By William Fisher
Anyone remember Judith Miller?
She is a Pulitzer Prize-winning reporter for The New York Times who went to jail rather than reveal her sources to a judge. Her coverage of Iraq's alleged Weapons of Mass Destruction (WMD) program both before and after the 2003 invasion generated much controversy. A number of stories she wrote while working for The Times later turned out to be inaccurate or completely false.
She had an awkward departure from The Times in November 2005, and later became a contributor to the Fox News Channel and a fellow at the conservative Manhattan Institute think-tank. Late last year, numerous media outlets reported that she had signed on as a contributing writer to the conservative magazine Newsmax.
In her latest editorial romp, she asks the question, “Will Democracy Prevail in Libya?”
That, of course, is the question everyone is asking since the death of Muammar Qaddafi. Ms. Miller weighs in with, “The death of Muammar Qaddafi means that a 40-year era of repression in that oil rich country is over. That is good news. But the next 48 hours will be crucial in determining Libya's future. This is the moment of truth for the Transitional National Council (TNC) and its chairman Mustafa Abdel-Jalil and prime minister Mahmoud Jabril.”
OK so far. This is pretty much what everyone already knows and advice that some analysts are recommending.
Miller then launches into a rant about the incredibly difficult things that the TNC and its leaders will have to achieve before Libya has even a remote chance of becoming a peaceful, representative, stable democracy serving the needs of its people. And they are incredibly difficult.
As a micro example of the macro changes that will put Libya on the road to some form of democracy, Miller tells this anecdote:
“Only last week as a delegation from the International Monetary Fund and the World Bank were meeting at the Finance Ministry in Tripoli, unknown armed militia men disrupted the meeting and ‘arrested’ a Libyan member of the Ministry of Finance delegation as the astonished visitors looked on, according to Libyan press reports.”
We should not be surprised by just about anything that happens in Libya in the coming weeks. Chalk it up to The Fog of War. But, as Miller correctly points out, “So far, the TNC has been unable to establish order or a political consensus among its 35 members from different regions, tribes, and ideologies. Nor has it been able to give control either its Military Council, nor the numerous militias throughout Libya that have been running their own towns and competing for control.”
Right. And she goes on to admonish: “So celebration is premature. Half of the TNC members continue to live in Benghazi; others are now in Tripoli. Various spokesmen contradict one another about basic facts regarding the economy, political maneuverings, and the militia which provides security at some key government ministries. The airport is controlled by another militia.”
The problem, Miller says, “is not money.” She goes on to explain that Libya is one of the world's largest producers of ‘sweet,’ light crude oil. And the U.S. has contributed $135 million in aid to Libya's new leaders since February. The Libyan assets that were frozen after Qaddafi was forced to flee are being unfrozen.
She then announces, “This is potentially a great moment for Libya. Its version of the "Arab Spring" which erupted in February and forced Qaddafi and his rapacious family from power, has now prevailed.”
But here comes her zinger: “…without American or NATO boots on the ground, and without a Libyan army that is loyal to the TNC and able and willing to restore order, Washington will just have to hope that the TNC can achieve the control that has so far seemed beyond its grasp.”
Miller’s prescription is right out of the neo-conservatives’ playbook. As they were able to incontestably demonstrate in the throughout the peaceful hamlets of Iraq and Afghanistan, to name but a few, “American or NATO boots on the ground” solves all problems. Just like they are doing in Afghanistan. Right!
I take a dim view of American boots – especially American – anywhere near Libya. First, it’s unclear that the US has any compelling national interest in Libya; NATO more closely has a dog in this game -- oil. Second, we’re suffering through the most painful economic environment in a generation – we probably can’t afford a third war. Third, the American people are war-weary; if the voters don’t have your back in wartime, you’ve lost. Finally, it is doubtful we have the troops – at least not the right kind of troops.
Our GIs know nothing about Libya, its people, its customs, its languages, its tribes. This is part of your armor if you’re going to try to use soft power, or smart power, rather than blunt trauma. Or are we going to have US or NATO troops bashing down doors in the middle of the night and dragging families out of their beds? That will certainly build one-ness among the country’s diverse population. We see how well that’s working in Iraq and Afghanistan.
