually cut off from the outside world, does not have a lawyer or access to any classified evidence used against him. Critics charge that there is a presumption in favor of the government's information presented to the tribunal.
The CSRTs were established following one of the Bush Administration's major legal defeats. In 2004, in a case known as Rasul v. Bush, the Supreme Court ruled that the U.S. courts had jurisdiction to consider habeas corpus petitions filed on behalf of the Guantánamo detainees.
The Bush Administration's prisoner detention policies have suffered a number of other legal setbacks. Arguably the most important case was known as Hamdan v Rumsfeld. In 2004, Salim Ahmed Hamdan, the captured and detained former driver for Osama bin Laden, filed suit for a habeas corpus hearing in U.S. court. In 2005 the Supreme Court ruled in favor of Hamdan.
The aggregate result of these various legal setbacks is that to date none of the more than 300 detainees still held in Guantánamo has had his detention reviewed in court. None of the over 400 detainees freed from the base to release or further custody in their own or other countries was transferred by judicial order. And there have been no trials of detainees. There has been one "conviction", based on a plea deal by an Australian detainee, who was quickly transferred back to his home country.
The CSRT process has also come in for harsh criticism by an Army reserve officer who served as a member of one such panel. In an affidavit, Lieutenant Colonel Stephen Abraham said the process is deeply flawed, relying on vague evidence prepared by poorly trained personnel, and is subject to undue pressure from the military chain of command.
Under the Detainee Treatment Act (DTA), passed by Congress in 2005, judicial review of CSRT decisions is limited to a single court, the U.S. Court of Appeals for the District of Columbia.
Many in the legal and human rights communities see the upcoming arguments as potentially the first step in restoring one of America's founding tenets -- the rule of law - even to those whose goal might be to destroy the country.
Prof. David Cole of Georgetown University Law Center told IPS, "If our detentions of enemy combatants are ever to be accepted as legitimate by the rest of the world, we must be willing to conform our actions to basic principles of due process and fundamental fairness. Thus far, we have failed."
Cole's view is echoed by Prof. Peter Shane of the University of Ohio Law School. He told IPS, "When President Bush issued his November 2001 'Notice,' which set in motion the military commissions at Guantanamo, the Administration plainly hoped that the approach would provide a rough-and-ready version of 'Adjudication Lite' that, without anyone's interference, could provide the appearance of adhering to the rule of law without treating too fastidiously the rights of Guantanamo detainees."
Marjorie Cohn, a professor at the Thomas Jefferson School of Law and president of the National Lawyers Guild, expressed a similar opinion. She told IPS that the Supreme Court should "determine that the judicial review of the decisions of CSRTs do not provide an adequate substitute for constitutional habeas corpus."
Brian J. Foley, visiting associate professor at Drexel University College of Law, agrees. He told IPS that the CSRTs serve "no purpose other than to expand executive power. The CSRT simply rubberstamps the executive's earlier decision to imprison and interrogate suspects, by making it practically impossible for a prisoner to prove he is not an 'enemy combatant'."
The overwhelming view of the human rights community was expressed by Mary Shaw of Amnesty International USA. She told IPS, "The current system of legal tribunals suggests a lack of independent review, no guarantee of legal counsel, use of secret evidence that may be been obtained through unlawful methods such as torture, and no meaningful way for a defendant to confront the government's case against him. It's a no-win situation."
Some legal observers think there is another factor that might result in a ruling against the government. One source, who declined to be identified because he is not authorized to comment on the issue, told IPS, "The Supreme Court has an institutional aversion to being told by Congress or by the President which cases it can consider and which ones it can't. It's in the high court's DNA."
Sunday, November 18, 2007
CHARITY BEGINS…WHERE?
By William Fisher
Forget the Red Cross. Forget the United Way. Forget your church building fund. Forget those Bangladesh cyclone victims.
There’s a far more urgent need, and your job is to step up to the plate and meet it.
Alberto Gonzales, our former Attorney General, is being investigated by the Justice Inspector General, who is looking into whether Gonzales misled Congress in sworn testimony about the National Security Agency’s “terrorist surveillance program”, and improperly sought to influence testimony of an aide, Monica M. Goodling, about last year's firings of nine U.S. attorneys.
But poor Al is broke. He can’t pay his lawyers.
So his friends – yes, he apparently still has quite a few – are setting up a legal defense fund. You will recall that Scooter Libby’s buddies did the same thing.
One of the founders of the Gonzales legal defense fund says poor Al “does not have the means to pay for his legal defense after a career spent mostly in public service.”
That news comes from one of those Gonzales friends, David G. Leitch. Leitch happens to be the top lawyer at the Ford Motor Company. In a begging-bowl email he sent to a list of Republican fatcats last month, Leitch asserted that
Gonzales is "innocent of any wrongdoing."
He said, "In the hyper-politicized atmosphere that has descended on Washington, an innocent man cannot simply trust that the truth will out. He must engage highly competent legal counsel to represent him. That costs money,money that Al Gonzales doesn't have."
Leitch solicited contributions of amounts from $500 to $5,000 to the Alberto R. Gonzales Legal Expense Trust.
Leitch also reported that Gonzales's attorney,George J. Terwilliger III of
White & Case in Washington, "has substantially reduced his fees to represent
Al Gonzales, but the costs will likely be high nonetheless."
Terwilliger, you might recall, was a leader of the Bush-Cheney legal team in the 2000Florida recount fight.
"We have been engaged to assist Judge Gonzales in his continued effort to provide assistance to the Department of Justice as it examines the Department's role in various programs and operations to combat the terrorist threat," Terwilliger told Newsweek. "An unbiased assessment of the facts will show that Judge Gonzales, while holding high public office during a time of great peril, worked to help maintain the safety and security of the American people and acted always with the intent and commitment to honor the rule of law."
In the interests of accuracy, we note that Gonzales has not yet been charged with any crime and champion his right to the best legal help he can find. That’s The American Way. And the least we can do for “the people’s lawyer.”
Checkbooks at the ready? After all, don’t we all owe poor Al our support in his time of need?
Lest we forget, Gonzales toiled for years in the loyal service of George W. Bush. He was Bush’s lawyer when Dubya was governor of Texas. The two of them spent a lot of time – some say up to five minutes per case – reviewing death sentences before they were carried out. He was rewarded with an appointment to the Texas Supreme Court.
When the governor became the president, what choice could have been more visionary than Al as White House Counsel? In that role, our former AG distinguished himself as the conveyor belt and chief rubber-stamp of recommendations from high-level Bush appointees in the Department of Justice to justify torture and the suspension of habeas corpus.
All this effort was not without its reward. Al got nominated and confirmed as our attorney general. As “the people’s lawyer,” Al outsourced to inexperienced ideologues the recruitment and screening of prospective career DOJ officers, presided over the outstanding legal scholarship used to justify warrantless snooping on phone calls and emails, trashing the Constitution’s checks and balances, continued unlimited expansion of executive power, and the still unexplained firings of nine US Attorneys.
Al had a problem, however: His memory. In his testimony before the Senate Judiciary Committee, his incantation, “I can’t recall,” might as well have been a pre-recorded announcement.
Al’s current predicament reminds me of a 1932 depression-era song, a plea from a once high-and-mighty magnate, now fallen on to hard times, “standing in line just waiting for bread.”
The lyrics were eerily prescient:
Once I built a railroad, I made it run,
Made it race against time.
Once I built a railroad, now it's done.
Brother, can you spare a dime?”
Say don't you remember? They called me Al.
It was Al all the time.
Why don't you remember? I'm your pal.
Say buddy, can you spare a dime?
So let’s all get behind our pal Al and his lawyers. Particularly in this holiday season of Peace on Earth and Good Will To Men, can you think of a better way to show our appreciation for everything Alberto Gonzales did for us?
Forget the Red Cross. Forget the United Way. Forget your church building fund. Forget those Bangladesh cyclone victims.
There’s a far more urgent need, and your job is to step up to the plate and meet it.
