By William Fisher
While the unsuccessful attempt to bring down a Detroit-bound airliner on Christmas day captured the headlines and put major political roadblocks in the path of prisoner release from Guantanamo Bay, the courts – far more quietly -- continued to play a major role in influencing the detention issue.
That influence was demonstrated by two cases this week.
In Washington, D.C., a three-judge panel of the U.S. Court of Appeals minced its way toward fashioning new rules to govern habeas corpus decisions brought by three prisoners at the Bagram airbase in Afghanistan.
And a decision by three different judges of the same court affirmed the government's authority to hold people taken prisoner in the fight against al-Qaida and the Taliban – thus making it more difficult for detainees to challenge the basis of their detention.
On Thursday, the DC Circuit court heard oral arguments in a case known as Maqaleh v. Gates -- the first legal challenge in U.S. courts on behalf of prisoners detained at Bagram Airbase in Afghanistan. The case was brought by the International Justice Network (IJNetwork) on behalf of two Yemenis and one Tunisian citizen, each seized outside of Afghanistan from third countries and held without charge or trial in U.S. custody for more than six years.
Evidence suggests that each man was shuttled through U.S.-run secret prisons (“black sites”) for torture and interrogation, prior to ultimately being transferred to Bagram—itself the site of well-documented human rights violations—where they continue to be subjected to indefinite detention under sole U.S. military custody.
During the entire six-year period while he has been in U.S. custody, Maqaleh has not been permitted to see his family, and has been denied any access to lawyers or a court of law. Because he is being held virtually incommunicado, his father authorized IJNetwork to file a petition for a writ of habeas corpus in U.S. court seeking his release. Though his case has now been pending for over three years, the government continues to refuse to allow Maqaleh to communicate with his attorneys.
In April 2009, Judge John D. Bates ruled that Maqaleh, and two other petitioners in the case, Amin al Bakri and Redha al Najar, have a Constitutional right to petition U.S. courts for a writ of habeas corpus.
Judge Bates’s decision was based on the Supreme Court’s decision in Boumediene v. Bush, which established that detainees held in U.S. custody at Guantanamo had a Constitutional right to file habeas corpus petitions in U.S. courts. But before any of the Bagram detainees could have his day in court, the Obama Administration appealed Judge Bates’ decision—arguing that none of the 600 detainees at Bagram have any rights under U.S. law.
As the organization representing the Bagram detainees, the IJNetwork, has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody — including Bagram.
Though President Obama has vowed to close Guantanamo, the Department of Justice continues to defend the Bush Administration’s position that individuals held at other U.S.-run military facilities have no legal rights. As the organization representing the Bagram detainees, IJNetwork has called on the Obama Administration to end the practices of rendition, torture, and indefinite detention, and provide fundamental human rights to all individuals held in U.S. custody— including Bagram.
Deputy Solicitor General Neal Katyal, arguing for the government, said the circumstances surrounding detention of prisoners at Bagram are unique and do not match the circumstances at the Guantanamo Bay base in Cuba. Katyal noted that Bagram is in the middle of a war zone.
But Tina Foster, executive director of the International Justice Network (IJN), who argued for the Bagram detainees, told IPS, “Our clients are three innocent men who have been imprisoned without charge for seven years and haven't even been told why. The fundamental question at issue in these cases is whether the United States government can seize individuals from peaceful countries anywhere in the world and imprison them without charge indefinitely, based solely on the location of the prison facility where the government decides to detain them.”
She added, “The position of the Obama administration is that it can do so, as long as it uses Bagram, instead of Guantanamo, as its legal black hole. This is an extreme position -- and one that allows the President to do exactly what the Supreme Court said was unconstitutional in the Guantanamo cases. We are very disappointed that this administration has failed to live up to its promise of living up to this country's great legal tradition and fidelity to the rule of law, but we are hopeful that the Court of Appeals will remedy this injustice.”
She said the Justice Department’s position is one where “Bumediene was never decided.” She said the government cannot be allowed to manipulate habeas through the selective movement of prisoners.
In the second case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld a lower court's decision in 2008 affirming the continued detention of a former cook for Taliban forces. He is Ghaleb Nassar Al Bihani, a citizen of Yemen who was captured in Afghanistan. Held at the U.S. naval base in Cuba since 2002, al Bihani carried an assault rifle for the 55th Arab Brigade, a paramilitary group allied with the Taliban in Afghanistan, but claims he never fired a shot in battle.