No, the job that will sooner or later have to be done in Libya – and it will take years – is a heart-stoppingly complex job of internal development. Qaddafi was beyond clever in organizing his regime (or, more correctly, not organizing it.) He put no robust institutions in place. And since there were no jobs to fill in his empty institutions, there was no need to train people to occupy chairs that weren’t there. After all, Libya has oil!
The world is full of talented, sensitive, tough, multilingual development specialists. And they are not just the “Beltway Bandits” of the Washington DC area. This global fraternity/sorority of individual and corporate development specialists – including UN agencies -- knows how to help Afghans write a Constitution, organize a political structure that is truly representative of Libya’s people, monitor free and fair elections, help lawmakers and judges build a Code of criminal and civil conduct, work to build a rule of law, expand the skills capacities in the various ministries, and begin to wean Libya off its one-product status by introducing foreign investment in industry and agriculture and working with farmers and industrialists to bring Libya the most up-to-date and proven techniques and technologies to help make these ventures successful.
If the US is asked to help in this undertaking, it should give serious consideration. But many other countries – some with far more substantial and apparent national security interests than the US has – are at least as well equipped.
So, no, I don’t think with Judy Miller that this is not the time for celebration. It is time for a huge, albeit relatively brief celebration. But Libyans would do well to keep a watchful eye on Egypt to fully appreciate how hard it is to turn from revolution to governance.
Saturday, October 29, 2011
How Do They Sleep At Night?
By William Fisher
Cecilia Munoz has to be the most frustrated official in the Obama White House.
A longtime civil rights advocate, she was a major player at the National Council of LaRaza (NCLR), a non-profit organization established to improve opportunities for Hispanic Americans. In 2000, the 44-year-old was named a MacArthur Fellow for her work on civil rights and immigration.
Today, she’s the president’s chief advisor on Immigration Issues. Or perhaps we should say Deportation Issues.
When the PBS series, “Frontline,” did an hour-long piece on the immigration situation in the US today, it fell to Munoz to try to explain why the Obama Administration is deporting 400,000 people every year and racking up the largest number of deportations of any president in American history.
The 400,000 were supposed to be “serious criminals” caught by a program called Secure Communities, in which anyone booked at a local police station has his/her fingerprints automatically sent to the database of Immigration and Customs Enforcement (ICE). But people are also booked at police stations because of minor infractions such as a broken tail light spotted during a routine traffic stop, driving without a license, a 10-year-old bounced check – you get the idea.
These dangerous public enemies constitute half of all the “serious criminals” being deported. In the process, ICE is tearing families apart. It is deporting the parents of children born in the US – leaving the kids with relatives when possible, with public assistance agencies where not. Immigrants who may have been hard at work in the US for 20 years, raising families who obey the law and contribute to their communities, and with no criminal record, suddenly find themselves imprisoned in an ICE facility, where they could remain for a week, a month, or years. They have little due process, usually no lawyers, and the women are routinely subjected to sexual harassment.
Maria Hinojosa, who anchored the FRONTLINE program, asked Munoz, “Will the Obama Administration continue to oversee the deportation of 400,000 people each year?”
Munoz: “As long as Congress gives us the money to deport 400,000 people each year, that’s what the Administration is going to do.”
She adds: “We will be strategic about how we do it.”
Hinojosa: “Are you saying that there are 400,000 serious criminals who are not in jail now and who should be deported? Where are they? And how are you going to find them?”
Munoz: “The job of the executive branch of government is to implement laws passed by Congress. How we do it matters a lot, but there will be collateral damage. There will be parents separated from children.”
Collateral damage? It is mind-blowing to think that Ms. Munoz is actually speaking for the President of the United States, who is likely off in the hinterlands, making speeches to reassure Latino voters that comprehensive immigration reform is at the top of his priority tree.
