Thursday, July 01, 2010


News Analysis By William Fisher

As the Justice Department remains on a collision course with the State of Arizona‘s tough new anti-immigrant law, and myriad additional legal problems develop for Arizona’s Republican governor, President Barack Obama has launched a new robust rhetorical initiative to pass comprehensive immigration reform.

The president was unclear, however, as to the timing of Congressional action. It was generally believed that Obama would talk about immigration reform between now and the election of the next Congress in 2010. It was thought unlikely he would do anything significant on this contentious issue that could present Congressional Democrats with difficult votes.

Nonetheless, President Obama told a Washington audience Thursday that he remains committed to comprehensive immigration legislation that will include a strong focus on border security but also will preserve America's legacy as "a nation of immigrants . . . who believed that there was a place that they could be, at long last, free to work and worship and live their lives in peace."

The President appears to be saying that while the politics of the thorny issue may demand that legislation waits a bit, it is too important to be kicked down the road. He pledged to push for immigration reform relentlessly from now on.

Observers believe he wants to make good on a major campaign promise and that he decidedly has his eye on the ways history will remember him.

In a speech at American University today, Obama emphasized the need for federal immigration reform that respects the civil rights of those in this country.

Among the organizations pressing for quick action on the issue is the American Civil Liberties Union (ACLU), which strongly supports reforms to U.S. immigration policy and calls on political leaders to ensure that any legislation protects the civil rights, civil liberties and human rights of everyone in the United States, regardless of his or her immigration status.

Anthony D. Romero, Executive Director of the ACLU, said, “We commend President Obama for recognizing the need to reform our immigration system on the federal level rather than allow a patchwork of state and local laws that lead to the violation of civil rights and alienation of communities from law enforcement.”

He added,” The recently enacted Arizona law, which the ACLU and others are challenging in court, is a prime example of misguided laws that inevitably lead to egregious racial profiling and discrimination. We urge the Obama administration to bring a federal challenge to the Arizona law through litigation as soon as possible and to take all actions in its power to prevent the law's implementation.

"President Obama is also correct that heavy border security is not a singular answer to addressing immigration issues. Expanded border enforcement could cause more civil liberties abuses in U.S. communities on the southwest border. Any border enforcement must be conducted in a constitutional manner with strict accountability and oversight to avoid abuse.

"Expanding E-Verify, an electronic employment verification program promoted by the president today, is not an answer but would lead to discrimination, burden American workers and deny employment to authorized workers.

"We encourage President Obama to work with Congress to implement immigration policies that respect the Constitution and the civil liberties of all within our borders."

As Obama calls for bipartisan reform, Human Rights First stresses importance of safeguards in detention and protecting refugees' access to fair asylum proceedings

Responding to President Ocala’s speech at American University, Human Rights First today emphasized that any immigration reform package must reflect U.S. values and commitment to refugee protection.

"As the President works with lawmakers to address the many complex issues that will arise during a debate over comprehensive immigration reform, he must ensure that America upholds its longstanding commitment to refugee protection – which he emphasized strongly just two weeks ago on the occasion of World Refugee Day," said Human Rights First's Annie Sock.

"The Obama Administration and Congress should ensure safeguards to prevent arbitrary detention and protect refugees' access to fair asylum procedures."

Several bills pending in Congress already include key improvements to the asylum and refugee systems that should be incorporated into any immigration reform legislation. Human Rights First continues to urge President Obama and Congress to put into law measures including the following:

Eliminate the one-year asylum-filing deadline that bars refugees with well-founded fears of persecution from asylum; remove barriers that prevent some asylum seekers from receiving prompt review by the immigration courts of detention decisions so that these asylum seekers are not subject to prolonged and arbitrary detention; clarify the "particular social group" basis and "nexus" requirements for asylum so that the asylum requests of vulnerable individuals are adjudicated fairly and consistently; and Protect refugees from inappropriate exclusion by refining the definitions of "terrorist activity" and "terrorist organization" so that U.S. immigration laws target actual terrorists, as opposed to hurting thousands of legitimate refugees who are not guilty of any wrongdoing and pose no threat to American security.

In a related development reported by the Miami Herald newspaper, Federal immigration officials now have the ability to identify potentially deportable foreign nationals booked into Florida county jails on suspicion of crimes.

