Tuesday, March 24, 2009


By William Fisher

A leading legal rights group charged today that the Obama Justice Department is using immigration law to censor debate by selectively barring U.S. entry to foreign scholars.

The American Civil Liberties Union (ACLU) appeared in a federal appeals court in New York City today to argue that a Swiss professor and leading Muslim scholar was denied entry to the U.S. based on his political views.

The ACLU argued that the government’s exclusion of Professor Tariq Ramadan is illegal and was motivated not by anything he did but by his vocal criticism of U.S. foreign policy.

Jameel Jaffer of the ACLU, the lead lawyer in the case, told us, "It is disappointing to see the lawyers from the Obama Justice Department taking exactly the same positions as their predecessors during the Bush era. "

He added, "Our position is that the government should not be using immigration law to limit free speech within the U.S. By denying visas to prominent foreign scholars and writers simply because they were critical of United States foreign policy, the Bush administration used immigration laws to skew and stifle political debate inside the U.S.”

“The Bush administration was wrong to revive this Cold War practice, and the Obama administration should not defend it," he said.

The Department of Justice declined to comment on the case.

The position of the government during the George W. Bush presidency was that the courts have no jurisdiction over immigration matters. Obama lawyers reiterated that position in court today.

Ramadan was invited to teach at the University of Notre Dame in 2004. The U.S. government first granted but then suddenly revoked his visa, citing a statute that applies to those who have “endorsed or espoused” terrorism. After the ACLU filed suit, the government abandoned its claim that Ramadan had endorsed terrorism, but it continued to exclude him because he made small donations to a Swiss charity that the government alleges had given money to Hamas.

In January 2006, the ACLU and the New York Civil Liberties Union filed a lawsuit challenging Professor Ramadan's exclusion from the U.S. on behalf of the American Academy of Religion, the American Association of University Professors and the PEN American Center. A federal judge upheld Ramadan’s exclusion in December 2007. Today’s court action was an appeal of that ruling.

The lawsuit was originally brought against then-Department of Homeland Security Secretary Michael Chertoff and then-Secretary of State Condoleezza Rice. It is now called Academy of Religion v. Napolitano. Janet Napolitano is Obama’s new secretary of the Department of Homeland Security (DHS).

The ACLU noted that, during the Cold War, the U.S. “used ideological exclusion to bar artists who were vocal critics of U.S. policy,” including Colombian novelist Gabriel García Márquez, Chilean poet Pablo Neruda and British novelist Doris Lessing.

“Over the last eight years, the Bush administration revived the practice, barring dozens of prominent intellectuals from assuming teaching posts at U.S. universities, fulfilling speaking engagements with U.S. audiences and attending academic conferences,” the ACLU said.

“Ideological exclusion is ineffective as a matter of security policy and inconsistent with the ideals that make this country worth defending,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The U.S. should evaluate applicants for admission to the United States on the basis of their actions rather than their political beliefs and associations.”

The ACLU and other human rights groups are urging the courts to revisit several specific cases of ideological exclusion, including those of Haluk Gerger, a Turkish journalist; Dora Maria Tellez, a Nicaraguan human rights activist; Adam Habib, a South African political commentator; in addition to Prof. Ramadan. Ramadan is a Swiss Islamic scholar who now teaches at Oxford University in the U.K.

The ACLU and other U.S. organizations have also brought lawsuits to challenge the exclusion of Professor Habib. The challenge to his exclusion is currently pending before a federal district court in Boston.

Last week, dozens of the nation’s leading academic, free speech and civil rights organizations sent a letter to high-level U.S. officials today urging them to end the practice of refusing visas to foreign scholars, writers, artists and activists on the basis of their political views and associations.

In the letter, groups including the ACLU, the National Education Association, and the Rutherford Institute, called on Attorney General Eric Holder, Secretary of State Hillary Rodham Clinton, and Secretary of Homeland Security Janet Napolitano, to put an end to the Cold War-era practice of “ideological exclusion.”

The ACLU’s Jaffer said, “Ideological exclusion impoverishes academic and political debate inside the United States, and it sends the message to the world that the United States is more interested in silencing its critics than engaging them. Ideological exclusion is a petty and misguided practice that the Obama administration should retire immediately.”

The government’s assertion that the criminal justice system lacks jurisdiction in immigration cases has recently been the centerpiece of two other cases. Several months ago, a federal district judge ordered 17 Uighurs released from imprisonment at the Guantanamo Bay detention center and permitted to enter the U.S. A federal appeals court ruled that the judge could order the prisoners released, but could not order them to be admitted to the U.S., since that was a matter of immigration law.

Earlier, another court ruled that it had no jurisdiction to adjudicate the case of Maher Arar, who was detained by U.S. authorities at JKF International Airport enroute to his home in Canada from a vacation in North Africa. He was held by the U.S. for two weeks, then flown to Jordan and later to his country of birth, Syria. In Syrian custody, Arar says he was held incommunicado, without charges or access to a lawyer, and tortured. The Syrians released him after ten months, without charges. He later received an apology and $10 million from the Canadian Government. The U.S. never acknowledged any wrongdoing in his case.


By William Fisher

A British court ruled yesterday that U.S. authorities asked a Guantanamo Bay detainee to drop allegations of torture in exchange for his freedom.