Getting even further down in the weeds, Hinojosa interviewed Michael Rozos, who recently retired as head of an ICE field office. She questioned him about how ICE goes about making sure that it meets its 400,000 p.a. quota.
ROZOS: “Because the number 400,000 was what was agreed upon, what’s happened is you pick up whatever you can— so the low-hanging fruit, the high-hanging fruit and all the fruit that’s in between. You would pick up whatever you could and take your collateral apprehensions, which would be the other illegals that may be present when you’re arresting a fugitive, and bring them into custody, as well, to get the numbers moved up.”
Hinojosa: “The pressure to move the numbers up was evident in an internal ICE memo last year. ICE was at risk of falling “well under the agency’s goal of 400,000 deportations,” the memo says. In particular, it highlighted the shortfall of ‘non-criminal’ removals. So basically, Washington is setting some numbers, and on the ground, if you’re not meeting those numbers, then you’re being judged by not meeting those numbers.”
ROZOS: “You’re being judged or you’re being summoned to Washington. You know, you’ll get this ‘Be in my office tomorrow morning’ and so kind of a thing.”
That’s how ICE finds 400,000 “serious criminals” to deport every year.
And deporting 400,000 people is what the Obama Administration believes it will take to somewhat blunt the incessant primeval screams from the anti-immigrant Right – without completely alienating Latino voters without whom Obama is likely to be a one-term president.
Having served in government, I can recall my bosses making decisions I thought were wrong. They put me out of sorts for a day or so.
But I have never before experienced a professional who seems so willing to abandon both his principles and the millions who voted to put him where he is.
Maybe I’m just being naïve about all the compromises you have to make to get anything done in Washington these days, but this is not the change I can believe in.
Cecilia Munoz has to be the most frustrated official in the Obama White House.
A longtime civil rights advocate, she was a major player at the National Council of LaRaza (NCLR), a non-profit organization established to improve opportunities for Hispanic Americans. In 2000, the 44-year-old was named a MacArthur Fellow for her work on civil rights and immigration.
Today, she’s the president’s chief advisor on Immigration Issues. Or perhaps we should say Deportation Issues.
When the PBS series, “Frontline,” did an hour-long piece on the immigration situation in the US today, it fell to Munoz to try to explain why the Obama Administration is deporting 400,000 people every year and racking up the largest number of deportations of any president in American history.
The 400,000 were supposed to be “serious criminals” caught by a program called Secure Communities, in which anyone booked at a local police station has his/her fingerprints automatically sent to the database of Immigration and Customs Enforcement (ICE). But people are also booked at police stations because of minor infractions such as a broken tail light spotted during a routine traffic stop, driving without a license, a 10-year-old bounced check – you get the idea.
These dangerous public enemies constitute half of all the “serious criminals” being deported. In the process, ICE is tearing families apart. It is deporting the parents of children born in the US – leaving the kids with relatives when possible, with public assistance agencies where not. Immigrants who may have been hard at work in the US for 20 years, raising families who obey the law and contribute to their communities, and with no criminal record, suddenly find themselves imprisoned in an ICE facility, where they could remain for a week, a month, or years. They have little due process, usually no lawyers, and the women are routinely subjected to sexual harassment.
Maria Hinojosa, who anchored the FRONTLINE program, asked Munoz, “Will the Obama Administration continue to oversee the deportation of 400,000 people each year?”
Munoz: “As long as Congress gives us the money to deport 400,000 people each year, that’s what the Administration is going to do.”
She adds: “We will be strategic about how we do it.”
Hinojosa: “Are you saying that there are 400,000 serious criminals who are not in jail now and who should be deported? Where are they? And how are you going to find them?”
Munoz: “The job of the executive branch of government is to implement laws passed by Congress. How we do it matters a lot, but there will be collateral damage. There will be parents separated from children.”
Collateral damage? It is mind-blowing to think that Ms. Munoz is actually speaking for the President of the United States, who is likely off in the hinterlands, making speeches to reassure Latino voters that comprehensive immigration reform is at the top of his priority tree.