Michael W. Meade, U.S. Immigration and Customs Enforcement field office director in Miami, announced Tuesday that booking centers in all 67 Florida counties are now linked to ICE's biometric databases for quicker identification of immigration records.

Meade's disclosure marks an expansion in Florida of ICE's Secure Communities initiative, a controversial program the agency of the U.S. Department of Homeland Security deems vital to its efforts to quickly identify foreign nationals who have been convicted or charged.

"This capability means local law enforcement and ICE are automatically alerted when potentially deportable criminal aliens come into state and local custody," Meade told a news conference at ICE's office in Doral.

"If this program were really targeting hardened criminals and making us safer, as ICE claims, I imagine most everyone would support it," said Cheryl Little, executive director of the Florida Immigrant Advocacy Center, long a critic of Secure Communities.

"People arrested for any reason, including traffic violations and loitering, are caught in ICE's net — including U.S. citizens."

Under President Barack Obama, ICE has reconfigured its stated immigration enforcement priority, ostensibly targeting foreign nationals convicted of crimes committed in the United States.

Previously, immigration authorities detained and deported criminal and noncriminal immigrants without distinction.

Ali Noorani, Executive Director of the National Immigration Forum and Chair of the Reform Immigration FOR America campaign, praised the Obama speech but said, “Republicans must offer more than tough talk and tired "border first" talking points.”

He added, “Border security is a necessary but insufficient part of getting immigration reform right. It does nothing to stop the jobs magnet or bring the 11 million unauthorized immigrants into the system legally. And it does nothing to reform our legal immigration system so that it can respond flexibly to future labor market needs. We don't need window dressing, more tough talk, or more empty gestures. We need leadership on comprehensive reform.”

The American Bar Association has also filed a “friend of the court” brief seeking an injunction against Arizona’s law authorizing police to stop and detain individuals unless they can produce proof of citizenship or legal immigration status.


By William Fisher

Ten American citizens or lawful U.S. residents are suing the government for placing them on the “no-fly” list without notice or due process and then giving them no way to get their names off the list.

The first-of-its-kind lawsuit was filed seeking relief for the plaintiffs who are prohibited from flying to or from the United States or over U.S. airspace because they are on the government's "No Fly List," says the American Civil Liberties Union, which has brought the suit.
None of the individuals in the lawsuit, including a disabled U.S. Marine Corps veteran stranded in Egypt and a U.S. Army veteran stuck in Colombia, have been told why they are on the list or given a chance to clear their names.

"More and more Americans who have done nothing wrong find themselves unable to fly, and in some cases unable to return to the U.S., without any explanation whatsoever from the government," said Ben Wizner, staff attorney with the ACLU National Security Project. "A secret list that deprives people of the right to fly and places them into effective exile without any opportunity to object is both un-American and unconstitutional."

The lawsuit names the U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Terrorist Screening Center (TSC) in U.S. District Court for the District of Oregon.

The plaintiffs include a U.S. citizen and disabled Marine veteran living in Egypt who has been barred from flying to the United States and, as a result, cannot take a required Veterans' Administration disability evaluation; Raymond Earl Knaeble, a U.S. citizen and U.S. Army veteran who is stuck in Santa Marta, Colombia, after being denied boarding on a flight to the United States; Steven Washburn, a U.S. citizen and U.S. Air Force veteran who was prevented from flying from Europe to the United States or Mexico; he eventually flew to Brazil, from there to Peru, and from there to Mexico, where he was detained and finally escorted across the border by U.S. and Mexican officials; Adama Bah, a citizen of Guinea who was granted political asylum in the United States, where she has lived since she was two, who was barred from flying from New York to Chicago for work; and Halime Sat, a German citizen and lawful permanent resident of the United States who lives in California with her U.S.-citizen husband who was barred from flying from Long Beach, California to Oakland to attend a conference and has since had to cancel plane travel to participate in educational programs and her family reunion in Germany.

According to the ACLU's legal complaint, thousands of people have been added to the "No Fly List" and barred from commercial air travel without any opportunity to learn about or refute the basis for their inclusion on the list. The result is a vast and growing list of individuals who, on the basis of error or innuendo, have been deemed too dangerous to fly but who are too harmless to arrest.

