ONE COURT’S CATCH-22

By William Fisher

Last August, a federal judge threw out a lawsuit challenging the government’s right to spy on Americans' international e-mails and telephone calls without warrants or suspicion of any kind, because the folks who brought the suit couldn’t prove what may be unprovable.

The original lawsuit was filed by the American Civil Liberties Union last July on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations. The suit sought to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.

The plaintiffs' argued that their work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. They said they should be allowed to challenge the law because there was a high likelihood that their communications would be monitored under the law in the future, and because it had forced them to take “costly and burdensome” measures to protect the confidentiality of their communications.

But the judge, John G. Koeltl of the Southern District of New York, dismissed the case, ruling that the plaintiffs did not have “standing” to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.

Last week, the ACLU asked an appeals court to overturn Judge Koeltl’s decision. Jameel Jaffer, Director of the ACLU National Security Project, said, "To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact, it's possible that no one will ever be able to prove what the court says is required.”

The ACLU position is that judicial review is necessary because the plaintiffs have been, and continue to be, injured by what it calls “the unconstitutional spying statute.”

“Because the plaintiffs engage in international communications that the government is likely to intercept under the new statute, they face a serious risk that the confidentiality of their sensitive and confidential communications will be compromised,” the ACLU says.

As a result, it adds, the plaintiffs have been forced "to take costly and burdensome measures to protect the privacy of their communications," including making international trips to collect information that they previously would have exchanged by phone or e-mail. The risk of government interception is especially burdensome for the plaintiffs who are attorneys, according to the brief, because they are ‘ethically required by codes of professional conduct’ to protect the confidentiality of their communications.” The ACLU also argues that, if endorsed by the appeals court, the lower court's ruling would permanently insulate many surveillance laws from judicial review.

"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," says Jaffer. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws,” he asserts.

"If Americans are prohibited from challenging the FAA unless they can show that their own communications have been collected under it, the law may never be subject to judicial review at all. The appellate court should overturn the lower court ruling and allow this challenge to go forward."

In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.

In July 2008, the FISA Amendments Act of 2008 (FAA) was signed by then-President George W. Bush, who admitted that, in the wake of the terrorist attacks of September 11, 2001, he had authorized intelligence agencies to disregard the FISA law and conduct warrantless wiretaps. Bush then asked Congress to, in effect, make the practice lawful.

The FAA was presented as a way of “updating” the Foreign Intelligence Surveillance Act (FISA). But according to the ACLU, “the law meant to ‘update’ FISA instead gutted the original law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to our communications without a warrant.”

The ACLU lawsuit was filed on the same day the FAA was signed into law.

Critics have asserted that the Administration's warrantless spying program is a violation of the Fourth Amendment to the United States Constitution against warrantless search and a criminal violation of FISA. The Fourth Amendment to the U.S. Constitution prohibits searches and seizures without a court order and probable cause.

Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gave the court established by FISA an extremely limited role in overseeing the government’s surveillance activities.

The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."

This is not the first time Congressional action has impacted FISA. The USA Patriot Act, passed in 2001 and re-authorized in 2006, amended FISA to make it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.

Several provisions of the Patriot Act are due to expire at the end of this year, and Congress is currently considering changes to these provisions.

The Foreign Intelligence Surveillance Act (FISA) was introduced in 1977 by Senator Edward M. Kennedy of Massachusetts and signed into law by President Jimmy Carter in 1978.

The act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s use of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution.

The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

The Act returned to public prominence in December 2005 following publication by The New York Times of an article that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency (NSA) since at least 2002.

The Recession's Tiny Upside

By William Fisher

The global recession has brought pain to many, but good news for at least one group: Opponents of the death penalty in the U.S.

According to a new report by the Death Penalty Information Center (DPIC), “As states were forced to cut essential services this year, many leaders concluded that the death penalty was a wasteful government program that should be considered for repeal. Policymakers found it hard to justify laying off teachers and police officers while maintaining a capital punishment system that is never or seldom used.”

Nevertheless, executions in the U.S. rose in 2009 compared to last year. The DPIC attributes the increase largely to “the lifting of the de facto moratorium on executions during 2008 while the Supreme Court considered the constitutionality of lethal injection.” The high court ruled that death by lethal injection did not constitute “cruel and unusual punishment,” which is banned by the U.S. Constitution.

“The rise in executions in 2009 was expected as states were backlogged with cases from the nationwide moratorium. The country continues to move away from the death penalty, as evidenced by the declining rate of death sentences and the movement in several states to repeal it,” said Richard Dieter, the report’s author and DPIC’s executive director.

There were 52 executions this year, with no more scheduled, and 37 in 2008. The number of executions this year was 47 percent less than ten years ago. Eighty-seven percent of executions this year were carried out in the south and over half of those were in Texas.

The country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976, according to the DPIC report. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years, as the high costs and lack of measurable benefits associated with this punishment troubled lawmakers, the report said.

“The annual number of death sentences in the U.S. has dropped for seven straight years and is 60% less than in the 1990s,” said Dieter. “In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping. This entire decade has been marked by a declining use of the death penalty." There were 106 death sentences in 2009 compared with a high of 328 in 1994.

The decline in death sentences was particularly noticeable in Texas and Virginia, the two leading states in carrying out executions. During the 1990s, Texas averaged 34 death sentences per year and Virginia averaged 6. This year, Texas had 9 death sentences and Virginia had 1.

New Mexico became the 15th state to abolish the death penalty as Governor Richardson called the alternative of life in prison without parole “a strong punishment” and observed that the cost of the death penalty was “a valid reason [for repeal] in this era of austerity and tight budgets.” The Connecticut legislature voted to end the death penalty before the governor vetoed the bill. Legislation to abolish capital punishment passed in one house of the legislature in Colorado and Montana and came close to passage in Maryland. This trend is expected to continue as the economic crisis persists, the report predicted.

Nine men who were sentenced to death were exonerated in 2009, the second highest number of exonerations since the death penalty was reinstated. The total number of exonerations since 1973 is now 139. The public has become skeptical about the government’s ability to avoid mistakes and get the death penalty right. The DPIC says those sentiments translate into an increasing reluctance to hand down death sentences on the part of courts and juries.

Many of the exonerations have been attributed to the development of more reliable DNA testing. Since the first DNA exoneration took place in 1989, there have been 248 post-conviction DNA exonerations in 34 states within the United States.

The most recent came just last week, when James Bain was released from custody after 35 years spent in jail in Florida for a rape he did not commit.
He was freed on DNA evidence that was researched and worked on by the Innocence Project of Florida, part of a nationwide network of volunteer lawyers and law students.

In a related development, on December 15 the United Nations High Commissioner for Human Rights marked the 20th anniversary of an international death penalty treaty by calling for the universal abolition of capital punishment.

Navi Pillay, the top UN human rights official, urged all states to adopt the Optional Protocol to the International Covenant on Civil and Political Rights. The protocol, which bars the death penalty, was introduced in 1989.