Getting even further down in the weeds, Hinojosa interviewed Michael Rozos, who recently retired as head of an ICE field office. She questioned him about how ICE goes about making sure that it meets its 400,000 p.a. quota.
ROZOS: “Because the number 400,000 was what was agreed upon, what’s happened is you pick up whatever you can— so the low-hanging fruit, the high-hanging fruit and all the fruit that’s in between. You would pick up whatever you could and take your collateral apprehensions, which would be the other illegals that may be present when you’re arresting a fugitive, and bring them into custody, as well, to get the numbers moved up.”
Hinojosa: “The pressure to move the numbers up was evident in an internal ICE memo last year. ICE was at risk of falling “well under the agency’s goal of 400,000 deportations,” the memo says. In particular, it highlighted the shortfall of ‘non-criminal’ removals. So basically, Washington is setting some numbers, and on the ground, if you’re not meeting those numbers, then you’re being judged by not meeting those numbers.”
ROZOS: “You’re being judged or you’re being summoned to Washington. You know, you’ll get this ‘Be in my office tomorrow morning’ and so kind of a thing.”
That’s how ICE finds 400,000 “serious criminals” to deport every year.
And deporting 400,000 people is what the Obama Administration believes it will take to somewhat blunt the incessant primeval screams from the anti-immigrant Right – without completely alienating Latino voters without whom Obama is likely to be a one-term president.
Having served in government, I can recall my bosses making decisions I thought were wrong. They put me out of sorts for a day or so.
But I have never before experienced a professional who seems so willing to abandon both his principles and the millions who voted to put him where he is.
Maybe I’m just being naïve about all the compromises you have to make to get anything done in Washington these days, but this is not the change I can believe in.
Sunday, October 23, 2011
A Tale of Two Convicts
By William Fisher
The courts and the American prison system regularly fail defendants by convicting innocent people and locking them up, sometimes sentencing them to execution for crimes they did not commit.
Many legal experts felt this to be the case when Troy Davis, who was executed last week after failing to be granted a hearing by any county, state or federal official,
Doubtless Troy’s execution was a cause of deep consternation in the offices of The Innocence Project, which is dedicated to seeking the exoneration of convicted inmates by presenting DNA evidence to establish their innocence.
The Innocence Project is associated with the Cardozo School of Law in New York. Law students there do much of the brain-destroying grunt work of looking back through files that may be a generation old. They are assisted by a small tram of staff lawyers and the services of law firms that offer their services free of change. The Innocence Project is now a nationwide phenomenon. It has been responsible for freeing more than 200 prisoners.
By definition, the nature of the work it does triggers big highs and big lows – not all prisoners represented by the Innocence Project win their freedom or a shorter sentence.
But last week, there was ample cause for joy at the Project. Two falsely-convicted prisoners were released from prisons in Louisiana and Texas. At one level, their stories are familiar and conventional. But at a deeper level, what was done to these people is nothing less than outrageous.
Michael Morton, 50, walked out of a Williamson County, Texas, courtroom after his 1987 murder conviction was overturned because of new evidence. And a New Orleans man, Henry James, wrongly incarcerated for 30 years, was exonerated of rape because new DNA evidence proves he didn’t commit. James served more time than any other person in Louisiana cleared by DNA, according to The Innocence Project, which played key roles in securing freedom for both men.
Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.
“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
“This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”
In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder.
In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered exculpatory evidence uncovered through a Public Records Act request was not given to the defense.
“The prosecution’s complete disregard for the truth in this case is stunning,”
said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”
All of the newly discovered evidence supports Morton’s insistence that the crime was committed by a third-party intruder who committed the murder for money. Had these leads been investigated, the police may have been able to capture the real perpetrator who it appears went on to commit at least one similar murder in Travis County.
During the trial, defense attorneys suspected something was amiss when they learned that prosecutors did not intend to call Sgt. Wood to testify and specifically raised with the court the possibility that information about Morton’s innocence may not have been turned over. The court ordered a review of all the police reports prepared by Sgt. Wood, and the prosecutor made assurances to the court that he would confer with Sgt. Wood to make sure that all documents were turned over for review.