"Without a reasonable way for people to challenge their inclusion on the list, there's no way to keep innocent people off it," said Nusrat Choudhury, a staff attorney with the ACLU National Security Project. "The government's decision to prevent people from flying without giving them a chance to defend themselves has a huge impact on people's lives – including their ability to perform their jobs, see their families and, in the case of U.S. citizens, to return home to the United States from abroad."

The ACLU claims that hundreds of thousands of people are being wrongly identified because of the government’s wasteful and inefficient management of the nation’s one million-strong terrorist watchlist.

The Department of Justice Office of Inspector General (OIG), found that the part of the watchlist maintained by the Federal Bureau of Investigation (FBI) may contain a 35 percent error rate. OIG auditors reviewed 68,669 of those records and found 24,000 out of date. In a closer inspection of the out of date records, the auditors found a majority of this sample did not belong on a watchlist.

The OIG audit also revealed that large portions of the list are governed by no formal processes for updating or removing records.

The ACLU says the audit “confirms that the nation’s watchlist system is massively broken.”

The list has been substantially expanded following the unsuccessful effort by a Nigerian with explosives in his underwear to blow up a passenger airliner approaching Detroit last Christmas day.

“I am a bit skeptical about claims the FBI addressed all of the concerns and problems raised in the FBI Inspector General’s audit report on the terrorist watchlist,” Chris Calabrese, an attorney with the ACLU Technology and Liberty Project, told IPS.

“Are they saying that the FBI has reviewed 24,000 watchlist records to determine how many (likely a majority) need to be removed from the watchlist? Has the FBI completely streamlined a process for reviewing records so that people are removed from the watchlist within 10 days? The audit reports the average amount of time to remove an identity from the list is 60 days. And this is just the tip of the iceberg.”

The OIG report documents a widespread failure to scrub the lists by removing names after cases have been closed. For example, one subject stayed on the watchlist for almost five years after the case was resolved; two people on the list were dead. The FBI attempted to place one individual on the watchlist by reclassifying that person as an international terrorist after already having been cleared of wrongdoing by an FBI investigation.

It identified more than 50,000 records with no explanation of why they were on the list, making it impossible to remove them. It described the controls for placing many names on the list as “weak or nonexistent.”

The watchlist has existed since 2003, when then President George W. Bush issued a presidential directive mandating the development of a consolidated terrorist watchlist and required all federal law enforcement and intelligence agencies with terrorism information to share such information. The consolidated terrorist watchlist is known as the Terrorist Screening Database (TSDB).

“This IG report reveals just what a comedy of errors the watchlist is,” said Chris Calabrese, attorney with the ACLU Technology and Liberty Program. “But we did not need this report to know there is a problem with the effectiveness of any terrorist watchlist that includes over a million names. It certainly explains why civil rights icon Congressman John Lewis has problems when he needs to fly.”

The late Senator Edward M. Kennedy experienced similar problems.


By William Fisher

Breaking from President Barack Obama’s insistence on “moving forward, not backward” in investigating U.S. detainee torture, the British Government appears poised to investigate U.K. complicity with the American Central Intelligence Agency (CIA) in “rendering” British citizens and residents and treating them with “enhanced interrogation” techniques.

The British newspaper, The Guardian, is reporting that Prime Minister David Cameron and the new foreign secretary, William Hague, are understood to have agreed the terms of a judge-led inquiry into claims that British security services were complicit in torture of terrorism suspects.

The newspaper says the inquiry is expected to offer compensation in cases, where necessary, and is likely to be held in private. A judge-led inquiry or commission may have the advantage of bringing together the 13 separate compensation cases currently going through the courts.

It claims those cases are leading to complex demands for the disclosure of documents that the intelligence services may not welcome, and are finding difficult to control.

U.S. Constitutional lawyer and Harper’s magazine writer Scott Horton writes of the inquiry in his on-line column of Harper’s Magazine. He says the inquiry’s focus on compensation to torture victims shows that the British Government takes seriously its obligations under the Convention Against Torture to compensate victims of torture carried out by those acting under color of office.

“Compare this with the dismissive posture taken by the U.S. Justice Department, which has sought zealously to foreclose all paths of compensation and pointedly ignores America’s formal treaty obligations, which are to be implemented by the Executive,” he says.