Alberto Gonzales, our former Attorney General, is being investigated by the Justice Inspector General, who is looking into whether Gonzales misled Congress in sworn testimony about the National Security Agency’s “terrorist surveillance program”, and improperly sought to influence testimony of an aide, Monica M. Goodling, about last year's firings of nine U.S. attorneys.
But poor Al is broke. He can’t pay his lawyers.
So his friends – yes, he apparently still has quite a few – are setting up a legal defense fund. You will recall that Scooter Libby’s buddies did the same thing.
One of the founders of the Gonzales legal defense fund says poor Al “does not have the means to pay for his legal defense after a career spent mostly in public service.”
That news comes from one of those Gonzales friends, David G. Leitch. Leitch happens to be the top lawyer at the Ford Motor Company. In a begging-bowl email he sent to a list of Republican fatcats last month, Leitch asserted that
Gonzales is "innocent of any wrongdoing."
He said, "In the hyper-politicized atmosphere that has descended on Washington, an innocent man cannot simply trust that the truth will out. He must engage highly competent legal counsel to represent him. That costs money,money that Al Gonzales doesn't have."
Leitch solicited contributions of amounts from $500 to $5,000 to the Alberto R. Gonzales Legal Expense Trust.
Leitch also reported that Gonzales's attorney,George J. Terwilliger III of
White & Case in Washington, "has substantially reduced his fees to represent
Al Gonzales, but the costs will likely be high nonetheless."
Terwilliger, you might recall, was a leader of the Bush-Cheney legal team in the 2000Florida recount fight.
"We have been engaged to assist Judge Gonzales in his continued effort to provide assistance to the Department of Justice as it examines the Department's role in various programs and operations to combat the terrorist threat," Terwilliger told Newsweek. "An unbiased assessment of the facts will show that Judge Gonzales, while holding high public office during a time of great peril, worked to help maintain the safety and security of the American people and acted always with the intent and commitment to honor the rule of law."
In the interests of accuracy, we note that Gonzales has not yet been charged with any crime and champion his right to the best legal help he can find. That’s The American Way. And the least we can do for “the people’s lawyer.”
Checkbooks at the ready? After all, don’t we all owe poor Al our support in his time of need?
Lest we forget, Gonzales toiled for years in the loyal service of George W. Bush. He was Bush’s lawyer when Dubya was governor of Texas. The two of them spent a lot of time – some say up to five minutes per case – reviewing death sentences before they were carried out. He was rewarded with an appointment to the Texas Supreme Court.
When the governor became the president, what choice could have been more visionary than Al as White House Counsel? In that role, our former AG distinguished himself as the conveyor belt and chief rubber-stamp of recommendations from high-level Bush appointees in the Department of Justice to justify torture and the suspension of habeas corpus.
All this effort was not without its reward. Al got nominated and confirmed as our attorney general. As “the people’s lawyer,” Al outsourced to inexperienced ideologues the recruitment and screening of prospective career DOJ officers, presided over the outstanding legal scholarship used to justify warrantless snooping on phone calls and emails, trashing the Constitution’s checks and balances, continued unlimited expansion of executive power, and the still unexplained firings of nine US Attorneys.
Al had a problem, however: His memory. In his testimony before the Senate Judiciary Committee, his incantation, “I can’t recall,” might as well have been a pre-recorded announcement.
Al’s current predicament reminds me of a 1932 depression-era song, a plea from a once high-and-mighty magnate, now fallen on to hard times, “standing in line just waiting for bread.”
The lyrics were eerily prescient:
Once I built a railroad, I made it run,
Made it race against time.
Once I built a railroad, now it's done.
Brother, can you spare a dime?”
Say don't you remember? They called me Al.
It was Al all the time.
Why don't you remember? I'm your pal.
Say buddy, can you spare a dime?
So let’s all get behind our pal Al and his lawyers. Particularly in this holiday season of Peace on Earth and Good Will To Men, can you think of a better way to show our appreciation for everything Alberto Gonzales did for us?
Thursday, November 15, 2007
RENDITION VICTIM TRIES AGAIN
By William Fisher
Mahar Arar – arguably the world’s best-known victim o“extraordinary rendition” – went back to court last week, seeking to reverse a pus ruling barring him from suing the US Government for shipping him off to Syria, where he was jailed and tortured for close to a year.
The Syrian-born Canadian citizen was stopped by US authorities at New York’s John F. Kennedy International Airport in September 2002, as he returned from a vacation in North Africa enroute to his home in Canada. He was detained in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The US then flew him to his native Syria against his will.
His detention was based on information provided to the US by Canadian authorities, who alleged he was a terrorist who posed a threat to national security.
Following a year in a Syrian prison, he says he was tortured, forced to sign a coerced ‘confession’, and then released without charges and returned to Canada. A Canadian Government commission spent two years investigating the case, which involved the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP). The blue-ribbon body found no evidence that Arar was a terrorist or had any connection to terrorists. The head of the RCMP was forced to resign because of the incident. Arar received an official apology and a multimillion-dollar settlement from the Canadian government earlier this year
US officials confirmed that Arar “was placed on a terrorist lookout list based on information received from Canada", adding that the decision to remove Arar “was made by US government officials based on our own assessment of the security threat." The US declined further comment on the case and refused to cooperate with the Canadian inquiry.
Arar sought vindication through the US court system. He filed suit in the United States District Court for the Southern District of New York against former Attorney General John Ashcroft, FBI Director Robert Mueller, and then-Secretary of Homeland Security, Tom Ridge, as well as numerous US immigration officials.
Arar asked for a jury trial, compensatory and punitive damages, and a declaration that the actions of the US Government were illegal and violated Arar's constitutional, civil, and international human rights.
The suit charged that the government violated Arar's constitutional right to due process; his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act; and his rights under international law.
It also alleged that Mr. Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the US. It claimed the US Government also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.
Arar also filed a claim under the Torture Victims Protection Act, adopted by the US Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in US Court.
But the US Government invoked the so-called ‘state secrets” privilege, claiming that public disclosure of the documents relating to the case would cause ”exceptionally grave or serious damage to the intelligence, foreign policy, and national security interests of the US, including defense against transnational terrorism.” The District Court agreed and dismissed the case.
Once a little-used legal maneuver, the “state secrets privilege” has been used increasingly during the Bush Administration, and has prevented litigation of a number of high profile terror-related and whistleblower cases.
But last week, Arar appealed the District Court decision to a higher court, the US Second Circuit Court of Appeals, which heard oral argument in the case on November
9. One member of the three-judge panel reviewing the case, Robert D. Sack, called the process of rendition “outsourcing.” The appeal court has not yet reached a decision in the case. Should it affirm the lower court decision, it is not yet clear whether Arar will seek final redress in the US Supreme Court.
A Justice Department lawyer argued before the Appeals Court that the US Constitution did not apply to noncitizens who suffered injury abroad.
Arar’s lawyer, David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Consitutional Rights, underlined the importance of the current appeal. He told IPS, “The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1100 page report, formally apologized, and awarded Mr. Arar $10 million in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy.”
He added, “In this case, federal officials conspired to send an innocent man to Syria to be tortured and arbitrarily detained, and then did everything within their power to ensure that he could not get to a court to stop them from effectuating their conspiracy. They lied to him about his lawyer, and lied to his lawyer about him, while spiriting him off to Syria in a chartered jet. Now the government maintains that he has no remedy whatsoever in a court of law, and has the temerity to contend that his only avenue for judicial review was the very one they blocked him from pursuing while he was in their custody.”
At a US Congressional hearing last month, Secretary of State Condoleezza Rice acknowledged that the US had mishandled the case, but stopped short of an apology. “We do not think that this case was handled as it should have been,” Ms. Rice told the House Foreign Affairs Committee. “We do absolutely not wish to transfer anyone to any place in which they might be tortured.”
Arar was flown to Syria under a US Government program that transports detainees to countries where prison authorities are known to practice torture. The program, which was started during the Clinton Administration, has been used extensively by the US Central Intelligence Agency (CIA), which uses leased Gulfstream business jets for its flights. One of the owners of these leased airplanes, a subsidiary of the Boeing Company, is currently being sued for facilitating renditions.