On August 26, 2011, the sealed file containing the documents that were given to the trial judge was opened and reviewed by the present court and parties. The exculpatory documents that the Innocence Project received through the Open Records Act were not included in the file reviewed by the trial judge.
Morton has always maintained his innocence of the murder of his wife, Christine, who was found dead in their home by a neighbor the morning of August 13, 1986. At trial, the prosecution argued that Morton beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant. There were no witnesses or physical evidence linking Morton to the crime. The prosecution relied largely on the fact that Morton left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)
Morton’s co-workers testified that he arrived at work at about 6 a.m. that
morning and didn’t notice anything unusual about his behavior.
The second exoneration is arguably even more unusual. With the consent of Jefferson Parish District Attorney Paul Connick, Jr., a judge has vacated the rape conviction and dismissed the charges against Henry James, 45, as a result of DNA testing on crime scene evidence proving his innocence. James, who has been incarcerated one month shy of 30 years, served longer than any other person in Louisiana who was later cleared through DNA testing. He was released from Angola prison last week.
“The fact that Mr. James is a free man today is thanks largely to the miraculous discovery of the evidence by Milton Dureau from the Jefferson Parish Crime Laboratory and the Sheriff’s Office’s quick response and review of the case,” said Vanessa Potkin, a Senior Staff Attorney with the Innocence Project.
She added, “Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”
Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.
The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working on the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker, much less that he had spent the previous day with her husband. James was arrested on November 25, 1981, and was placed in a line up where the victim identified him again.
At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicated that the attacker was a nonsecretor. James is a secretor.)
James testified on his own behalf. He maintained his innocence of the crime and said that he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James’ mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape, and he was sentenced on May 7, 1982 to life without parole.
After exhausting his appeals, James reached out to the Innocence Project, which sought to do DNA testing of the evidence recovered in the rape kit. Although officials at the Jefferson Parish Crime Laboratory were cooperative, the initial search for the evidence proved fruitless. The legal team eventually filed a motion on James’ behalf seeking testing on the evidence, but another search on February 18, 2010 also proved fruitless.
On May 3, 2010, Milton Dureau, who worked for the lab, was looking for evidence in a different case when he stumbled upon a slide from James’ case. Fortunately, he remembered the case number from his earlier search. The evidence was sent to a lab, which did STR DNA testing on the slide. The testing, which was completed on September 26, 2011, excluded James as the perpetrator in the rape.
“Misidentification has played a role in 75% of the DNA exoneration, and across racial identifications, as in this case, have proven especially unreliable,” said Thomas Golden, Partner at Willkie Farr & Gallagher LLP.
“In hind sight, it’s pretty obvious that the victim was influenced by her interactions with Mr. James the day before. The police may have also inadvertently influenced her misidentification. That’s why it’s especially important that the state enact identification reforms, especially those that require identification procedures be performed by an officer who doesn’t know the identity of the suspect,” he said.
Michael Morton was freed from prison earlier this month after serving 25 years in prison for a murder he didn’t commit. Since his release, legal wrangling has continued over an investigation into whether prosecutors committed misconduct at Morton’s original trial.
Morton’s legal team – which includes the Innocence Project – objected to the terms of a motion filed last Thursday by prosecutors in the case. And now Texas Attorney General Greg Abbott will become involved in the investigation at the request of Williamson County District Attorney John Bradley.
"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the Attorney General as the new investigation proceeds,” Houston attorney John Raley (of Raley & Bowick LLP) said today on behalf of Morton’s legal team. “We welcome Mr. Bradley’s pledge of cooperation with our investigation into the allegations that exculpatory evidence was hidden from Mr. Morton and the trial court, and trust there will be no more misunderstandings as to that process goes forward."
New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael. Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections. The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.
In light of the new evidence, the Innocence Project filed legal documents today asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.
Barry Scheck charged, “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime. But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”
For more than six years, the Innocence Project had been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene. Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year. On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair. The male DNA was put though the national DNA database and has been linked to a convicted offender.