To date, 140 countries no longer carry out the death penalty, and 72 countries have ratified the Optional Protocol on ending the death penalty.

Also this year, a nationwide poll of police chiefs showed that the death penalty is at the bottom of priorities among those with experience in law enforcement. The chiefs did not believe the death penalty acted as a deterrent, and they rated it as one of the most inefficient uses of taxpayer money in fighting crime. Challenges to the death penalty came from all quarters, including former Texas Governor Mark White and conservative strategist Richard Viguerie, who expressed doubts about the reliability of this governmental program.

The U.S. ranks fifth in the world in the number of executions carried out annually. China is first, with at least 5000; Iran is second with 346; Saudi Arabia is third with 102; and North Korea is fourth with 63.

Dieter told IPS that of the 56 countries within the Organization for Security and Cooperation in Europe (OSCE), the world's largest regional security organization, only the U.S. and Belarus retain an active death penalty. The Russian Federation and Tajikistan retain the death penalty but are not carrying out executions, he said.

The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The Center was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue.

FROM GITMO TO ILLINOIS

By William Fisher

Human and civil rights advocates and members of the Republican Party found unusual common ground yesterday. Both registered strong objections to the announcement that the Obama administration would be transferring detainees from Guantánamo to a maximum security prison in Illinois.

But their reasons were starkly different.

The Weekly Standard, a conservative political publication and a reliable barometer of GOP sentiment, wrote, “In announcing this decision, there still remains no explication of how closing Guantanamo makes America safer. Quite to the contrary, unnecessarily importing al Qaeda terrorists into the United States 1) gives them more legal protections, including Constitutional rights, than they have now at Guantanamo, 2) increases the chances they may be released into the country, and 3) in exchange for these significant costs, does not appease the Democratic base, and certainly will not appease al Qaeda.”

Human and civil rights leaders, on the other hand, worried not about security concerns, but rather about the impact of Guantanamo transfers on the U.S. justice system.

Typical of the views of this group was Michael Ratner, president of the Center for Constitutional Rights, an organization that has mobilized dozens of pro-bono lawyers to defend Guantanamo prisoners. He told IPS, “Closing Gitmo physically is not closing it, if the practices underlying Gitmo remain. Pres Obama is rewrapping Gitmo, but a new wrapper can’t make it constitutional. Preventive Detention is still preventive detention in Illinois; military commissions are still military commissions in Illinois; and holding people even though the courts or the government have exonerated them is still a barbaric practice whether at Gitmo or in Illinois.”

Ratner asked rhetorically: “Can Obama really think he can fool all of the people all of the time?”

A similar view was expressed by Brian J. Foley, Visiting Associate Professor at the Boston University School of Law. He told IPS, “A change in location doesn't end the problem, which is this: imprisoning human beings based on little or no evidence or unreliable evidence that they have done anything wrong or are otherwise a danger. This is a shell game fueled by fear and cowardice. This sweeping power grab by our government endangers all of our human rights and civil liberties."

An even more condemnatory note was sounded by Francis A. Boyle, a professor at the University of Illinois Law School. He told IPS, “Obama's "Gitmo on the Mississippi" simply represents the importation of the illegal Gitmo Kangaroo Court System into the United States and thus the needless and unprincipled perversion of our Article III federal court system founded by the United States Constitution in 1787, together with America's Bill of Rights.”

He added, “Britain, which does not have a Constitution and a Bill of Rights and against which America fought a Revolution, set up a similar ‘preventive detention’ system over a generation ago in order to deal with alleged terrorists in Northern Ireland. Known as the infamous Diplock Courts, their perversions of justice were routinely documented and condemned by every human rights organization and court to have examined them.”

“It is the height of tragic irony for a teacher of U.S. Constitutional Law to have these new Obama Courts go down into the annals of jurisprudential infamy along with the Diplock Courts,” he said.

The American Civil Liberties Union, the nation’s largest human rights group, agreed. Anthony D. Romero, the ACLU’s executive director, said, “The creation of a 'Gitmo North' in Illinois is hardly a meaningful step forward. Shutting down Guantánamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.”

He said, "Alarmingly, all indications are that the administration plans to continue its predecessor's policy of indefinite detention without charge or trial for some detainees, with only a change of location. Such a policy is completely at odds with our democratic commitment to due process and human rights whether it's occurring in Cuba or in Illinois. In fact, while the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proven guilty and the right to confront one's accusers.”

A somewhat more hopeful view was expressed by Chip Pitts, president of the Bill of Rights Defense Committee, and a lecturer at Stanford University law school. He told IPS “Notwithstanding the political opposition’s fake grandstanding about supposed enhanced threats, this move to a civilian rather than a military facility is a welcome symbolic and practical step toward closing Guantanamo. It affirms that the United States is not afraid to deal with accused terrorists on its own soil, and sends a vital message of distance from Bush administration illegalities”.

He added, “Whether intended to do so or not, it could also represent a first, tentative step toward treating accused al Qaeda members like the common criminals they are instead of holy warriors locked in battle with a superpower. Now the administration needs to match that courage with equal courage in submitting all of the accused to the rigors of the US justice system and avoiding recourse to indefinite detention or kangaroo military courts of the sort our country has always condemned. Finally affording these prisoners (over) due process of law would be one of the most effective means of counterterrorism imaginable.”

The Weekly Standard summed up its presentation of the Republican viewpoint with this passage: “Voluntarily bringing al Qaeda terrorists into the United States is a fantastically bad idea for multiple reasons, as it clearly fails any cost/benefit analysis. The tremendous costs of this decision include increasing the chances al Qaeda terrorists may be released into the United States, and providing them more legal protections than they currently have at Guantanamo.”

But Congressional Republicans have not been alone in expressing fear of “terrorists being set free on the streets of our neighborhoods.” Democrats, especially those from Conservative districts or those who are facing tight election races in 2010, have been equally outspoken in opposition to the President’s plans. Earlier this year, Congress voted to deny the President any funds for transporting Guantanamo detainees to the U.S. – even for trial – without permission from Congress following a 45-day waiting period.

Under President Obama’s plan, GITMO detainees would be transferred to The Thomson Correctional Center, a maximum security prison located just outside of Thomson, Illinois. Built in 2001, it is owned by the State of Illinois, from which the Federal Government will have to buy it. The Federal Bureau of Prisons will erect a more robust perimeter fence to increase security. The portion of the prison that will be used to house Guantanamo detainees will be operated by the Department of Defense (DOD), while the rest of the prison, which can hold 1,600 men, will be operated by the Bureau of Prisons, part of the Department of Justice. The DOD’s Military Tribunals would presumably be held there.

Illinois officials, including the governor and the state's two senators, have welcomed the move because it will create several thousand new jobs in Illinois, where the unemployment rate is currently at approximately 11 per cent. One of the state’s senators, Richard Durbin – the number two Democrat in the Senate – estimated that about 100 prisoners would be transferred to Thompson.

