By William Fisher
The Justice Department investigation into whether the authors of the Bush-era “torture memos” were guilty of professional misconduct did not have full access to the emails used by those lawyers and by other key figures in the investigation, including former Attorney General John Ashcroft and former counsel to the Vice President David Addington.
The missing emails came to light during a hearing of the Senate Judiciary Committee TODAY (Friday). Committee chairman Patrick Leahy, a Democrat from Vermont, described the vanishing emails as “suspicious.”
He urged the sole witness before the committee, Acting Deputy Attorney General Gary G. Grindler, to investigate further to determine who deleted the emails and whether they could be recovered.
The email issue recalled the 2007 investigation into the firing of eight U.S. Attorneys during the administration of President George W. Bush, and whether the White House pressured the Justice Department to cover up the details of the firings. Administration officials insisted that millions of emails from senior Bush figures including political advisor Karl Rove were irretrievably missing. The emails were later recovered. The disclosures were important factors in the resignation of former Attorney General Alberto Gonzales.
The Justice Department’s investigation into the torture memos, conducted by the DOJ’s Office of Professional Responsibility (OPR), was highly critical of its authors but concluded that they were guilty of poor judgment but not professional misconduct meriting referral to state legal organizations for possible disbarment.
The authors of the memos were Jay Bybee, who was Deputy Assistant Attorney General, and his assistant, John Yoo. Bybee is now a federal judge and Yoo is a law professor.
Bybee and Yoo worked in the DOJ’s Office of Legal Counsel (OLC). OLC is one of the most important offices within the Department of Justice. It is to this office that the president directs questions about the legality of actions his administration plans to take or policies it intends to adopt.
Human Rights First, a legal advocacy group that has closely followed this issue, is urging members of the Senate Judiciary Committee to address questions that remain unanswered following the release of Department of Justice’s Office of Professional Responsibility (OPR) report.
HRF called the conduct of Bybee and Yoo “unethical and unprofessional.”
The organization noted that the Judiciary Committee hearing “should lay the groundwork for further investigation and address the need to empanel a non-partisan commission to conduct a comprehensive review of these policies.”
Daphne Eviatar, a Human Rights First attorney who monitored the Senate hearing, told IPS she was "disappointed" that "there was no indication that DOJ has any intention of following up on the evidence revealed in the report indicating that the Office of Legal Counsel (OLC) was pressured by the White House to create legal justifications for illegal techniques that the administration had already decided to use. And if that's true, then we're talking about a criminal conspiracy, which the department is obligated to investigate further."
She added, “I was disappointed to hear that the Justice Department's attitude towards the matter was that it's now over.”
Leahy’s call for a further investigation drew strong objections from the Committee’s ranking Republican member, Senator Jeff Sessions of Alabama and another Republican member, Senator John Cornyn of Texas. Both strongly defended the actions taken by the Bush Administration following the terrorist attacks of September 11th 2001 as being necessary to protect U.S. national security.
HRF said the OPR report “highlights the lack of independent judgment and perverse legal reasoning that shaped the ‘torture memos’ and underscores the need for an independent review of how torture and other abuse of prisoners were authorized after 9/11. It provides the clearest picture to date of a flawed process by which the Justice Department’s Office of Legal Counsel (OLC), which is supposed to render independent legal advice, was instead subverted to provide conclusions justifying detainee abuse that principals within the Bush administration wanted to hear.”
The organization said the report also highlights in detail the flawed legal analysis by the three principal authors of the legal memoranda who gave a green light to the use of torture techniques documented in the CIA Inspector General’s report made public in August.
It sharply criticized the quality of the legal work in the memoranda, concluding that “of the lawyers who wrote these memos, Yoo committed intentional professional misconduct and Bybee acted in reckless disregard of his obligation to provide thorough, objective and candid legal advice.”
“Although the Associate Deputy Attorney General declined to adopt this opinion, choosing instead to characterize the lawyers’ work as an exercise of ‘poor judgment’, the fact remains that the individuals who investigated and analyzed the evidence found that Yoo’s misconduct was ‘intentional’ and that Bybee’s was ‘reckless.’ That calls into question the good faith of both of these lawyers, and demands further investigation,” HRF charged.
Following his earlier review of the OPR report, as well as the May 2004 CIA Inspector General’s report that detailed appalling abuses committed against prisoners in the CIA’s interrogation program, Attorney General Eric Holder announced in August 2009 the appointment of a prosecutor to conduct a preliminary review into only those prisoner abuses that exceeded the bounds of what was deemed permissible in the flawed OLC “torture memos.”
“The United States, to its credit, has a strong record of criticizing arbitrary detention and detainee abuse in other countries. In order to restore its credibility and leadership on human rights, the United States must engage in a full accounting of how policies of cruelty were authorized. A thorough and public examination of the past is vital in order to guard against future authorization of abuse in the name of national security,” Massimino concluded.
Other human rights and civil liberties groups took similar positions. “Laura W. Murphy, Director of the Washington legislative office of the American Civil Liberties Union (ACLU) said, “It is critical today that senators make clear that, given the information in the OPR report and the wealth of other evidence in the public domain, the Justice Department’s criminal investigation into the torture program must be broad enough to include those who authorized and legally sanctioned these shameful acts.”
Saturday, February 27, 2010
Blackwater’s Migraines Multiply
By William Fisher
Legal headaches are growing exponentially for the security firm formerly known as Blackwater – once the darling of the military-industrial community.
In separate developments, two former employees of the company previously charged that the security firm committed "systematic fraud" under their contracts with the U.S. State Department in Iraq and Afghanistan, the Iraqi government announced it would seize heavy weapons from foreign security firms and expel ex-Blackwater contractors still in the country, and a US Senate hearing learned that Blackwater employees stole more than 500 assault rifles intended for the Afghan police force.
The accusations of fraud came from two former employees who filed a false claims lawsuit that allows the employees, acting as whistleblowers, to win a portion of any public money the government recovers as a result of the information.
The Washington Post reports that the former Blackwater (now known as Xe Services) employees, Brad and Melan Davis, accused the firm of over-billing for travel, charging for liquor and spa trips and for a having a fire pit built for Blackwater staff parties, and charging for the services of a Filipino prostitute who was kept on "staff" in Afghanistan as part of the company's "Morale Welfare Recreation. "
Brad Davis was a former Marine and served as a team leader and security guard, including in a posting in Iraq. Melan Davis, his wife, worked as a finance and payroll employee. Melan Davis has accused the company of terminating her in 2008 because she questioned billing practices. Her husband resigned shortly afterward.
Blackwater changed its name to Ze -- pronounced "zee" – early last year in an effort to shed the negative baggage acquired because of its frequent run-ins with Iraqi, Afghan, U.S. and NATO forces. Blackwater Lodge & Training Center — the subsidiary that conducts much of the company's overseas operations and domestic training — has been renamed U.S. Training Center Inc.
In a related development, the Iraqi government announced that it would seize weapons from foreign security firms and expel ex-Blackwater contractors still in the country within days, according to Interior Minister Jawad al-Bolani.
The decision was triggered by the Iraqi government’s outrage over the dismissal by a U.S. court of charges against Blackwater Worldwide guards who were accused of killing 14 Iraqi civilians in Baghdad in 2007. The guards said they shot in self-defense.
The judge said there was evidence of prosecutorial misconduct. The U.S. government is appealing the dismissal of the court case. The Iraqi government, which has prohibited Blackwater from operating in Iraq, has hired U.S. lawyers to prepare a lawsuit against the company.
For many Iraqis, the killing of the 14 civilians became emblematic of the impunity from prosecution in Iraq enjoyed by foreign security contractors after the 2003 U.S. invasion. That immunity ended last year under a U.S.-Iraqi security agreement transferring sovereignty back to Iraq.
Parliamentary elections scheduled for March 7 are also fuelling Iraqi anger at Blackwater. Minister Bolani, who is running as the head of his own coalition against a slate headed by Prime Minister Nuri al-Maliki, told Reuters news service that he had "ordered that the heavy weapons used by some of the foreign security firms be collected."
And in yet another development, it emerged at a hearing of the Senate armed services committee that Blackwater employees took more than 500 assault rifles intended for the Afghan police force and routinely carried weapons without permission.
It also emerged that to burnish its negative image to win contracting business in Afghanistan, Blackwater created what one senator called a shell company. Senators said that company, Paravant, deceived U.S. officials. It claimed Blackwater was not involved but used Blackwater's past performance to establish its credentials.
"They made representations here that are wildly false," said Senator Carl Levin, a Democrat. "Everyone knew in the field it was Blackwater trying to get rid of a negative name."
Levin warned that Afghan civilians did not distinguish between troops and contractors, and that when contractors misbehaved it turned the population against US forces and encouraged them to side with the Taliban.
The Senate hearing focused in part on a December 2008 accident in which a Blackwater employee was shot in the head during what the company described as a vehicle training exercise but Levin called horseplay.
According to committee investigators, a Blackwater trainer jumped on top of a moving vehicle while carrying a loaded AK47. The vehicle hit a bump and the rifle discharged, striking another trainer in the head. At the hearing today former Blackwater officials insisted the Americans were engaged in vehicle training. Levin accused Blackwater of covering up misconduct by describing the shooting as an accident during "routine" training.
In May two Afghan civilians were killed in a shooting involving Paravant employees. Investigators later determined that the Americans had "violated alcohol policies", were not authorized to have weapons and had violated other policies. The US department of justice said the shooting had a detrimental effect on US national security.
Former Paravant official Brian McCracken acknowledged the company's trainers were carrying weapons without authorization but said they often operated in dangerous environments among armed Afghans, without US army protection.
In the aftermath of the terrorist attacks on the U.S. in September 2001, Blackwater was awarded contracts worth billions of dollars in Iraq and Afghanistan. The company provided security for U.S. embassy personnel and important visitors in those locations. Erik Prince, Blackwater’s founder and former CEO, was a substantial contributor to the Republican Party and had close ties to senior officials in the administration of George W. Bush.
Legal headaches are growing exponentially for the security firm formerly known as Blackwater – once the darling of the military-industrial community.
In separate developments, two former employees of the company previously charged that the security firm committed "systematic fraud" under their contracts with the U.S. State Department in Iraq and Afghanistan, the Iraqi government announced it would seize heavy weapons from foreign security firms and expel ex-Blackwater contractors still in the country, and a US Senate hearing learned that Blackwater employees stole more than 500 assault rifles intended for the Afghan police force.
The accusations of fraud came from two former employees who filed a false claims lawsuit that allows the employees, acting as whistleblowers, to win a portion of any public money the government recovers as a result of the information.
The Washington Post reports that the former Blackwater (now known as Xe Services) employees, Brad and Melan Davis, accused the firm of over-billing for travel, charging for liquor and spa trips and for a having a fire pit built for Blackwater staff parties, and charging for the services of a Filipino prostitute who was kept on "staff" in Afghanistan as part of the company's "Morale Welfare Recreation. "
Brad Davis was a former Marine and served as a team leader and security guard, including in a posting in Iraq. Melan Davis, his wife, worked as a finance and payroll employee. Melan Davis has accused the company of terminating her in 2008 because she questioned billing practices. Her husband resigned shortly afterward.
Blackwater changed its name to Ze -- pronounced "zee" – early last year in an effort to shed the negative baggage acquired because of its frequent run-ins with Iraqi, Afghan, U.S. and NATO forces. Blackwater Lodge & Training Center — the subsidiary that conducts much of the company's overseas operations and domestic training — has been renamed U.S. Training Center Inc.
In a related development, the Iraqi government announced that it would seize weapons from foreign security firms and expel ex-Blackwater contractors still in the country within days, according to Interior Minister Jawad al-Bolani.
The decision was triggered by the Iraqi government’s outrage over the dismissal by a U.S. court of charges against Blackwater Worldwide guards who were accused of killing 14 Iraqi civilians in Baghdad in 2007. The guards said they shot in self-defense.
The judge said there was evidence of prosecutorial misconduct. The U.S. government is appealing the dismissal of the court case. The Iraqi government, which has prohibited Blackwater from operating in Iraq, has hired U.S. lawyers to prepare a lawsuit against the company.
For many Iraqis, the killing of the 14 civilians became emblematic of the impunity from prosecution in Iraq enjoyed by foreign security contractors after the 2003 U.S. invasion. That immunity ended last year under a U.S.-Iraqi security agreement transferring sovereignty back to Iraq.
Parliamentary elections scheduled for March 7 are also fuelling Iraqi anger at Blackwater. Minister Bolani, who is running as the head of his own coalition against a slate headed by Prime Minister Nuri al-Maliki, told Reuters news service that he had "ordered that the heavy weapons used by some of the foreign security firms be collected."
And in yet another development, it emerged at a hearing of the Senate armed services committee that Blackwater employees took more than 500 assault rifles intended for the Afghan police force and routinely carried weapons without permission.
It also emerged that to burnish its negative image to win contracting business in Afghanistan, Blackwater created what one senator called a shell company. Senators said that company, Paravant, deceived U.S. officials. It claimed Blackwater was not involved but used Blackwater's past performance to establish its credentials.
"They made representations here that are wildly false," said Senator Carl Levin, a Democrat. "Everyone knew in the field it was Blackwater trying to get rid of a negative name."
Levin warned that Afghan civilians did not distinguish between troops and contractors, and that when contractors misbehaved it turned the population against US forces and encouraged them to side with the Taliban.
The Senate hearing focused in part on a December 2008 accident in which a Blackwater employee was shot in the head during what the company described as a vehicle training exercise but Levin called horseplay.
According to committee investigators, a Blackwater trainer jumped on top of a moving vehicle while carrying a loaded AK47. The vehicle hit a bump and the rifle discharged, striking another trainer in the head. At the hearing today former Blackwater officials insisted the Americans were engaged in vehicle training. Levin accused Blackwater of covering up misconduct by describing the shooting as an accident during "routine" training.
In May two Afghan civilians were killed in a shooting involving Paravant employees. Investigators later determined that the Americans had "violated alcohol policies", were not authorized to have weapons and had violated other policies. The US department of justice said the shooting had a detrimental effect on US national security.
Former Paravant official Brian McCracken acknowledged the company's trainers were carrying weapons without authorization but said they often operated in dangerous environments among armed Afghans, without US army protection.
In the aftermath of the terrorist attacks on the U.S. in September 2001, Blackwater was awarded contracts worth billions of dollars in Iraq and Afghanistan. The company provided security for U.S. embassy personnel and important visitors in those locations. Erik Prince, Blackwater’s founder and former CEO, was a substantial contributor to the Republican Party and had close ties to senior officials in the administration of George W. Bush.
Habeas Challenges for Bagram Prisoners
By William Fisher
Four men who have been imprisoned for over a year – some for almost two years – are going to U.S. federal court to challenge their detention at the notorious Bagram Air Base in Afghanistan.
The men, who their lawyers say have never engaged in hostilities against the U.S. and are not members of groups that have engaged in hostilities against the U.S., have never been told why they are being detained, permitted to speak with a lawyer or given a meaningful opportunity to challenge their detention before a court or impartial administrative board.
The habeas corpus petitions were filed by the American Civil Liberties Union (ACLU) in the U.S. District Court for the District of Columbia. The petitions ask that the four men to be given access to lawyers and be allowed to challenge the legality of their detention in court.
Jonathan Hafetz, an attorney with the American Civil Liberties Union (ACLU), told IPS, “These habeas petitions seek the basic right for an individual imprisoned indefinitely by the executive to challenge his detention in a court of law. For far too long, the U.S. has been seizing people in Afghanistan, including from their homes, and jailing them for years, without charge or a fair hearing. This serves neither out values nor our security."
He added, "A court must have a chance to decide whether it's lawful to continue imprisoning these men without charge. The U.S. practice of indefinitely detaining hundreds of people at Bagram without access to lawyers, judicial review or a fair process is a stain on our reputation in the world."
One of the petitions filed today is on behalf of Afghan brothers Sibghatullah Jalatzai, who was a translator for the U.S. military for four years before his detention nearly 20 months ago, and Samiullah Jalatzai, who was arrested without explanation at his workplace nearly 23 months ago. The second petition is on behalf of Afghan government employee Haji Abdul Wahid and his nephew Zia-ur-Rahman, who were taken from their homes by the U.S. military during a massive neighborhood sweep more than one year ago.
The petitions charge that the military does not have the authority to detain these men and that the lack of access to a court or fair process to challenge their detention violates the U.S. Constitution and international law. Attorneys on the case include ACLU lawyers and Tina Foster of the International Justice Network, which coordinates Bagram habeas litigation.
The United States is the only nation among the NATO countries participating in the conflict in Afghanistan that subjects individuals it captures to indefinite military detention. Other NATO nations reportedly detain individuals for a maximum of 96 hours and then either release them or transfer them to Afghan custody.
The ACLU said, “There is growing concern that Bagram has become the new Guantánamo, except with hundreds more prisoners held indefinitely, in harsher conditions and with less due process.”