The US Government has acknowledged that it uses the rendition practice, but insists that countries to which prisoners are taken provide 'diplomatic assurance' that they will be treated humanely. It is generally thought that the rendering practice may be responsible for some of the 'ghost detainees' from Iraq and Afghanistan -- US prisoners whose identities have been hidden from the International Committee of the Red Cross (ICRC).
Arar came to Canada in 1987. After earning bachelor's and master's degrees in computer engineering, he worked in Ottawa as a telecommunications engineer. He now lives in British Columbia.
Mahar Arar – arguably the world’s best-known victim o“extraordinary rendition” – went back to court last week, seeking to reverse a pus ruling barring him from suing the US Government for shipping him off to Syria, where he was jailed and tortured for close to a year.
The Syrian-born Canadian citizen was stopped by US authorities at New York’s John F. Kennedy International Airport in September 2002, as he returned from a vacation in North Africa enroute to his home in Canada. He was detained in solitary confinement for nearly two weeks, interrogated, and denied meaningful access to a lawyer.
The US then flew him to his native Syria against his will.
His detention was based on information provided to the US by Canadian authorities, who alleged he was a terrorist who posed a threat to national security.
Following a year in a Syrian prison, he says he was tortured, forced to sign a coerced ‘confession’, and then released without charges and returned to Canada. A Canadian Government commission spent two years investigating the case, which involved the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP). The blue-ribbon body found no evidence that Arar was a terrorist or had any connection to terrorists. The head of the RCMP was forced to resign because of the incident. Arar received an official apology and a multimillion-dollar settlement from the Canadian government earlier this year
US officials confirmed that Arar “was placed on a terrorist lookout list based on information received from Canada", adding that the decision to remove Arar “was made by US government officials based on our own assessment of the security threat." The US declined further comment on the case and refused to cooperate with the Canadian inquiry.
Arar sought vindication through the US court system. He filed suit in the United States District Court for the Southern District of New York against former Attorney General John Ashcroft, FBI Director Robert Mueller, and then-Secretary of Homeland Security, Tom Ridge, as well as numerous US immigration officials.
Arar asked for a jury trial, compensatory and punitive damages, and a declaration that the actions of the US Government were illegal and violated Arar's constitutional, civil, and international human rights.
The suit charged that the government violated Arar's constitutional right to due process; his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act; and his rights under international law.
It also alleged that Mr. Arar's Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the US. It claimed the US Government also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.
Arar also filed a claim under the Torture Victims Protection Act, adopted by the US Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in US Court.
But the US Government invoked the so-called ‘state secrets” privilege, claiming that public disclosure of the documents relating to the case would cause ”exceptionally grave or serious damage to the intelligence, foreign policy, and national security interests of the US, including defense against transnational terrorism.” The District Court agreed and dismissed the case.
Once a little-used legal maneuver, the “state secrets privilege” has been used increasingly during the Bush Administration, and has prevented litigation of a number of high profile terror-related and whistleblower cases.
But last week, Arar appealed the District Court decision to a higher court, the US Second Circuit Court of Appeals, which heard oral argument in the case on November
9. One member of the three-judge panel reviewing the case, Robert D. Sack, called the process of rendition “outsourcing.” The appeal court has not yet reached a decision in the case. Should it affirm the lower court decision, it is not yet clear whether Arar will seek final redress in the US Supreme Court.
A Justice Department lawyer argued before the Appeals Court that the US Constitution did not apply to noncitizens who suffered injury abroad.
Arar’s lawyer, David Cole of the Georgetown University Law Center, appearing on behalf of The Center for Consitutional Rights, underlined the importance of the current appeal. He told IPS, “The Canadians, who provided misinformation about Arar but did not acquiesce in sending him to Syria, have conducted a full investigation, written an 1100 page report, formally apologized, and awarded Mr. Arar $10 million in damages and legal fees. Meanwhile the United States, the far more culpable actor, maintains that it violated no rights, and that Mr. Arar has no remedy.”
He added, “In this case, federal officials conspired to send an innocent man to Syria to be tortured and arbitrarily detained, and then did everything within their power to ensure that he could not get to a court to stop them from effectuating their conspiracy. They lied to him about his lawyer, and lied to his lawyer about him, while spiriting him off to Syria in a chartered jet. Now the government maintains that he has no remedy whatsoever in a court of law, and has the temerity to contend that his only avenue for judicial review was the very one they blocked him from pursuing while he was in their custody.”
At a US Congressional hearing last month, Secretary of State Condoleezza Rice acknowledged that the US had mishandled the case, but stopped short of an apology. “We do not think that this case was handled as it should have been,” Ms. Rice told the House Foreign Affairs Committee. “We do absolutely not wish to transfer anyone to any place in which they might be tortured.”
Arar was flown to Syria under a US Government program that transports detainees to countries where prison authorities are known to practice torture. The program, which was started during the Clinton Administration, has been used extensively by the US Central Intelligence Agency (CIA), which uses leased Gulfstream business jets for its flights. One of the owners of these leased airplanes, a subsidiary of the Boeing Company, is currently being sued for facilitating renditions.
The US Government has acknowledged that it uses the rendition practice, but insists that countries to which prisoners are taken provide 'diplomatic assurance' that they will be treated humanely. It is generally thought that the rendering practice may be responsible for some of the 'ghost detainees' from Iraq and Afghanistan -- US prisoners whose identities have been hidden from the International Committee of the Red Cross (ICRC).
Arar came to Canada in 1987. After earning bachelor's and master's degrees in computer engineering, he worked in Ottawa as a telecommunications engineer. He now lives in British Columbia.
Sunday, November 11, 2007
“REALPOLITIK” LIKELY TO DRIVE US-PAKISTAN ALLIANCE
By William Fisher
Most foreign policy observers believe that the US will not only maintain its $10 billion in aid to Pakistan – regardless of which leader emerges, or how many people remain in jail under the country’s apparently indefinite “state of emergency” – but will increase it.
“The Bush Administration will choose ‘realpolitik’ over ‘democracy promotion’ so long as a single terrorist is left in the country,” according to a State Department source who spoke on condition of anonymity.
“We will vehemently vow to reexamine our aid programs, urge free and fair elections, free jailed dissidents, restore the Supreme Court, and then, after some ‘respectable’ period, regress to the status quo ante.”
He added: “It’s all about maintaining ‘stability’ while working with the US to hunt down the bad guys.”
Another foreign affairs specialist, Patricia Lee Sharpe, a communications specialist with 22 years in the US Foreign Service in Asia, Africa and Latin America, agrees. “I think this will be the likely course of US policy,” she says.
Musharraf said the measures were part of the ‘war on terror’, but others believe he was merely trying to head off a Supreme Court ruling that he could not stand for reelection while continuing to head the Pakistani military.
As seen by Marjorie Cohn, a professor at the Thomas Jefferson Law School and president of the National Lawyers Guild, “Musharraf’s declaration of emergency was not aimed at fighting terrorism; it was designed to maintain Musharraf in power. It came shortly after the Supreme Court nullified the results of an election that would have preserved Musharraf’s rule. Musharraf, who has received more than $10 billion from the United States since 9/11, isn’t targeting the terrorists, but rather the judges and lawyers who use the law to challenge his unilateral power.”
Musharraf dismissed his country’s Supreme Court, placed the recently-returned opposition leader, Benazir Bhutto, under house arrest, jailed hundreds of lawyers, banned peaceful public demonstrations, and released Taliban sympathizers from jail in a lopsided prisoner swap.
Over the weekend, Musharraf said he “hoped” to hold a presidential election in the next few months, but did not indicate when or whether the state of emergency would be ended. Under that decree, opposition political parties would be virtually unable to compete on anything like a level playing field.
Secretary of State Condoleezza Rice said on a Sunday television show that Musharraf made a “bad decision”, but added that now would be the wrong time for the US to abandon him. She said the US role should be to help Pakistan to get back on the road to democracy.
There are a host of reasons why Pakistan’s current difficulties are giving the White House such a major migraine. Most experts agree that without aggressive Pakistani action, the Taliban and Al Qaeda cannot be routed from the tribal areas between Pakistan and Afghanistan. And there is equal concern about Pakistani nuclear materials or weapons falling into the hands of extremists. But another factor high on the US list of concerns is the fact that President Bush has made democracy-promotion the rhetorical centerpiece of his Administration.