Rummy Won’t Be Doing Time

By William Fisher

In the wake of the U.S. Supreme Court’s refusal yesterday to review a lower court’s dismissal of a case brought by four British former Guantanamo prisoners against former Defense Secretary Donald Rumsfeld, the detainees’ lawyers charged today that America’s highest court evidently believes that “torture and religious humiliation are permissible tools for a government to use.”

The U.S. Circuit Court of Appeals in Washington, D.C., had ruled that government officials were immune from suit because at that time it was unclear whether abusing prisoners at Guantanamo was illegal.

Channeling their predecessors in the Bush Administration, Obama Department of Justice lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The Obama administration had asked the court not to hear the case. By agreeing, the Court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act -- a statute that applies by its terms to all “persons” -- did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.

The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”

Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.

The circuit court ruled that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

That opinion was written by Judge Karen Lecraft Henderson, who was appointed to the federal circuit court by President Ronald Reagan in 1986 and to the Appeals Court in 1990 by President George H.W. Bush.

The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004 with no charges ever having been filed against them.

Eric Lewis, lead attorney for the detainees, said, “It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not.”

He said, “Future prospective torturers can now draw comfort from this decision. The lower court found that torture is all in a days’ work for the Secretary of Defense and senior generals. That violates the President’s stated policy, our treaty obligations and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss.”

Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, told IPS, “In many ways the opinion the Supreme Court left standing today is worse when one gets past the bottom line – no accountability for torture and religious abuse – and digs into the legal reasoning. One set of claims are dismissed because torture is said to be a foreseeable consequence of military detention. (How will the parents of our troops captured in future foreign wars react to that?)”

“Another set of claims are dismissed because Guantanamo detainees are not ‘persons’ within the scope of the Religious Freedom Restoration Act (an argument that was too close to Dred Scott v. Sanford for one of the judges on the court of appeals to swallow). And the rest are dismissed on the premise that, somehow, federal officials responsible for planning and implementing torture and religious abuse might have looked to the caselaw on the subject and decided it wasn’t clear that the detainees had the right to not be strapped in medieval stress positions, or that it was OK to throw their Korans into a toilet bucket,” he said.

He added, “The way the case was defended is in some ways emblematic of the Obama administration’s waffling on national security issues. On the one hand they recognize that torture is reprehensible, doesn’t work, and is universally condemned; on the other they don’t want to prosecute people who ordered, facilitated, or carried it out, and are actively seeking to eliminate other mechanisms for accountability like this case – anything that might lead to a court saying crimes were committed and innocent people were brutally abused. In their briefing in this case, they stopped short of arguing that it should be the law that Guantanamo detainees have no constitutional rights, but were more than happy to point several cases they claim decided as much.”

He said they are “willing to use opinions they think work in their favor even where they are unwilling to defend those decisions on principle.” He described this as “an amalgam of the worst features of the last two presidents.”
The Dred Scott case referred to by CCR lawyer Kadidal was a decision by the United States Supreme Court in 1857. It ruled that people of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not protected by the Constitution and could never be citizens of the United States.

The four former detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith –filed their case in 2004 seeking damages from former Secretary of Defense Donald Rumsfeld and senior American military officers for violations of their constitutional rights and of the Religious Freedom Restoration Act, which prohibits infringement of religion by the U.S. government against any person.

Their claims were dismissed in 2008 by the Court of Appeals for the District of Columbia Circuit when that court held that detainees have no rights under the Constitution and do not count as “persons” for purposes of the Religious Freedom Restoration Act.

Last year, the Supreme Court granted the men’s first petition, vacated the Court of Appeals decision and ordered the D.C. Circuit to reconsider its ruling in light of the Supreme Court’s historic decision in Boumediene v. Bush, which held that Guantánamo is de facto U.S. territory and that detainees have a Constitutional right to habeas corpus.

On remand, the D.C. Circuit reiterated its view that the Constitution does not prohibit torture of detainees at Guantánamo and that detainees still are not “persons” protected from religious abuse. Finally, the Court of Appeals held that, in any event, the government officials involved are immune from liability because the right not to be tortured was not clearly established.

A second petition filed with the Court in August 2009 pointed out that the Court of Appeals decision stands in conflict with all of the Supreme Court’s recent precedent on Guantánamo and attacked the notion that the prohibitions against torture and religious abuse were not clearly established in 2002 when the petitioners were imprisoned.

MIDEAST HUMAN RIGHTS DETERIORATED IN 2009

By William Fisher

Human rights abuses in Arab countries have increased throughout the Middle East and North Africa during 2009, according to the Annual Report of the Cairo Institute for Human Rights Studies.

The report, entitled “Bastion of Impunity, Mirage of Reform,” reviews “deteriorating” human rights developments during 2009 in 12 Arab countries: Egypt, Tunisia, Algeria, Morocco, Sudan, Lebanon, Syria, Palestine, Iraq, Saudi Arabia, Bahrain, and Yemen.

In a separate chapter, the report addresses what it calls the “limited progress” made to advance women’s rights and gender equality. It says that Arab governments “use the issue of women’s rights to burnish their image before the international community while simultaneously evading democratic and human rights reform measures required to ensure dignity and equality for all of their citizens.”

The report says that while Iraq is still the largest arena of violence and civilian deaths, “the country witnessed a relative improvement in some areas, though these gains remain fragile.” It added that “the death toll has dropped and threats against journalists are less frequent. In addition, some of the major warring factions have indicated they are prepared to renounce violence and engage in the political process.”

In Egypt, as the state of emergency approaches the end of its third decade, the Report charges that “the broad immunity given to the security apparatus has resulted in the killing of dozens of undocumented migrants, the use of lethal force in the pursuit of criminal suspects, and routine torture.”

It also observes that “other signs of deterioration were visible in 2009: the emergency law was applied broadly to repress freedom of expression, including detaining or abducting bloggers. Moreover, the Egyptian police state is increasingly acquiring certain theocratic features, which have reduced some religious freedoms, and have lead to an unprecedented expansion of sectarian violence within the country.”

In its blatant contempt for justice, the report says, the Sudanese regime is “the exemplar for impunity and the lack of accountability.” The Bashir regime “is hunting down anyone in the country who openly rejects impunity for war crimes, imprisoning and torturing them and shutting down rights organizations.” Meanwhile “the government’s policy of collective punishment against the population of Darfur continues.”

The report says that the deterioration in Yemeni affairs “may presage the collapse of what remains of the central state structure due to policies that give priority to the monopolization of power and wealth, corruption that runs rampant, and a regime that continues to deal with opponents using solely military and security means.”

In Lebanon, the report says, the threat of civil war that loomed last year has receded, but “the country still suffers from an entrenched two-tier power structure in which Hizbullah’s superior military capabilities give the opposition an effective veto.” As a result, the report says, “the state’s constitutional institutions have been paralyzed.”

In Tunisia, the report finds that “the authoritarian police state continued its unrestrained attacks on political activists, journalists, human rights defenders, trade unionists, and others involved in social protest.” At the same time, it notes, “the political stage was prepared for the reelection of President Ben Ali through the introduction of constitutional amendments that disqualified any serious contenders.