A ruling by two British High Court judges said the U.S. offered Binyam Mohamed a plea bargain deal in October. Mohamed refused the deal and the U.S. dropped all charges against him later last year.

Mohamed is an Ethiopian who moved to Britain when he was a teenager. He was arrested in Pakistan in 2002 and claims he was tortured both there and in Morocco. He was transferred to Guantanamo in 2004. He was finally returned to the U.K. in late February 2009, with no charges against him.

He is suing the British Government, charging that its intelligence services were complicit with the U.S. Central Intelligence Agency in facilitating his “extraordinary rendition” and torture while in custody.

The court said the plea bargain also asked Mohamed to plead guilty to two charges and agree not to speak publicly about his ordeal.

Zachary Katznelson, Legal Director of Reprieve, a legal action charity that has represented Mohamed for four years, told us, “In Binyam Mohamed’s case, the United States clearly prized secrecy over justice. It simply did not want the truth to get out.”

He added, “That has nothing to do with national security, but everything to do with the potential for national embarrassment. If we are to truly combat terrorism, we must use the tools of democracy – openness, fairness, justice – not abandon them, then desperately try to cover up our wrongs.”

In their ruling yesterday, the British judges revealed how the U.S. government tried to get Mohamed to sign an agreement stating that he had never been tortured, to promise not to speak with the media upon his release, and to plead guilty as a condition of his release back to Britain – all without his lawyers being allowed access to evidence that would help prove his innocence.

This annex of the British ruling was previously kept confidential by the British court because of the American military commission rules, which forbade making the materials public.

The British judges said the U.S. military also wanted Mohamed to assign any rights he might have to compensation to the U.S. government. They insisted that he accept a minimum sentence of ten years – despite the fact that the U.S. military had not told him what the charges were to be.

Mohamed was also required to waive any claim he might have to seeing any exculpatory evidence identified by the British judges. “If Mr. Mohamed was to ask to see this exculpatory evidence, the ‘deal’ would be off,” a Reprieve spokesperson said.

“The facts revealed reflect the way the US government has consistently tried to cover up the truth of Binyam Mohamed’s torture,” said Reprieve Director Clive Stafford Smith. “He was being told he would never leave Guantánamo Bay unless he promised never to discuss his torture, and never sue either the Americans or the British to force disclosure of his mistreatment.”

During his time in Guantánamo Bay, the U.S. military tried to prosecute him through the military commissions, which were characterized by the British former Lord Justice Steyn as “kangaroo courts.”

Reprieve said, “This proposal discussed by the British courts was made by the U.S. military at a time when he was not charged with anything. It also came after a long history of efforts to make Mohamed plead guilty to crimes he insisted that he did not commit. He had always been willing to enter a plea of “no contest,” -- which essentially means you deny your guilt, but enter a plea because you recognize it is the only way to resolve the case -- on the condition that he would be sentenced to time served, and immediately released back to Britain.”

By early 2009, Reprieve charges, “The U.S. military was still trying to get Mohamed to plead guilty to something – anything – in order to save face. The final ‘offer’ was that this man, originally alleged to be a most dangerous terrorist, should plead guilty and receive a sentence of only ten days in prison, less than one might expect for many driving offences. Mohamed rejected this offer, as he continued to insist that he was not guilty.”

"Offering a man who is protesting his innocence freedom on the condition that he pleads guilty to something and serves a 10-day sentence is face-saving on an horrific scale,” said Reprieve Executive Director Clare Algar.

The case has also caused a furor in the U.K. and a problem for the U.S. State Department. Britain’s High Court refused to release seven paragraphs that the court had redacted in an earlier opinion, saying that the redacted material lent credence to the torture allegations by Mohamed. The court said it reached its decision because of what it called a threat from the U.S. to reconsider sharing intelligence with the U.K.

But, in a highly unusual criticism, the High Court expressed dismay that a democracy “governed by the rule of law” would seek to suppress evidence
“relevant to allegations of torture and cruel, inhuman or degrading treatment,
politically embarrassing though it might be.”

The court said the Bush administration had made the threat in a letter to the
Foreign Office last September. It called on the Obama administration to reverse that position. The British Foreign Secretary, David Miliband, denied that there was any threat from the U.S.

After Mohamed was captured, then-Attorney General John Ashcroft said that he had been complicit with Jose Padilla in a plan to detonate a “dirty bomb” in the United States. Padilla was never charged with this plot, but was convicted on other terrorism-related charges by a federal court in 2007. Last year, the Justice Department said it was dropping the dirty-bomb charges against Mohamed, and last October all charges against him were dropped.

Mohamed is currently appealing a separate U.S. case, on behalf of himself and four other terror suspects. In that case, government lawyers from the Obama Administration sought a decision not to reinstate a case that was thrown out by a lower court last year because government lawyers argued successfully that allowing the case to go forward would jeopardize U.S. national security.

In opposing reinstatement of the case, Obama’s lawyers used the same “state secrets” privilege used by Bush lawyers in the original case. The appeals court has not yet ruled in the case, which charges that a subsidiary of the Boeing Company, Jeppesen Dataplan, knowingly provided aircraft and logistical services to facilitate the Central Intelligence Agency’s rendition of Mohamed to overseas prisons.