Monday, April 13, 2009


By William Fisher

U.S. President Barack Obama has ordered the Navy’s prison at Guantanamo Bay closed by next January, suspended Military Commission trials, and assigned Attorney General Eric Holder to conduct case-by-case reviews of the 241 prisoners still detained there to determine which ones should be prosecuted, released or sent to other countries. Yet the Obama Defense Department is still trying to recruit lawyers to defend its detentions.

In a ''help wanted'' ad circulated through the American Bar Association, the Pentagon (DOD) is offering $39,407-- $130,211 a year for lawyers who will help respond to habeas corpus petitions filed by detainees in federal courts.

Habeas Corpus petitions challenge the government’s right to imprison them. That right was granted to the detainees in a landmark Supreme Court decision in June 2008.

The job posting said, ''Attorneys with any litigation experience are encouraged to apply” for the three-year positions. It said the positions are “located in the Washington, D.C. area, with the potential for some travel to Guantánamo Bay.'' The ad says the DOD Office of the General Counsel is looking for applicants who can “start immediately.”

An increasing number of individual detainees' cases are now coming before different federal judges, who are weighing whether the Pentagon has enough evidence to hold them as war prisoners, even after President Obama declared that they would no longer be categorized as “enemy combatants.”

The original lawsuits challenged the legal basis for their detention under former President George W. Bush – a right they were afforded by a decision by the U.S. Supreme Court. Now Obama’s name has been substituted for Bush’s.

Pentagon lawyers working on these habeas cases have been mandated to find evidence to justify the detentions of the Guantánamo captives. But lawyers defending the detainees say that the additional Defense Department lawyers have failed to make any meaningful effort to locate or produce exculpatory evidence.

Most of the Guantanamo detainees have been held for up to seven years without charge. Nineteen of them have won their cases but are still being held because the U.S. has refused to accept them onto American soil, and has been unable to find other countries to accept them.

A Pentagon spokesman told The Miami Herald that there were no job openings. The newspaper reported that the Defense Department has been advertising the job offers since last summer, before Obama took office, as part of an active effort to amass résumés “to address any future hiring requirements, including to replace any departing attorneys.''

Former acting Pentagon General Counsel Daniel Dell'Orto notified the Court last August that the DOD was hiring 40 attorneys to help on the cases. At that time, it had approximately 30 lawyers working “exclusively on habeas corpus litigation.''

Over the years, the Justice and Defense departments have created entire units to defend the policy -- as well as the new special war court championed by the Bush administration to try suspected terrorists by military commissions.

Meanwhile, the war court has increased its numbers of lawyers, even as the Bush policy is under review by Obama Administration. There are now 63 military commissions prosecutors, an increase from 61 in December. These government lawyers would prosecute detainees should Military Commission trials resume following the Obama review.

Government lawyers have failed in their effort to stop the cases wholesale on grounds that they were hindering the war effort by jamming the docket at the U.S. District Court in Washington, D.C.

In another Guantanamo development, lawyers for Binyam Mohamed face the prospect of six-month jail sentences in America after writing a letter to President Obama detailing their client's allegations of torture by U.S. agents.

That prospect has been triggered by a complaint made by a unit known as the Privilege Review Team (PRT), which is composed of U.S. DOD officials who monitor and censor communications between Guantánamo prisoners and their lawyers. As a result of that complaint, Clive Stafford Smith, director of legal charity Reprieve, and his colleague Ahmed Ghappour, have been summoned to appear before a Washington court on May 11.

The PRT complaint accused Stafford Smith and Ghappour of "unprofessional conduct" and said that by releasing the redacted memo, Reprieve breached the rules that govern Guantánamo lawyers.

A number of lawyers representing Guantanamo detainees have previously accused the PRT of using its powers to suppress evidence of the abuse and mistreatment of detainees.

The background to this event is arguably reminiscent of something from a Kafka novel. Stafford Smith had written to the president after judges in the U.K. ruled against the release of U.S. evidence detailing Mohamed's alleged torture at Guantánamo. The letter asked the president to reconsider the U.S. position and urged him to release the evidence into the public domain. He attached a memo summarizing the case because his U.S. security clearance gives him access to the classified material. In order to comply with classification guidelines, the memo did not identify individual officers by name or specify locations of the abuse.

He and Ghappour submitted the memo to the Privilege Review Team for clearance. However, the PRT redacted (edited) the memo down to just the title, leaving the president unable to read it. Stafford Smith included the redacted copy of the memo in his letter to illustrate the extent to which it had been censored. He described it as a "bizarre reality".

He wrote, "You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by U.S. personnel. This decision is being made by the very people who you command."

Stafford Smith described the PRT’s actions as intimidation, saying the complaint "doesn't even specify the rule supposedly breached".

ICE-Police Partnerships Lead to Racial Profiling

By William Fisher

Alleged abuses of a little-known section of U.S. immigration law is triggering charges of racial and ethnic profiling, diverting local law enforcement from their crime-fighting mission, and failing to determine how many of the thousands of people deported under the program were the violent felons the program was designed to pursue.

Known as 287(g), the 1996 regulation allows the Immigration and Customs Enforcement (ICE) agency, part of the massive Department of Homeland Security (DHS), to deputize local police to enforce federal immigration law.

Critics are charging that some law enforcement agencies have used the program to deport immigrants who have committed minor crimes, such as carrying an open container of alcohol. They say that at least four police agencies have referred minor traffic offenders for deportation.