In Algeria, the report says, “the emergency law, the Charter for Peace and National Reconciliation, and the application of counterterrorism measures entrenched policies of impunity, grave police abuses, and the undermining of accountability and freedom of expression. Constitutional amendments paved the way for the installment of President Bouteflika as president for life amid elections that were contested on many levels, despite the lack of real political competition.”

Morocco, the report concludes, has seen “a tangible erosion of the human rights gains achieved by Moroccans over the last decade. A fact most clearly seen in the failure if the government to adopt a set of institutional reforms within the security and judicial sectors intended to prevent impunity for crimes.”

The report finds that, as Syria enters its 47th year of emergency law, it continues to be distinguished by “its readiness to destroy all manner of political opposition, even the most limited manifestations of independent expression.” It notes that the Kurdish minority “was kept in check by institutionalized discrimination, and human rights defenders were targets for successive attacks.” The report says the president of the Sawasiyah human rights organization was arrested and tried, and his attorney, the former chair of the Syrian Human Rights Association, was referred to a military tribunal. “The offices of the Syrian Center for Media and Freedom of Expression were shut down, and Syrian prisons still hold dozens of prisoners of conscience and democracy advocates,” the report charges.

In Bahrain, the report says, the “systematic discrimination against the Shiite majority was accompanied by more repression of freedom of expression and peaceful assembly. Human rights defenders increasingly became targets for arrest, trial, and smear campaigns. Some human rights defenders were even subjected by government agents to threats and intimidation while in Europe.”

In Saudi Arabia, the report notes that the Monarch’s speeches urging religious tolerance and interfaith dialogue abroad have not been applied inside the Kingdom, where “the religious police continue to clamp down on personal freedom.” The organization says “repression of religious freedoms is endemic, and the Shiite minority continues to face systematic discrimination.” Counterterrorism policies were used to justify long-term arbitrary detention, and political activists advocating reform were tortured. These policies also undermined judicial standards, as witnessed by the prosecution of hundreds of people in semi-secret trials over the last year, the report says.

In tandem with these abuses and “lack of accountability for such crimes” within Arab countries, the report notes that “various Arab governments and members of the Organization of the Islamic Conference have been working in concert within UN institutions to undermine international mechanisms and standards for the protection of human rights.

“On this level, Arab governments have sought to undercut provisions that bring governments to account or seriously assess and monitor human rights. This is most clearly illustrated by the broad attack on independent UN human rights experts and NGOs working within the UN, as well as attempts to legalize international restrictions on freedom of expression through the pretext of prohibiting ‘defamation of religions’,” the report says.

The report also condemns what it terms “the grave and ongoing Israeli violations of Palestinian rights, particularly the collective punishment of Palestinians in the Gaza Strip through the ongoing blockade and the brutal invasion of Gaza at the beginning of 2009 which resulted in the killing of more than 1,400 Palestinians, 83 percent of them civilians not taking part in hostilities.”

It notes that “The plight of the Palestinian people has been exacerbated by the Fatah-Hamas conflict, which has turned universal rights and liberties into favors granted on the basis of political affiliation. Both parties have committed grave abuses against their opponents, including arbitrary detention, lethal torture, and extrajudicial killings.”

The report is also critical of the Arab League and its summit forums for offering ongoing support for the Bashir regime in Sudan despite charges of war crimes, and members of the organization used the principle of national sovereignty as a pretext to remain silent about or even collaborate on grave violations in several Arab states. The report says, “Little hope should be invested in the Arab League as a protector of human rights regionally.”

Good News 2009

By William Fisher

OK, OK. I know. It’s time for my annual good news column.

It’s a deal I made with a friend to make up for all the depressing news stories I had to write this year.

This was no easy task. Aside from the end of the Bush era, and the election of Barack Obama, there wasn’t all that much good news to be had. But perseverance paid off: My discovery of a fitting subject came during a session of the U.S. Senate on C-SPAN, that exciting channel sponsored by the cable industry.

Amidst the hollow echo of a totally empty Senate chamber (did you know the C-SPAN cameras are only allowed to focus on whoever is speaking, and never allowed to pan the whole chamber, full of empty seats?) stood a Republican senator, voice quivering, arms flailing, face reddening, railing against our National Security Enemy Number One, the American Civil Liberties Union.

Now, what was this legislative grandstander getting so apoplectic about? The ACLU’s activities in coordinating defense teams for detainees at Guantanamo.

But why he should have been surprised – or acting surprised – is a mystery. The ACLU has been doing this kind of unpopular stuff for almost a century.

Let’s go all the way back to World War I. Then, the National Civil Liberties Bureau, the ACLU’s predecessor, defended the First Amendment rights of antiwar dissidents in the face of massive government repression. The administration of President Woodrow Wilson (winner of the Nobel Peace Prize!) banned anti-war literature from the mails and prosecuted individuals for merely expressing opposition to the war, or criticizing the President. Just like some Third World dictatorship!

People were convicted and sentenced to ten-year prison terms for allegedly interfering with the draft, even though they had said nothing about the draft itself.

These prosecutions were initially upheld by the U.S. Supreme Court. But later the Court affirmed the principle that the First Amendment protects the right to criticize the government – even during wartime.

A generation later, the ACLU was the only national organization to challenge the government's World War Two evacuation and internment of the Japanese-Americans while organizations of every political stripe, fearful of alienating the government, pretended not to notice.

Today all of us except the truly delusional acknowledge that this was one of the darkest chapters in American civil rights history.

Then, just a few years after the war, in 1949, an ex-Catholic priest named Arthur Terminiello delivered a racist and anti-Semitic speech to the Christian Veterans of America. The Chicago Police Department was present, but was unable to completely maintain order. Terminiello was charged with violating Chicago's breach of peace ordinance and fined a hundred dollars.

Terminiello appealed and the ACLU successfully defended him before the U.S. Supreme Court. The case, known as Terminiello v. Chicago, established the legal precedent for the ACLU's successful defense of the civil rights demonstrators in the 1960s and '70s.

Many other unsavory characters have been defended by the ACLU. Like the Neo-Nazis who claimed the right to march in Skokie, Illinois, in 1979. At the time, the ACLU’s Executive Director was Aryeh Neier, whose relatives had died in Hitler's concentration camps during World War II. Neier said: "Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened."

I wish the folks we send to Congress to represent us knew more American history – or chose to remember it. But, after ACORN, there is arguably no easier target for a rabble-rousing, demagogic lawmaker than the ACLU.

And these icons of good governance lose no opportunity to go the floor of the House and Senate to inveigh against it.

But they might be well advised to remember that the ACLU is an outfit to which they might one day find themselves having to reach out to defend their First Amendment rights to speak their mind – including the right to say stupid things.

U.S. TREATMENT OF IRAQ REFUGEES

By William Fisher

After years of delay and bureaucratic red tape, refugees from the Iraq War are finally being allowed into the United States. But America “is opening its gates to refugees and simply forgetting about them after they have arrived.”