In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department recently released for the first time a list containing the names of 645 prisoners who were detained at Bagram as of September 2009, when the lawsuit was filed. Other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.
In April 2009, the ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan. The ACLU is asking the Obama administration to make public records pertaining to the number of people currently detained at Bagram, their names, citizenship, place of capture and length of detention, as well as records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."
The Defense Department (DOD) partially complied with the ACLU request last month when it turned over the names of its prisoners at Bagram.
But human rights advocates have a decidedly mixed record in their attempts to persuade the courts to grant customary due process rights to Bagram detainees. In one of the few earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them -- two Yemenis and one Tunisian –had the right to petition U.S. courts for their release.
But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan, rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the U.S. and Afghanistan. Judge Bates dismissed Wazir’s petition.
Wazir, an Afghan civilian who has been held at Bagram without charge for more than six years, was captured in Pakistan in 2002. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.
The U.S. government's Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information is publically available about the secrecy-shrouded facility or the prisoners held there.
The U.S. government has been detaining an unknown number of prisoners at the Bagram detention facility since 2002, and recent news reports indicate that the more than 600 individuals are currently detained there – some of whom have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment. The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, at least two prisoners have died there. There is public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantánamo.
The ACLU says, “Although the nation is embroiled in an intense public debate about U.S. policy pertaining to the detention and treatment of prisoners in U.S. custody, most Americans remain in the dark about the basic facts about Bagram. When prisoners are in U.S. custody and under U.S. control – no matter the location – our values and commitment to the rule of law are at stake. Now that President Obama has taken the positive step of ordering Guantánamo shut down, it is critical that we don't permit 'other Gitmos' to continue elsewhere.”
A recent investigation by journalist Anand Gopal revealed the existence of another prison on Bagram Air Base – one so secret that even the Red Cross does not have access to. It is dubbed the ‘Black Jail’ and is reportedly run by US Special Forces.
Four men who have been imprisoned for over a year – some for almost two years – are going to U.S. federal court to challenge their detention at the notorious Bagram Air Base in Afghanistan.
The men, who their lawyers say have never engaged in hostilities against the U.S. and are not members of groups that have engaged in hostilities against the U.S., have never been told why they are being detained, permitted to speak with a lawyer or given a meaningful opportunity to challenge their detention before a court or impartial administrative board.
The habeas corpus petitions were filed by the American Civil Liberties Union (ACLU) in the U.S. District Court for the District of Columbia. The petitions ask that the four men to be given access to lawyers and be allowed to challenge the legality of their detention in court.
Jonathan Hafetz, an attorney with the American Civil Liberties Union (ACLU), told IPS, “These habeas petitions seek the basic right for an individual imprisoned indefinitely by the executive to challenge his detention in a court of law. For far too long, the U.S. has been seizing people in Afghanistan, including from their homes, and jailing them for years, without charge or a fair hearing. This serves neither out values nor our security."
He added, "A court must have a chance to decide whether it's lawful to continue imprisoning these men without charge. The U.S. practice of indefinitely detaining hundreds of people at Bagram without access to lawyers, judicial review or a fair process is a stain on our reputation in the world."
One of the petitions filed today is on behalf of Afghan brothers Sibghatullah Jalatzai, who was a translator for the U.S. military for four years before his detention nearly 20 months ago, and Samiullah Jalatzai, who was arrested without explanation at his workplace nearly 23 months ago. The second petition is on behalf of Afghan government employee Haji Abdul Wahid and his nephew Zia-ur-Rahman, who were taken from their homes by the U.S. military during a massive neighborhood sweep more than one year ago.
The petitions charge that the military does not have the authority to detain these men and that the lack of access to a court or fair process to challenge their detention violates the U.S. Constitution and international law. Attorneys on the case include ACLU lawyers and Tina Foster of the International Justice Network, which coordinates Bagram habeas litigation.
The United States is the only nation among the NATO countries participating in the conflict in Afghanistan that subjects individuals it captures to indefinite military detention. Other NATO nations reportedly detain individuals for a maximum of 96 hours and then either release them or transfer them to Afghan custody.
The ACLU said, “There is growing concern that Bagram has become the new Guantánamo, except with hundreds more prisoners held indefinitely, in harsher conditions and with less due process.”
In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department recently released for the first time a list containing the names of 645 prisoners who were detained at Bagram as of September 2009, when the lawsuit was filed. Other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.
In April 2009, the ACLU filed a Freedom of Information Act (FOIA) request for records relating to the detention and treatment of prisoners held at the Bagram Airfield in Afghanistan. The ACLU is asking the Obama administration to make public records pertaining to the number of people currently detained at Bagram, their names, citizenship, place of capture and length of detention, as well as records pertaining to the process afforded those prisoners to challenge their detention and designation as "enemy combatants."
The Defense Department (DOD) partially complied with the ACLU request last month when it turned over the names of its prisoners at Bagram.
But human rights advocates have a decidedly mixed record in their attempts to persuade the courts to grant customary due process rights to Bagram detainees. In one of the few earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them -- two Yemenis and one Tunisian –had the right to petition U.S. courts for their release.
But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan, rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the U.S. and Afghanistan. Judge Bates dismissed Wazir’s petition.
Wazir, an Afghan civilian who has been held at Bagram without charge for more than six years, was captured in Pakistan in 2002. He is notable because he is one of the very few captives in Bagram who has had a writ of habeas corpus filed on his behalf.
The U.S. government's Bagram detention facility has been the focus of widespread media attention and public concern for many years, but very little information is publically available about the secrecy-shrouded facility or the prisoners held there.
The U.S. government has been detaining an unknown number of prisoners at the Bagram detention facility since 2002, and recent news reports indicate that the more than 600 individuals are currently detained there – some of whom have been held for as long as six years without access to counsel or a meaningful opportunity to challenge their imprisonment. The conditions of confinement at Bagram are reportedly primitive, with allegations of mistreatment and abuse continuing to surface; in fact, at least two prisoners have died there. There is public concern in the U.S. and around the world that Bagram has become, in effect, the new Guantánamo.
The ACLU says, “Although the nation is embroiled in an intense public debate about U.S. policy pertaining to the detention and treatment of prisoners in U.S. custody, most Americans remain in the dark about the basic facts about Bagram. When prisoners are in U.S. custody and under U.S. control – no matter the location – our values and commitment to the rule of law are at stake. Now that President Obama has taken the positive step of ordering Guantánamo shut down, it is critical that we don't permit 'other Gitmos' to continue elsewhere.”
A recent investigation by journalist Anand Gopal revealed the existence of another prison on Bagram Air Base – one so secret that even the Red Cross does not have access to. It is dubbed the ‘Black Jail’ and is reportedly run by US Special Forces.
Friday, February 26, 2010
Blackwater’s Migraines Multiply
By William Fisher
Legal headaches are growing exponentially for the security firm formerly known as Blackwater – once the darling of the military-industrial community.
In separate developments, two former employees of the company previously charged that the security firm committed "systematic fraud" under their contracts with the U.S. State Department in Iraq and Afghanistan, the Iraqi government announced it would seize heavy weapons from foreign security firms and expel ex-Blackwater contractors still in the country, and a US Senate hearing learned that Blackwater employees stole more than 500 assault rifles intended for the Afghan police force.
The accusations of fraud came from two former employees who filed a false claims lawsuit that allows the employees, acting as whistleblowers, to win a portion of any public money the government recovers as a result of the information.
The Washington Post reports that the former Blackwater (now known as Xe Services) employees, Brad and Melan Davis, accused the firm of over-billing for travel, charging for liquor and spa trips and for a having a fire pit built for Blackwater staff parties, and charging for the services of a Filipino prostitute who was kept on "staff" in Afghanistan as part of the company's "Morale Welfare Recreation. "
Brad Davis was a former Marine and served as a team leader and security guard, including in a posting in Iraq. Melan Davis, his wife, worked as a finance and payroll employee. Melan Davis has accused the company of terminating her in 2008 because she questioned billing practices. Her husband resigned shortly afterward.
Blackwater changed its name to Ze -- pronounced "zee" – early last year in an effort to shed the negative baggage acquired because of its frequent run-ins with Iraqi, Afghan, U.S. and NATO forces. Blackwater Lodge & Training Center — the subsidiary that conducts much of the company's overseas operations and domestic training — has been renamed U.S. Training Center Inc.
In a related development, the Iraqi government announced that it would seize weapons from foreign security firms and expel ex-Blackwater contractors still in the country within days, according to Interior Minister Jawad al-Bolani.
The decision was triggered by the Iraqi government’s outrage over the dismissal by a U.S. court of charges against Blackwater Worldwide guards who were accused of killing 14 Iraqi civilians in Baghdad in 2007. The guards said they shot in self-defense.
The judge said there was evidence of prosecutorial misconduct. The U.S. government is appealing the dismissal of the court case. The Iraqi government, which has prohibited Blackwater from operating in Iraq, has hired U.S. lawyers to prepare a lawsuit against the company.
For many Iraqis, the killing of the 14 civilians became emblematic of the impunity from prosecution in Iraq enjoyed by foreign security contractors after the 2003 U.S. invasion. That immunity ended last year under a U.S.-Iraqi security agreement transferring sovereignty back to Iraq.
Parliamentary elections scheduled for March 7 are also fuelling Iraqi anger at Blackwater. Minister Bolani, who is running as the head of his own coalition against a slate headed by Prime Minister Nuri al-Maliki, told Reuters news service that he had "ordered that the heavy weapons used by some of the foreign security firms be collected."
And in yet another development, it emerged at a hearing of the Senate armed services committee that Blackwater employees took more than 500 assault rifles intended for the Afghan police force and routinely carried weapons without permission.
It also emerged that to burnish its negative image to win contracting business in Afghanistan, Blackwater created what one senator called a shell company. Senators said that company, Paravant, deceived U.S. officials. It claimed Blackwater was not involved but used Blackwater's past performance to establish its credentials.
"They made representations here that are wildly false," said Senator Carl Levin, a Democrat. "Everyone knew in the field it was Blackwater trying to get rid of a negative name."
Levin warned that Afghan civilians did not distinguish between troops and contractors, and that when contractors misbehaved it turned the population against US forces and encouraged them to side with the Taliban.
The Senate hearing focused in part on a December 2008 accident in which a Blackwater employee was shot in the head during what the company described as a vehicle training exercise but Levin called horseplay.
According to committee investigators, a Blackwater trainer jumped on top of a moving vehicle while carrying a loaded AK47. The vehicle hit a bump and the rifle discharged, striking another trainer in the head. At the hearing today former Blackwater officials insisted the Americans were engaged in vehicle training. Levin accused Blackwater of covering up misconduct by describing the shooting as an accident during "routine" training.
In May two Afghan civilians were killed in a shooting involving Paravant employees. Investigators later determined that the Americans had "violated alcohol policies", were not authorized to have weapons and had violated other policies. The US department of justice said the shooting had a detrimental effect on US national security.
Former Paravant official Brian McCracken acknowledged the company's trainers were carrying weapons without authorization but said they often operated in dangerous environments among armed Afghans, without US army protection.
In the aftermath of the terrorist attacks on the U.S. in September 2001, Blackwater was awarded contracts worth billions of dollars in Iraq and Afghanistan. The company provided security for U.S. embassy personnel and important visitors in those locations. Erik Prince, Blackwater’s founder and former CEO, was a substantial contributor to the Republican Party and had close ties to senior officials in the administration of George W. Bush.
Legal headaches are growing exponentially for the security firm formerly known as Blackwater – once the darling of the military-industrial community.
In separate developments, two former employees of the company previously charged that the security firm committed "systematic fraud" under their contracts with the U.S. State Department in Iraq and Afghanistan, the Iraqi government announced it would seize heavy weapons from foreign security firms and expel ex-Blackwater contractors still in the country, and a US Senate hearing learned that Blackwater employees stole more than 500 assault rifles intended for the Afghan police force.
The accusations of fraud came from two former employees who filed a false claims lawsuit that allows the employees, acting as whistleblowers, to win a portion of any public money the government recovers as a result of the information.
The Washington Post reports that the former Blackwater (now known as Xe Services) employees, Brad and Melan Davis, accused the firm of over-billing for travel, charging for liquor and spa trips and for a having a fire pit built for Blackwater staff parties, and charging for the services of a Filipino prostitute who was kept on "staff" in Afghanistan as part of the company's "Morale Welfare Recreation. "
Brad Davis was a former Marine and served as a team leader and security guard, including in a posting in Iraq. Melan Davis, his wife, worked as a finance and payroll employee. Melan Davis has accused the company of terminating her in 2008 because she questioned billing practices. Her husband resigned shortly afterward.
Blackwater changed its name to Ze -- pronounced "zee" – early last year in an effort to shed the negative baggage acquired because of its frequent run-ins with Iraqi, Afghan, U.S. and NATO forces. Blackwater Lodge & Training Center — the subsidiary that conducts much of the company's overseas operations and domestic training — has been renamed U.S. Training Center Inc.
In a related development, the Iraqi government announced that it would seize weapons from foreign security firms and expel ex-Blackwater contractors still in the country within days, according to Interior Minister Jawad al-Bolani.
The decision was triggered by the Iraqi government’s outrage over the dismissal by a U.S. court of charges against Blackwater Worldwide guards who were accused of killing 14 Iraqi civilians in Baghdad in 2007. The guards said they shot in self-defense.
The judge said there was evidence of prosecutorial misconduct. The U.S. government is appealing the dismissal of the court case. The Iraqi government, which has prohibited Blackwater from operating in Iraq, has hired U.S. lawyers to prepare a lawsuit against the company.
For many Iraqis, the killing of the 14 civilians became emblematic of the impunity from prosecution in Iraq enjoyed by foreign security contractors after the 2003 U.S. invasion. That immunity ended last year under a U.S.-Iraqi security agreement transferring sovereignty back to Iraq.
Parliamentary elections scheduled for March 7 are also fuelling Iraqi anger at Blackwater. Minister Bolani, who is running as the head of his own coalition against a slate headed by Prime Minister Nuri al-Maliki, told Reuters news service that he had "ordered that the heavy weapons used by some of the foreign security firms be collected."
And in yet another development, it emerged at a hearing of the Senate armed services committee that Blackwater employees took more than 500 assault rifles intended for the Afghan police force and routinely carried weapons without permission.
It also emerged that to burnish its negative image to win contracting business in Afghanistan, Blackwater created what one senator called a shell company. Senators said that company, Paravant, deceived U.S. officials. It claimed Blackwater was not involved but used Blackwater's past performance to establish its credentials.
"They made representations here that are wildly false," said Senator Carl Levin, a Democrat. "Everyone knew in the field it was Blackwater trying to get rid of a negative name."
Levin warned that Afghan civilians did not distinguish between troops and contractors, and that when contractors misbehaved it turned the population against US forces and encouraged them to side with the Taliban.
The Senate hearing focused in part on a December 2008 accident in which a Blackwater employee was shot in the head during what the company described as a vehicle training exercise but Levin called horseplay.
According to committee investigators, a Blackwater trainer jumped on top of a moving vehicle while carrying a loaded AK47. The vehicle hit a bump and the rifle discharged, striking another trainer in the head. At the hearing today former Blackwater officials insisted the Americans were engaged in vehicle training. Levin accused Blackwater of covering up misconduct by describing the shooting as an accident during "routine" training.
In May two Afghan civilians were killed in a shooting involving Paravant employees. Investigators later determined that the Americans had "violated alcohol policies", were not authorized to have weapons and had violated other policies. The US department of justice said the shooting had a detrimental effect on US national security.
Former Paravant official Brian McCracken acknowledged the company's trainers were carrying weapons without authorization but said they often operated in dangerous environments among armed Afghans, without US army protection.
In the aftermath of the terrorist attacks on the U.S. in September 2001, Blackwater was awarded contracts worth billions of dollars in Iraq and Afghanistan. The company provided security for U.S. embassy personnel and important visitors in those locations. Erik Prince, Blackwater’s founder and former CEO, was a substantial contributor to the Republican Party and had close ties to senior officials in the administration of George W. Bush.
Missing Emails? Sound Familiar?
By William Fisher
The Justice Department investigation into whether the authors of the Bush-era “torture memos” were guilty of professional misconduct did not have full access to the emails used by those lawyers and by other key figures in the investigation, including former Attorney General John Ashcroft and former counsel to the Vice President David Addington.
The missing emails came to light during a hearing of the Senate Judiciary Committee TODAY (Friday). Committee chairman Patrick Leahy, a Democrat from Vermont, described the vanishing emails as “suspicious.”
He urged the sole witness before the committee, Acting Deputy Attorney General Gary G. Grindler, to investigate further to determine who deleted the emails and whether they could be recovered.