In last year’s State of the Union speech to Congress, the president said, "All who live in tyranny and hopelessness can know: The United States will not ignore your oppression, or excuse your oppressors. When you stand for your liberty, we will stand with you." In his 2005 inauguration speech, he mentioned “freedom” 25 times in 20 minutes.
But now, the Administration will likely have to put democracy-promotion
on the back-burner and play the ‘realpolitik’ game. This will likely result
in the US accepting another authoritarian dictator, so long as he pledges an
undying commitment to being a steadfast ally in America’s ‘global war on terrorism.’
The future direction of US policy toward Pakistan was made clear by Deputy Secretary of State John Negroponte, who defended President Musharraf as an "indispensable" ally. "No country has done more in terms of inflicting damage and punishment on the Taliban and al-Qaeda since 9/11 . . .There's nothing more important at this time than for the United States to be consistently engaged and committed to try to do the right thing with Pakistan," he told a congressional committee.
Informed observers say the relatively mild US reaction to the Pakistan crisis -- along with similar predicaments such as the Iraqi election and the Hamas victory in the Palestinian elections -- has sounded the death-knell for President Bush’s democracy-promotion agenda. Others say the agenda never existed in the first place. They charge that the Bush Administration has chosen to cozy up to numerous authoritarian rulers abroad supposedly to support more important strategic goals. Some point to Egypt as one of many examples.
President Hosni Mubarak, who has ruled Egypt since 1981, won another six-year term in office by “popular referendum” in 2005, garnering 88.6 percent of the total vote in an election that many believe was rife with electoral fraud and intimidation. Despite its shortcomings, the Bush administration welcomed the vote as a positive step towards democracy and massive American aid to Egypt continued without interruption.
Mubarak came to power following the assassination of ex-president Anwar el-Sadat by Islamic extremists in 1981. He declared the country under a “state of emergency,” giving the government the right to imprison individuals for any period of time, and for virtually no reason, thus keeping them in jailed without trials for any period.
The ‘emergency laws” have been in effect ever since. The US State Department and human rights groups throughout the world have documented a litany of egregious abuses under the ‘emergency’ regimen, including stifling of opposition political parties, torture and death indetention, and the arrests and imprisonment of political opponents, journalists and human rights defenders with little or no due process.
In 2006, President George W. Bush pressed the aging Mubarak to open his political system to multi-party elections. Mubarak pledged to allow opposition parties to participate in presidential as well as parliamentary elections. Instead, he jailed his chief opponent and extended the draconian emergency laws.
The US Government response was cancellation of a planned visit to Cairo by Secretary of State Condoleezza Rice.
Meanhile, Washington has provided billions in military and economic aid to Egypt – behind only Israel and Pakistan as the largest recipients.
US interest in Egypt centers on its place as the largest Arab country in the Middle East, its role in furthering American military and foreign policy, and its potential for helping to realize an end to the long-running Israeli-Palestinian issue. Egypt has maintained formal – if chilly – diplomatic relations with Israel since Egyptian President Sadat and Israeli Prime Minister Menachem Begin met with US President Jimmy Carter at Camp David in 1978. A year later, Egypt became the first Arab state to sign a peace treaty with Israel. It has been a major recipient of US military and economic aid ever since. But it has done little to use its influence to broker a peace agreement between the Palestinians and Israel.
As in Pakistan, the Mubarak government’s major justification for maintaining Egypt’s state of emergency is the threat posed by Islamic terrorism. The government says that opposition groups like the banned Muslim Brotherhood – which recently gained a substantial number of seats in Egypt’s parliament by running as ‘independents’ -- could come to power in Egypt if the Mubarak regime eliminated the emergency laws. But since its inception, the movement has officially opposed violent means to achieve its goals – a claim rejected by the Egyptian government.
Mubarak’s critics argue that this goes against President Bush’s own principles of democracy, which include a citizen's right to a fair trial and the right to vote for the candidate or party of their choice.
The Muslim Brotherhood, founded in Egypt in 1928, is a multinational Sunni Islamist movement and arguably the world's largest and most influential political Islamist group. The Brotherhood remains an illegal organization in Egypt and is not recognized as a political party.
But the differences between conditions in Pakistan and Egypt are just as numerous as the similarities.
One foreign policy expert, Richard Undeland, a 35-year State Department Foreign Service veteran, says, “Pakistan is nuclear. There is no part of Egypt that is not under firm government control. Egypt does not have tribal problems. The political geography is wholly different. There is nothing analogous to Afghanistan in turmoil or nuclear India. We have no pressing, immediate problems with Egypt. Egyptian concentration of attention on Palestine finds no close parallel in Pakistan.”
His view is echoed by Samer Shehata, Professor of Arab Politics at Georgetown University. He says, “Pakistan has nuclear weapons, there are sections of the country that are not under the control – not only of Musharaf, but of a central government and radicals and extremists are stronger in mainstream politics than in Egypt, not to mention the fact that Pakistan is one of the ‘front lines’ in the so called ‘war on terrorism’.”
But experts suggest that realpolitik US decisions will not turn on the differences between Pakistan and other authoritarian regimes. They say that America will continue to champion democracy rhetorically, but will find itself making choices between actively promoting it and supporting authoritarian and often tyrannical regimes abroad.
Some observers see these choices as the result of a American hidden agenda. For example, Mark A. Levine, professor of history at the University of California at Irvine, says, “The US is behind the lack of democracy in the region; it's supported dictators, monarchs and other authoritarian leaders for half a century, regardless of which party was in the White House or controlled Congress. For a simple reason: The interests of the US military and business class -- especially the arms and oil sectors -- would not be served nearly as well, if at all, under democratic systems of government in the region.”
Most foreign policy observers believe that the US will not only maintain its $10 billion in aid to Pakistan – regardless of which leader emerges, or how many people remain in jail under the country’s apparently indefinite “state of emergency” – but will increase it.
“The Bush Administration will choose ‘realpolitik’ over ‘democracy promotion’ so long as a single terrorist is left in the country,” according to a State Department source who spoke on condition of anonymity.
“We will vehemently vow to reexamine our aid programs, urge free and fair elections, free jailed dissidents, restore the Supreme Court, and then, after some ‘respectable’ period, regress to the status quo ante.”
He added: “It’s all about maintaining ‘stability’ while working with the US to hunt down the bad guys.”
Another foreign affairs specialist, Patricia Lee Sharpe, a communications specialist with 22 years in the US Foreign Service in Asia, Africa and Latin America, agrees. “I think this will be the likely course of US policy,” she says.
Musharraf said the measures were part of the ‘war on terror’, but others believe he was merely trying to head off a Supreme Court ruling that he could not stand for reelection while continuing to head the Pakistani military.
As seen by Marjorie Cohn, a professor at the Thomas Jefferson Law School and president of the National Lawyers Guild, “Musharraf’s declaration of emergency was not aimed at fighting terrorism; it was designed to maintain Musharraf in power. It came shortly after the Supreme Court nullified the results of an election that would have preserved Musharraf’s rule. Musharraf, who has received more than $10 billion from the United States since 9/11, isn’t targeting the terrorists, but rather the judges and lawyers who use the law to challenge his unilateral power.”
Musharraf dismissed his country’s Supreme Court, placed the recently-returned opposition leader, Benazir Bhutto, under house arrest, jailed hundreds of lawyers, banned peaceful public demonstrations, and released Taliban sympathizers from jail in a lopsided prisoner swap.
Over the weekend, Musharraf said he “hoped” to hold a presidential election in the next few months, but did not indicate when or whether the state of emergency would be ended. Under that decree, opposition political parties would be virtually unable to compete on anything like a level playing field.
Secretary of State Condoleezza Rice said on a Sunday television show that Musharraf made a “bad decision”, but added that now would be the wrong time for the US to abandon him. She said the US role should be to help Pakistan to get back on the road to democracy.