“Michael had to spend the last six years fighting just to get access to DNA testing. Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003. “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”
In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder. In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.
The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing.
The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.” A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.
Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case. He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.
The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham. The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis. During his tenure as Chairman, Bradley, who was appointed by Governor Perry, repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.
Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.
The DPIC reports that recent polls conducted by Gallup and CNN indicate Americans' support for the death penalty is continuing to decline.
According to Gallup's 2011 poll, the percentage of Americans approving the death penalty as a punishment for murder dropped to its lowest level in 39 years. Only 61% supported capital punishment in theory, down from 64% last year and from 80% support in 1994. This is the lowest level of support since 1972, when the U.S. Supreme Court ruling in Furman v. Georgia voided death penalty statutes across the country.
Opposition to the death penalty (35%) in this recent poll reached a 39-year high. The Gallup poll also showed an increase from last year in those who believe the death penalty is applied too often or unfairly. Support for the death penalty dropped compared to last year among both Republicans and Democrats.
This year, among Democrats (or those leaning that way) more opposed the death penalty than supported it, a reverse from a year ago.
A recent CNN poll (conducted by ORC International) showed that when given a choice of sentences between life in prison without parole or the death penalty for the crime of murder, more Americans (50%) would opt for the life sentence than for death (48%). Seven years ago, the majority (56%) chose the death penalty over the life-without parole sentence. In CNN's recent poll, the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.
So it’s possible that the light at the end of the tunnel is not an oncoming train!
The courts and the American prison system regularly fail defendants by convicting innocent people and locking them up, sometimes sentencing them to execution for crimes they did not commit.
Many legal experts felt this to be the case when Troy Davis, who was executed last week after failing to be granted a hearing by any county, state or federal official,
Doubtless Troy’s execution was a cause of deep consternation in the offices of The Innocence Project, which is dedicated to seeking the exoneration of convicted inmates by presenting DNA evidence to establish their innocence.
The Innocence Project is associated with the Cardozo School of Law in New York. Law students there do much of the brain-destroying grunt work of looking back through files that may be a generation old. They are assisted by a small tram of staff lawyers and the services of law firms that offer their services free of change. The Innocence Project is now a nationwide phenomenon. It has been responsible for freeing more than 200 prisoners.
By definition, the nature of the work it does triggers big highs and big lows – not all prisoners represented by the Innocence Project win their freedom or a shorter sentence.
But last week, there was ample cause for joy at the Project. Two falsely-convicted prisoners were released from prisons in Louisiana and Texas. At one level, their stories are familiar and conventional. But at a deeper level, what was done to these people is nothing less than outrageous.
Michael Morton, 50, walked out of a Williamson County, Texas, courtroom after his 1987 murder conviction was overturned because of new evidence. And a New Orleans man, Henry James, wrongly incarcerated for 30 years, was exonerated of rape because new DNA evidence proves he didn’t commit. James served more time than any other person in Louisiana cleared by DNA, according to The Innocence Project, which played key roles in securing freedom for both men.
Williamson County District Attorney John Bradley joined with the Innocence Project in seeking Morton’s release after it was discovered that the DNA of an unnamed male linked to the Morton crime through a bandana that also contained the blood of the victim was also found at the scene of a later murder in Travis County. The unnamed male is now under investigation for both crimes. Morton served nearly 25 years in prison before being released.
“Mr. Morton was the victim of serious prosecutorial misconduct that caused him to lose 25 years of his life and completely ripped apart his family. Perhaps even more tragically, we now know that another murder might have been prevented if law enforcement had continued its investigation rather than building a false case against Mr. Morton,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.
“This tragic miscarriage of justice must be fully investigated and steps must be taken to hold police and prosecutors accountable.”
In August, the Innocence Project announced that DNA testing on a bandana found near the Morton’s home where the murder occurred contained the blood of the victim, Christine Morton, and a male other than Morton. According to the papers filed by the Innocence Project yesterday, new DNA testing has connected the male DNA on the bandana to a hair that was found at the crime scene of a Travis County murder that was conducted with a similar modus operandi after Morton was incarcerated. Morton always maintained that the murder was committed by a third-party intruder.