The email issue recalled the 2007 investigation into the firing of eight U.S. Attorneys during the administration of President George W. Bush, and whether the White House pressured the Justice Department to cover up the details of the firings. Administration officials insisted that millions of emails from senior Bush figures including political advisor Karl Rove were irretrievably missing. The emails were later recovered. The disclosures were important factors in the resignation of former Attorney General Alberto Gonzales.
The Justice Department’s investigation into the torture memos, conducted by the DOJ’s Office of Professional Responsibility (OPR), was highly critical of its authors but concluded that they were guilty of poor judgment but not professional misconduct meriting referral to state legal organizations for possible disbarment.
The authors of the memos were Jay Bybee, who was Deputy Assistant Attorney General, and his assistant, John Yoo. Both worked in the Office of Professional Responsibility. Bybee is now a federal judge and Yoo is a law professor.
OPR is one of the most important offices within the Department of Justice. It is to this office that the president directs questions about the legality of actions his administration plans to take or policies it intends to adopt.
Human Rights First, a legal advocacy group that has closely followed this issue, is urging members of the Senate Judiciary Committee to address questions that remain unanswered following the release of Department of Justice’s Office of Professional Responsibility (OPR) report.
HRF called the conduct of Bybee and Yoo “unethical and unprofessional.”
The organization noted that the Judiciary Committee hearing “should lay the groundwork for further investigation and address the need to empanel a non-partisan commission to conduct a comprehensive review of these policies.”
Daphne Eviatar, a Human Rights First attorney who monitored the Senate hearing, told IPS she was "disappointed" that "there was no indication that DOJ has any intention of following up on the evidence revealed in the report indicating that the Office of Legal Counsel (OLC) was pressured by the White House to create legal justifications for illegal techniques that the administration had already decided to use. And if that's true, then we're talking about a criminal conspiracy, which the department is obligated to investigate further."
She added, “I was disappointed to hear that the Justice Department's attitude towards the matter was that it's now over.”
Leahy’s call for a further investigation drew strong objections from the Committee’s ranking Republican member, Senator Jeff Sessions of Alabama and another Republican member, Senator John Cornyn of Texas. Both strongly defended the actions taken by the Bush Administration following the terrorist attacks of September 11th 2001 as being necessary to protect U.S. national security.
HRF said the OPR report “highlights the lack of independent judgment and perverse legal reasoning that shaped the ‘torture memos’ and underscores the need for an independent review of how torture and other abuse of prisoners were authorized after 9/11. It provides the clearest picture to date of a flawed process by which the Justice Department’s Office of Legal Counsel (OLC), which is supposed to render independent legal advice, was instead subverted to provide conclusions justifying detainee abuse that principals within the Bush administration wanted to hear.”
The organization said the report also highlights in detail the flawed legal analysis by the three principal authors of the legal memoranda who gave a green light to the use of torture techniques documented in the CIA Inspector General’s report made public in August.
It sharply criticized the quality of the legal work in the memoranda, concluding that “of the lawyers who wrote these memos, Yoo committed intentional professional misconduct and Bybee acted in reckless disregard of his obligation to provide thorough, objective and candid legal advice.”
“Although the Associate Deputy Attorney General declined to adopt this opinion, choosing instead to characterize the lawyers’ work as an exercise of ‘poor judgment’, the fact remains that the individuals who investigated and analyzed the evidence found that Yoo’s misconduct was ‘intentional’ and that Bybee’s was ‘reckless.’ That calls into question the good faith of both of these lawyers, and demands further investigation,” HRF charged.
Following his earlier review of the OPR report, as well as the May 2004 CIA Inspector General’s report that detailed appalling abuses committed against prisoners in the CIA’s interrogation program, Attorney General Eric Holder announced in August 2009 the appointment of a prosecutor to conduct a preliminary review into only those prisoner abuses that exceeded the bounds of what was deemed permissible in the flawed OLC “torture memos.”
“The United States, to its credit, has a strong record of criticizing arbitrary detention and detainee abuse in other countries. In order to restore its credibility and leadership on human rights, the United States must engage in a full accounting of how policies of cruelty were authorized. A thorough and public examination of the past is vital in order to guard against future authorization of abuse in the name of national security,” Massimino concluded.
Other human rights and civil liberties groups took similar positions. “Laura W. Murphy, Director of the Washington legislative office of the American Civil Liberties Union (ACLU) said, “It is critical today that senators make clear that, given the information in the OPR report and the wealth of other evidence in the public domain, the Justice Department’s criminal investigation into the torture program must be broad enough to include those who authorized and legally sanctioned these shameful acts.”
The Justice Department investigation into whether the authors of the Bush-era “torture memos” were guilty of professional misconduct did not have full access to the emails used by those lawyers and by other key figures in the investigation, including former Attorney General John Ashcroft and former counsel to the Vice President David Addington.
The missing emails came to light during a hearing of the Senate Judiciary Committee TODAY (Friday). Committee chairman Patrick Leahy, a Democrat from Vermont, described the vanishing emails as “suspicious.”
He urged the sole witness before the committee, Acting Deputy Attorney General Gary G. Grindler, to investigate further to determine who deleted the emails and whether they could be recovered.
The email issue recalled the 2007 investigation into the firing of eight U.S. Attorneys during the administration of President George W. Bush, and whether the White House pressured the Justice Department to cover up the details of the firings. Administration officials insisted that millions of emails from senior Bush figures including political advisor Karl Rove were irretrievably missing. The emails were later recovered. The disclosures were important factors in the resignation of former Attorney General Alberto Gonzales.
The Justice Department’s investigation into the torture memos, conducted by the DOJ’s Office of Professional Responsibility (OPR), was highly critical of its authors but concluded that they were guilty of poor judgment but not professional misconduct meriting referral to state legal organizations for possible disbarment.
The authors of the memos were Jay Bybee, who was Deputy Assistant Attorney General, and his assistant, John Yoo. Both worked in the Office of Professional Responsibility. Bybee is now a federal judge and Yoo is a law professor.
OPR is one of the most important offices within the Department of Justice. It is to this office that the president directs questions about the legality of actions his administration plans to take or policies it intends to adopt.
Human Rights First, a legal advocacy group that has closely followed this issue, is urging members of the Senate Judiciary Committee to address questions that remain unanswered following the release of Department of Justice’s Office of Professional Responsibility (OPR) report.
HRF called the conduct of Bybee and Yoo “unethical and unprofessional.”
The organization noted that the Judiciary Committee hearing “should lay the groundwork for further investigation and address the need to empanel a non-partisan commission to conduct a comprehensive review of these policies.”
Daphne Eviatar, a Human Rights First attorney who monitored the Senate hearing, told IPS she was "disappointed" that "there was no indication that DOJ has any intention of following up on the evidence revealed in the report indicating that the Office of Legal Counsel (OLC) was pressured by the White House to create legal justifications for illegal techniques that the administration had already decided to use. And if that's true, then we're talking about a criminal conspiracy, which the department is obligated to investigate further."
She added, “I was disappointed to hear that the Justice Department's attitude towards the matter was that it's now over.”
Leahy’s call for a further investigation drew strong objections from the Committee’s ranking Republican member, Senator Jeff Sessions of Alabama and another Republican member, Senator John Cornyn of Texas. Both strongly defended the actions taken by the Bush Administration following the terrorist attacks of September 11th 2001 as being necessary to protect U.S. national security.
HRF said the OPR report “highlights the lack of independent judgment and perverse legal reasoning that shaped the ‘torture memos’ and underscores the need for an independent review of how torture and other abuse of prisoners were authorized after 9/11. It provides the clearest picture to date of a flawed process by which the Justice Department’s Office of Legal Counsel (OLC), which is supposed to render independent legal advice, was instead subverted to provide conclusions justifying detainee abuse that principals within the Bush administration wanted to hear.”
The organization said the report also highlights in detail the flawed legal analysis by the three principal authors of the legal memoranda who gave a green light to the use of torture techniques documented in the CIA Inspector General’s report made public in August.
It sharply criticized the quality of the legal work in the memoranda, concluding that “of the lawyers who wrote these memos, Yoo committed intentional professional misconduct and Bybee acted in reckless disregard of his obligation to provide thorough, objective and candid legal advice.”
“Although the Associate Deputy Attorney General declined to adopt this opinion, choosing instead to characterize the lawyers’ work as an exercise of ‘poor judgment’, the fact remains that the individuals who investigated and analyzed the evidence found that Yoo’s misconduct was ‘intentional’ and that Bybee’s was ‘reckless.’ That calls into question the good faith of both of these lawyers, and demands further investigation,” HRF charged.
Following his earlier review of the OPR report, as well as the May 2004 CIA Inspector General’s report that detailed appalling abuses committed against prisoners in the CIA’s interrogation program, Attorney General Eric Holder announced in August 2009 the appointment of a prosecutor to conduct a preliminary review into only those prisoner abuses that exceeded the bounds of what was deemed permissible in the flawed OLC “torture memos.”
“The United States, to its credit, has a strong record of criticizing arbitrary detention and detainee abuse in other countries. In order to restore its credibility and leadership on human rights, the United States must engage in a full accounting of how policies of cruelty were authorized. A thorough and public examination of the past is vital in order to guard against future authorization of abuse in the name of national security,” Massimino concluded.
Other human rights and civil liberties groups took similar positions. “Laura W. Murphy, Director of the Washington legislative office of the American Civil Liberties Union (ACLU) said, “It is critical today that senators make clear that, given the information in the OPR report and the wealth of other evidence in the public domain, the Justice Department’s criminal investigation into the torture program must be broad enough to include those who authorized and legally sanctioned these shameful acts.”
Tuesday, February 23, 2010
Secure Communities -- Does Its Job?
By William Fisher
A little-known program run by the Department of Homeland Security is using inaccurate databases and functioning “as little more than a dragnet to funnel even more people into the already overburdened” detention and deportation system of the Immigration and Customs Enforcement (ICE) agency.
This is the assertion being made by three civil rights organizations that have filed a request under the Freedom of Information Act (FOIA) asking for information on a program known as “Secure Communities.”
The program, which ICE claims targets “dangerous criminal aliens,” further involves local and state law enforcement agencies in federal immigration enforcement. The three groups say that since the inception of the program, there has been a marked increase in racial profiling, excessive costs to state and local government and due process violations.
The groups are the National Day Laborer Organization Network (NDLON), the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.
Sunita Patel, a CCR staff attorney, told Truthout, “Our principal concern is that this is a very secretive program about which there is little public information. It is being implemented in communities, but the lack of transparency makes it impossible for community groups to determine whether abuses are being committed. We hope our FOIA suit will shed some light on the issue.”
“This program is designed to fail because it relies on information from infamously inaccurate databases. We’ve already seen an increase in racial profiling, pre-textual arrests and mistaken identity of U.S. citizens,” she said, adding, “Combined with the lack of regulation and publicly available information on Secure Communities, ICE will be essentially immune to accountability or transparency. With a budget reaching the billions, taxpayers should be very concerned.”
The Secure Communities program has been implemented in at least 95 jurisdictions with plans to expand nationwide by 2013. The opposition groups says it includes a biometrics component that requires an individual’s fingerprints to be run through multiple databases upon arrest for any reason, even if no charges are brought.
Advocates and attorneys say that in addition to concerns presented by relying on potentially inaccurate and erroneous information in those databases, the program functions as little more than a dragnet to funnel even more people into the already overburdened ICE detention and removal system.
The FOIA request covers materials necessary to provide the public with comprehensive information on the Secure Communities Program, including policies, procedures and objectives; fiscal impact; data and statistical information; individual records; communications; and assessment records.
ICE, part of the huge Department of Homeland Security, has come under continuous attack, mostly from the left of the Democratic Party base, including immigration, labor and human rights advocates. Formed by the merger of several agencies when DHS was created following the terrorist attacks of 9/11, ICE has been seen as unnecessarily rough on suspected illegal immigrants, many of whom are detained in prison-like conditions without proper medical care or access to family members or attorneys.
Nina Bernstein of The New York Times recently exposed ICE’s efforts to cover up the unreported deaths of several people who were held in its detention facilities.
Immigration and labor advocates have lost no time in pushing back at what they consider to be serious shortcomings in the Secure Communities program.
Pablo Alvarado, executive director of the National Day Laborer Organizing Network told Truthout, "The Secure Communities program is 287(g) with lipstick. These programs increase racial profiling and civil rights abuses, erode community policing, and lack oversight and accountability. They are failed programs. The way to solve the nation's immigration problems is not by criminalizing and deporting hard working families. We expect real solutions from the Obama Administration not a civil rights and human rights crisis in the making."
Section 287(g) of the national immigration law allows DHS to deputize local law enforcement officers to become “immigration police.” The program, while still expanding, has been severely criticized by many, including law enforcement officials. The principal objections are that local police and sheriffs do not understand immigration law and that enforcing immigration laws draws officers’ attention away from local law enforcement issues.
Some of the most vocal criticism of 287(g) has been triggered by the activities of “America’s Toughest Sheriff”, Sheriff Joe Arpaio of Maricopa County (Phoenix) Arizona. Currently under investigation by the Justice Department for civil rights violations, Arpaio has outraged civil rights and immigration leaders by conducting unlawful raids on homes, offices and factories, practicing racial and ethnic profiling in making arrests, and operating a jail with substandard conditions.
As the New Yorker magazine reported, “Prisoners have filed thousands of legal claims of abuse against Arpaio and his deputies – and by families of those who’ve died under his watch. A federal investigation found Arpaio’s deputies used “stun guns” on inmates strapped into restraint chairs; some have died in those chairs. One lawsuit brought by a dead prisoners’ family ended in an $8 million settlement after a surveillance video that showed fourteen guards beating, shocking, and suffocating the prisoners, and after the sheriff’s office was accused of discarding evidence, including the crushed larynx of the deceased.”
But DHS Secretary Napolitano staunchly defends both the 287(g) program and the Secure Communities initiative.
Secure Communities, she says, “was designed to facilitate access to timely and accurate information about state and local arrests to better identify criminal aliens and to prioritize those who are the most dangerous for removal from the United States. As Starr County and 94 other jurisdictions across the country have learned first hand, it does its job.”
During a press conference at ICE Headquarters in Washington, D.C., Napolitano noted that “Secure Communities provides our local partners with an effective tool to identify and remove dangerous criminal aliens who pose a threat to public safety.” The program has significantly enhanced ICE’s ability to identify criminal aliens. In one year, the initiative enabled ICE to identify more than 111,000 criminal aliens when they were arrested and booked by state or local law enforcement, she said.
The DHS website proclaims that both the concept and the initiative of Secure Communities “is made possible through partnerships among DHS components, the Department of Justice, and state and local law enforcement. Over the last year, these partnerships have enabled Secure Communities to enhance biometric information-sharing technology supporting the criminal booking processes across 11 states. This technology enables biometrics—fingerprints—collected during the booking process to be checked against FBI criminal history records and DHS immigration records. When ICE officials receive notification of an immigration record match, they can promptly determine if enforcement action is required and take appropriate action.”
But Bridget Kessler, Clinical Teaching Fellow at Cardozo law school in New York City, told Truthout that because of the widespread known inaccuracies in the DHS immigration database and the FBI’s criminal database, “there is a huge risk that innocent people will be misidentified.”
She added, “Few people in that position have the resources to contest their inclusion in these databases. And once you’re in one of these databases, it’s virtually impossible to get out.”
“By 2013, the plan is to install the Secure Communities program in every single jail in the country,” she said. “Given that scope and reach, the complexity of the program, and its ability to seriously impact communities all over the country, it’s inconceivable that DHS would not want to release more information than is currently available.”
But the DHS is equally vehement in its defense of the program. It does not think it is being secretive. It says, “Secure Communities was designed to facilitate access to timely and accurate information about state and local arrests to better identify criminal aliens and to prioritize those who are the most dangerous for removal from the United States.”
Secure Communities, says DHS, “does its job.”
DHS Secretary Napolitano says that “Secure Communities provides our local partners with an effective tool to identify and remove dangerous criminal aliens who pose a threat to public safety.”
She says the program has significantly enhanced ICE’s ability to identify criminal aliens. In one year, the initiative enabled ICE to identify more than 111,000 criminal aliens when they were arrested and booked by state or local law enforcement.
“Secure Communities, both the concept and the initiative, is made possible through partnerships among DHS components, the Department of Justice, and state and local law enforcement. Over the last year, these partnerships have enabled Secure Communities to enhance biometric information-sharing technology supporting the criminal booking processes across 11 states. This technology enables biometrics—fingerprints—collected during the booking process to be checked against FBI criminal history records and DHS immigration records. When ICE officials receive notification of an immigration record match, they can promptly determine if enforcement action is required and take appropriate action,” says the DHS web site.
In a related development, the New York Times has revealed that immigration authorities allegedly colluded with Signal International, L.L.C., a Mississippi oilrig company, to punish and deport legal immigrant workers who chose to exercise their labor rights.