There are a host of reasons why Pakistan’s current difficulties are giving the White House such a major migraine. Most experts agree that without aggressive Pakistani action, the Taliban and Al Qaeda cannot be routed from the tribal areas between Pakistan and Afghanistan. And there is equal concern about Pakistani nuclear materials or weapons falling into the hands of extremists. But another factor high on the US list of concerns is the fact that President Bush has made democracy-promotion the rhetorical centerpiece of his Administration.
In last year’s State of the Union speech to Congress, the president said, "All who live in tyranny and hopelessness can know: The United States will not ignore your oppression, or excuse your oppressors. When you stand for your liberty, we will stand with you." In his 2005 inauguration speech, he mentioned “freedom” 25 times in 20 minutes.
But now, the Administration will likely have to put democracy-promotion
on the back-burner and play the ‘realpolitik’ game. This will likely result
in the US accepting another authoritarian dictator, so long as he pledges an
undying commitment to being a steadfast ally in America’s ‘global war on terrorism.’
The future direction of US policy toward Pakistan was made clear by Deputy Secretary of State John Negroponte, who defended President Musharraf as an "indispensable" ally. "No country has done more in terms of inflicting damage and punishment on the Taliban and al-Qaeda since 9/11 . . .There's nothing more important at this time than for the United States to be consistently engaged and committed to try to do the right thing with Pakistan," he told a congressional committee.
Informed observers say the relatively mild US reaction to the Pakistan crisis -- along with similar predicaments such as the Iraqi election and the Hamas victory in the Palestinian elections -- has sounded the death-knell for President Bush’s democracy-promotion agenda. Others say the agenda never existed in the first place. They charge that the Bush Administration has chosen to cozy up to numerous authoritarian rulers abroad supposedly to support more important strategic goals. Some point to Egypt as one of many examples.
President Hosni Mubarak, who has ruled Egypt since 1981, won another six-year term in office by “popular referendum” in 2005, garnering 88.6 percent of the total vote in an election that many believe was rife with electoral fraud and intimidation. Despite its shortcomings, the Bush administration welcomed the vote as a positive step towards democracy and massive American aid to Egypt continued without interruption.
Mubarak came to power following the assassination of ex-president Anwar el-Sadat by Islamic extremists in 1981. He declared the country under a “state of emergency,” giving the government the right to imprison individuals for any period of time, and for virtually no reason, thus keeping them in jailed without trials for any period.
The ‘emergency laws” have been in effect ever since. The US State Department and human rights groups throughout the world have documented a litany of egregious abuses under the ‘emergency’ regimen, including stifling of opposition political parties, torture and death indetention, and the arrests and imprisonment of political opponents, journalists and human rights defenders with little or no due process.
In 2006, President George W. Bush pressed the aging Mubarak to open his political system to multi-party elections. Mubarak pledged to allow opposition parties to participate in presidential as well as parliamentary elections. Instead, he jailed his chief opponent and extended the draconian emergency laws.
The US Government response was cancellation of a planned visit to Cairo by Secretary of State Condoleezza Rice.
Meanhile, Washington has provided billions in military and economic aid to Egypt – behind only Israel and Pakistan as the largest recipients.
US interest in Egypt centers on its place as the largest Arab country in the Middle East, its role in furthering American military and foreign policy, and its potential for helping to realize an end to the long-running Israeli-Palestinian issue. Egypt has maintained formal – if chilly – diplomatic relations with Israel since Egyptian President Sadat and Israeli Prime Minister Menachem Begin met with US President Jimmy Carter at Camp David in 1978. A year later, Egypt became the first Arab state to sign a peace treaty with Israel. It has been a major recipient of US military and economic aid ever since. But it has done little to use its influence to broker a peace agreement between the Palestinians and Israel.
As in Pakistan, the Mubarak government’s major justification for maintaining Egypt’s state of emergency is the threat posed by Islamic terrorism. The government says that opposition groups like the banned Muslim Brotherhood – which recently gained a substantial number of seats in Egypt’s parliament by running as ‘independents’ -- could come to power in Egypt if the Mubarak regime eliminated the emergency laws. But since its inception, the movement has officially opposed violent means to achieve its goals – a claim rejected by the Egyptian government.
Mubarak’s critics argue that this goes against President Bush’s own principles of democracy, which include a citizen's right to a fair trial and the right to vote for the candidate or party of their choice.
The Muslim Brotherhood, founded in Egypt in 1928, is a multinational Sunni Islamist movement and arguably the world's largest and most influential political Islamist group. The Brotherhood remains an illegal organization in Egypt and is not recognized as a political party.
But the differences between conditions in Pakistan and Egypt are just as numerous as the similarities.
One foreign policy expert, Richard Undeland, a 35-year State Department Foreign Service veteran, says, “Pakistan is nuclear. There is no part of Egypt that is not under firm government control. Egypt does not have tribal problems. The political geography is wholly different. There is nothing analogous to Afghanistan in turmoil or nuclear India. We have no pressing, immediate problems with Egypt. Egyptian concentration of attention on Palestine finds no close parallel in Pakistan.”
His view is echoed by Samer Shehata, Professor of Arab Politics at Georgetown University. He says, “Pakistan has nuclear weapons, there are sections of the country that are not under the control – not only of Musharaf, but of a central government and radicals and extremists are stronger in mainstream politics than in Egypt, not to mention the fact that Pakistan is one of the ‘front lines’ in the so called ‘war on terrorism’.”
But experts suggest that realpolitik US decisions will not turn on the differences between Pakistan and other authoritarian regimes. They say that America will continue to champion democracy rhetorically, but will find itself making choices between actively promoting it and supporting authoritarian and often tyrannical regimes abroad.
Some observers see these choices as the result of a American hidden agenda. For example, Mark A. Levine, professor of history at the University of California at Irvine, says, “The US is behind the lack of democracy in the region; it's supported dictators, monarchs and other authoritarian leaders for half a century, regardless of which party was in the White House or controlled Congress. For a simple reason: The interests of the US military and business class -- especially the arms and oil sectors -- would not be served nearly as well, if at all, under democratic systems of government in the region.”
Wednesday, November 07, 2007
SUPPORTERS SAY ARTIST'S PROSECUTION IS ABOUT EXPRESSION,NOT BIOTERRORISM
By William Fisher
A week after 20-year-old charges were dropped against the last two defendants in the longest-running Federal prosecution in US history - the so-called L.A. Eight - another case threatens to take its place.
And critics of the Department of Justice are charging that the newest case is a clear example of prosecutorial over-zealousness.
After numerous defeats in court, the Government late last month agreed to drop deportation charges against Khader Hamide and Michel Shehadeh, who were accused in 1987 on charges of being affiliated with the Popular Front for the Liberation of Palestine (PFLP). The government charged that any association with the PFLP was grounds for deportation under the McCarran-Walter Act, legislation written during the McCarthy era that allowed deportation for association with any organization that "advocated the doctrines of world Communism."
Two years later, a Federal Judge declared the charges under that law unconstitutional. The Government then charged the men with providing material support to a terrorist organization under the USA Patriot Act of 2001. It finally dropped these charges after the Los Angeles Immigration Court ruled that the Government was in violation of the men's constitutional, statutory, and regulatory rights.
The other six defendants were in the US on temporary visas when the case began. Three of them have become permanent residents. One became a permanent resident and then a naturalized citizen. Two others are eligible to become permanent residents and have applications pending. So for all practical purposes, the case against Hamide and Shehadeh was the final one.
But the clock is ticking on another case that appears to be similarly endless. It is a prosecution that many are describing as one of the most bizarre in US legal history.
The case pits avant-garde protest artists against government anti-terrorism investigators. The key players are Dr. Robert E. Ferrell, 68, a nationally known genetics researcher at the University of Pittsburgh, and Dr. Steven A. Kurtz, 48, a tenured arts professor at the University at Buffalo and a founding member of the award-winning collective Critical Art Ensemble (CAE). Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.
The case started in May of 2004.While Kurtz was preparing for an exhibition
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 saw petri dishes in his home -- part of the scheduled installation -- filled with bacteria cultures.
