Saturday, September 05, 2009

Appeals Court Rebuffs Ashcroft

By William Fisher

In what is being hailed as “an unprecedented ruling,” a federal appeals court has concluded that the Bush Administration’s first attorney general, John Ashcroft, can be held personally responsible for the wrongful detention of an innocent American.

In the panic that followed the terrorist attacks of September 11, 2001, the Department of Justice rounded up several thousand “Middle Eastern-looking” men and women and detained them, frequently in harsh prison-like facilities, without charges, access to their families, or attorneys.

These round-ups continued well after 9/11, as the government continued to take exceptional measures to locate and arrest people they thought posed a threat to U.S. national security. Many of those detained were U.S. citizens; others were immigrants, whose only crime might have been overstaying a visa. Among middle-Eastern-looking men were Sikhs and others from South Asia.

Many others were arrested as “material witnesses” as Attorney General Ashcroft transformed the law into a ‘preventive’ detention statute, allowing the government to arrest and detain individuals for whom the government lacked probable cause to charge with criminal violations.

He said at the time, “These measures form one part of the department’s strategy to prevent terrorist attacks by taking suspected terrorists off the street . . . Aggressive detention of law-breakers and material witnesses is vital to preventing, disrupting or delaying new attacks.”

Caught up in this environment of fear was Abdullah Al-Kidd, a U.S.-born African-American citizen who had converted to Islam. Al-Kidd was on his way to Saudi Arabia to study on a Saudi scholarship when he was detained and arrested in Washington's Dulles Airport on March 16, 2003. He was held as a “material witness in the trial of Sami Omar Al-Hussayen.”

For 15 days he was treated as if he were terrorism suspect rather than a material witness. He was eventually released under onerous conditions that included confining his travel to four states, surrendering his passport and reporting to probation officers.

Al-Kidd was held for more than 13 months under these conditions without ever being charged with any crime or asked to testify.

Federal authorities said al-Kidd had to be detained to provide information germane to the prosecution of fellow University of Idaho student Sami Omar Al-Hussayen on terrorism charges. But al-Kidd was never called to testify at Al-Hussayen's trial, leading al-Kidd to charge that federal authorities were more interested in investigating him than using him to build their legal case.

At the time of his arrest, al-Kidd had already shown that he was not a flight risk and would cooperate as a witness. He had voluntarily met with the FBI repeatedly, never missing a scheduled appointment. For six months prior to his arrest, al-Kidd had not been contacted by the FBI, and he had never been told that he was prohibited from traveling abroad to pursue his studies.

A jury later acquitted Al-Hussayen of four charges and deadlocked on eight others. He was deported to Saudi Arabia.

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of al-Kidd, charging that the federal material witness law cannot be used to preventively detain or investigate suspects and that then Attorney General Ashcroft can be held personally responsible for al-Kidd's wrongful detention.

The federal court’s ruling in this case places responsibility squarely on government officials who, after 9/11, championed polices clearly outside the boundaries of the law, the ACLU asserts.

"The court made it very clear today that former Attorney General Ashcroft's use of the federal material witness law circumvented the Constitution," said ACLU Immigrants' Rights Project Deputy Director Lee Gelernt, who argued the appeal. "Regardless of your rank or title, you can't escape liability if you personally created and oversaw a policy that deliberately violates the law."

Prior to 9/11, the federal material witness law had been used sparingly – especially with U.S. citizens – to ensure that witnesses would be available to testify in criminal cases. Arrests, under the statute, took place in rare cases to secure testimony where there was hard evidence that an individual had material information but would not testify voluntarily.

The Al-Kidd ruling came after a U.S. district court in 2006 found that the material witness law may only be used when an individual is genuinely sought as a witness and where there is a real risk of flight. The district court also ruled that the law does not allow an end-run around the constitutional requirements for arresting someone suspected of a crime. Former Attorney General John Ashcroft appealed the ruling and asked for complete immunity from liability.

Writing for the majority in the Appellate Court’s decision, Judge Milan D. Smith, Jr., said, "Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a ‘material witness' under the circumstances, and for the immediate purpose alleged, in al-Kidd's complaint.”

He continued: “Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history."

Judge Smith also noted that, “By the time al-Kidd’s confinement and supervision ended, 15 months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.”

He wrote: “Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, to investigate or preemptively detain him.”

The judge said, “Ashcroft asserts that he is entitled to absolute and qualified immunity” against al-Kidd’s claims. But in his ruling, the judge wrote, “We hold that on the facts pled Ashcroft is not protected by either form of immunity.…”

Judge Smith was joined by Judge David Thompson in ruling that Ashcroft does not enjoy prosecutorial immunity in the case. Judge Carlos Bea said qualified immunity should shield Ashcroft from the lawsuit. Judge Smith and Judge Bea were appointed to the court by President George W. Bush. Judge Thompson was nominated by President Ronald Reagan.

Titillating the News Business

By William Fisher

Thanks to America Online – the nation’s “news channel” -- we’ve just hit a new low in the dumbing down of news.

Not a bottom, mind you, just a new low. Because the lowest of the low is probably some years off.

In its widely publicized push for more “quality content,” AOL recently presented one of its intensely probing investigative reports. It was titled: The Top 19 Hottest Newscasters in America. It was created by

The introduction to this journalistic gem said:

“As media professionals, we understand how tough it can be to be, even though on our best days we're merely lobbing spit balls. So we have some sympathy for the lady journalists of the world who have to do everything we do plus look hot doing it. Not that that'll stop us from lobbing gobs at them as well.”