The Lawyers' Committee for Civil Rights Under Law and the New Orleans Workers' Center for Racial Justice, presenting evidence obtained as part of a lawsuit against the agency, revealed that ICE “advised and instructed the company on how to undermine labor laws, skirt DHS regulations related to proper termination of worker visas, ‘privately’ deport legal workers and craft a communications and public relations strategy for Signal as media outlets began to report on the situation.”
The organizations said the exposure of misconduct by ICE agents towards the workers in this case is “yet another chapter in a larger saga of questionable behavior by ICE employees.”
“The Signal case is a clear example of how workplace abuses are flourishing in the absence of a working immigration system. While these immigrant workers were vital to the reconstruction of New Orleans, they were helpless to assert their rights,” said Ali Noorani, Executive Director of the National Immigration Forum.
He told Truthout, “This is another reason why Congress needs to act now to fix our broken immigration system through comprehensive immigration reform. When we protect the rights of immigrant workers, we strengthen and safeguard the rights of all workers in America.”
The Times reported that immigration authorities worked closely with a marine oil rig company in Mississippi to discourage protests by temporary guest workers from India over their job conditions, including advising managers to send some workers back to India, according to new testimony in a federal lawsuit against the company, Signal International.
It said cooperation between the company and federal immigration agents was recounted in sworn depositions by Signal managers who were involved when tensions in its shipyard in Pascagoula, Miss., erupted into a public clash in March 2007.
“Since then, hundreds of the Indian workers have brought a civil rights lawsuit against the company, claiming they were victims of human trafficking and labor abuse. Signal International is fighting the suit and has sued American and Indian recruiters who contracted with the workers in India. The company claims the recruiters misled it — and the workers — about the terms of the work visas that brought them to this country,” The Times reported.
Saket Soni, director of the New Orleans Workers’ Center for Racial Justice,
which represents some workers in the lawsuit, said the managers’ testimony
showed that immigration enforcement agents had “advised the corporation on how to retaliate against workers who were organizing,” The Times reported.
The controversy over Secure Communities comes at time of record immigration prosecutions of non-violent border crossers.
The Transactional Records Access Clearinghouse (TRAC) at Syracuse University, and the Warren Institute at the University of California at Berkeley, recently released reports highlighting the dramatic increase in federal immigration prosecutions and the link to Operation Streamline, a DHS program which mandates federal criminal prosecution of all persons caught crossing the border unlawfully.
The Warren Institute report highlights the impact of Operation Streamline on immigration enforcement. The TRAC report shows that federal immigration prosecutions rose to record levels during fiscal year 2009 and how a shift in priorities has created the largest number of federal immigration prosecutions of non-violent border crossers ever.
Immigration advocates say the trade-off is that while the federal government spends billions of dollars prosecuting non-violent immigration violators, more serious criminals involved in drugs, weapons, and organized crime face a lower probability of prosecution.
President Obama has said comprehensive immigration reform is high on his agenda of priority issues. But with both House and Senate deeply polarized by partisan loyalties, it is unclear how the president and lawmakers will steer this highly controversial subject through the legislative process.
This article was originally published in Truthout.org (www.truthout.org).
A little-known program run by the Department of Homeland Security is using inaccurate databases and functioning “as little more than a dragnet to funnel even more people into the already overburdened” detention and deportation system of the Immigration and Customs Enforcement (ICE) agency.
This is the assertion being made by three civil rights organizations that have filed a request under the Freedom of Information Act (FOIA) asking for information on a program known as “Secure Communities.”
The program, which ICE claims targets “dangerous criminal aliens,” further involves local and state law enforcement agencies in federal immigration enforcement. The three groups say that since the inception of the program, there has been a marked increase in racial profiling, excessive costs to state and local government and due process violations.
The groups are the National Day Laborer Organization Network (NDLON), the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic of the Benjamin N. Cardozo School of Law.
Sunita Patel, a CCR staff attorney, told Truthout, “Our principal concern is that this is a very secretive program about which there is little public information. It is being implemented in communities, but the lack of transparency makes it impossible for community groups to determine whether abuses are being committed. We hope our FOIA suit will shed some light on the issue.”
“This program is designed to fail because it relies on information from infamously inaccurate databases. We’ve already seen an increase in racial profiling, pre-textual arrests and mistaken identity of U.S. citizens,” she said, adding, “Combined with the lack of regulation and publicly available information on Secure Communities, ICE will be essentially immune to accountability or transparency. With a budget reaching the billions, taxpayers should be very concerned.”
The Secure Communities program has been implemented in at least 95 jurisdictions with plans to expand nationwide by 2013. The opposition groups says it includes a biometrics component that requires an individual’s fingerprints to be run through multiple databases upon arrest for any reason, even if no charges are brought.
Advocates and attorneys say that in addition to concerns presented by relying on potentially inaccurate and erroneous information in those databases, the program functions as little more than a dragnet to funnel even more people into the already overburdened ICE detention and removal system.
The FOIA request covers materials necessary to provide the public with comprehensive information on the Secure Communities Program, including policies, procedures and objectives; fiscal impact; data and statistical information; individual records; communications; and assessment records.
ICE, part of the huge Department of Homeland Security, has come under continuous attack, mostly from the left of the Democratic Party base, including immigration, labor and human rights advocates. Formed by the merger of several agencies when DHS was created following the terrorist attacks of 9/11, ICE has been seen as unnecessarily rough on suspected illegal immigrants, many of whom are detained in prison-like conditions without proper medical care or access to family members or attorneys.
Nina Bernstein of The New York Times recently exposed ICE’s efforts to cover up the unreported deaths of several people who were held in its detention facilities.
Immigration and labor advocates have lost no time in pushing back at what they consider to be serious shortcomings in the Secure Communities program.
Pablo Alvarado, executive director of the National Day Laborer Organizing Network told Truthout, "The Secure Communities program is 287(g) with lipstick. These programs increase racial profiling and civil rights abuses, erode community policing, and lack oversight and accountability. They are failed programs. The way to solve the nation's immigration problems is not by criminalizing and deporting hard working families. We expect real solutions from the Obama Administration not a civil rights and human rights crisis in the making."
Section 287(g) of the national immigration law allows DHS to deputize local law enforcement officers to become “immigration police.” The program, while still expanding, has been severely criticized by many, including law enforcement officials. The principal objections are that local police and sheriffs do not understand immigration law and that enforcing immigration laws draws officers’ attention away from local law enforcement issues.
Some of the most vocal criticism of 287(g) has been triggered by the activities of “America’s Toughest Sheriff”, Sheriff Joe Arpaio of Maricopa County (Phoenix) Arizona. Currently under investigation by the Justice Department for civil rights violations, Arpaio has outraged civil rights and immigration leaders by conducting unlawful raids on homes, offices and factories, practicing racial and ethnic profiling in making arrests, and operating a jail with substandard conditions.
As the New Yorker magazine reported, “Prisoners have filed thousands of legal claims of abuse against Arpaio and his deputies – and by families of those who’ve died under his watch. A federal investigation found Arpaio’s deputies used “stun guns” on inmates strapped into restraint chairs; some have died in those chairs. One lawsuit brought by a dead prisoners’ family ended in an $8 million settlement after a surveillance video that showed fourteen guards beating, shocking, and suffocating the prisoners, and after the sheriff’s office was accused of discarding evidence, including the crushed larynx of the deceased.”
But DHS Secretary Napolitano staunchly defends both the 287(g) program and the Secure Communities initiative.
Secure Communities, she says, “was designed to facilitate access to timely and accurate information about state and local arrests to better identify criminal aliens and to prioritize those who are the most dangerous for removal from the United States. As Starr County and 94 other jurisdictions across the country have learned first hand, it does its job.”
During a press conference at ICE Headquarters in Washington, D.C., Napolitano noted that “Secure Communities provides our local partners with an effective tool to identify and remove dangerous criminal aliens who pose a threat to public safety.” The program has significantly enhanced ICE’s ability to identify criminal aliens. In one year, the initiative enabled ICE to identify more than 111,000 criminal aliens when they were arrested and booked by state or local law enforcement, she said.
The DHS website proclaims that both the concept and the initiative of Secure Communities “is made possible through partnerships among DHS components, the Department of Justice, and state and local law enforcement. Over the last year, these partnerships have enabled Secure Communities to enhance biometric information-sharing technology supporting the criminal booking processes across 11 states. This technology enables biometrics—fingerprints—collected during the booking process to be checked against FBI criminal history records and DHS immigration records. When ICE officials receive notification of an immigration record match, they can promptly determine if enforcement action is required and take appropriate action.”
But Bridget Kessler, Clinical Teaching Fellow at Cardozo law school in New York City, told Truthout that because of the widespread known inaccuracies in the DHS immigration database and the FBI’s criminal database, “there is a huge risk that innocent people will be misidentified.”
She added, “Few people in that position have the resources to contest their inclusion in these databases. And once you’re in one of these databases, it’s virtually impossible to get out.”
“By 2013, the plan is to install the Secure Communities program in every single jail in the country,” she said. “Given that scope and reach, the complexity of the program, and its ability to seriously impact communities all over the country, it’s inconceivable that DHS would not want to release more information than is currently available.”
But the DHS is equally vehement in its defense of the program. It does not think it is being secretive. It says, “Secure Communities was designed to facilitate access to timely and accurate information about state and local arrests to better identify criminal aliens and to prioritize those who are the most dangerous for removal from the United States.”
Secure Communities, says DHS, “does its job.”
DHS Secretary Napolitano says that “Secure Communities provides our local partners with an effective tool to identify and remove dangerous criminal aliens who pose a threat to public safety.”
She says the program has significantly enhanced ICE’s ability to identify criminal aliens. In one year, the initiative enabled ICE to identify more than 111,000 criminal aliens when they were arrested and booked by state or local law enforcement.
“Secure Communities, both the concept and the initiative, is made possible through partnerships among DHS components, the Department of Justice, and state and local law enforcement. Over the last year, these partnerships have enabled Secure Communities to enhance biometric information-sharing technology supporting the criminal booking processes across 11 states. This technology enables biometrics—fingerprints—collected during the booking process to be checked against FBI criminal history records and DHS immigration records. When ICE officials receive notification of an immigration record match, they can promptly determine if enforcement action is required and take appropriate action,” says the DHS web site.
In a related development, the New York Times has revealed that immigration authorities allegedly colluded with Signal International, L.L.C., a Mississippi oilrig company, to punish and deport legal immigrant workers who chose to exercise their labor rights.
The Lawyers' Committee for Civil Rights Under Law and the New Orleans Workers' Center for Racial Justice, presenting evidence obtained as part of a lawsuit against the agency, revealed that ICE “advised and instructed the company on how to undermine labor laws, skirt DHS regulations related to proper termination of worker visas, ‘privately’ deport legal workers and craft a communications and public relations strategy for Signal as media outlets began to report on the situation.”
The organizations said the exposure of misconduct by ICE agents towards the workers in this case is “yet another chapter in a larger saga of questionable behavior by ICE employees.”
“The Signal case is a clear example of how workplace abuses are flourishing in the absence of a working immigration system. While these immigrant workers were vital to the reconstruction of New Orleans, they were helpless to assert their rights,” said Ali Noorani, Executive Director of the National Immigration Forum.
He told Truthout, “This is another reason why Congress needs to act now to fix our broken immigration system through comprehensive immigration reform. When we protect the rights of immigrant workers, we strengthen and safeguard the rights of all workers in America.”
The Times reported that immigration authorities worked closely with a marine oil rig company in Mississippi to discourage protests by temporary guest workers from India over their job conditions, including advising managers to send some workers back to India, according to new testimony in a federal lawsuit against the company, Signal International.
It said cooperation between the company and federal immigration agents was recounted in sworn depositions by Signal managers who were involved when tensions in its shipyard in Pascagoula, Miss., erupted into a public clash in March 2007.
“Since then, hundreds of the Indian workers have brought a civil rights lawsuit against the company, claiming they were victims of human trafficking and labor abuse. Signal International is fighting the suit and has sued American and Indian recruiters who contracted with the workers in India. The company claims the recruiters misled it — and the workers — about the terms of the work visas that brought them to this country,” The Times reported.
Saket Soni, director of the New Orleans Workers’ Center for Racial Justice,
which represents some workers in the lawsuit, said the managers’ testimony
showed that immigration enforcement agents had “advised the corporation on how to retaliate against workers who were organizing,” The Times reported.
The controversy over Secure Communities comes at time of record immigration prosecutions of non-violent border crossers.
The Transactional Records Access Clearinghouse (TRAC) at Syracuse University, and the Warren Institute at the University of California at Berkeley, recently released reports highlighting the dramatic increase in federal immigration prosecutions and the link to Operation Streamline, a DHS program which mandates federal criminal prosecution of all persons caught crossing the border unlawfully.
The Warren Institute report highlights the impact of Operation Streamline on immigration enforcement. The TRAC report shows that federal immigration prosecutions rose to record levels during fiscal year 2009 and how a shift in priorities has created the largest number of federal immigration prosecutions of non-violent border crossers ever.
Immigration advocates say the trade-off is that while the federal government spends billions of dollars prosecuting non-violent immigration violators, more serious criminals involved in drugs, weapons, and organized crime face a lower probability of prosecution.
President Obama has said comprehensive immigration reform is high on his agenda of priority issues. But with both House and Senate deeply polarized by partisan loyalties, it is unclear how the president and lawmakers will steer this highly controversial subject through the legislative process.
This article was originally published in Truthout.org (www.truthout.org).
Cell Phone Surveillance?
By William Fisher
If you own a cell phone, you should care about the outcome of a court case that “could well decide whether the government can use your cell phone to track you — even if it hasn't shown probable cause to believe it will turn up evidence of a crime.”
That was the warning issued to the public by several major civil liberties organizations as they appeared in federal court in Philadelphia to argue for more privacy protections in the use of cell phones as tracking devices by law enforcement agents.
The case is at the heart of the Constitutional crisis now being played out in the US federal court. Civil liberties groups are asking the court to require that the government show probable cause before it can track your whereabouts.
The groups are the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the ACLU of Pennsylvania, and the Center for Democracy and Technology (CDT).
Back in 2007, the U.S. government applied for court permission to obtain information about the location of an individual's cell phone, without showing probable cause that tracking the individual would turn up evidence of a crime. A magistrate judge denied the government's request and a district court upheld that decision in September 2008. The government is appealing the ruling in the U.S. Court of Appeals.
A number of civil liberties groups, on behalf of plaintiffs in the case, filed a friend-of-the-court brief in support of the district court decision, arguing that district courts must require the government to show probable cause before permitting the government to obtain information about the location of a cell phone.
The appeals court will decide whether government agencies in Pennsylvania, New Jersey and Delaware must show probable cause before tracking people's cell phone locations.
EFF explains that, although most people don't realize it, cell phones double as tracking devices. “Newer phones contain GPS chips, the same technology that allows car navigation systems to know where you are and give you driving directions. But even older phones that don't have chips can be tracked by knowing the location of the cell towers they use to connect to a network,” the group said, adding,
“There's no question that cell phones and cell-phone records can be useful for police officers who need to track the movements of those they believe to be breaking the law. And it is important for law enforcement agents to have the tools they need to stop crimes. However, it is just as important to make sure such tools are used responsibly, in a manner that safeguards our personal privacy.”
And Professor Francis A. Boyle of the University of Illinois law school told us, “This practice violates the Fourth Amendment to the United States Constitution: ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched....’ The Bush administration reduced the Fourth Amendment to nothing more than a Potemkin Village of rights. It exists on paper alone. And a pusillanimous Congress has gone along with shredding the entirety of the U.S. Bill of Rights.”
He added, “President Obama, the former constitutional law professor, is actively defending in court every hideous atrocity that the Bush administration inflicted upon the Bill of Rights, civil rights, civil liberties, human rights, international law, and the United States Constitution with the acquiescence and/or approval by Congress.”
This issue gained national attention during last year's gubernatorial race in New Jersey. Documents turned over in EFF’s lawsuit revealed that “the U.S. Attorney's Office — under Chris Christie, now the governor — was tracking cell phones without probable cause, in violation of a Justice Department recommendation,” EFF said.
The decision reached by the Philadelphia-based 3rd Circuit U.S. Court of Appeals will not only bind federal courts throughout Pennsylvania, New Jersey, and Delaware. It will also be a key source of guidance to courts around the country as they grapple with this issue.
The plaintiffs in the court case hope the court will “send a message that merely carrying a cell phone should not make people more susceptible to government surveillance.”
They add, “No one wants to feel as if a government agent is following her wherever she goes — be it a friend's house, a place of worship, or a therapist's office — and innocent Americans shouldn't have to feel that way.”
The government has argued that "One who does not wish to disclose his movements to the government need not use a cellular telephone." But the civil liberties groups say this is “a startling and dismaying statement coming from the United States. The government is supposed to care about people's privacy. It should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool.”
The case has drawn considerable national attention. One of the country’s foremost investigative journalists, Michael Isikoff of Newsweek, addressed the issue in a recent edition of the magazine.