In the process, “the United States is in danger of failing to meet its legal obligations to extend protection to the most vulnerable refugees, promote their long-term self-sufficiency, and support their integration.”

These are among the key findings of a study carried out by a team of students at the Georgetown University Law Center in Washington, D.C. The students, members of Georgetown Human Rights Action, conducted the study in partnership with the Law Center’s Human Rights Institute. They interviewed Iraqi refugees in Jordan and in two cities in the U.S., Washington, D.C. and Detroit.

Their report says, “Across the United States, many resettled Iraqi refugees are wondering how, after fleeing persecution at home to seek refuge in (Jordan) a country that barely tolerated them, they have found themselves in ‘the land of opportunity’ with little hope of achieving a secure and decent life.”

It charges that recently resettled Iraqi refugees “face odds so heavily stacked against them that most end up jobless, some even homeless” and cites the experience of one Iraqi widow who lives with her three young children in a shelter.

“I left Iraq to find security,” the refugee says. “But what kind of security is it to live in a homeless shelter?”

The report applauds the advocates who “worked tirelessly to encourage the U.S. government to accept Iraqis who were forced to flee a war initiated by the United States,” but notes that “few have studied what happens to those refugees after they arrive here.”

Acknowledging that resettlement is one of three “durable solutions” for refugees, the report says there has been “scarce focus on just how durable the U.S. resettlement system actually is.”

It says that the United States Refugee Admissions Program (USRAP) “is unique in giving new life and opportunity to millions of refugees, accepting many times more than the rest of the world combined.” But it cautions that as these new refugees from Iraq arrive in increasing numbers, and “as the U.S. economy continues to offer little prospect for those seeking work, there is an urgent need to diagnose the ills of refugee resettlement before they become incurable.”

The project sought to determine the extent to which Iraqi refugees have been afforded protection and a durable solution through the USRAP. Throughout their report, “long-term self-sufficiency” and “long-term integration” are the terms used to describe both the goal of the USRAP and the standard against which it is measured.

The report says, “If the United States is to meet its own aims and serve as a guarantor of security for those it welcomes to its shores, it is imperative that U.S. policies be based on respect for these legal norms.”

The report’s principal findings:

· The United Nations High Commissioner for Refugees created "11 resettlement eligibility criteria for Iraqi refugees," including survivors of torture and violence, including sexual and gender based violence; members of minority groups and persons targeted due to their ethnicity or sect; women at risk in country of asylum; unaccompanied or separate children; elderly refugees; and refugees with medical needs. Despite the U.S. government agreeing to these criteria, the study notes that the USRAP “offers resettlement to those refugees with particular vulnerabilities that can inhibit their ability to achieve self-sufficiency while expecting them to quickly become self-sufficient."

· Iraqi refugees rarely enjoy legal protection and long-term self-sufficiency in Jordan, and resettlement remains an important solution for many Iraqi refugees. Some refugees, including particularly vulnerable refugees, are refusing resettlement offers to the United States because of a perceived lack of post-resettlement services. However, most Iraqi refugees interviewed desired to be resettled to the United States.

· The application of mainstream U.S. anti-poverty programs to refugee assistance under the USRAP does not promote the long-term self-sufficiency of refugees. It does not break down barriers to sustainable employment, employment services are not properly funded, English language training is insufficient, transportation is inadequate, and professional recertification is not viable. These deficiencies result in low employment rates for Iraqi refugees. Additionally, cash assistance is insufficient, both in amount and duration, to allow refugees to support themselves…The USRAP makes it difficult for refugees to secure medical care, and treatment options are insufficient to address the serious mental health issues that affect many Iraqi refugees.

· Poor planning and coordination throughout the USRAP amplify the problems refugees face. Pre-resettlement processing takes little account of post-resettlement needs when gathering information about individual refugees. The USRAP does not base services capacity-setting on current or future refugee flows, leaving programs improperly funded. Secondary migration is not properly tracked, further preventing the USRAP from targeting resources to actual needs.

The report recommends that refugee resettlement should be decoupled from U.S. anti-poverty programs and tailored to the unique needs and experiences of refugees. It suggests that refugee assistance be increased from eight to eighteen months, and programs designed to promote the long-term self-sufficiency and integration of refugees should be better funded. Stronger emphasis should be placed on the core barriers to self-sufficiency and integration, including lack of English language skills, lack of transportation, and lack of opportunities for education and recertification.

It also recommends that funding for employment and social services should be tailored to estimates of incoming refugee arrivals and secondary migration, as well as the unique needs of these particular groups. Funding should not be based on the number of past refugee arrivals.

Finally, the report says, “All actors within the USRAP must improve planning and information sharing capabilities. Planning should anticipate and prepare for the unique needs of each refugee group prior to arrival.In order to tailor services for refugees, actors must take into account important information on refugees collected in the resettlement process, such as health status and professional background.

The United Nations estimates that there are currently 4.7 million Iraqi external and internal refugees. Until 2007, the numbers admitted to the U.S. were in the low hundreds. Then, under pressure from advocacy groups and increased reporting on the plight of Iraqi refugees, the U.S. began resettling more Iraqis. In the fall of 2007, Congress passed the Refugee Crisis in Iraq Act, providing admission for Iraqis that worked for the U.S. or its contractors in Iraq, and allowing in-country processing for at-risk Iraqis.

In 2008, the United States appointed two Senior Coordinators for Iraqi Refugees, one at the Department of State (DOS) and one at the Department of Homeland Security (DHS), to strengthen the American humanitarian commitment to refugees with a particular emphasis on resettlement. In FY 2008, the U.S. resettled 13,822 Iraqi refugees. As of August 31, 2009, the U.S. has resettled 16,965, totaling approximately 33,000 since the start of the 2003 war.

Open Government: We Live in Hope

By William Fisher

Advocates for greater freedom of information are expressing approval of the Obama Administration’s "Open Government Directive" – but some are sounding cautionary notes that executive agencies are still hiding behind “national security” to conceal government misconduct.

The White House Office of Management and Budget (OMB) issued its "Open Government Directive" yesterday, instructing government agencies and departments to take specific actions to increase "transparency, participation and collaboration" in government, with the aim of creating "an unprecedented and sustained level of openness and accountability in every agency."

The directive is intended to make good on the pledge of transparency President Barack Obama made during his first week in office.

The directive establishes deadlines for action and imposes guidelines for publishing government information and improving the quality of that information. It also orders each agency to establish an "Open Government Plan" that details how it will incorporate transparency, opportunities for public participation and inter-agency collaboration into its core mission objectives.

The directive does not apply to classified security information and makes an exception for "information whose release would threaten national security."

It is this latter condition that concerns civil libertarians. Jameel Jaffer, Director of the National Security Project for the American Civil Liberties Union (ACLU), said, “We remain concerned that executive agencies are invoking national security concerns as a pretext to suppress records that relate to government misconduct. We are particularly concerned about the Defense Department's refusal to release photos relating to the abuse of prisoners, the CIA's refusal to release information about black sites overseas and the Justice Department's refusal to release the legal memos that supplied the basis for the Bush administration's warrantless wiretapping program.”