They called the FBI. While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was illegally 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.
The Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then US Attorney in Buffalo, Michael A. Battle - the lawyer who was later to become the Department of Justice employee who notified eight US 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 (DSH) 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. They had failed to complete a question in the requisition required to transport the admittedly harmless bacteria - the purpose of the shipment. This resulted in Ferrell's plea to illegally using the mails to transport restricted materials. The charges against the two academics were brought under the Patriot Act, thus increasing the maximum penalty from five years to 20.
The defendants' supporters in the art world claim that Kurtz and Ferrell were unfairly targeted for a bogus bioterrorism prosecution because Kurtz's art exhibitions often attack government actions and policies.
The case against Kurtz and Ferrell came to a nation still terrified by the 2001 anthrax attacks in the US. Also known as Amerithrax from its FBI case name, the 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 US 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.
Prosecutors say the Kurtz-Ferrell case revolves around public safety concerns, not politics. According to reporting by Dan Herbeck of the Buffalo News, the current US Attorney, Terrance P. Flynn, has declined to comment on the case. But Lucia Sommer, a spokeswoman for Kurtz's defense fund, said that Kurtz will continue to fight the government's charges.
The New York Civil Liberties Union (NYCLU) has 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.
The NYCLU said that if the investigation was based on criticisms of the government espoused by Kurtz and the Critical Art Ensemble, then officials may have violated their free speech rights. "Unless the US Attorney is in possession of facts very different from what has been publicly reported, we call on his office to discontinue its investigation of Professor Kurtz," Lieberman said.
In Federal District Court earlier this month, the Government won the first of their battles with Ferrell and Kurtz, when Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies.
His wife, Dr. Dianne Raeke Ferrell, an Associate Professor of Special Education and Clinical Services at Indiana University of Pennsylvania, said, "From the beginning, this has been a persecution, not a prosecution."
She added, "Since this whole nightmare began, Bob has had two minor strokes and a major stroke which required months of rehabilitation." She said her husband was indicted just as he was preparing to undergo a painful and dangerous autologous stem cell transplant, the second in seven years.
His daughter said, "My dad opted to settle from pure exhaustion." Ferrell will learn what his penalty will be in a court hearing scheduled for February 2009.
Kurtz's supporters say, "The government has pursued this case relentlessly for three and a half years, 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."
Kurtz has 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 have set up a website and a legal defense fund (caedefensefund.org/). Kurtz continues to teach at the University of Buffalo.
But no date has been set for his trial, giving rise to speculation by some in the legal and the arts communities that the Justice Department simply plans to 'run out the clock' until President Bush's term ends in January 2009.
Patricia J. Williams, professor of law at Columbia University, questions whether the Kurtz-Ferrell prosecution is part of a larger government reaction against anti-Administration expression in the arts. She writes, "Recently scholars from around the world have been barred from the United States 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."
She adds, "As other countries have adopted their own versions of Homeland Security, the tables are turning on our own: Medea Benjamin, founder of the exuberant antiwar group Code Pink, was denied entry to Canada because of her numerous arrests for peaceful acts of civil disobedience."
A week after 20-year-old charges were dropped against the last two defendants in the longest-running Federal prosecution in US history - the so-called L.A. Eight - another case threatens to take its place.
And critics of the Department of Justice are charging that the newest case is a clear example of prosecutorial over-zealousness.
After numerous defeats in court, the Government late last month agreed to drop deportation charges against Khader Hamide and Michel Shehadeh, who were accused in 1987 on charges of being affiliated with the Popular Front for the Liberation of Palestine (PFLP). The government charged that any association with the PFLP was grounds for deportation under the McCarran-Walter Act, legislation written during the McCarthy era that allowed deportation for association with any organization that "advocated the doctrines of world Communism."
Two years later, a Federal Judge declared the charges under that law unconstitutional. The Government then charged the men with providing material support to a terrorist organization under the USA Patriot Act of 2001. It finally dropped these charges after the Los Angeles Immigration Court ruled that the Government was in violation of the men's constitutional, statutory, and regulatory rights.
The other six defendants were in the US on temporary visas when the case began. Three of them have become permanent residents. One became a permanent resident and then a naturalized citizen. Two others are eligible to become permanent residents and have applications pending. So for all practical purposes, the case against Hamide and Shehadeh was the final one.
But the clock is ticking on another case that appears to be similarly endless. It is a prosecution that many are describing as one of the most bizarre in US legal history.
The case pits avant-garde protest artists against government anti-terrorism investigators. The key players are Dr. Robert E. Ferrell, 68, a nationally known genetics researcher at the University of Pittsburgh, and Dr. Steven A. Kurtz, 48, a tenured arts professor at the University at Buffalo and a founding member of the award-winning collective Critical Art Ensemble (CAE). Some of CAE's work is designed to protest the potential risks of genetically modified (GM) food.
The case started in May of 2004.While Kurtz was preparing for an exhibition
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 saw petri dishes in his home -- part of the scheduled installation -- filled with bacteria cultures.
They called the FBI. While politicians and Federal prosecutors rushed to trumpet the thwarting of a major threat, Kurtz was illegally 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.
The Governor of New York, George Pataki, lauded the work of the FBI for disrupting a major bioterrorism threat. And the then US Attorney in Buffalo, Michael A. Battle - the lawyer who was later to become the Department of Justice employee who notified eight US 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 (DSH) 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. They had failed to complete a question in the requisition required to transport the admittedly harmless bacteria - the purpose of the shipment. This resulted in Ferrell's plea to illegally using the mails to transport restricted materials. The charges against the two academics were brought under the Patriot Act, thus increasing the maximum penalty from five years to 20.
The defendants' supporters in the art world claim that Kurtz and Ferrell were unfairly targeted for a bogus bioterrorism prosecution because Kurtz's art exhibitions often attack government actions and policies.
The case against Kurtz and Ferrell came to a nation still terrified by the 2001 anthrax attacks in the US. Also known as Amerithrax from its FBI case name, the 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 US 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.
Prosecutors say the Kurtz-Ferrell case revolves around public safety concerns, not politics. According to reporting by Dan Herbeck of the Buffalo News, the current US Attorney, Terrance P. Flynn, has declined to comment on the case. But Lucia Sommer, a spokeswoman for Kurtz's defense fund, said that Kurtz will continue to fight the government's charges.
The New York Civil Liberties Union (NYCLU) has 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.
The NYCLU said that if the investigation was based on criticisms of the government espoused by Kurtz and the Critical Art Ensemble, then officials may have violated their free speech rights. "Unless the US Attorney is in possession of facts very different from what has been publicly reported, we call on his office to discontinue its investigation of Professor Kurtz," Lieberman said.
In Federal District Court earlier this month, the Government won the first of their battles with Ferrell and Kurtz, when Ferrell pled guilty to a lesser misdemeanor charge rather than facing a prolonged trial for the mail and wire fraud felonies.
His wife, Dr. Dianne Raeke Ferrell, an Associate Professor of Special Education and Clinical Services at Indiana University of Pennsylvania, said, "From the beginning, this has been a persecution, not a prosecution."
She added, "Since this whole nightmare began, Bob has had two minor strokes and a major stroke which required months of rehabilitation." She said her husband was indicted just as he was preparing to undergo a painful and dangerous autologous stem cell transplant, the second in seven years.
His daughter said, "My dad opted to settle from pure exhaustion." Ferrell will learn what his penalty will be in a court hearing scheduled for February 2009.
Kurtz's supporters say, "The government has pursued this case relentlessly for three and a half years, 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."
Kurtz has 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 have set up a website and a legal defense fund (caedefensefund.org/). Kurtz continues to teach at the University of Buffalo.
But no date has been set for his trial, giving rise to speculation by some in the legal and the arts communities that the Justice Department simply plans to 'run out the clock' until President Bush's term ends in January 2009.
Patricia J. Williams, professor of law at Columbia University, questions whether the Kurtz-Ferrell prosecution is part of a larger government reaction against anti-Administration expression in the arts. She writes, "Recently scholars from around the world have been barred from the United States 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."