He wrote, “Law enforcement is tracking Americans' cell phones in real time -- without the benefit of a warrant. Amid all the furor over the bush administration's warrantless wiretapping program a few years ago, a mini-revolt was brewing over another type of federal snooping that was getting no public attention at all.”
“Federal prosecutors were seeking what seemed to be unusually sensitive records: internal data from telecommunications companies that showed the locations of their customers' cell phones -- sometimes in real time, sometimes after the fact. The prosecutors said they needed the records to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials. But many federal magistrates -- whose job is to sign off on search warrants and handle other routine court duties -- were spooked by the requests. Some in New York, Pennsylvania, and Texas balked, he wrote.”
“Prosecutors ‘were using the cell phone as a surreptitious tracking device,’ said Stephen W. Smith, a federal magistrate in Houston. "And I started asking the U.S. Attorney's Office, 'What is the legal authority for this? What is the legal standard for getting this information?' Those questions are now at the core of a constitutional clash between President Obama's Justice Department and civil libertarians alarmed by what they see as the government's relentless intrusion into the private lives of citizens.”
Two years ago, a U.S. magistrate in Pittsburgh ruled that the data they were seeking could easily be misused to collect information about sexual liaisons and other matters of an "extremely personal" nature.
In federal appeals court last week, a Justice Department lawyer urged the judges to overturn the magistrate’s ruling. They claimed the government was seeking "routine business records."
But after one of the judges said there were some governments, like Iran's, that would like to use such records to identify political protesters. She asked whether the “government can assure us” that the Justice Department would never collect cell-phone data for this kind of use in the U.S.
The government lawyer grudgingly acknowledged that such data “could be used constitutionally.”
If you own a cell phone, you should care about the outcome of a court case that “could well decide whether the government can use your cell phone to track you — even if it hasn't shown probable cause to believe it will turn up evidence of a crime.”
That was the warning issued to the public by several major civil liberties organizations as they appeared in federal court in Philadelphia to argue for more privacy protections in the use of cell phones as tracking devices by law enforcement agents.
The case is at the heart of the Constitutional crisis now being played out in the US federal court. Civil liberties groups are asking the court to require that the government show probable cause before it can track your whereabouts.
The groups are the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the ACLU of Pennsylvania, and the Center for Democracy and Technology (CDT).
Back in 2007, the U.S. government applied for court permission to obtain information about the location of an individual's cell phone, without showing probable cause that tracking the individual would turn up evidence of a crime. A magistrate judge denied the government's request and a district court upheld that decision in September 2008. The government is appealing the ruling in the U.S. Court of Appeals.
A number of civil liberties groups, on behalf of plaintiffs in the case, filed a friend-of-the-court brief in support of the district court decision, arguing that district courts must require the government to show probable cause before permitting the government to obtain information about the location of a cell phone.
The appeals court will decide whether government agencies in Pennsylvania, New Jersey and Delaware must show probable cause before tracking people's cell phone locations.
EFF explains that, although most people don't realize it, cell phones double as tracking devices. “Newer phones contain GPS chips, the same technology that allows car navigation systems to know where you are and give you driving directions. But even older phones that don't have chips can be tracked by knowing the location of the cell towers they use to connect to a network,” the group said, adding,
“There's no question that cell phones and cell-phone records can be useful for police officers who need to track the movements of those they believe to be breaking the law. And it is important for law enforcement agents to have the tools they need to stop crimes. However, it is just as important to make sure such tools are used responsibly, in a manner that safeguards our personal privacy.”
And Professor Francis A. Boyle of the University of Illinois law school told us, “This practice violates the Fourth Amendment to the United States Constitution: ‘no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched....’ The Bush administration reduced the Fourth Amendment to nothing more than a Potemkin Village of rights. It exists on paper alone. And a pusillanimous Congress has gone along with shredding the entirety of the U.S. Bill of Rights.”
He added, “President Obama, the former constitutional law professor, is actively defending in court every hideous atrocity that the Bush administration inflicted upon the Bill of Rights, civil rights, civil liberties, human rights, international law, and the United States Constitution with the acquiescence and/or approval by Congress.”
This issue gained national attention during last year's gubernatorial race in New Jersey. Documents turned over in EFF’s lawsuit revealed that “the U.S. Attorney's Office — under Chris Christie, now the governor — was tracking cell phones without probable cause, in violation of a Justice Department recommendation,” EFF said.
The decision reached by the Philadelphia-based 3rd Circuit U.S. Court of Appeals will not only bind federal courts throughout Pennsylvania, New Jersey, and Delaware. It will also be a key source of guidance to courts around the country as they grapple with this issue.
The plaintiffs in the court case hope the court will “send a message that merely carrying a cell phone should not make people more susceptible to government surveillance.”
They add, “No one wants to feel as if a government agent is following her wherever she goes — be it a friend's house, a place of worship, or a therapist's office — and innocent Americans shouldn't have to feel that way.”
The government has argued that "One who does not wish to disclose his movements to the government need not use a cellular telephone." But the civil liberties groups say this is “a startling and dismaying statement coming from the United States. The government is supposed to care about people's privacy. It should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool.”
The case has drawn considerable national attention. One of the country’s foremost investigative journalists, Michael Isikoff of Newsweek, addressed the issue in a recent edition of the magazine.
He wrote, “Law enforcement is tracking Americans' cell phones in real time -- without the benefit of a warrant. Amid all the furor over the bush administration's warrantless wiretapping program a few years ago, a mini-revolt was brewing over another type of federal snooping that was getting no public attention at all.”
“Federal prosecutors were seeking what seemed to be unusually sensitive records: internal data from telecommunications companies that showed the locations of their customers' cell phones -- sometimes in real time, sometimes after the fact. The prosecutors said they needed the records to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials. But many federal magistrates -- whose job is to sign off on search warrants and handle other routine court duties -- were spooked by the requests. Some in New York, Pennsylvania, and Texas balked, he wrote.”
“Prosecutors ‘were using the cell phone as a surreptitious tracking device,’ said Stephen W. Smith, a federal magistrate in Houston. "And I started asking the U.S. Attorney's Office, 'What is the legal authority for this? What is the legal standard for getting this information?' Those questions are now at the core of a constitutional clash between President Obama's Justice Department and civil libertarians alarmed by what they see as the government's relentless intrusion into the private lives of citizens.”
Two years ago, a U.S. magistrate in Pittsburgh ruled that the data they were seeking could easily be misused to collect information about sexual liaisons and other matters of an "extremely personal" nature.
In federal appeals court last week, a Justice Department lawyer urged the judges to overturn the magistrate’s ruling. They claimed the government was seeking "routine business records."
But after one of the judges said there were some governments, like Iran's, that would like to use such records to identify political protesters. She asked whether the “government can assure us” that the Justice Department would never collect cell-phone data for this kind of use in the U.S.
The government lawyer grudgingly acknowledged that such data “could be used constitutionally.”
CIA BRIEFED CONGRESS ON RENDITIONS
By William Fisher
The U.S. Central Intelligence Agency (CIA) briefed members of Congress from both political parties numerous times about the agency’s interrogation and detention programs, said several prominent human rights groups today.
The groups -- Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law – filed a lawsuit in 2007 based on their requests for information about the program under the Freedom of Information Act (FOIA) The FOIA requests, dating back to 2004, sought records about rendition, secret detention, and "enhanced" interrogation.
The rights groups announced receipt of several new documents in response to their FOIA litigation. Among other new information, the documents show that:
While Vice President Cheney’s role in authorizing waterboarding and other so-called enhanced interrogation techniques has been public, a newly obtained February 4, 2003, CIA memo documents the role of Counsel for the Office of the Vice President (OVP) in analyzing and approving the CIA techniques.
David Addington was counsel to the Vice-President until he succeeded Lewis “Scooter” Libby, who was convicted of perjury in the “outing” of CIA agent Valerie Plame. Libby’s prison sentence was commuted by then President George W. Bush.
The rights groups said that, according to CIA meeting records and the February 4, 2003 memo, it seems that in one of his first acts as chair of the Senate Select Committee on Intelligence, Republican Senator Pat Roberts of Kansas “discontinued efforts by previous chair,” Democratic Senator Bob Graham of Florida, to implement greater oversight of these programs, “thus abdicating the role of Congress in overseeing the CIA rendition, secret detention, and torture programs.”
There are “significant questions about how clear the CIA was with Congress” (including in then-CIA Director Michael Hayden’s previously classified briefing on April 12, 2007 to the Senate Intelligence Committee) about the timing, nature, and results of the interrogation of Abu Zubaydah, including particularly interrogation prior to the August 1, 2002 memo prepared by the Justice Department’s Office of Legal Counsel (OLC).
It is known that Zubaydah was subjected to waterboarding 83 times in 2002. OLC lawyers at the time, John Yoo and Jay Bybee, were the principal drafters of that memo, which has come to be known as “the torture memo.”
Chip Pitts, President of the Bill of Rights Defense Committee and former chair of Amnesty International USA, told IPS, “In order to finally achieve the transparency and accountability that is so indispensable to learning lessons and avoiding calamitous policy failures like the prior administration’s recourse to torture, the need is clearer than ever for a broad and impartial criminal investigation of all the facts surrounding the torture program.”
He added, “No lawyer or other official, high or low, should be immune from the investigation and prosecution required by our national interest, domestic law, and the international treaty obligations the country has undertaken under the Convention Against Torture.”
Gitanjali Gutierrez, attorney for the Center for Constitutional Rights, said,
“Members of Congress must come clean about whether they encouraged or objected to torture during these many secret meetings with CIA officials and we need a complete accounting of Cheney’s counsel, David Addington’s, role in the creation of the torture program. These new documents show that the CIA may have lied to Congress about the role of interrogation techniques in detainee deaths and key members of Congress abdicated their oversight role. This new information points even more strongly to the need for a full criminal investigation of the torture program, up the entire chain of command."
In a related development, after years of stonewalling, an official Polish government agency has admitted that airspace and landing facilities in that country were used by the U.S. Central Intelligence Agency (CIA) to detain, house and transport terrorism suspects.
It was the first time Polish authorities have admitted that their country houses one of the CIA’s so-called “black sites” -- part of the agency’s network of secret prisons. The CIA kidnapped suspected Al Qaeda members and transported them to the black site prisons, where they were subjected to so-called “enhanced interrogation” techniques as part of the C.I.A.’s program of “extraordinary rendition.” program.
Prosecutors in Poland are now investigating the country’s participation in the program.
The admission from the Polish Air Navigation Services Agency (PANSA) came in response to charges by two rights groups, the Open Society Justice Initiative and the Helsinki Foundation for Human Rights. PANSA confirmed that it provided the flight logs showing six flights in 2003 by two aircraft. Five of the flights reportedly originated in Kabul and one in Rabat, Morocco. They landed about 100 miles north of Warsaw, at a small airport in a town called Szymany.
It is widely known that Khalid Shaikh Mohammed, the self-styled mastermind of the 9/11 attacks, was interrogated there in 2003, but neither PANSA nor the CIA would confirm this.
Approximately 100 prisoners were detained in the black site prisons between the program’s inception in 2002 and the transfer of the remaining 14 prisoners to Guantánamo Bay in Cuba in 2006.
Maciej Rodak, vice president of PANSA confirmed to The New York Times that the agency had sent the records to the human-rights groups. He said the agency confirmed information on flight origins, planned destinations and call signs but could not provide passenger lists, which the groups also requested.
“The thing that is quite shocking is that the European investigations requested these specific flight records some four years ago,” said Darian Pavli, an attorney with the Open Society Justice Initiative, a nonprofit human-rights group in New York. “The Poles all these years said they could not locate them, the flights didn’t exist.”
The U.S. Central Intelligence Agency (CIA) briefed members of Congress from both political parties numerous times about the agency’s interrogation and detention programs, said several prominent human rights groups today.
The groups -- Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law – filed a lawsuit in 2007 based on their requests for information about the program under the Freedom of Information Act (FOIA) The FOIA requests, dating back to 2004, sought records about rendition, secret detention, and "enhanced" interrogation.
The rights groups announced receipt of several new documents in response to their FOIA litigation. Among other new information, the documents show that:
While Vice President Cheney’s role in authorizing waterboarding and other so-called enhanced interrogation techniques has been public, a newly obtained February 4, 2003, CIA memo documents the role of Counsel for the Office of the Vice President (OVP) in analyzing and approving the CIA techniques.
David Addington was counsel to the Vice-President until he succeeded Lewis “Scooter” Libby, who was convicted of perjury in the “outing” of CIA agent Valerie Plame. Libby’s prison sentence was commuted by then President George W. Bush.
The rights groups said that, according to CIA meeting records and the February 4, 2003 memo, it seems that in one of his first acts as chair of the Senate Select Committee on Intelligence, Republican Senator Pat Roberts of Kansas “discontinued efforts by previous chair,” Democratic Senator Bob Graham of Florida, to implement greater oversight of these programs, “thus abdicating the role of Congress in overseeing the CIA rendition, secret detention, and torture programs.”
There are “significant questions about how clear the CIA was with Congress” (including in then-CIA Director Michael Hayden’s previously classified briefing on April 12, 2007 to the Senate Intelligence Committee) about the timing, nature, and results of the interrogation of Abu Zubaydah, including particularly interrogation prior to the August 1, 2002 memo prepared by the Justice Department’s Office of Legal Counsel (OLC).
It is known that Zubaydah was subjected to waterboarding 83 times in 2002. OLC lawyers at the time, John Yoo and Jay Bybee, were the principal drafters of that memo, which has come to be known as “the torture memo.”
Chip Pitts, President of the Bill of Rights Defense Committee and former chair of Amnesty International USA, told IPS, “In order to finally achieve the transparency and accountability that is so indispensable to learning lessons and avoiding calamitous policy failures like the prior administration’s recourse to torture, the need is clearer than ever for a broad and impartial criminal investigation of all the facts surrounding the torture program.”
He added, “No lawyer or other official, high or low, should be immune from the investigation and prosecution required by our national interest, domestic law, and the international treaty obligations the country has undertaken under the Convention Against Torture.”
Gitanjali Gutierrez, attorney for the Center for Constitutional Rights, said,
“Members of Congress must come clean about whether they encouraged or objected to torture during these many secret meetings with CIA officials and we need a complete accounting of Cheney’s counsel, David Addington’s, role in the creation of the torture program. These new documents show that the CIA may have lied to Congress about the role of interrogation techniques in detainee deaths and key members of Congress abdicated their oversight role. This new information points even more strongly to the need for a full criminal investigation of the torture program, up the entire chain of command."
In a related development, after years of stonewalling, an official Polish government agency has admitted that airspace and landing facilities in that country were used by the U.S. Central Intelligence Agency (CIA) to detain, house and transport terrorism suspects.
It was the first time Polish authorities have admitted that their country houses one of the CIA’s so-called “black sites” -- part of the agency’s network of secret prisons. The CIA kidnapped suspected Al Qaeda members and transported them to the black site prisons, where they were subjected to so-called “enhanced interrogation” techniques as part of the C.I.A.’s program of “extraordinary rendition.” program.
Prosecutors in Poland are now investigating the country’s participation in the program.
The admission from the Polish Air Navigation Services Agency (PANSA) came in response to charges by two rights groups, the Open Society Justice Initiative and the Helsinki Foundation for Human Rights. PANSA confirmed that it provided the flight logs showing six flights in 2003 by two aircraft. Five of the flights reportedly originated in Kabul and one in Rabat, Morocco. They landed about 100 miles north of Warsaw, at a small airport in a town called Szymany.
It is widely known that Khalid Shaikh Mohammed, the self-styled mastermind of the 9/11 attacks, was interrogated there in 2003, but neither PANSA nor the CIA would confirm this.
Approximately 100 prisoners were detained in the black site prisons between the program’s inception in 2002 and the transfer of the remaining 14 prisoners to Guantánamo Bay in Cuba in 2006.
Maciej Rodak, vice president of PANSA confirmed to The New York Times that the agency had sent the records to the human-rights groups. He said the agency confirmed information on flight origins, planned destinations and call signs but could not provide passenger lists, which the groups also requested.
“The thing that is quite shocking is that the European investigations requested these specific flight records some four years ago,” said Darian Pavli, an attorney with the Open Society Justice Initiative, a nonprofit human-rights group in New York. “The Poles all these years said they could not locate them, the flights didn’t exist.”
Saturday, February 20, 2010
Where is the Outrage?
By William Fisher
Last week, a federal judge ruled that the families of two men who died in detention at Guantanamo couldn’t sue the government because their imprisonment as enemy combatants had been approved by a Combat Review Status Tribunal -- a CRST.
The same CRSTs the Supreme Court found “inadequate.”