He said, “While we appreciate the steps that the Obama administration has taken to increase government transparency, the administration's stated commitment to transparency has not yet translated into real change on information relating to national security policy.”

While President Obama has talked about instituting “a new era of transparency” since his first days in office, in many instances his Department of Justice has followed precedents set by Obama’s predecessor, George W. Bush. These have included invoking the “state secrets privilege” as a way of stopping court cases brought by people who claim to have been injured by U.S. Government actions. These injuries range from “Middle Eastern-looking” men being rounded up and imprisoned in the days following the terrorist attacks of September 11, 2001, to charges from others that they were victims of the “extraordinary rendition” program run by the Central Intelligence Agency (CIA).

Extraordinary rendition refers to a program in which people are kidnapped by the CIA in countries overseas and then sent to third countries where they are imprisoned, usually denied access to lawyers or to the International Committee of the Red Cross, and tortured by their jailers.

Despite these flaws, the ACLU’s Jaffer said he welcomed the release of the Open Government Directive, “particularly because it sets out specific, concrete steps that agencies must take in order to fulfill the Obama administration's stated goal of increased government transparency. As the directive itself makes clear, the principles of transparency, participation and collaboration are fundamental to our democracy.”

The directive is comprised of four main components centered on four themes – publishing information; creating a culture of openness; improving data quality; and updating policies to allow for greater openness. Each section tasks agencies and other key offices with specific goals, complete with deadlines.

A major new requirement in the directive is for each agency to develop specialized Open Government Plans within the next 120 days. These plans must detail exactly how each agency will improve transparency and integrate public participation and collaboration into its activities. An attachment to the directive lays out the required components of the plan.

Agencies will also be required to establish an Open Government webpage on their sites and permit public participation on the development of the plans, as well as gather input on transparency issues on an ongoing basis. The White House website will also establish an Open Government Dashboard to track agency plans and performance. These will be the places to watch to see how well the next step in government openness proceeds.

It also requires agencies to make use of modern technology to take a proactive approach to distributing information. Today, people are often forced to file Freedom of Information Act (FOIA) requests and to sue Federal agencies to compel their compliance. Federal agencies process thousands of FOIA requests each year.

The directive was welcomed by OMB Watch, one of a group of private not-for-profit advocacy groups that helped the administration draft it.

Gary D. Bass, the organization’s executive director, noted that the new directive marks a new direction for the executive branch. "The directive’s presumption of openness – certainly a positive step – reflects a thoughtful understanding that achieving the goal of transparency requires a cultural shift in the way government operates." stated Bass. "The directive’s scope and specificity blends both rigorous timelines and agency flexibility that will likely achieve significant improvements in government openness across agencies. The key will be how the public, the White House, and federal agencies work together in implementing the directive." Bass added.

The content of the directive reflects many of the transparency recommendations collaboratively developed by the right-to-know community during a two-year process coordinated by OMB Watch. Those 70 detailed recommendations were delivered to the Obama transition team in a report called Moving Toward a 21st Century Right-to-Know Agenda. Among those recommendations were requests for creating incentives for openness, interagency coordination, and publication of high-priority data that is currently unavailable – all of which are addressed in the new directive.

The organization said the task before government now is to implement the new policy prescriptions.

Immigrant Detention System Broken

By William Fisher

"In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico.... All my evidence and stuff that I need is right there in New York. I've been trying to get all my case information from New York ... writing to ICE to get my records. But they won't give me my records; they haven't given me nothing. I'm just representing myself with no evidence to present." – (name withheld), writing from the Otero County Processing Center, Chaparral, New Mexico.

So reads testimony from one of the increasing number of immigrants transferred by the Department of Homeland Security (DHS) to detention centers far from where they were apprehended – making it virtually impossible for them to retain their records, communicate with family members, or hire lawyers to contest their deportation.

The number of individuals held in hundreds of different detention facilities by the DHS’s Immigration and Customs Enforcement (ICE) in fiscal year 2009 is estimated to have reached 369,483, more than double what it was a decade earlier. A new analysis of millions of government records shows that to handle this pronounced surge in detainees, ICE made 1.4 million detainee transfers in the decade from 1999 through 2008 -- 53 percent of them since 2006.

An increasing proportion of all detainees are being transferred. In FY 1999, one out of every five (19.6%) of the detainees was moved from one detention facility to another. During the first six months of FY 2008, the latest period for which complete data are available, the majority (52.4%) of detainees were transferred.

Almost as startling was the growth in the percentage of individuals who were subjected to multiple transfers — starting at one detention facility, being transferred to a second, and then again (and sometimes again and again) to other detention locations. Ten years ago only one out of twenty detainees experienced multiple transfers (5.6%). In FY 2008, one out of every four detainees (24%) was subject to multiple transfers.

This analysis is based upon previously unavailable data obtained by the Transactional Records Access Clearing House (TRAC) at Syracuse University and Human Rights Watch (HRW), which has published a new report, “Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States."

According to Alison Parker, HRW’s U.S. deputy director, “ICE is increasingly subjecting detainees to a chaotic game of musical chairs. And it’s a game with dire consequences since it may keep them from finding an attorney or presenting evidence in their defense.”

The human consequences of detainee transfers can be devastating. One detainee told Human Rights Watch that after living in upstate New York for
10 years with his wife and four children, ICE said he was deportable because of an old marijuana possession conviction, for which he had paid a fine and never served jail time. Initially detained in New York City, he was sent, just days later, to a detention center in New Mexico.

“In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico,” a detainee said from the Otero County Processing Center in Chaparral, New Mexico. “All my evidence and stuff that I need is right there in New York. I’ve been trying to get all my case information from New York … But they won’t give me my records, they haven’t given me nothing. I’m just representing myself with no evidence to present.”

ICE detains people suspected of violating civil immigration laws, not criminal laws. Many immigrants are first arrested and detained in major cities like Los Angeles or Philadelphia, places where immigrants have lived for decades and where their family members, employers, and attorneys also live. Days or months later, with no notice, many of these immigrants are loaded onto planes for transport to detention centers in remote corners of states such as Texas, California, and Louisiana (the three states most likely to receive transfers), the report found.

The average length of detention by ICE is 30 days, including the 25 per cent of detainees apprehended at the border and sent home within a day. But about 2,100 immigrants are detained for a year or more.

Says Rebecca Schreve, an immigration attorney in El Paso, Texas, "The transfers are devastating, absolutely devastating. [Detainees] are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what [US] state they are in. I cannot overemphasize the psychological trauma to these people. What it does to their family members cannot be fully captured either. I have taken calls from seriously hysterical family members - incredibly traumatized people - sobbing on the phone, crying out, ‘I don't know where my son or husband is!'"

Detained immigrants have the right, under both US and international human rights law, to be represented in deportation hearings by an attorney of their choice and to present evidence in their defense.

But once they are transferred, immigrants are often so far away from their lawyers, evidence, and witnesses that their ability to defend themselves in deportation proceedings is severely curtailed, the report found.

