Thursday, November 11, 2010

Bush: Vacation at the Prado?

By William Fisher

After a three-year investigation, President Barack Obama’s mantra – “it's important to look forward and not backwards” – appears to have trumped the rule of law as a special prosecutor declined to pursue criminal charges against the Central Intelligence Agency operatives involved in the destruction of video recordings of interrogations of “war on terror” suspects.

The human rights community and many legal scholars from both ends of the political spectrum are up in arms about the decision. And they were further angered by the remarks made by former president George W. Bush during television and radio interviews promoting his new memoir, “Decision Points.”

For example, Bush admitted to Matt Lauer of NBC’s “Today” program that he authorized the use of waterboarding on two CIA prisoners. He said further that the technique was legal and that he would make the same decision again.

Lauer then asked him, “Why is waterboarding legal, in your opinion?”

Bush responded: “Because the lawyer said it was legal. He said it did not fall within the anti-torture act. I’m not a lawyer. But you gotta trust the judgment of the people around you, and I do.”

Michael Ratner, President of the Center for Constitutional Rights, spoke to IPS with a hint of despair. He said, “The failure of DOJ to bring criminal charges against the CIA officials who destroyed the tapes of the waterboarding of detainees is another awful decision insuring that the torture conspirators including President Bush will not be held accountable for their crimes -- at least not by the Obama administration.”

“Coming on the heels of Bush's proud confession that he ordered water boarding, we now have a country without a shred of human rights credibility. If the U.S. can torture with impunity, why can't every country?”

“Obama says we need to look forward; sadly, we are looking forward to a future of torture. One hope remains: international justice against the torture conspirators that is currently being pursued in the Spanish courts by the Center for Constitutional Rights and others. If I were former President Bush, my next vacation would not be a visit to the Prado.”

In the opinion of Chris Anders, a senior attorney with the American Civil Liberties Union (ACLU), “I find Bush’s remarks about waterboarding [in the Lauer interview] more important than the narrow issue of the destroyed CIA tapes. That’s because he confessed to war crimes.”

He added, “Everything in our legal history makes waterboarding a crime. Bush said he authorized it. What he should know about the rule of law is that no one is above it. Yet Bush doesn’t seem in the least concerned about the consequences of what he is confessing to.”

Criticism of both the special prosecutor’s decision and of Bush’s remarks appeared to come from both the left and the right of the political spectrum.

A well-known conservative lawyer, Bruce Fein, who was a senior attorney in the Department of Justice (DOJ) under President Ronald Reagan, told IPS, “Obama decided against prosecution for the same reason he has desisted from prosecuting former President Bush and former VP Cheney despite confessing to authorizing waterboarding: political inconvenience or popular opinion.”

Professor Jordan J. Paust of the Law Center at the University of Houston, author of “Beyond the Law The Bush Administration's Unlawful Responses in the ‘War’ on Terror,” charges that Bush’s remarks were “in apparent violation of a court order and does not bode well for the rule of law or the need to end impunity for international crimes.”

“Clearly, former President Bush has admitted that he had a ‘program’ of secret detention (which is forced disappearance of persons, a war crime, and a crime against humanity over which there is universal jurisdiction and a universal responsibility to either initiate prosecution or to extradite) and ‘tough’ interrogation, which included waterboarding (which 29 U.S. cases and 7 U.S. Dep’t of State Country Reports on Human Rights records of other states affirm is “torture” – and if it is not “torture,” it is “cruel” and inhumane, which are also violations of the Convention Against Torture, human rights law, and war crimes under treaty-based and customary international law) among other tactics that are illegal and implicate universal jurisdiction and responsibility,” he charged.

Jonathan Hafetz, a professor at Seton Hall University law school, believes that “The U.S. government’s failure to hold accountable those responsible for the torture and other gross human rights constitutes one the of darkest legacies of our era.”

He told IPS, “The problem with President Obama’s approach is that it is not enough only to ‘look forward and not backward’. Non-action can itself serve as tacit approval for past abuses -- or at least that is how it can be interpreted.”

“The recent comments by Mr. Bush about his knowledge and approval of waterboarding, makes the need for accountability more, not less, important,” he said.

Chip Pitts, a Lecturer in Law at Stanford University Law School, is focused on what he calls the “complicity” between the Bush and Obama administrations.

He told IPS, “The crisis of accountability in America is starkly highlighted by the former president’s public confession of recourse to torture and war crimes. But that should not detract attention from the complicity of the current administration, which has resorted to secrecy and backroom deals that blatantly ignore laws (like the Convention Against Torture, in this case) and the administration’s duty to “faithfully execute the laws.”

In doing so, he added, “the administration cynically capitulates to the entrenched special interests that want nothing more than to remain “above the law” by continuing with unaccountable and profitable

Robert S. Bennett, attorney for the former C.I.A. agent who ordered the tapes destroyed, said in an interview with the New York Times that he was pleased that the Justice Department “did the right thing.”