Following a two-year investigation, the military concluded that the men – the two whose families were the plaintiffs in last week’s court case, plus another -- had committed suicide. But recent first-hand accounts by four soldiers stationed at the base at the time of the deaths have raised serious questions about the cause and circumstances of the deaths, including the possibility that the men died as the result of torture.
The deaths of the three men at Guantanamo were the subject of a jaw-dropping article in Harper’s Magazine by Scott Horton, an attorney who has written extensively on US detention policy and practice. Horton wrote, “The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report -- a reconstruction of the events -- was simply unbelievable.” None of these men had any links to terrorism and two of them had already been cleared for release.
Horton went on to explain that, “According to Naval Criminal Investigative Service (NCIS) documents, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.”
To which Dahlia Lithwick responded in Slate: “The NCIS report failed to question why it took two hours for these suicides to be discovered despite the fact that guards checked on prisoners at 10-minute intervals. Horton, reporting on interviews with four members of the military intelligence unit assigned to guard Camp Delta, suggests that the men died at "Camp No" (as in, "No, it doesn't exist"), an alleged black site at Gitmo, and were then moved to the clinic. A massive cover-up followed. Official stories hastily changed from claims that the three men had stuffed rags down their own throats to the elaborate hanging plot.”
“Rear Adm. Harry Harris, then the commander at Guantanamo, not only declared the deaths "suicides," but blamed the victims for "an act of asymmetrical warfare waged against us." And every piece of paper belonging to every last prisoner in Camp America was then seized, amounting to some 1,065 pounds of material, much of it privileged attorney-client correspondence.”
“The bodies of the three alleged suicide victims were returned home to their families, who requested independent autopsies, which then revealed "the removal of the structure that would have been the natural focus of the autopsy: the throat."
If all that sounds believable, I have a lovely bridge to sell you.
But when Scott Horton’s article appeared, in January, there was virtually no coverage by the media. Nor was there much press or TV coverage of the court’s decision last week.
And the media silence was equaled by the White House and the Defense
Department, leaving the public largely in the dark.
Being charitable, maybe that accounts for the deafening public silence that greeted these two events. We should have been outraged when the Defense Department issued its bizarre and totally non-credible report of the three “suicides.” But we weren’t. We were silent.
We should have been outraged when Scott Horton produced four eyewitness whistle-blowers who debunked the DOD’s report. But we weren’t. We were silent.
And we should have been outraged at the federal judge who threw out the survivors’ court case against the government. But we weren’t. We were silent.
Should we blame the media?
Well, yes, in part. These stories should have been page-one or primetime news. But the media was busy with other things. For example, while they weren’t reporting on the military’s Kafkaesque report, or Scott Horton’s expose, or the judge who threw out the case against the government, they were devoting maximum space and time to the Tea Party phenomenon.
That’s because the inchoate and irrational anger of the Tea Baggers produces conflict. And conflict is what the media thrives on. If it bleeds it leads!
But the media is not the only culprit here. We, the electorate, deserve a substantial part of the blame. Because most of us don’t pay serious attention to much of anything that’s going on in the world or in our country. If something piques our fancy, chances are it’s because we’ve seen it on TV.
Which may account for our interest in the Tea Baggers.
The Tea Baggers have surely been on TV. They have virtually monopolized cable news for weeks. This band of bloviators may have no policy prescriptions, not even any rational analysis of what they’re railing against, nor any coherent message beyond anger, but anger is apparently enough -- that’s what seems to be resonating with so many Americans. The delicious irony is that most of them are too uninformed to understand that the people they’re railing against are the very people who are trying to help them!
It was fascinating to watch the leaders of the Republican Party going through their ritual gyrations at CPAC – the annual conservative jamboree – last week to woo the support of the Tea Baggers. The party that spent us into historic deficits now attempting to join hands with the newest proponents of fiscal restraint!
But then I learned that the darling of the Tea Baggers, Glenn Beck, was to deliver CPAC’s keynote speech. This is the same crazy-like-a-fox money-machine who said of Obama, "This president I think has exposed himself over and over again as a guy who has a deep-seated hatred for white people or the white culture...I'm not saying he doesn't like white people, I'm saying he has a problem. This guy is, I believe, a racist."
The same guy who said, after Sonia Sotomayor was nominated to the Supreme Court, "I think she is a racist. I think she decided things based on race. I think she says that a Hispanic woman, with the experience of being a Hispanic woman can make decisions that a white man can't make. I can't imagine saying that. That's like saying Hispanics can't make money decisions like them Jews.”
As I thought of Glenn Beck keynoting CPAC, my mind wandered back to the days of Bill Buckley. How he would have loathed Glenn Beck! Agree with Buckley or not, he was a man of the mind. One could not but respect – nay, admire – his grasp of history, his no-nonsense rhetoric, his reason and logic. If Buckley were with us today, it’s arguable that the demagogues who are now hijacking the American Conservative movement might never have reached their current pinnacles.
As some wise observer wrote, “Today's trumpeters of Buckley's fusionism are angry, loud, and shrill. They'll betray their positions and their principles to score short-term televised victories. They're driven by ratings and by vanity. They want to make it to the top by securing notoriety instead of respect. They've abandoned meaningful persuasion and have instead opted to fulfill the Postman prophecy that we'll amuse ourselves to death--and that's not funny.”
Yet those who now rail against government are too ill-informed and too self-centered to recognize that there are wider issues to be railed against – and confusing suicide and murder is one of them.
So where is the outrage?
It isn’t.
For the moment, I have to console myself with the knowledge that “Movements” like the Tea Baggers are not new in American history. Witness the Know Nothing movement in the mid-19th century. Like the Tea Baggers, the Know Nothings were nativists empowered by popular fears that the country was being overwhelmed by Irish Catholic immigrants, who were often regarded as hostile to U.S. values and controlled by the Pope in Rome. The Know-Nothings tried to curb immigration and naturalization; like the Tea Baggers they had few prominent leaders. Most ended up joining the Republican Party by the time of the 1860 presidential election. And the “movement” just vanished into the dustbin of history.
(The origin of the term "Know Nothing?" When a member was asked about
its activities, he or she was supposed to reply, "I know nothing.")
As for CPAC, I like the words of Mickey Edwards, who was a Republican congressman who chaired CPAC for five years as head of the American Conservative movement. He explained why he wasn’t going to CPAC this year:
He wrote, “I'm not at CPAC because I believe in America. I believe in liberty. I believe that governments should be held in check. I believe people matter. I believe in the flag not because of its shape or color but because of the principles it stands for--the principles in the Constitution, the principles repeated and underlined and highlighted and boldfaced and italicized in the Bill of Rights. The George W. whose presidency and precedents I admire was the first president, not the 43d. It is James Madison I admire, not John Yoo. Thomas Paine, not Glenn Beck. Jefferson, not Limbaugh. Ronald Reagan would not have been welcome at today's CPAC or a tea party rally, but he would not have wanted to be there, either. Neither do I.”
And neither do I.
Last week, a federal judge ruled that the families of two men who died in detention at Guantanamo couldn’t sue the government because their imprisonment as enemy combatants had been approved by a Combat Review Status Tribunal -- a CRST.
The same CRSTs the Supreme Court found “inadequate.”
Following a two-year investigation, the military concluded that the men – the two whose families were the plaintiffs in last week’s court case, plus another -- had committed suicide. But recent first-hand accounts by four soldiers stationed at the base at the time of the deaths have raised serious questions about the cause and circumstances of the deaths, including the possibility that the men died as the result of torture.
The deaths of the three men at Guantanamo were the subject of a jaw-dropping article in Harper’s Magazine by Scott Horton, an attorney who has written extensively on US detention policy and practice. Horton wrote, “The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report -- a reconstruction of the events -- was simply unbelievable.” None of these men had any links to terrorism and two of them had already been cleared for release.
Horton went on to explain that, “According to Naval Criminal Investigative Service (NCIS) documents, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.”
To which Dahlia Lithwick responded in Slate: “The NCIS report failed to question why it took two hours for these suicides to be discovered despite the fact that guards checked on prisoners at 10-minute intervals. Horton, reporting on interviews with four members of the military intelligence unit assigned to guard Camp Delta, suggests that the men died at "Camp No" (as in, "No, it doesn't exist"), an alleged black site at Gitmo, and were then moved to the clinic. A massive cover-up followed. Official stories hastily changed from claims that the three men had stuffed rags down their own throats to the elaborate hanging plot.”
“Rear Adm. Harry Harris, then the commander at Guantanamo, not only declared the deaths "suicides," but blamed the victims for "an act of asymmetrical warfare waged against us." And every piece of paper belonging to every last prisoner in Camp America was then seized, amounting to some 1,065 pounds of material, much of it privileged attorney-client correspondence.”
“The bodies of the three alleged suicide victims were returned home to their families, who requested independent autopsies, which then revealed "the removal of the structure that would have been the natural focus of the autopsy: the throat."
If all that sounds believable, I have a lovely bridge to sell you.
But when Scott Horton’s article appeared, in January, there was virtually no coverage by the media. Nor was there much press or TV coverage of the court’s decision last week.
And the media silence was equaled by the White House and the Defense
Department, leaving the public largely in the dark.
Being charitable, maybe that accounts for the deafening public silence that greeted these two events. We should have been outraged when the Defense Department issued its bizarre and totally non-credible report of the three “suicides.” But we weren’t. We were silent.
We should have been outraged when Scott Horton produced four eyewitness whistle-blowers who debunked the DOD’s report. But we weren’t. We were silent.
And we should have been outraged at the federal judge who threw out the survivors’ court case against the government. But we weren’t. We were silent.
Should we blame the media?
Well, yes, in part. These stories should have been page-one or primetime news. But the media was busy with other things. For example, while they weren’t reporting on the military’s Kafkaesque report, or Scott Horton’s expose, or the judge who threw out the case against the government, they were devoting maximum space and time to the Tea Party phenomenon.
That’s because the inchoate and irrational anger of the Tea Baggers produces conflict. And conflict is what the media thrives on. If it bleeds it leads!
But the media is not the only culprit here. We, the electorate, deserve a substantial part of the blame. Because most of us don’t pay serious attention to much of anything that’s going on in the world or in our country. If something piques our fancy, chances are it’s because we’ve seen it on TV.
Which may account for our interest in the Tea Baggers.
The Tea Baggers have surely been on TV. They have virtually monopolized cable news for weeks. This band of bloviators may have no policy prescriptions, not even any rational analysis of what they’re railing against, nor any coherent message beyond anger, but anger is apparently enough -- that’s what seems to be resonating with so many Americans. The delicious irony is that most of them are too uninformed to understand that the people they’re railing against are the very people who are trying to help them!
It was fascinating to watch the leaders of the Republican Party going through their ritual gyrations at CPAC – the annual conservative jamboree – last week to woo the support of the Tea Baggers. The party that spent us into historic deficits now attempting to join hands with the newest proponents of fiscal restraint!
But then I learned that the darling of the Tea Baggers, Glenn Beck, was to deliver CPAC’s keynote speech. This is the same crazy-like-a-fox money-machine who said of Obama, "This president I think has exposed himself over and over again as a guy who has a deep-seated hatred for white people or the white culture...I'm not saying he doesn't like white people, I'm saying he has a problem. This guy is, I believe, a racist."
The same guy who said, after Sonia Sotomayor was nominated to the Supreme Court, "I think she is a racist. I think she decided things based on race. I think she says that a Hispanic woman, with the experience of being a Hispanic woman can make decisions that a white man can't make. I can't imagine saying that. That's like saying Hispanics can't make money decisions like them Jews.”
As I thought of Glenn Beck keynoting CPAC, my mind wandered back to the days of Bill Buckley. How he would have loathed Glenn Beck! Agree with Buckley or not, he was a man of the mind. One could not but respect – nay, admire – his grasp of history, his no-nonsense rhetoric, his reason and logic. If Buckley were with us today, it’s arguable that the demagogues who are now hijacking the American Conservative movement might never have reached their current pinnacles.
As some wise observer wrote, “Today's trumpeters of Buckley's fusionism are angry, loud, and shrill. They'll betray their positions and their principles to score short-term televised victories. They're driven by ratings and by vanity. They want to make it to the top by securing notoriety instead of respect. They've abandoned meaningful persuasion and have instead opted to fulfill the Postman prophecy that we'll amuse ourselves to death--and that's not funny.”
Yet those who now rail against government are too ill-informed and too self-centered to recognize that there are wider issues to be railed against – and confusing suicide and murder is one of them.
So where is the outrage?
It isn’t.
For the moment, I have to console myself with the knowledge that “Movements” like the Tea Baggers are not new in American history. Witness the Know Nothing movement in the mid-19th century. Like the Tea Baggers, the Know Nothings were nativists empowered by popular fears that the country was being overwhelmed by Irish Catholic immigrants, who were often regarded as hostile to U.S. values and controlled by the Pope in Rome. The Know-Nothings tried to curb immigration and naturalization; like the Tea Baggers they had few prominent leaders. Most ended up joining the Republican Party by the time of the 1860 presidential election. And the “movement” just vanished into the dustbin of history.
(The origin of the term "Know Nothing?" When a member was asked about
its activities, he or she was supposed to reply, "I know nothing.")
As for CPAC, I like the words of Mickey Edwards, who was a Republican congressman who chaired CPAC for five years as head of the American Conservative movement. He explained why he wasn’t going to CPAC this year:
He wrote, “I'm not at CPAC because I believe in America. I believe in liberty. I believe that governments should be held in check. I believe people matter. I believe in the flag not because of its shape or color but because of the principles it stands for--the principles in the Constitution, the principles repeated and underlined and highlighted and boldfaced and italicized in the Bill of Rights. The George W. whose presidency and precedents I admire was the first president, not the 43d. It is James Madison I admire, not John Yoo. Thomas Paine, not Glenn Beck. Jefferson, not Limbaugh. Ronald Reagan would not have been welcome at today's CPAC or a tea party rally, but he would not have wanted to be there, either. Neither do I.”
And neither do I.
Thursday, February 18, 2010
Court Won’t Hear GITMO Deaths Case
By William Fisher
A federal district court has thrown out the case of two men who died in U.S. custody at Guantanamo Bay in 2006 and who are seeking to hold U.S. government officials responsible for the men’s torture, arbitrary detention and ultimate deaths.
The families of the dead men claimed that it was a violation of due process and cruel treatment to detain them for four years without charge while subjecting them to inhumane and degrading conditions of confinement and violent acts of torture and abuse. But, in dismissing the case, the court ruled that the deceased’s claims could not be heard in federal court because the men were held on the basis of an “enemy combatant” finding by a Combatant Status Review Tribunal (CSRT). The CSRTs were later found by the Supreme Court itself to be inadequate.
Following a two-year investigation, the military concluded that the men had
committed suicide. But recent first-hand accounts by four soldiers stationed at the base at the time of the deaths have raised serious questions about the cause and circumstances of the deaths, including the possibility that the men died as the result of torture.
The deaths of three men at Guantanamo were the subject of an article in Harper’s Magazine by Scott Horton, an attorney who has written extensively on US detention policy and practice. Horton wrote, “The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report—a reconstruction of the events—was simply unbelievable.”
He went on to explain that, “According to Naval Criminal Investigative Service (NCIS) documents, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.”
The district court held that the families’ claims were excluded by a jurisdiction-stripping provision of the 2006 Military Commissions Act that bars any challenge by a Guantánamo detainee to their treatment, conditions, or any other aspect of their detention, while failing to address the plaintiffs’ arguments about the unconstitutionality of the provision itself.
The court also dismissed the assertions of the dead men under the Alien Tort Claims Act, based on a holding by the D.C. Circuit Court in another detainee case that found that even torture or seriously criminal conduct can fall within the proper “scope of employment” of a government official.
The court also did not consider the plaintiffs’ claims under the Federal Tort Claims Act, including for emotional distress by the families, by holding that the U.S. military base at Guantánamo is still a “foreign country” for the purposes of the Act.
George Brent Mickum IV, a Washington D.C.-based attorney who is currently handling a number of Guantanamo cases, told IPS, “There have been 100 deaths of detainees since 2006. Thirty-six of these have been declared homicides. Only one case has ever been prosecuted. The probable reason: The CIA is responsible for these deaths."
And Pardiss Kebriaei, staff attorney at the Center for Constitutional Rights (CCR), a legal advocacy organization that has provided legal defense for many Guantanamo Bay inmates, said, “These men were tortured and detained for four years on the basis of an arbitrary designation of ‘enemy combatant’ and died in the custody of the United States military. They and their families should have the right to have their claims heard at the very least.”
“The court’s decision is all the more troubling in light of recent information that seriously undermines the official account of how these men died, and creates an even greater urgency for transparency and accountability,” she said.
CCR is considering whether it will appeal the verdict.
In January 2010, Scott Horton reported in Harper’s Magazine the accounts of four soldiers assigned to guard the camp where the deceased were detained at the time of their deaths. He wrote, “The soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, strongly suggest that the deceased were taken to a secret “black site” at Guantánamo on the night of their deaths and died at that site or from events that occurred there.”