She adds, "As other countries have adopted their own versions of Homeland Security, the tables are turning on our own: Medea Benjamin, founder of the exuberant antiwar group Code Pink, was denied entry to Canada because of her numerous arrests for peaceful acts of civil disobedience."
Saturday, November 03, 2007
SCAPEGOATING US DIPLOMATS FOR FAILURES IN IRAQ?
By William Fisher
Facing growing scrutiny of the State Department's shortage of experienced diplomats in Iraq - and the Department's announced intention to force Foreign Service Officers to serve in Baghdad against their will -- the leader of America's diplomatic service is charging that critics, "including people who urged the 2003 invasion," are seeking to blame the State Department for their own failures.
"No country's diplomatic corps has people with many of the skills now needed in Iraq: oil and gas engineers, electrical grid managers, urban planners, city managers and transportation planners. If any US defense planner in 2003 thought that the State Department and other civilian federal agencies had such people on staff in large numbers (Arabic-speaking or not) ready to rebuild Iraq, they were wrong," says John Naland, president of the American Foreign Service Association (AFSA).
AFSA represents America's 11,500 professional diplomats. Of these, 6,500 are Foreign Service Officers while 5,000 are Foreign Service specialists, including Diplomatic Security agents. There are another 1,500 or so Foreign Service members at the US Agency for international Development (USAID), the Commerce Department's Foreign Commercial Service, the Agriculture Department's Foreign Agricultural Service and the International Broadcasting Bureau, an independent agency closely allied with State.
Naland points out that between the US invasion in 2003 through 2007, all of the more than 2,000 career Foreign Service members who served at the US mission in Baghdad and the expanding Provincial Reconstruction Teams around the country "did so as a volunteer."
Naland termed it "unfortunate" that late last month the Director General of the Foreign Service, Ambassador Harry K. Thomas, Jr., declared that "the well of volunteers had finally run dry." Thomas announced that, if volunteers could not be found for 48 remaining positions by mid-November, diplomats -- under threat of dismissal - would be ordered to serve at the embassy in Baghdad and in so-called Provincial Reconstruction Teams in outlying provinces. If carried out, it would be the largest diplomatic call-up since Vietnam.
AFSA contends that "directed assignments of Foreign Service members into a war zone would be detrimental to the individual, to the post, and to the Foreign Service as a whole. AFSA urged the State Department to find ways to increase the pool of qualified voluntary bidders."
Under the new order, 200-300 diplomats have been identified as "prime candidates" to fill 48 vacancies that will open next year at the Baghdad embassy and in the provinces. Those notified that they have been selected for a one-year posting will have 10 days to accept or reject the position. If not enough say yes, some will be ordered to go. Only those with compelling reasons, such as a medical condition or extreme personal hardship, will be exempt from disciplinary action.
Diplomats are also angered that Thomas's announcement was made to the news media before it was conveyed to those likely to be deployed under the new policy.
At a 'town hall' meeting in Washington last week, some 300 US diplomats told Thomas what they thought of State's decision to force Foreign Service Officers to take jobs in Iraq.
One attendee, Jack Crotty, a senior Foreign Service officer who once worked as a political adviser with NATO forces, told the Associated Press that the new policy was tantamount to a "potential death sentence." Others expressed serious concern about the ethics of sending diplomats against their will to serve in a war zone while a review of the department's use of private security contractors to protect its staff is under way. Most Embassy staff works in the so-called 'Green Zone' - itself far from immune from incoming mortar and other types of attacks. But members of Provincial Reconstruction Teams (PRTs) are deployed through the country, including in some of most dangerous provinces. Only Diplomatic Security agents are permitted to be armed.
The Associated Press quoted Crotty as telling Ambassador Thomas, "It's one thing if someone believes in what's going on over there and volunteers, but it's another thing to send someone over there on a forced assignment. I'm sorry, but basically that's a potential death sentence and you know it. Who will raise our children if we are dead or seriously wounded? You know that at any other (country) in the world, the embassy would be closed at this point." His comments drew enthusiastic applause from his colleagues.
AFSA President Naland said that a recent survey found that only 12 percent of the union's membership believed Secretary of State Condoleezza Rice was "fighting for them."
He said that some critics of US failures in Iraq are seeking to shift blame onto the Foreign Service for their own lack of pre-invasion planning, while others are as basing their comments on "wildly inflated estimations of the capacities of civilian agencies to operate in combat zones such as Iraq."
In the run-up to the 2003 invasion of Iraq, the State Department assembled a series of blue-ribbon task forces to help prepare the Administration for the political, economic, social, cultural and religious challenges that would likely face the 'Coalition of the Willing' once the Saddam Hussein regime was toppled. The group, which included Iraqi exiles and some of the world's most distinguished Middle East scholars, made a series of recommendations. But the Defense Department, then under the leadership of Secretary Donald Rumsfeld, ignored their advice.
In a website statement, Naland attempted to put the Foreign Service's involvement in Iraq into perspective. He said, "Comparisons between the military and the State Department are often made with complete disregard for the facts relating to scale: budgets, personnel and capacity for war-zone service."
Naland pointed out that "the US active-duty military is 119 times larger than the Foreign Service. The total uniformed military (active and reserve) is 217 times larger. A typical U.S. Army division is larger than the entire Foreign Service. The military has more uniformed personnel in Mississippi than the State Department has diplomats worldwide. The military has more full colonels/Navy captains than the State Department has diplomats. The military has more band members than the State Department has diplomats. The Defense Department has almost as many lawyers as the State Department has diplomats."
He said that, in contrast to the military, "the vast majority of Foreign Service members are forward-deployed. Today, in a time of armed conflict, 21 percent of the active-duty military (290,000 out of 1,373,000) is stationed abroad (ashore or afloat). That compares to 68 percent of the Foreign Service currently stationed abroad at 167 U.S. embassies and 100 consulates and other missions."
Naland noted that more than 20 percent of the Foreign Service has served, or is serving, in Iraq since 2003. In the PRTs, which comprise up to 600 members, the Foreign Service component is 10 to 15 percent. There are currently approximately 200 Foreign Service positions at Embassy Baghdad and another 70 or so at the 25 Provincial Reconstruction Teams.
He said, "Foreign Service members receive very little preparation before deploying to Iraq -- less than two-weeks of special training to serve in a combat zone. Contrast that to their predecessors 40 years ago who received four to six months of training before deploying to South Vietnam...."
Naland added that surveys have shown that most Foreign Service volunteers in Iraq have been motivated not by extra pay but by "patriotism and a professional desire to try to advance the Administration's top foreign policy objective."
One of the most serious challenges facing the State Department - and every other government agency involved in Iraq and in the Middle East generally - is the acute shortage of Arabic speakers. This deficit is in danger of crippling US efforts to counter terrorist threats, communicate with prisoners, and build bridges to the Muslim world.
At the State Department, only 10 of 34,000 employees were rated fully fluent in Arabic as of 2006.
The number of Arabic language students in US universities has skyrocketed since the terrorist attacks of Sept. 11, 2001. But the course still ranks behind classical Greek, Latin and even American Sign Language in popularity.
The shortage has spurred an aggressive campaign of recruiting -- including generous sign-on bonuses -- by all U.S. intelligence agencies, including the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the State Department, the Defense Department, and the Department of Homeland Security.
One result of the shortage, according to the Heritage Foundation, a conservative Washington-based think tank, is that analysts at the CIA, the FBI, the Defense Intelligence Agency and the National Security Agency are "awash in untranslated gleanings of intelligence" in Arabic. Heritage also said there are not enough interpreters to handle detainees in Iraq.
The shortage is also having an effect on US efforts in public diplomacy. Adam Clayton Powell III, a senior fellow at the University of Southern California Center on Public Diplomacy, says, "There are only a half dozen or so US spokesmen who have a sufficient grasp of the Arabic language to appear on radio or television in that part of the world. That means the US is not even part of the dialogue there."
While the language situation appears to be improving, it can only improve slowly. One reason is that Arabic is viewed by many as one of the most difficult languages in the world.
The State Department rates Arabic, along with Chinese and Korean, as a "superhard" language.