ICE has described the 287(g) program as a public safety measure to target “criminal illegal aliens,” but, according to a recent report by Justice Strategies, a New York-based immigration reform advocacy group. “its largest impact has been on law-abiding immigrant communities. Rather than focusing on serious crime, police resources are spent targeting day-laborers, corn-vendors and people with broken tail-lights.”

Homeland Security Secretary Janet Napolitano has already ordered a review of the program.

The program has been promoted by immigration officials as an important tool in deporting serious criminals. It has also enjoyed the strong support of some local law enforcement agencies, including in Maricopa County, Arizona, where the sheriff, Joe Arpaio operates the largest program, with 160 deputies. Arpaio is currently under investigation by the Department of Justice (DOJ) and the Inspector General of DHS for discriminatory and unconstitutional searches and seizures.

Critics of the program say sheriff’s deputies there have arrested thousands of illegal immigrants, many of whom were stopped for traffic violations, in sweeps that have led to thousands of lawsuits accusing the department of racial profiling.

The views of Michele Waslin, Ph.D., Senior Policy Analyst at the Immigration Policy Center of the American Immigration Law Foundation, are probably representative of many other immigration reform advocates.

She told us, “We all agree that our immigration system is broken, but empowering local cops to enforce federal immigration laws is not the way to go about fixing it.”

She contended that agreements between ICE and local police departments “have been costly and have led to mistakes and profiling. Police officials themselves have said that 287(g) agreements destroy the trust between the police and the community they serve and protect, making it much more difficult for them to do their jobs.”

“Do we really want our police to be checking documents and chasing millions of busboys and maids?” she asked. “ A much better solution would be for Congress to pass comprehensive immigration reform and legalize the 12 million undocumented immigrants so that the police can focus their attention on protecting their communities from dangerous threats.”

A recent report by the Government Accountability Office (GAO), the investigative arm of Congress, concluded that immigration bureau officials had not closely supervised how their agreements with the local agencies had been carried out, had inconsistently described the program’s goals, and had failed to spell out what data should be tracked, collected and reported.

The absence of clear objectives is also a concern of Brittney Nystrom, Senior Legal Advisor to the National Immigration Forum, an immigration reform advocacy organization.

She told us, “It’s impossible to know how well this program is working without clear objectives being spelled out.”

“We are also concerned about allegations of racial and ethnic profiling, and diversion of legitimate local law enforcement resources to achieve unclear and questionable goals,” she said.

The GAO report analyzed 29 of the 67 local law enforcement agencies in the program. It found that they arrested 43,000 illegal immigrants last year, including 34,000 taken into custody by the immigration bureau.

Of the 34,000, the report said, about 41 percent were put in removal
proceedings, 44 percent waived their right to a hearing and were immediately deported, and 15 percent were released for reasons including humanitarian grounds, the “minor nature of their crime” and their having been sentenced to prison. The GAO was unable to determine how many of the arrested immigrants were suspected of committing serious crimes.

Use of the program has accelerated in recent years as the immigration debate
has intensified. It has grown to 67 agencies in 23 states with more than 950
deputized officers, from five law enforcement agencies in 2005. There is reportedly a waiting list of 42 agencies.

Justice Strategies concluded that 61 percent of jurisdictions that have entered into 287(g) agreements have crime rates that are lower than the national average. Census data show that 87 percent, however, are undergoing an increase in their Latino populations higher than the national average.

Their report said, “Residing in the U.S. without proper documentation is a civil immigration violation, but it is not a crime. Yet under 287(g), people are jailed when their civil immigration status is in question.”

“The statute requires that ICE officers ‘supervise and direct’ all local police partners, but in practice this does not happen. Poor training and lack of oversight means that local authorities are not equipped to deal with the complexities associated with civil immigration law,” the report said.

The report charged that local politicians are using 287(g) as an opportunity to raise their political profiles as tough on crime and restrictionist on immigration policy.

It cited a number of U.S. cities and counties where they say serious abuses have occurred. For example:

In Butler County, Ohio, ICE extended the powerful civil immigration search, arrest and detention authorities to the sheriff after he campaigned on an anti-immigrant platform.

In Berry Hill, Tennessee, a police officer arrested an immigrant driver in her last days of pregnancy, rather than issue her a routine traffic ticket. In jail, a 287(g) deputized officer issued a civil detainment order to keep her locked up without bond. She went into labor while shackled to a jail hospital bed.

In 2008, the Morris County Sheriff’s Office (New Jersey) issued an impact review of the ICE 287(g) program. It estimated that to have the capacity to house 60 287(g) civil detainees, the county would pay $1.3 million in personnel and facility start-up costs. “ICE would not reimburse the County for any start up costs such as those mentioned.”

And in Maricopa County (Phoenix), Arizona, ICE refuses to revoke the largest 287(g) agreement, with Sheriff Arpaio, “despite charges of racial profiling and national criticism of his posse’s street sweeps of day laborers.”

“Sheriff Arpaio promotes himself as the nation’s most prominent face of the 287(g) program, calling in the media to film the spectacle of thousands of detainees confined in his Tent City jail under the blazing desert sun,” the report said.

Thirty-five thousand people from all over the U.S. recently signed a petition calling on the departments of Justice and Homeland Security to investigate Arpaio. The petition, initiated by America's Voice, a Washington-based group for immigration reform, was delivered to the agencies by powerful members of Congress, including House Judiciary Committee Chairman John Conyers (D-Min.), Immigration Subcommittee Chairwoman Zoe Lofgren (D-Calif.), and Rep. Jerrold Nadler (D-NY).