Horton said the “undisclosed facility was thought to have been used by the CIA or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up initiated by the authorities within hours of the men’s deaths, and say they were ordered by their superiors not to speak out.”
Additional reports by the Seton Hall University School of Law analyzing the
military’s investigation files reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.
Seton Hall law professor and Director of the Center for Policy and Research, Mark P. Denbeaux, said, “Amazingly, some of DoD’s statements purporting to defend the NCIS investigation actually impeach it; others are irrelevant or misdirected.”
Denbeaux added, “The inflated number of statements supposedly supporting the NCIS Report are not as important as the statements omitted from the NCIS Report.”
“The Center for Policy and Research Report shows that each of the cell block guards on duty that night gave two statements, and the first statement for each is missing. The only statements from the guards in the NCIS report were made only after those guards had been threatened with prosecution because of the contents of their previous—and now missing—statements,” he said.
Professor Denbeaux continued, “Not only are the Alpha Block Guards first statements missing, but the Center for Policy & Research discovered that all of the contemporaneous statements from every person on duty that night are missing. Everyone on duty that night, in addition the Alpha Block guards, was ordered to write sworn statements as soon as the detainees were declared dead. And every one of those statements is missing.”
CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah
Al-Salami of Yemen, two men who were reportedly found dead along with a third detainee, Mani Al-Utaybi of Saudi Arabia, in their cells at Guantanamo on June 10, 2006.
At the time of their deaths, Al-Zahrani and Al-Salami had been detained incommunicado for more than four years without charge. In letters found
following their deaths, the men described their conditions and abuse, including being beaten by teams of military police known as the “Extreme Reaction Force,” deprived of sleep for up to 30 days at a time, subjected to desecration of the Qur’an and forced shaving, and denied necessary medical care.
A federal district court has thrown out the case of two men who died in U.S. custody at Guantanamo Bay in 2006 and who are seeking to hold U.S. government officials responsible for the men’s torture, arbitrary detention and ultimate deaths.
The families of the dead men claimed that it was a violation of due process and cruel treatment to detain them for four years without charge while subjecting them to inhumane and degrading conditions of confinement and violent acts of torture and abuse. But, in dismissing the case, the court ruled that the deceased’s claims could not be heard in federal court because the men were held on the basis of an “enemy combatant” finding by a Combatant Status Review Tribunal (CSRT). The CSRTs were later found by the Supreme Court itself to be inadequate.
Following a two-year investigation, the military concluded that the men had
committed suicide. But recent first-hand accounts by four soldiers stationed at the base at the time of the deaths have raised serious questions about the cause and circumstances of the deaths, including the possibility that the men died as the result of torture.
The deaths of three men at Guantanamo were the subject of an article in Harper’s Magazine by Scott Horton, an attorney who has written extensively on US detention policy and practice. Horton wrote, “The official story of the prisoners’ deaths was full of unacknowledged contradictions, and the centerpiece of the report—a reconstruction of the events—was simply unbelievable.”
He went on to explain that, “According to Naval Criminal Investigative Service (NCIS) documents, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.”
The district court held that the families’ claims were excluded by a jurisdiction-stripping provision of the 2006 Military Commissions Act that bars any challenge by a Guantánamo detainee to their treatment, conditions, or any other aspect of their detention, while failing to address the plaintiffs’ arguments about the unconstitutionality of the provision itself.
The court also dismissed the assertions of the dead men under the Alien Tort Claims Act, based on a holding by the D.C. Circuit Court in another detainee case that found that even torture or seriously criminal conduct can fall within the proper “scope of employment” of a government official.
The court also did not consider the plaintiffs’ claims under the Federal Tort Claims Act, including for emotional distress by the families, by holding that the U.S. military base at Guantánamo is still a “foreign country” for the purposes of the Act.
George Brent Mickum IV, a Washington D.C.-based attorney who is currently handling a number of Guantanamo cases, told IPS, “There have been 100 deaths of detainees since 2006. Thirty-six of these have been declared homicides. Only one case has ever been prosecuted. The probable reason: The CIA is responsible for these deaths."
And Pardiss Kebriaei, staff attorney at the Center for Constitutional Rights (CCR), a legal advocacy organization that has provided legal defense for many Guantanamo Bay inmates, said, “These men were tortured and detained for four years on the basis of an arbitrary designation of ‘enemy combatant’ and died in the custody of the United States military. They and their families should have the right to have their claims heard at the very least.”
“The court’s decision is all the more troubling in light of recent information that seriously undermines the official account of how these men died, and creates an even greater urgency for transparency and accountability,” she said.
CCR is considering whether it will appeal the verdict.
In January 2010, Scott Horton reported in Harper’s Magazine the accounts of four soldiers assigned to guard the camp where the deceased were detained at the time of their deaths. He wrote, “The soldiers’ eye-witness accounts, including that of a ranking Army officer who was on senior guard duty the night of the deaths, strongly suggest that the deceased were taken to a secret “black site” at Guantánamo on the night of their deaths and died at that site or from events that occurred there.”
Horton said the “undisclosed facility was thought to have been used by the CIA or the Joint Special Operations Command of the Defense Department to hold and interrogate detainees at Guantánamo. The soldiers further describe a high-level cover-up initiated by the authorities within hours of the men’s deaths, and say they were ordered by their superiors not to speak out.”
Additional reports by the Seton Hall University School of Law analyzing the
military’s investigation files reveal major unanswered questions and information gaps in the official account of the deaths, including failures to review relevant available information and interview material witnesses.
Seton Hall law professor and Director of the Center for Policy and Research, Mark P. Denbeaux, said, “Amazingly, some of DoD’s statements purporting to defend the NCIS investigation actually impeach it; others are irrelevant or misdirected.”
Denbeaux added, “The inflated number of statements supposedly supporting the NCIS Report are not as important as the statements omitted from the NCIS Report.”
“The Center for Policy and Research Report shows that each of the cell block guards on duty that night gave two statements, and the first statement for each is missing. The only statements from the guards in the NCIS report were made only after those guards had been threatened with prosecution because of the contents of their previous—and now missing—statements,” he said.
Professor Denbeaux continued, “Not only are the Alpha Block Guards first statements missing, but the Center for Policy & Research discovered that all of the contemporaneous statements from every person on duty that night are missing. Everyone on duty that night, in addition the Alpha Block guards, was ordered to write sworn statements as soon as the detainees were declared dead. And every one of those statements is missing.”
CCR represents the families of Yasser Al-Zahrani of Saudi Arabia and Salah
Al-Salami of Yemen, two men who were reportedly found dead along with a third detainee, Mani Al-Utaybi of Saudi Arabia, in their cells at Guantanamo on June 10, 2006.
At the time of their deaths, Al-Zahrani and Al-Salami had been detained incommunicado for more than four years without charge. In letters found
following their deaths, the men described their conditions and abuse, including being beaten by teams of military police known as the “Extreme Reaction Force,” deprived of sleep for up to 30 days at a time, subjected to desecration of the Qur’an and forced shaving, and denied necessary medical care.
SCOTUS to Revisit Terrorism Support
By William Fisher
Next week the Supreme Court will consider one of the most consequential cases to arise from the “global war on terrorism.”
The nine justices will hear lawyers’ arguments in a case known as Holder v. Humanitarian Law Project, which challenges a portion of the USA Patriot Act. That act was hastily passed by Congress soon after the terrorist attacks of 9/11, with only one dissenting vote.
The Supreme Court 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.” It will test whether a person in the U.S. may be held criminally liable for speech advocating lawful, nonviolent activity that supports an organization on the government’s terrorist list. The hearing is scheduled for Tuesday (March 23).
The plaintiffs, represented by the Center for Constitutional Rights (CCR), a legal advocacy group, charges that the law goes too far in criminalizing speech, including prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” The law currently deems it a crime speak within these issues, even if the speech is totally peaceful and nonviolent.
Lower courts have ruled several provisions of the statute “unconstitutionally vague” because they involve free speech and leave citizens to speculate about their meaning.
David Cole, a professor at the Georgetown University Law Center, who is a CCR Cooperating Attorney on this case, says, “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 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, of which the administration is seeking review, is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
The material-support ban, which imposes heavy criminal penalties on those who violate it, has been used by the government in dozens of cases. More than 150 defendants have been charged under the statute since 2001.There have been approximately 75 convictions.
Before the high court, Cole will be representing the Humanitarian Law Project (HLP) and other groups. HLP has been helping the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. But it had to end its work in 1997 when the secretary of state designated the party a terrorist organization.
"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."
The U.S. Government’s Solicitor General, Elena Kagan, will oppose Cole in oral arguments. The government’s position is that the statute's requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns." The challenged terms, such as "training," her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."
The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole's clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.
Attorney Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he said, adding:
“With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act provision draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb. We think the Constitution demands that the law recognize the difference between furthering human rights and furthering violence,” he said.
The lead plaintiff in the case is Ralph Fertig, a 79-year-old pacifist and civil rights lawyer from Los Angeles. He says he wants only the freedom to advocate for the rights of the Kurdish minority in Turkey. He is troubled that Kurds can be punished for speaking their own language or displaying their national colors. And he believes the 1st Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations.
Over the years, Fertig and the Humanitarian Law Project have won a series of rulings that have shielded its members from prosecution. Last year, the U.S. 9th Circuit Court of Appeals declared parts of the anti-terrorism law vague and unconstitutional. However, the Obama administration appealed to the Supreme Court, arguing that these rulings undercut "a vital part of the nation's effort to fight international terrorism."
In 1996, Congress expanded the anti-terrorism law, imposing a prison term of up to 15years for providing "training" or "expert advice or assistance" to a designated international terrorist group. The ban on supporting terrorists forbids sending not only money, weapons and fighters, but also charitable funds. Government lawyers say it even forbids filing a legal brief or writing an op-ed essay on behalf of a designated terrorist group.
Next week the Supreme Court will consider one of the most consequential cases to arise from the “global war on terrorism.”
The nine justices will hear lawyers’ arguments in a case known as Holder v. Humanitarian Law Project, which challenges a portion of the USA Patriot Act. That act was hastily passed by Congress soon after the terrorist attacks of 9/11, with only one dissenting vote.
The Supreme Court 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.” It will test whether a person in the U.S. may be held criminally liable for speech advocating lawful, nonviolent activity that supports an organization on the government’s terrorist list. The hearing is scheduled for Tuesday (March 23).
The plaintiffs, represented by the Center for Constitutional Rights (CCR), a legal advocacy group, charges that the law goes too far in criminalizing speech, including prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” The law currently deems it a crime speak within these issues, even if the speech is totally peaceful and nonviolent.
Lower courts have ruled several provisions of the statute “unconstitutionally vague” because they involve free speech and leave citizens to speculate about their meaning.
David Cole, a professor at the Georgetown University Law Center, who is a CCR Cooperating Attorney on this case, says, “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 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, of which the administration is seeking review, is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
The material-support ban, which imposes heavy criminal penalties on those who violate it, has been used by the government in dozens of cases. More than 150 defendants have been charged under the statute since 2001.There have been approximately 75 convictions.
Before the high court, Cole will be representing the Humanitarian Law Project (HLP) and other groups. HLP has been helping the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. But it had to end its work in 1997 when the secretary of state designated the party a terrorist organization.
"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."
The U.S. Government’s Solicitor General, Elena Kagan, will oppose Cole in oral arguments. The government’s position is that the statute's requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns." The challenged terms, such as "training," her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."
The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole's clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.
Attorney Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he said, adding:
“With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act provision draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb. We think the Constitution demands that the law recognize the difference between furthering human rights and furthering violence,” he said.
The lead plaintiff in the case is Ralph Fertig, a 79-year-old pacifist and civil rights lawyer from Los Angeles. He says he wants only the freedom to advocate for the rights of the Kurdish minority in Turkey. He is troubled that Kurds can be punished for speaking their own language or displaying their national colors. And he believes the 1st Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations.
Over the years, Fertig and the Humanitarian Law Project have won a series of rulings that have shielded its members from prosecution. Last year, the U.S. 9th Circuit Court of Appeals declared parts of the anti-terrorism law vague and unconstitutional. However, the Obama administration appealed to the Supreme Court, arguing that these rulings undercut "a vital part of the nation's effort to fight international terrorism."
In 1996, Congress expanded the anti-terrorism law, imposing a prison term of up to 15years for providing "training" or "expert advice or assistance" to a designated international terrorist group. The ban on supporting terrorists forbids sending not only money, weapons and fighters, but also charitable funds. Government lawyers say it even forbids filing a legal brief or writing an op-ed essay on behalf of a designated terrorist group.
Monday, February 15, 2010
Court: Name the Lobbyists!
By William Fisher
Despite President Barack Obama’s pledge in the State of the Union address, to “require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress,” the Electronic Frontier Foundation (EFF) says the Obama Administration has been “fighting hard to stop the release of the names of these representatives.”
“While it's great to see Obama reverse his position in the State of the Union and acknowledge the strong public interest in disclosure of lobbying records, the Administration must do more than give speeches in order to fulfill its commitment to transparency,” EFF urged.
It said President Obama “must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
For the past few years, the not-for-profit EFF has been litigating a Freedom of Information Act (FOIA) case against the government, seeking the identities of lobbyists who contacted the Department of Justice and the Office of the Director of National Intelligence on behalf of their telecommunications company clients in order to push for telecom immunity.
“With the help of lobbyists from AT&T, Verizon, and Sprint, the FISA Amendments Act passed with an unconstitutional provision to retroactively grant immunity to the telecoms for collaborating with the warrantless wiretapping program,” EFF contends.
The group says the Administration “must do more than give speeches in order to fulfill its commitment to transparency. Instead, Obama must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
Prof. Peter Shane of the Ohio State University’s law school is among many legal experts who agree with the EFF position. He told IPS, “On his first full day in office, President Obama issued a presidential memorandum that declared: ‘The presumption of disclosure should be applied to all decisions involving FOIA.’ Pursuant to the Obama directive, Attorney General Holder two months later issued a new Justice Department FOIA policy that declared: ‘The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or
(2) disclosure is prohibited by law.’ It's hard to see why the straightforward application of these principles would not lead to releasing the names of lobbyists.”
Last week, a federal appeals court in San Francisco agreed with EFF, Prof. Shane, and other advocates for transparency. The judges rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans.
The court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."
EFF has been seeking records detailing the telecoms' campaign for retroactive legal immunity under FOIA. Telecom immunity was enacted as part of the FISA Amendments Act of 2008. Then-Senator Obama voted in favor of immunity.
EFF called the ruling “an important one for government and corporate accountability." EFF Staff Attorney Marcia Hofmann said, "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret."
But a number of legal authorities believe there is an even broader issue at play: The Obama administration’s continuance of its predecessor’s court positions, including its view on this case. For example, Francis Boyle, a professor at the University of Illinois law school, told IPS, “U.S. Solicitor General Elena Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court.”
He called Kagan ‘a closet Neo-Conservative,” adding, “She has supported at all levels of litigation in U.S. Federal Courts up to and including the US Supreme Court every hideous atrocity that the Bush administration inflicted upon the United States Constitution, our Bill of Rights, Civil Rights, Civil Liberties and Human Rights for the eight years of that benighted administration.”
Another civil liberties leader, Chip Pitts, president of the Bill of Rights Defense Committee, also weighed in. He told IPS, “Like President Obama’s reversals and actions against accountability in other areas – including his support of the Patriot Act, FISA Amendments Act, telecom immunity, and his failure to prosecute Bush officials and release the photos that evidence torture – the president’s continuing to invoke national security and the state secret privilege to shield lobbyists’ actions emboldens the burgeoning military/industrial/surveillance complex while diminishing hopes for real change.”
He stressed that “It’s vital to see where the true equities are here: greater transparency from government and corporations can and should exist in harmony and not in tension with better governance and greater individual privacy, liberty, and freedom from infringements by powerful actors. Unwarranted ‘privacy’ claims by those special interests should not be used as an excuse to block the public’s legitimate right to know how decisions affecting fundamental rights are made.”
The appeals court sent part of the case back to the district court for further consideration, including whether disclosure of the lobbyists' identities would reveal intelligence sources and methods and whether communications between the agencies and the White House can be withheld under the presidential communications privilege or other grounds.
After the decision was announced, EFF Attorney Kevin Bankston noted that “Attorney General Eric Holder took the rare step of putting out a press release to defend the Friday filing, which was immediately picked up by the press. Luckily, we were standing by to express our disappointment and inject a dose of reality into the Justice Department's spin.”
EFF Legal Director Cindy Cohn similarly pointed out what she called the Obama Administration's hypocrisy. “Considering that Obama "campaigned for a return to the rule of law, it's disappointing...to have them turn around and say that courts can't even look at these cases."