The UK inquiry is independent of the question of criminal prosecutions. As The Guardian notes, a police investigation is still pending, and it is likely to lead to a recommendation to the Director of Public Prosecutions on specific criminal charges.

Some of the litigants have demanded an inquiry as part of their civil claims. Cameron is understood to have discussed the issue in recent days with President Obama, but no decision is expected very shortly.

While some in Whitehall have said no inquiry can be held while so many alleged victims of torture and rendition are suing the government, most legal experts believe it is possible, the Guardian said.

The government's reviewer of terrorism legislation, Lord Carlile, said he did
not believe the inquiry could be held until the Metropolitan police had decided whether to recommend to the director of public prosecutions (DPP) that charges against intelligence agents should go ahead. But he said this was not the universal view.

Hague first spoke of the need for a judge-led inquiry after the coalition agreement, but his remarks appeared to unsettle the intelligence services and required further discussion on Cameron's national security inquiry.

Complex issues such as perjury, the publication of evidence and whether those seeking compensation would be required to drop all other claims will need to be agreed.

Backbench MPs and human rights groups hailed the government's imminent decision on an inquiry into UK involvement in torture and rendition while warning ministers that it needed to be independent and have a broad remit.

Andrew Tyrie, the Tory MP whose all-party parliamentary group on extraordinary rendition has been campaigning on this issue for several years, said: "It is essential that the judge is independent, and seen to be independent, and makes as much as possible of his or her findings public. It is in the national interest that we get to the bottom of this, get to the truth and move on."

Tyrie said the inquiry needed to examine not only complicity in torture, but also involvement in the US rendition program, while others said the inquiry should also embrace abuses perpetrated by British armed forced in Iraq.

David Davis, the former shadow home secretary, also stressed that the inquiry needed to be led by a judge who had access to all relevant documentation. "It is vital that such an inquiry is led by a senior and impartial judge who is able to establish the facts beyond any doubt, to remove this stain on Britain's reputation, and to ensure that such allegations can never be made again," Davis said.

"To do this he must have unfettered access to all the people and papers related to this matter and should be able to publish anything he thinks is in the public interest, to ensure that we can draw a line under this issue once and for all."

Speaking for the Liberal Democrat coalition partners, European Parliament member (MEP) Sarah Ludford said, “Only a very thorough cleaning of the stables can re-establish Britain’s reputation as a nation of principles rather than a sidekick to appalling human rights abuses. It should also be judge-led, held as far as possible in public, and not rule out the possibility of prosecutions.”

Horton says her reference to being a “sidekick to appalling human rights abuses” is clear enough. It’s an unpleasant consequence of what used to be called the “special relationship.”

“For those in the White House who argue for a policy of ‘don’t look back’ that violates their oath to uphold the Constitution and the criminal laws of the United States, the British government is furnishing an example. This is how a modern democracy—and one under Conservative leadership at that—deals with the legacy of torture, Horton said.

The question of complicity between the UK security services and the U.S CIA has continued to raise contentious issues between the two countries. Earlier this year, a former Guantanamo prisoner and British resident, Binyam Mohamed, sued the U.K. government for complicity with the CIA in his rendition and torture and requested documents to substantiate his claims.

The U.S. Government declined to grant the High Court permission to make these documents public and allegedly threatened that their disclosure could undermine relationships between the two countries’ intelligence services.

The Court eventually ordered the documents made public.

The central figure in this British case is the same Binyam Mohamed who appealed a separate U.S. case, on behalf of himself and four other terror suspects, to the U.S. Circuit Court of Appeals in San Francisco. In that case, government lawyers from the Obama Administration sought a decision not to reinstate a case that was thrown out by a lower court last year because government lawyers argued successfully that allowing the case to go forward would jeopardize U.S. national security.

In opposing reinstatement of the case, Obama’s lawyers used the same “state secrets” privilege used by Bush lawyers in the original case.

Stafford Smith told IPS that his letter to President Obama speaks for itself. He says he doesn’t know who redacted the materials he submitted to the Defense Department.

President Obama’s strong preference for not mounting a full-scale investigation of CIA prisoner treatment emerged early in his administration, despite the release by the Justice Department of a series of “torture memos” written by Bush-era DOJ senior lawyers. The memos authorized and explained enhanced interrogation techniques, including waterboarding.