"Immigrant detainees should not be treated like so many boxes of goods - shipped to the most convenient place for ICE to store them," HRW’s Parker said, adding, "We are especially concerned that the transferred detainees may find that their chances of successfully fighting deportation or gaining asylum from persecution have just evaporated."

The federal Court of Appeals for the Fifth Circuit (which covers Louisiana, Mississippi, and Texas) has jurisdiction over the largest number of the transferred detainees. Those transfers are of particular concern, HRW said, because that court is widely known for decisions that are hostile to non-citizens and because the states within its jurisdiction collectively have the lowest ratio of immigration attorneys to immigration detainees in the country.

HRW acknowledges that some detainee transfers are inevitable, but says that ICE and Congress should use reasonable and rights-protective checks on detainee transfers as the best state criminal justice systems do. The report recommends concrete steps to help create such a system.

Although ICE has recently announced plans to revamp its detention system, which may provide an opening for reforms, the agency previously has rejected recommendations to place enforceable constraints on its transfer power.

A number of factors account for the dramatic increase in the numbers of detainees. In 1996, the immigration law was changed to require the detention of people convicted of crimes, including misdemeanors, and all asylum applicants. Unlike criminal defendants, these immigrants are not entitled to a bond hearing to determine if they are flight risks.

According to a recent ICE review of the detention system, about 11 percent of immigrant detainees in custody had committed violent crimes. “The majority of the population is characterized as low custody, or having a low propensity for violence,” the ICE report concluded.

Intensified law enforcement has also played a role in increasing the number of detainees. For example, ICE has expanded its so-called 287(g) program, named for a section of the immigration law, which allows local law enforcement officers to arrest and detain anyone suspected of violating federal immigration laws.

ICE has also expanded the “Secure Communities” program, which requires local police to check the immigration status of everyone booked into a local jail. Those convicted are deported after serving their sentences.

DHS, which recently received $200 million to expand the “Secure Communities” program, estimates that “tens of thousands” more immigrants will be deported under the program in 2010.

ICE has responded to the TRAC and Human Rights Watch reports. “ICE is in the process of fundamentally overhauling our immigration detention system to establish consistent standards across the country, prioritize risk, strengthen oversight and increase efficiency,” says the agency’s statement.

“ICE will also soon submit a plan to Congress to implement an alternatives to detention program nationwide for low-risk individuals. These steps will not only enhance accountability and safety in our system, but will also reduce detainee transfers that can separate detainees from counsel and prolong their legal proceedings.”

Earlier, ICE acknowledged that it had serious problems with the conditions under which detainees are held. A report from Dr. Dora Schriro, who was then Director of ICE’s Office of Detention Policy and Planning, concluded that ICE needed to do a better job of assessing the risks associated with individual detainees in order to house and treat them appropriately.

ICE detention centers – a collection of hundreds of Federally-owned facilities, county and city jails, and privately-run prisons – have been severely criticized for substandard physical and medical conditions. ICE has acknowledged these conditions.

The recent ICE report acknowledges that attorneys representing detainees have complained that their clients are often transferred to detention centers far away and without notice, making legal representation extremely difficult. The report therefore only recommends that those who are represented by attorneys “should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly.”

The findings in the HRW report were confirmed by other sources. One is a bipartisan study group, the Constitution Project, whose members include Asa Hutchinson, a former DHS under secretary, and the DHS Inspector General.

The group called for sweeping changes in ICE policies and amendments to immigration law, including new access to government-appointed counsel for many of those facing deportation. It recommended shrinking the use of detention, in part by adding more constitutional safeguards required in the criminal justice system.

“None of the recommendations being made should in any way compromise national security,” Hutchinson said in an interview with the New York Times before he presented the report at the National Press Club in Washington. “It simply allows for a more humane and more efficient system,” he said.

A separate report by the DHS Inspector General found that ICE detainee transfers were so disorganized that some detainees arrived at a new detention center without having been served a notice of why they were being held, or despite a high probability of being granted bond, or with pending criminal prosecutions or arrest warrants in the previous jurisdiction.

The investigation found that the consequences included a loss of access to legal counsel and relevant evidence; additional time in detention; and “errors, delays and confusion for detainees, their families, legal representatives” and the immigration courts. Some detainees were transferred with files lacking a photo and a security classification, field inspectors found.

According to the inspector general, it is estimated that in the future ICE will detain more than 442,000 people a year — more than double the number in 2003, the year ICE began its operations. Prior to the formation of the Department of Homeland Security, ICE was known as the Immigration and Naturalization Service (INS).

The Irony of Unintended Consequences

By William Fisher

Thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing — are being labeled “terrorists” and their applications for protection are being denied or delayed because of overly broad “terrorism” provisions in the Immigration and Nationality Act (INA).

These are the conclusions of a report by Human Rights First (HRF), a legal advocacy organization. They come as Homeland Security Secretary Janet Napolitano, the White House point person on immigration, is calling on Congress to provide temporary worker programs and a path to citizenship for 12 million unauthorized workers when it takes up a reform bill next year.

Napolitano is optimistic that immigration reform could pass in an election year, because she says border security goals have been met and the economic downturn has decreased unauthorized immigration significantly since a bipartisan bill died in the Senate two years ago.

But Congressional Republicans dispute the administration's claims that the border has been secured, and have repeated their opposition to citizenship for unauthorized immigrants.

Earlier, Napolitano outlined the efforts her department plans to make to improve and reform conditions for thousands of refugees currently being held in detention centers, county jails, and privately run prisons, most of them awaiting decisions on their applications for asylum in the U.S. Many of these centers, which are run by DHS’s Immigration and Customs Enforcement agency (ICE), have been severely criticized for denying detainees legal due process and basic medical care.

The HRF report -- Denial and Delay: The Impact of the Immigration Law’s ‘Terrorism Bars’ on Asylum-Seekers and Refugees in the United States -- describes the adverse and unintended consequences the overly broad “terrorism” provisions in the Immigration and Nationality Act (INA) are producing for asylum-seekers and refugees.

The report says that more than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.

Anwen Hughes, Senior Counsel in HRF’s Refugee Protection Program, told Truthout that there are currently over 7,500 cases pending before the Department of Homeland Security. She said these cases are “on indefinite hold based on some actual or perceived issue relating to the immigration law’s ‘terrorism’-related provisions.” The overwhelming majority of the cases are applications for permanent residence or family reunification filed by people who were granted asylum or refugee status several years ago and have been living and working in the United States since then,” she said.

She added that there is a need for a comprehensive review of the program.

HRF’s report cites a number of examples of refugees who have been characterized as “terrorists” under the legal definitions currently in use:

- A refugee from Burundi, who was detained for 20 months in a succession of county jails because the U.S. Department of Homeland Security, and the immigration judge who would otherwise have granted him asylum, took the position that he had provided “material support” to a rebel group because armed rebels robbed him of four dollars and his lunch.