Leon E. Panetta, the C.I.A. director, said in a statement that the C.I.A. was “pleased with the decision” not to bring charges against agency officers involved in destroying the tapes, and that the agency would continue to cooperate with other aspects of the Justice Department’s investigation.

Give Us Your Tired, etc., etc., etc.

By William Fisher

One year after the U.S. Department of Homeland Security (DHS) announced plans for a wide-reaching overhaul of America’s long-mismanaged immigration detention system, human rights and immigration advocacy organizations are charging that the U.S. government has yet to make significant progress toward the underlying goal of detention reform – a true shift from a penal to a civil approach to immigration detention.

One such group, Human Rights First (HRF), is taking aim at a particularly sensitive aspect of the detention debacle: the plight of refugees seeking asylum.

Annie Sovcik, Advocacy Counsel for HRF’s Refugee Protection Program, told IPS, “Of the approximately 400,000 immigrants held in U.S. immigration detention annually, a few thousand are refugees -- individuals who have fled persecution for political, religious and other reasons and are seeking protection in the United States.”

“Upon arrival, these refugees are shackled and transported to immigration detention centers where they are held in jail-like conditions and where they may remain isolated for months without adequate due process safeguards as their claims for asylum protection are adjudicated,” she charges.

Sovcik says this practice “undermines commitments the United States has made to protect refugees, violates obligations the United States has assumed under international law, and creates a barrier for refugees to access a fair asylum adjudication process.”

The Department of Homeland Security has pledged to reform the immigration detention system and move away from a jail-like system to one that is more civil in nature. HRF and other organizations welcomed this announcement in 2009 and also encouraged DHS to commit to reform its practices related to how decisions of who to detain or release are made.

But, Sovcik asserts, “Since the August 2009 announcement, while DHS has slowly worked on fulfilling its promise, 33,400 immigrants are held everyday in facilities that officials at the highest levels recognize is chronically flawed but have remained essentially unchanged.”

She added, “It is time for DHS to move toward implementing real improvements in the detention system and truly make the shift away from facilities modeled on the penal system. Everyday these reforms are delayed, more people continue to suffer.”

The DHS commitment to shift the immigration detention model from one based on correctional standards toward a civil model of detention was welcomed by most in the immigration community. They agreed that detained asylum seekers and other detained immigrants should not be held in prison-like conditions. “The purpose of immigration detention is limited to ensuring that detainees show up for their hearings and comply with removal orders. Immigration detention should not be punitive," said HRF’s Ruthie Epstein.

HRF’s Annie Sovcik said, "ICE should require changes to be implemented at existing facilities by the end of 2010."

The U.S. immigration detention system holds up to 33,400 detainees -- including asylum seekers -- every day. These detainees are currently held in a sprawling network of approximately 250 facilities (down from 341 a year ago) across the country. Some of these facilities are operated by Immigration & Customs Enforcement (ICE), the enforcement arm of DHS; others are run by private corrections companies or county jail systems.

Last year, DHS acknowledged that its detention beds were located in facilities "largely designed for penal, not civil, detention." Key among its 2009 reform plans was a commitment to shift to a non-penal, or "civil," model of immigration detention.

DHS's announcement in 2009 came on the heels of two government reports that had concluded that the U.S. immigration system was inappropriately modeled on correctional systems. One was from Dr. Dora Schriro, former Director of the Arizona and Missouri state corrections systems and currently Commissioner of Correction for New York City, and the other from the bipartisan U.S. Commission on International Religious Freedom.

HRF’s recommendations for new civil standards and changes to existing facilities include:

Allow asylum seekers and other immigrant detainees to wear civilian clothing rather than prison jumpsuits; contact visits with family and friends in all facilities; true outdoor recreation space, and expanded access throughout the day; and increased freedom of movement within secure facilities.

Stop detaining asylum seekers and other immigrants in penal facilities, and create nationwide alternatives to detention.

DHS should work with the Department of Justice (DOJ) to provide all detained asylum seekers with access to custody hearings so that the need for their continued detention can be assessed by an immigration court.

Another serious glitch in the asylum-seeking process is the application deadline imposed by Congress. A new study has revealed that one in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and thus miss the 12-month deadline imposed by Congress, according to a study of the Board of Immigration Appeals' (BIA) asylum decisions.

"The one-year deadline results in the denial of asylum, a basic human rights protection, because of a technicality," said Mary Meg McCarthy, executive director of the Heartland Alliance's National Immigrant Justice Center.

"The BIA is making a bad law worse by arbitrarily denying exceptions to the deadline and putting the lives of men, women, and children at risk," she added.

The study's conclusions are detailed in a new report, “The One-Year Asylum Deadline and the BIA: No Protection, No Process.” The report was prepared by Heartland Alliance's National Immigration Justice Center's National Asylum Partnership on Sexual Minorities; Human Rights First; and Penn State University’s Law Center for Immigrants' Rights. The report is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers.

In addition to the 20 per cent of asylum cases denied because of filing after the deadline, in 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline.

And of the 662 filing deadline denials, the BIA did not recognize any exceptions to the filing deadline. When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time. By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.