The court unanimously rejected Al Bihani's appeal. But two judges appointed by President George W. Bush went even further. Bush appointees Janice Rogers Brown and Brett Kavanaugh said detainees are not entitled to the same rights given criminal defendants who challenge their convictions.
In 2008, the Supreme Court said the Guantanamo detainees have a constitutional right to go into federal court to challenge their imprisonment. But the court did not spell out the extent of that right.
As a result, federal judges have reached often contradictory conclusions about the detainees' legal rights and whether the government has the power to continue holding them.
This decision can be appealed either to the full appeals court or to the
Supreme Court. If it is not challenged successfully, it could apply to every other detainee case filed in Washington and provide the government with a compelling basis to challenge any court order to release a detainee.
Legal authorities said the decision will make it more difficult for some detainees to win release through federal lawsuits challenging their confinements because it so robustly supports the government's authority, legal experts said.
The two Bush appointees rejected attempts by human rights groups and detainees' lawyers to have the courts apply principles from "the laws of war" to detention decisions.
This group of international laws, treaties and long-standing legal practices would probably curtail the government’s ability to detain people such as Bihani indefinitely, his defenders believe.
A large majority of the prisoners still held at Guantanamo Bay is from Yemen. In the aftermath of the political backlash triggered by the disclosure that the would-be bomber of the Detroit-bound airliner was given his explosive device by Al Qaeda in Yemen, the Obama administration decided to suspend release of any Yemeni detainees, many of whom have been cleared for release.
Friday, January 08, 2010
How September 10th!
By William Fisher
Civil liberties advocates and organizations representing Muslims believe the Obama administration’s decision to require extra scrutiny for travelers to the U.S. from 14 predominantly Islamic countries will lead to practices that are discriminatory and ineffective.
The Obama administration announced Sunday it will subject the
citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.
Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.
In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers -- not just from the 14 countries -- will also face random and threat-based enhanced screening.
But the agency denied that the new regulations amount to profiling. "TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background," spokesman Kristin Lee said.
“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”
But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”
“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration's stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.
Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.
According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”
"We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion," said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.
"Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats."
The organization said the government's plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the "shoe bomber," Richard Reid, who was a British citizen, as were four of the London subway bombers.
"Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn't reflect this reality will only divert resources by having government agents target innocent people," said German. "Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism."
Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, "Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -- that's profiling."
He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”
“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”
CAIR’s government liaison, Alejandro Beutel, said, "The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin," said "Call it whatever you want, but this is religious and ethnic profiling at its worst."
A number of legal experts were also critical of the new measures.
Georgetown University law professor David Cole said, "The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don't fit the profile."
Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.
In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I'm going to argue that this case illustrates the danger and the foolishness of profiling…I think it's not only problematic from a civil rights' standpoint, but frankly, I think it winds up not being terribly effective.”
He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”
A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.
Civil liberties advocates and organizations representing Muslims believe the Obama administration’s decision to require extra scrutiny for travelers to the U.S. from 14 predominantly Islamic countries will lead to practices that are discriminatory and ineffective.
The Obama administration announced Sunday it will subject the
citizens of 14 nations who are flying to the United States to intensified screening at airports, including being subjected to full-body pat downs or body scanners.
Under the new rules, all citizens of Afghanistan, Algeria, Lebanon, Libya, Iraq, Nigeria, Pakistan, Saudi Arabia, Somalia and Yemen must receive a pat down and an extra check of their carry-on bags before boarding a plane bound for the United States, officials said. Citizens of Cuba, Iran, Sudan and Syria — nations considered “state sponsors of terrorism” — face the same requirement.
In a statement, the Transportation Security Administration (TSA), part of the giant Department of Homeland Security (DHS), said a majority of all other U.S.-bound international travelers -- not just from the 14 countries -- will also face random and threat-based enhanced screening.
But the agency denied that the new regulations amount to profiling. "TSA does not profile. As is always the case, TSA security measures are based on threat, not ethnic or religious background," spokesman Kristin Lee said.
“We are only as strong as our weakest point,” said Cindy Farkus, the head of global security programs at the Transportation Security Administration. “We are always trying to stay ahead of where the emerging threats might be.”