EFF’s Bankston also finds the government's position “in stark contrast to candidate Obama's criticism of Bush-era abuse of the state secrets privilege. For example, in June, 2008, now Attorney General Holder said in a speech that: ‘Steps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . These steps were wrong when they were initiated and they are wrong today.’
Similarly, he says, “The Obama-Biden campaign website includes state secrets as part of ‘The Problem’ that President Obama would address, complaining that the Bush Administration invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."
Legislative efforts to reform the use of the state secrets privilege are now moving slowly through the Congress.
Despite President Barack Obama’s pledge in the State of the Union address, to “require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress,” the Electronic Frontier Foundation (EFF) says the Obama Administration has been “fighting hard to stop the release of the names of these representatives.”
“While it's great to see Obama reverse his position in the State of the Union and acknowledge the strong public interest in disclosure of lobbying records, the Administration must do more than give speeches in order to fulfill its commitment to transparency,” EFF urged.
It said President Obama “must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
For the past few years, the not-for-profit EFF has been litigating a Freedom of Information Act (FOIA) case against the government, seeking the identities of lobbyists who contacted the Department of Justice and the Office of the Director of National Intelligence on behalf of their telecommunications company clients in order to push for telecom immunity.
“With the help of lobbyists from AT&T, Verizon, and Sprint, the FISA Amendments Act passed with an unconstitutional provision to retroactively grant immunity to the telecoms for collaborating with the warrantless wiretapping program,” EFF contends.
The group says the Administration “must do more than give speeches in order to fulfill its commitment to transparency. Instead, Obama must apply this policy to pending litigation, and release the identities of telecommunications representatives who lobbied for immunity for the their telecommunications carrier clients.”
Prof. Peter Shane of the Ohio State University’s law school is among many legal experts who agree with the EFF position. He told IPS, “On his first full day in office, President Obama issued a presidential memorandum that declared: ‘The presumption of disclosure should be applied to all decisions involving FOIA.’ Pursuant to the Obama directive, Attorney General Holder two months later issued a new Justice Department FOIA policy that declared: ‘The Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or
(2) disclosure is prohibited by law.’ It's hard to see why the straightforward application of these principles would not lead to releasing the names of lobbyists.”
Last week, a federal appeals court in San Francisco agreed with EFF, Prof. Shane, and other advocates for transparency. The judges rejected a government claim of "lobbyist privacy" to hide the identities of individuals who pressured Congress to grant immunity to telecommunications companies that participated in the government's warrantless electronic surveillance of millions of ordinary Americans.
The court observed, "There is a clear public interest in public knowledge of the methods through which well-connected corporate lobbyists wield their influence."
EFF has been seeking records detailing the telecoms' campaign for retroactive legal immunity under FOIA. Telecom immunity was enacted as part of the FISA Amendments Act of 2008. Then-Senator Obama voted in favor of immunity.
EFF called the ruling “an important one for government and corporate accountability." EFF Staff Attorney Marcia Hofmann said, "The court recognized that paid lobbyists trying to influence the government to advance their clients' interests can't hide behind privacy claims to keep their efforts secret."
But a number of legal authorities believe there is an even broader issue at play: The Obama administration’s continuance of its predecessor’s court positions, including its view on this case. For example, Francis Boyle, a professor at the University of Illinois law school, told IPS, “U.S. Solicitor General Elena Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court.”
He called Kagan ‘a closet Neo-Conservative,” adding, “She has supported at all levels of litigation in U.S. Federal Courts up to and including the US Supreme Court every hideous atrocity that the Bush administration inflicted upon the United States Constitution, our Bill of Rights, Civil Rights, Civil Liberties and Human Rights for the eight years of that benighted administration.”
Another civil liberties leader, Chip Pitts, president of the Bill of Rights Defense Committee, also weighed in. He told IPS, “Like President Obama’s reversals and actions against accountability in other areas – including his support of the Patriot Act, FISA Amendments Act, telecom immunity, and his failure to prosecute Bush officials and release the photos that evidence torture – the president’s continuing to invoke national security and the state secret privilege to shield lobbyists’ actions emboldens the burgeoning military/industrial/surveillance complex while diminishing hopes for real change.”
He stressed that “It’s vital to see where the true equities are here: greater transparency from government and corporations can and should exist in harmony and not in tension with better governance and greater individual privacy, liberty, and freedom from infringements by powerful actors. Unwarranted ‘privacy’ claims by those special interests should not be used as an excuse to block the public’s legitimate right to know how decisions affecting fundamental rights are made.”
The appeals court sent part of the case back to the district court for further consideration, including whether disclosure of the lobbyists' identities would reveal intelligence sources and methods and whether communications between the agencies and the White House can be withheld under the presidential communications privilege or other grounds.
After the decision was announced, EFF Attorney Kevin Bankston noted that “Attorney General Eric Holder took the rare step of putting out a press release to defend the Friday filing, which was immediately picked up by the press. Luckily, we were standing by to express our disappointment and inject a dose of reality into the Justice Department's spin.”
EFF Legal Director Cindy Cohn similarly pointed out what she called the Obama Administration's hypocrisy. “Considering that Obama "campaigned for a return to the rule of law, it's disappointing...to have them turn around and say that courts can't even look at these cases."
EFF’s Bankston also finds the government's position “in stark contrast to candidate Obama's criticism of Bush-era abuse of the state secrets privilege. For example, in June, 2008, now Attorney General Holder said in a speech that: ‘Steps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . These steps were wrong when they were initiated and they are wrong today.’
Similarly, he says, “The Obama-Biden campaign website includes state secrets as part of ‘The Problem’ that President Obama would address, complaining that the Bush Administration invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."
Legislative efforts to reform the use of the state secrets privilege are now moving slowly through the Congress.
Saturday, February 13, 2010
ABA: Deportation System “Severely Flawed”
By William Fisher
The number of people deported from the U.S. annually has grown from just over 69,000 to over 356,000 in the past eight years, while resource-starved immigration judges issue decisions without sufficient time to conduct legal research and analyze complex legal and factual issues.
This is among the key findings of a new comprehensive review of the current deportation process by the American Bar Association’s Commission on Immigration and one of America’s leading law firms.
The study concludes that the removal (deportation) system “is severely flawed and fails to afford fair process to all non-citizens facing deportation from the United States.”
The study details many of the deficiencies in the current system and advocates for systemic reform.
It says, “There is strong evidence that (legal) representation affects the outcome of immigration proceedings.” But in 2008, it continues, 57 per cent of people in removal proceedings were not represented. Of those in detention, 84 per cent were forced to proceed without lawyers.
“Not only are many people unable to afford counsel, but remote detention facilities, short visiting hours, restrictive phone access, and transfers all have a devastating effect on a non-citizen’s ability to retain counsel and maintain an attorney-client relationship.”
The study, carried out in cooperation with the law firm of Arnold and Porter, finds “stark disparities” between the rates of asylum grants among immigration judges and, as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Among other findings:
The “tremendous increase” in deportations “has not been met with commensurate resources.”
Immigration judges completed on average 1,243 cases per year. (In comparison, Veterans Law Judges decide about 729 cases per year (of which only 178 involve hearings) and Social Security Administration administrative law judges decide about 544 cases per year.)
Given the overwhelming case load and the lack of adequate support staff, immigration judges primarily issue oral decisions, meaning that decisions are made without sufficient time to conduct legal research and analyze complex legal and factual issues.
There are “stark disparities” in the rates of asylum grants among immigration judges and as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Most Board of Immigration Appeals cases are decided by a single member, as opposed to the past practice of using three-member panels to decide cases. This change has resulted in fewer decisions favoring asylum seekers.
Most decisions are “short opinions” that fail to provide a sufficient explanation for the decision. The rate at which non-citizens are appealing Board decisions to the federal courts has increased from 9.4 per cent in 2002 to 26.7 per cent in 2008. In 2008, non-citizens filed more than 10,000 federal court appeals of Board decisions.
The absence of counsel, the overwhelming dockets, the lack of adequately
explained and reasoned decisions, and the disparities among judges’ decisions are just a few of serious problems plaguing the removal system, the study declares.
Beth Werlin, Litigation Clearinghouse Attorney at the American Immigration Council’s Legal Action Center, writes, “These problems not only diminish the public’s confidence in the system, but even worse, they compromise the statutory and constitutional guarantee of fair process for each person facing removal.”
She concludes, “As Congress takes on immigration reform this year, it should be mindful of those whom the current removal system is failing. Given the gravity of removal — which can range from permanent separation from family in the U.S. to being returned to a country where a person fears for his life — we must demand that the process is meaningful, fair and leads to just results.”
At the same time, a study by The Transactional Records Access Clearinghouse (TRAC) at Syracuse University concluded that the announced goal of a broad Justice Department project to improve the performance of the Immigration Courts — started during the Bush Administration but now a continuing challenge for President Obama — “has failed to achieve many of its ambitious purposes.”
This mixed verdict is based on the actual improvements so far realized in the operations of the immigration court system after a three-year Justice Department effort.
The TRAC study found that the annual number of deportation cases brought in the nation's federal courts more than quadrupled during the eight years of the Bush administration. It reported that the September 2008 total of 11,454 immigration prosecutions represented an increase of over seven hundred percent from the same month seven years earlier, September 2001).
The study reported that in fiscal year 2008, Department of Homeland Security (DHS) officers apprehended at least 791,568 deportable non-citizens; initiated 291,217 removal proceedings in the immigration courts against non-citizens; detained 378,582 non-citizens; and effected the deportation of 358,886 non-citizens.
The study says, “Immigration lawyers, civil rights advocates and some members of Congress have for many years been concerned about the operation of the Immigration Courts that are now a part of the Justice Department. But beginning in 2002, a change in EOIR (Executive Office for Immigration Review) court procedures ordered by then Attorney General John Ashcroft resulted in a stream of unfavorable decisions by appellate level judges in different parts of the country.”
It notes that Ashcroft's successor, Attorney General Alberto Gonzales, then ordered the Justice Department to undertake a special study of the EOIR.
In August of 2006 Gonzales, acting upon the findings of this internal study and the first in a series of studies documenting inexplicable disparities in how asylum cases were being decided, ordered the Justice Department to launch a corrective effort he said was necessary "to improve the performance and the quality" of the Immigration Courts and the Board of Immigration Appeals.
Gonzales' directive listed 22 specific measures. In March 2007, outgoing EOIR Director Kevin Rooney sent a memo to his staff updating the implementation of the proposed changes and in many cases providing target deadlines for their implementation.
The TRAC study says the Justice Department’s Executive Office for Immigration Review (EOIR), “has fallen far short of hiring the additional judges that the Justice Department had initially said were required; continues to hire judges without immigration law experience while available evidence indicates that comprehensive training in this complex legal area is not provided; has failed to provide evidence that it has established a system for seriously testing the immigration law knowledge of judges; has still not developed a judicial code of conduct or established a standardized system for handling complaints regarding the professional conduct of existing immigration judges; and has not worked out procedures to provide the judges the sanction authority they need to control their courtrooms.”
As in recent years, the TRAC study fund that the five federal districts with the largest proportion of immigration prosecutions in FY 2008 were strung out along the border with Mexico. In Texas South (Houston), Arizona (Phoenix), New Mexico (Albuquerque), Texas West (San Antonio) and California South (San Diego), for example, immigration matters made up 73.7 per cent or more of all those charged with a federal crime.
The number of people deported from the U.S. annually has grown from just over 69,000 to over 356,000 in the past eight years, while resource-starved immigration judges issue decisions without sufficient time to conduct legal research and analyze complex legal and factual issues.
This is among the key findings of a new comprehensive review of the current deportation process by the American Bar Association’s Commission on Immigration and one of America’s leading law firms.
The study concludes that the removal (deportation) system “is severely flawed and fails to afford fair process to all non-citizens facing deportation from the United States.”
The study details many of the deficiencies in the current system and advocates for systemic reform.
It says, “There is strong evidence that (legal) representation affects the outcome of immigration proceedings.” But in 2008, it continues, 57 per cent of people in removal proceedings were not represented. Of those in detention, 84 per cent were forced to proceed without lawyers.
“Not only are many people unable to afford counsel, but remote detention facilities, short visiting hours, restrictive phone access, and transfers all have a devastating effect on a non-citizen’s ability to retain counsel and maintain an attorney-client relationship.”
The study, carried out in cooperation with the law firm of Arnold and Porter, finds “stark disparities” between the rates of asylum grants among immigration judges and, as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Among other findings:
The “tremendous increase” in deportations “has not been met with commensurate resources.”
Immigration judges completed on average 1,243 cases per year. (In comparison, Veterans Law Judges decide about 729 cases per year (of which only 178 involve hearings) and Social Security Administration administrative law judges decide about 544 cases per year.)
Given the overwhelming case load and the lack of adequate support staff, immigration judges primarily issue oral decisions, meaning that decisions are made without sufficient time to conduct legal research and analyze complex legal and factual issues.
There are “stark disparities” in the rates of asylum grants among immigration judges and as a result, “a non-citizen’s success in immigration court may depend to a troublesome extent upon which judge is assigned his or her case.”
Most Board of Immigration Appeals cases are decided by a single member, as opposed to the past practice of using three-member panels to decide cases. This change has resulted in fewer decisions favoring asylum seekers.
Most decisions are “short opinions” that fail to provide a sufficient explanation for the decision. The rate at which non-citizens are appealing Board decisions to the federal courts has increased from 9.4 per cent in 2002 to 26.7 per cent in 2008. In 2008, non-citizens filed more than 10,000 federal court appeals of Board decisions.
The absence of counsel, the overwhelming dockets, the lack of adequately
explained and reasoned decisions, and the disparities among judges’ decisions are just a few of serious problems plaguing the removal system, the study declares.
Beth Werlin, Litigation Clearinghouse Attorney at the American Immigration Council’s Legal Action Center, writes, “These problems not only diminish the public’s confidence in the system, but even worse, they compromise the statutory and constitutional guarantee of fair process for each person facing removal.”
She concludes, “As Congress takes on immigration reform this year, it should be mindful of those whom the current removal system is failing. Given the gravity of removal — which can range from permanent separation from family in the U.S. to being returned to a country where a person fears for his life — we must demand that the process is meaningful, fair and leads to just results.”
At the same time, a study by The Transactional Records Access Clearinghouse (TRAC) at Syracuse University concluded that the announced goal of a broad Justice Department project to improve the performance of the Immigration Courts — started during the Bush Administration but now a continuing challenge for President Obama — “has failed to achieve many of its ambitious purposes.”
This mixed verdict is based on the actual improvements so far realized in the operations of the immigration court system after a three-year Justice Department effort.
The TRAC study found that the annual number of deportation cases brought in the nation's federal courts more than quadrupled during the eight years of the Bush administration. It reported that the September 2008 total of 11,454 immigration prosecutions represented an increase of over seven hundred percent from the same month seven years earlier, September 2001).
The study reported that in fiscal year 2008, Department of Homeland Security (DHS) officers apprehended at least 791,568 deportable non-citizens; initiated 291,217 removal proceedings in the immigration courts against non-citizens; detained 378,582 non-citizens; and effected the deportation of 358,886 non-citizens.
The study says, “Immigration lawyers, civil rights advocates and some members of Congress have for many years been concerned about the operation of the Immigration Courts that are now a part of the Justice Department. But beginning in 2002, a change in EOIR (Executive Office for Immigration Review) court procedures ordered by then Attorney General John Ashcroft resulted in a stream of unfavorable decisions by appellate level judges in different parts of the country.”
It notes that Ashcroft's successor, Attorney General Alberto Gonzales, then ordered the Justice Department to undertake a special study of the EOIR.
In August of 2006 Gonzales, acting upon the findings of this internal study and the first in a series of studies documenting inexplicable disparities in how asylum cases were being decided, ordered the Justice Department to launch a corrective effort he said was necessary "to improve the performance and the quality" of the Immigration Courts and the Board of Immigration Appeals.
Gonzales' directive listed 22 specific measures. In March 2007, outgoing EOIR Director Kevin Rooney sent a memo to his staff updating the implementation of the proposed changes and in many cases providing target deadlines for their implementation.
The TRAC study says the Justice Department’s Executive Office for Immigration Review (EOIR), “has fallen far short of hiring the additional judges that the Justice Department had initially said were required; continues to hire judges without immigration law experience while available evidence indicates that comprehensive training in this complex legal area is not provided; has failed to provide evidence that it has established a system for seriously testing the immigration law knowledge of judges; has still not developed a judicial code of conduct or established a standardized system for handling complaints regarding the professional conduct of existing immigration judges; and has not worked out procedures to provide the judges the sanction authority they need to control their courtrooms.”
As in recent years, the TRAC study fund that the five federal districts with the largest proportion of immigration prosecutions in FY 2008 were strung out along the border with Mexico. In Texas South (Houston), Arizona (Phoenix), New Mexico (Albuquerque), Texas West (San Antonio) and California South (San Diego), for example, immigration matters made up 73.7 per cent or more of all those charged with a federal crime.
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