- A young girl kidnapped at age 12 by a rebel group in the Democratic Republic of the Congo, used as a child soldier, and later threatened for advocating against the use of children in armed conflict, who has been unable to receive a grant of asylum, as her application has been on hold for over a year because she was forced to take part in armed conflict as a child.

- A man who fled political and religious persecution in Bangladesh, who has had his application for permanent residence placed on indefinite hold because he took part in his country’s successful struggle for independence—in 1971.

--The minor children of members of the democratic opposition from Sudan who were granted asylum in the United States years ago, who have been prevented from becoming permanent residents because the peaceful political activities of their parents have been deemed to constitute “material support to a terrorist organization.”

HRF says the provisions of the INA “are being applied to refugees who were associated with groups that the U.S. government does not consider to be ‘terrorist organizations’ in any other context. The INA’s sloppy definition of a ‘Tier III terrorist organization’ is causing groups that the United States does not treat as ‘terrorist’ in any other context to be defined in this way.”


The INA defines “terrorist activity” as any unlawful use of a weapon for any purpose other than personal enrichment and a “Tier III terrorist organization” as any group of two or more people who engage in—or has a subgroup that engages in—“terrorist activity.” These laws are overly broad, and for the past several years the immigration agencies have been interpreting them in an increasingly expansive way.

As a result, the report asserts, thousands of legitimate refugees and asylum seekers—who pose no danger to the United States and who have committed no acts of wrongdoing—have been labeled “terrorists” and had their applications for protection denied or delayed.

While the INA also provides broad authority to the Secretary of Homeland Security and the Secretary of State, in consultation with the Attorney General, to grant “waivers” of most of the terrorism-related inadmissibility grounds, HRF says “the federal agencies involved have implemented this authority in a piecemeal and centralized fashion that has proved to be unworkable as a long-term, meaningful solution.”

Examples of groups labeled “Tier III terrorist organizations” include:

- - Iraqi groups who rose up against Saddam Hussein in the 1990’s, including those who took part in the failed uprising at the end of the Gulf War of 1991 that was encouraged by the first President Bush;

-- Iraqi groups that later fought against Saddam Hussein’s government at any other time, including in conjunction with the Coalition forces that ultimately overthrew his regime in 2003;

- - Afghan mujahidin groups that fought the Soviet invasion in the 1980’s, with U.S. support;

- - The Democratic Unionist Party and the Ummah Party, two of the largest democratic opposition parties in Sudan, many of whose members were forced to flee the country in the years after the 1989 military coup that brought current President Omar Al-Bashir to power;

- - Groups that fought the ruling military junta in Burma and were not included in the 2007 legislation that removed the Chin National Front and other Burmese insurgent groups from the scope of the Tier III definition;

Many of the refugees affected by the “Tier III” definition’s overbreadth were involved only in peaceful political activity in connection with groups that are now deemed to be “terrorist organizations” for immigration-law purposes, the report says..

It adds, “The federal immigration agencies charged with applying these laws—the Department of Homeland Security, the Department of Justice, and the Department of State — have also been interpreting all these provisions in a very expansive way. The immigration law’s ‘material support’ bar, for example, is being applied to minimal contributions, to people who were forced to pay ransom to armed groups, to doctors who provided medical care to the wounded in accordance with their medical obligations, and to persons who engaged in other forms of lawful activity. These interpretations have exacerbated the impact of the law’s overbroad definitions.”

The report’s policy recommendations focus on the scope and application of the INA’s “terrorism”-related provisions on those individuals whom Congress intended those provisions to target: people who threaten U.S. national security and those who have engaged in or supported acts of violence that are inherently wrongful and condemned under U.S. and international law. HRF is calling on Congress to:

-- Eliminate the statutory definition of a “Tier III” terrorist organization, which has led to numerous unintended consequences but is not needed as an enforcement tool against its intended targets;

-- Amend the immigration law’s definition of “terrorist activity” so that it (a) targets only the use of violence for purposes of intimidation or coercion (of a civilian population or of a government or an international organization), and (b) no longer applies to uses of armed force that would not be unlawful under international humanitarian law;

-- Amend the immigration law’s definition of “material support” to make clear that it does not apply to acts done under coercion;

-- Eliminate the provision that makes a person inadmissible simply for being the spouse or child of a person inadmissible under the immigration law’s “terrorism”-related grounds;

-- Give waiver authority to the Attorney General for cases pending before the Department of Justice, with the provision that the Attorney General delegate this authority to the immigration courts;

In addition, the report says, the Departments of Homeland Security, Justice, and State should support its recommendations to Congress; interpret existing law consistently with its text and purpose, to target those who advance actual terrorist activity; and implement a more effective and fair approach to waivers.

The Irony of Unintended Consequences

By William Fisher


The Supreme Court has agreed to hear a case challenging a law that treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes.

The case is known as Holder v. Humanitarian Law Project, and is the first case to challenge a portion of the Patriot Act before the Supreme Court. The case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”

The plaintiffs, led by the Center for Constitutional Rights (CCR), charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime. The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.

The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the State Department.

Said CCR Cooperating Attorney David Cole, a law professor at the Georgetown University Law Center, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”

The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law. The Obama administration sought Supreme Court review of that decision.

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

Meanwhile, committees of the U.S. Senate and House of Representatives continue to debate three provisions of the USA Patriot Act that are due to expire on December 31

The expiring provisions are the roving wiretap authority, the so-called "section 215" business records orders, and the nicknamed "lone wolf" provision.

The roving wiretap authority expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order "roving" or multi-point surveillance. Previously, the Foreign Intelligence Surveillance Act (FISA) required a separate FISC authorization to tap each device a target used.

Section 215’s reference to Business Records substantially revised the authority under FISA for seizure of business records, including third party records of individuals' transactions and activities. Previously, the FBI could apply to the FISC for an order to seize business records of hotels, motels, car and truck rental agencies, and storage rental facilities. Section 215 broadened that authority by eliminating any limitation on the types of businesses or entities whose records may be seized. The recipient of the order may not disclose the fact that the FBI has sought or obtained records.

The nicknamed "Lone Wolf" authorization allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.

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

The Obama Administration has quietly endorsed the reauthorization of the provisions due to expire. The Senate Judiciary Committee has voted to make only minor changes to these measures, while the House of Representatives Judiciary Committee is seeking far more sweeping reforms.

The new legislation proposed by the House committee would permit the so-called “lone wolf” provision to sunset. It would also restrict the use of National Security Letters (NSLs). According to a Congressional Research Service report, NSLs “are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”

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

A jittery Congress passed The Patriot Act by a landslide 45 days after the 9/11 terrorist attacks with virtually no debate. It provides law enforcement and intelligence agencies with sweeping additional powers to thwart terrorist activities. The law was reauthorized in 2005.

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

Among its most outspoken critics is Chip Pitts, president of the Bill of Rights Defense Committee. He told IPS, “In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror -- and avoid being accused of being “soft on terror” -- brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed.”

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

Obama's Fifth Category: The "Untriable"

By William Fisher

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

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

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

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

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

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

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

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

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

Here are some of their responses:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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