But the Muslim Public Affairs Council (MPAC) told us that the new TSA guidelines were “a political solution to a security problem.” MPAC’s Communications Director, Edina Lekovic, urged the adoption of behavior-based screening rather than profiling, and called the TSA guidelines “a lazy solution that may make us feel good, but in fact merely creates blind spots that make us less safe.”
“These ‘blind spots’ can be identified and exploited by violent extremists. Furthermore, the new policy deeply undermines the Obama administration's stated commitment to civil rights, equality before the law, and a much-needed effort to rebuild U.S.-Muslim world relations,” she added.
Lekovic also disclosed reports she has received from members of her constituency that TSA screeners at Washington DC’s Dulles airport have been instructed to carry out additional inspections of women wearing headscarves. These reports could not be immediately confirmed with the TSA.
According to the American Civil Liberties Union (ACLU), the government should “adhere to longstanding standards of individualized suspicion and enact security measures that are the least threatening to civil liberties and are proven to be effective. Racial profiling and untargeted body scanning do not meet those criteria.”
"We should be focusing on evidence-based, targeted and narrowly tailored investigations based on individualized suspicion, which would be both more consistent with our values and more effective than diverting resources to a system of mass suspicion," said Michael German, national security policy counsel with the ACLU Washington Legislative Office and a former FBI agent.
"Overbroad policies such as racial profiling and invasive body scanning for all travelers not only violate our rights and values, they also waste valuable resources and divert attention from real threats."
The organization said the government's plan to subject citizens of certain countries to enhanced screenings is bad policy, because there is no way to predict the national origin of a terrorist and many terrorists have come from countries not on the list. It cited the case of the "shoe bomber," Richard Reid, who was a British citizen, as were four of the London subway bombers.
"Singling out travelers from a few specified countries for enhanced screening is essentially a pretext for racial profiling, which is ineffective, unconstitutional and violates American values. Empirical studies of terrorists show there is no terrorist profile, and using a profile that doesn't reflect this reality will only divert resources by having government agents target innocent people," said German. "Profiling can also be counterproductive by undermining community support for government counterterrorism efforts and creating an injustice that terrorists can exploit to justify further acts of terrorism."
Nihad Awad, national executive director for the Council on Islamic-American Relations (CAIR), said in a statement, "Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -- that's profiling."
He added, “Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -– that’s profiling. While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.”
“We all support effective security measures that will protect the travelling public from an attack such as that attempted on Christmas Day,” Awad said. “But knee-jerk policies will not address this serious challenge to public safety.”
CAIR’s government liaison, Alejandro Beutel, said, "The new TSA guidelines deliver a propaganda victory to Al-Qaeda and other violent extremist groups, since they rob targeted groups of people from their civil liberties based on their ethnicity and country of origin," said "Call it whatever you want, but this is religious and ethnic profiling at its worst."
A number of legal experts were also critical of the new measures.
Georgetown University law professor David Cole said, "The danger with nationality-based profiling is that it sweeps up vast numbers of innocent people, may alienate those we need to have on our side if we are to reduce al-Qaeda recruitment, and takes our eyes off folks, like Richard Reid and Zacarias Moussaoui, who are citizens of other countries that don't fit the profile."
Richard Reid, a self-admitted member of Al Qaeda, was convicted by a U.S. federal court of attempting to destroy a commercial aircraft in-flight by detonating explosives hidden in his shoes in 2001. Moussaoui, a French citizen, was convicted of conspiring to kill citizens of the US as part of the September 11, 2001, terrorist attacks.
In response to numerous calls for profiling from elected politicians, former Secretary of Homeland Security Michael Chertoff told National Public Radio, “I'm going to argue that this case illustrates the danger and the foolishness of profiling…I think it's not only problematic from a civil rights' standpoint, but frankly, I think it winds up not being terribly effective.”
He cited a Justice Department 2003 advisory report that concluded, “Racial profiling in law enforcement is not merely wrong, but also ineffective. Race-based assumptions in law enforcement perpetuate negative racial stereotypes that are harmful to our rich and diverse democracy, and materially impair our efforts to maintain a fair and just society.”
A number of transportation security authorities have recommended that the U.S. adopt the screening practices used by Israel’s airports and airlines. El Al airlines, one of the world’s safest carriers, has spent many years developing screening methods based on passengers’ behavior, rather than looks, dress, or country of origin.
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