Juan Cole, professor of history at the University of Michigan and a fluent Arabic speaker, says, "Not everyone studying Arabic is thrilled with US policies in the Middle East."
Facing growing scrutiny of the State Department's shortage of experienced diplomats in Iraq - and the Department's announced intention to force Foreign Service Officers to serve in Baghdad against their will -- the leader of America's diplomatic service is charging that critics, "including people who urged the 2003 invasion," are seeking to blame the State Department for their own failures.
"No country's diplomatic corps has people with many of the skills now needed in Iraq: oil and gas engineers, electrical grid managers, urban planners, city managers and transportation planners. If any US defense planner in 2003 thought that the State Department and other civilian federal agencies had such people on staff in large numbers (Arabic-speaking or not) ready to rebuild Iraq, they were wrong," says John Naland, president of the American Foreign Service Association (AFSA).
AFSA represents America's 11,500 professional diplomats. Of these, 6,500 are Foreign Service Officers while 5,000 are Foreign Service specialists, including Diplomatic Security agents. There are another 1,500 or so Foreign Service members at the US Agency for international Development (USAID), the Commerce Department's Foreign Commercial Service, the Agriculture Department's Foreign Agricultural Service and the International Broadcasting Bureau, an independent agency closely allied with State.
Naland points out that between the US invasion in 2003 through 2007, all of the more than 2,000 career Foreign Service members who served at the US mission in Baghdad and the expanding Provincial Reconstruction Teams around the country "did so as a volunteer."
Naland termed it "unfortunate" that late last month the Director General of the Foreign Service, Ambassador Harry K. Thomas, Jr., declared that "the well of volunteers had finally run dry." Thomas announced that, if volunteers could not be found for 48 remaining positions by mid-November, diplomats -- under threat of dismissal - would be ordered to serve at the embassy in Baghdad and in so-called Provincial Reconstruction Teams in outlying provinces. If carried out, it would be the largest diplomatic call-up since Vietnam.
AFSA contends that "directed assignments of Foreign Service members into a war zone would be detrimental to the individual, to the post, and to the Foreign Service as a whole. AFSA urged the State Department to find ways to increase the pool of qualified voluntary bidders."
Under the new order, 200-300 diplomats have been identified as "prime candidates" to fill 48 vacancies that will open next year at the Baghdad embassy and in the provinces. Those notified that they have been selected for a one-year posting will have 10 days to accept or reject the position. If not enough say yes, some will be ordered to go. Only those with compelling reasons, such as a medical condition or extreme personal hardship, will be exempt from disciplinary action.
Diplomats are also angered that Thomas's announcement was made to the news media before it was conveyed to those likely to be deployed under the new policy.
At a 'town hall' meeting in Washington last week, some 300 US diplomats told Thomas what they thought of State's decision to force Foreign Service Officers to take jobs in Iraq.
One attendee, Jack Crotty, a senior Foreign Service officer who once worked as a political adviser with NATO forces, told the Associated Press that the new policy was tantamount to a "potential death sentence." Others expressed serious concern about the ethics of sending diplomats against their will to serve in a war zone while a review of the department's use of private security contractors to protect its staff is under way. Most Embassy staff works in the so-called 'Green Zone' - itself far from immune from incoming mortar and other types of attacks. But members of Provincial Reconstruction Teams (PRTs) are deployed through the country, including in some of most dangerous provinces. Only Diplomatic Security agents are permitted to be armed.
The Associated Press quoted Crotty as telling Ambassador Thomas, "It's one thing if someone believes in what's going on over there and volunteers, but it's another thing to send someone over there on a forced assignment. I'm sorry, but basically that's a potential death sentence and you know it. Who will raise our children if we are dead or seriously wounded? You know that at any other (country) in the world, the embassy would be closed at this point." His comments drew enthusiastic applause from his colleagues.
AFSA President Naland said that a recent survey found that only 12 percent of the union's membership believed Secretary of State Condoleezza Rice was "fighting for them."
He said that some critics of US failures in Iraq are seeking to shift blame onto the Foreign Service for their own lack of pre-invasion planning, while others are as basing their comments on "wildly inflated estimations of the capacities of civilian agencies to operate in combat zones such as Iraq."
In the run-up to the 2003 invasion of Iraq, the State Department assembled a series of blue-ribbon task forces to help prepare the Administration for the political, economic, social, cultural and religious challenges that would likely face the 'Coalition of the Willing' once the Saddam Hussein regime was toppled. The group, which included Iraqi exiles and some of the world's most distinguished Middle East scholars, made a series of recommendations. But the Defense Department, then under the leadership of Secretary Donald Rumsfeld, ignored their advice.
In a website statement, Naland attempted to put the Foreign Service's involvement in Iraq into perspective. He said, "Comparisons between the military and the State Department are often made with complete disregard for the facts relating to scale: budgets, personnel and capacity for war-zone service."
Naland pointed out that "the US active-duty military is 119 times larger than the Foreign Service. The total uniformed military (active and reserve) is 217 times larger. A typical U.S. Army division is larger than the entire Foreign Service. The military has more uniformed personnel in Mississippi than the State Department has diplomats worldwide. The military has more full colonels/Navy captains than the State Department has diplomats. The military has more band members than the State Department has diplomats. The Defense Department has almost as many lawyers as the State Department has diplomats."
He said that, in contrast to the military, "the vast majority of Foreign Service members are forward-deployed. Today, in a time of armed conflict, 21 percent of the active-duty military (290,000 out of 1,373,000) is stationed abroad (ashore or afloat). That compares to 68 percent of the Foreign Service currently stationed abroad at 167 U.S. embassies and 100 consulates and other missions."
Naland noted that more than 20 percent of the Foreign Service has served, or is serving, in Iraq since 2003. In the PRTs, which comprise up to 600 members, the Foreign Service component is 10 to 15 percent. There are currently approximately 200 Foreign Service positions at Embassy Baghdad and another 70 or so at the 25 Provincial Reconstruction Teams.
He said, "Foreign Service members receive very little preparation before deploying to Iraq -- less than two-weeks of special training to serve in a combat zone. Contrast that to their predecessors 40 years ago who received four to six months of training before deploying to South Vietnam...."
Naland added that surveys have shown that most Foreign Service volunteers in Iraq have been motivated not by extra pay but by "patriotism and a professional desire to try to advance the Administration's top foreign policy objective."
One of the most serious challenges facing the State Department - and every other government agency involved in Iraq and in the Middle East generally - is the acute shortage of Arabic speakers. This deficit is in danger of crippling US efforts to counter terrorist threats, communicate with prisoners, and build bridges to the Muslim world.
At the State Department, only 10 of 34,000 employees were rated fully fluent in Arabic as of 2006.
The number of Arabic language students in US universities has skyrocketed since the terrorist attacks of Sept. 11, 2001. But the course still ranks behind classical Greek, Latin and even American Sign Language in popularity.
The shortage has spurred an aggressive campaign of recruiting -- including generous sign-on bonuses -- by all U.S. intelligence agencies, including the Federal Bureau of Investigation (FBI), the Central Intelligence Agency (CIA), the State Department, the Defense Department, and the Department of Homeland Security.
One result of the shortage, according to the Heritage Foundation, a conservative Washington-based think tank, is that analysts at the CIA, the FBI, the Defense Intelligence Agency and the National Security Agency are "awash in untranslated gleanings of intelligence" in Arabic. Heritage also said there are not enough interpreters to handle detainees in Iraq.
The shortage is also having an effect on US efforts in public diplomacy. Adam Clayton Powell III, a senior fellow at the University of Southern California Center on Public Diplomacy, says, "There are only a half dozen or so US spokesmen who have a sufficient grasp of the Arabic language to appear on radio or television in that part of the world. That means the US is not even part of the dialogue there."
While the language situation appears to be improving, it can only improve slowly. One reason is that Arabic is viewed by many as one of the most difficult languages in the world.
The State Department rates Arabic, along with Chinese and Korean, as a "superhard" language.
Juan Cole, professor of history at the University of Michigan and a fluent Arabic speaker, says, "Not everyone studying Arabic is thrilled with US policies in the Middle East."
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