Warming to their task, these intrepid defenders of the public interest asked us to “Delve with us, if you will, into the world of hot journalists. The roundup includes everything from short skirts on pogo sticks and wet T-shirt contests to creepy, titillating YouTube compilations of crossing and uncrossing legs.”

Digging beneath the skinny, as it were, the authors presented their list with appropriately titillating (no pun intended), newsy, thoughtful and informative comments. Here are some of them:

Catherine Bosley (No.19): Catherine Bosley was an anchor in Youngstown, Ohio, until she went on vacation to Key West, got drunk and stripped completely naked in a wet T-shirt contest. Of course, with the Internet being what it is, a video made it online and went viral. Bosley resigned her post and now works for Action News 19 in Cleveland. Interesting tidbit: Sharon Reed (who got naked for a news segment) interviewed Bosley about her "scandal" in a piece titled "Naked News." We were shocked and depressed when we couldn't find a video of this interview on YouTube.

Robin Meade (No. 16): CNN’s Robin Meade may be the the anchor of the eponymous show "Morning Express With Robin Meade" and she may have covered the wars in Afghanistan and Iraq for CNN, but what really impressed us is that she too works in a miniskirt and, as this YouTuber noticed, has great legs.

Jane Skinner (No. 13): (Fox News) Skinner may be the co-anchor of "Happening Now" and producer of the Skinnerville segment on "Studio B with Shepard Smith," yet the most famous entry on her résumé is a gaffe that launched a thousand YouTube videos. Two words: "Top cock."

Jillian Barberie (No 11): (FOX) Playboy proved long ago that if a woman is hot enough, she can pose in swimsuits and lingerie regardless of her profession. Thank you, Jillian Barberie, for helping to bring this trend to broadcast journalism. Your contributions have not gone overlooked on the Internet.

Sharon Reed (No.7): (Action News 19) Sharon Reed is a local news journalist in Cleveland who caused a stir in 2004 by reporting nude on Spencer Tunick's "Naked States" project. Her report, called "Body of Art," was heavily promoted and was one of the most-watched news stories of the year. We at Asylum admire her stunt-journalism pluck, among other things.

Lauren Sanchez (No.5): (Formerly KTVK-TV, Extra, and Fox Sports Net) Emmy-nominated Lauren Sanchez is known for hosting "So You Think You Can Dance," as well as numerous sports and entertainment shows. Perhaps she's not a "news journalist," but lay off, you scoop snobs, and consider the more important story: Would you rather date Sanchez or an award-winner from The New York Times?

Barbara Bermudo (No.1): (Univision) If you needed a reason to learn Spanish, now you have one. This Puerto Rican beauty makes us wish that all of the news channels would take a page from Univision's playbook and hire ferociously hot Latinas.

And under a video of Julie Banderas (No. 14), appeared this caption:

Julie Banderas -- Lady newscasters must hate "tribute videos" such as this cleverly titled, porno-music filled, slow-mo video, "julie banderas legs."

You can take it to the bank: Legs are NEWS!

And what are the other stories these anchors are covering these days? The war in Afghanistan, the Iraq disaster, Dick Cheney, our economic meltdown, health care, cap and trade, immigrant detention, torture, wild fires, not to mention the usual menu of car chases, murders, rapes, kidnappings, kittens up a tree – well, you get the picture.

But, viola, thanks to the skill of these dogged TV newsdiggers, all these yarns somehow get magically transformed into “good news” stories we can’t wait to watch.

This is the future of television news.

And, since most of the American public gets its news via television these days, it’s our future as well. Which explains why America has such a well-informed citizenry.

An Ecuadoran economist named Sebastian Hurtado Perez has apparently been doing a lot of thinking about role of “hot” women in our society. He wrote a funny piece in this morning’s Washington Post entitled, “Workers of the World, Exfoliate!”

Perez’s proposition: “Much attention has been paid of late to whether the United States is trending toward socialism. Alleviating socioeconomic differences through the federal government's active intervention in the economy is a common aim of all socialist movements. Nonetheless, most champions of the less privileged have never made a practical effort to mitigate the social differences caused by the inequitable distribution of what, nowadays, is a factor with an enormous socioeconomic impact: beauty.”

He goes on to write, “It is unacceptable for physical attractiveness to be the birthright of a very small proportion of the population.” For this reason, he suggests that “the civilized nations of the world consider incorporating a few policies based on the most traditional economic principles of socialism.”

One of those principles: “Political constitutions should define beauty as a ‘strategic natural resource’. They should state that citizens may not be discriminated against on the basis of their physical attractiveness and that the protection of ugly people and their integration into society should be an unalienable duty of governments.”

“To that end,” he concludes, “governments should nationalize beauty industries in order to ensure the supply of low-priced makeup, anti-wrinkle creams, aesthetic plastic surgery, etc. This would help to improve people's appearance, thus reducing the differences between the beauty icons and the common people. This would have a significant cost, which, according to a clear principle of solidarity, should be financed through a tax on the beautiful people in each country.”

If the Obama Administration would only take up Dr. Perez’s challenge, it wouldn’t be too long before you could get your news from, say, Elizabeth Warren!

Hey, as reported by Sam Stein on HuffPo, it worked for Jon Stewart, who was instilled with confidence and left feeling at ease after the Harvard prof did a guest turn on The Daily Show.

The TARP overseer would certainly not qualify as one of AOL’s hottest newscasters. But the question is whether you watch TV news for information or cleavage!