In the filing, the Innocence Project charges that Morton would never have been convicted of the crime if the prosecution had turned over as required evidence pointing to his innocence. Newly discovered exculpatory evidence uncovered through a Public Records Act request was not given to the defense.
“The prosecution’s complete disregard for the truth in this case is stunning,”
said Nina Morrison, a Senior Staff Attorney with the Innocence Project. “Rather than try to get to the bottom of what really happened, the prosecution went to great lengths to keep evidence pointing to Mr. Morton’s innocence from his lawyers, blatantly ignoring direct orders from the judge who conducted a review of the evidence. This case and the other tragic murder that might have been prevented if the leads had been investigated will hopefully spur the Legislature to enact legislation requiring open file discovery in every case.”
All of the newly discovered evidence supports Morton’s insistence that the crime was committed by a third-party intruder who committed the murder for money. Had these leads been investigated, the police may have been able to capture the real perpetrator who it appears went on to commit at least one similar murder in Travis County.
During the trial, defense attorneys suspected something was amiss when they learned that prosecutors did not intend to call Sgt. Wood to testify and specifically raised with the court the possibility that information about Morton’s innocence may not have been turned over. The court ordered a review of all the police reports prepared by Sgt. Wood, and the prosecutor made assurances to the court that he would confer with Sgt. Wood to make sure that all documents were turned over for review.
On August 26, 2011, the sealed file containing the documents that were given to the trial judge was opened and reviewed by the present court and parties. The exculpatory documents that the Innocence Project received through the Open Records Act were not included in the file reviewed by the trial judge.
Morton has always maintained his innocence of the murder of his wife, Christine, who was found dead in their home by a neighbor the morning of August 13, 1986. At trial, the prosecution argued that Morton beat his wife to death after she refused to have sex with him upon returning from his 32nd birthday celebration at a restaurant. There were no witnesses or physical evidence linking Morton to the crime. The prosecution relied largely on the fact that Morton left a note to Christine on the bathroom vanity expressing his disappointment with the fact that she fell asleep on him. (The note closed with the words “I love you.”)
Morton’s co-workers testified that he arrived at work at about 6 a.m. that
morning and didn’t notice anything unusual about his behavior.
The second exoneration is arguably even more unusual. With the consent of Jefferson Parish District Attorney Paul Connick, Jr., a judge has vacated the rape conviction and dismissed the charges against Henry James, 45, as a result of DNA testing on crime scene evidence proving his innocence. James, who has been incarcerated one month shy of 30 years, served longer than any other person in Louisiana who was later cleared through DNA testing. He was released from Angola prison last week.
“The fact that Mr. James is a free man today is thanks largely to the miraculous discovery of the evidence by Milton Dureau from the Jefferson Parish Crime Laboratory and the Sheriff’s Office’s quick response and review of the case,” said Vanessa Potkin, a Senior Staff Attorney with the Innocence Project.
She added, “Far too often searches for DNA evidence in old cases come up empty handed, which is why the federal government set up the Bloodsworth grant program to help police labs catalogue evidence. New Orleans Parish has already taken advantage of this program, but as this case so clearly demonstrates, jurisdictions everywhere must do a better job of cataloguing evidence to help correct injustice.”
Henry James lived adjacent to the victim and spent most of the day before the crime helping the victim’s husband repair his car. The victim was aware that James lived nearby and had seen him three or four times before. Later that day, the victim’s husband drove with James to Westwego, where they got into a car accident and the victim’s husband was arrested. At approximately 8 PM that evening, James went to the victim’s home to tell her that her husband had been arrested. At approximately 6 AM on November 23, 1981, the victim was awoken by someone entering her home through the back door. The man entered her bedroom and raped her at knifepoint. The police were at the scene almost immediately after the rape and the victim told the police that she didn’t know her assailant but gave a brief description of her attacker.
The next day, a police officer patrolling the neighborhood spotted James, who roughly fit the description, and informed the detective working on the case. The victim eventually picked James’ photo out of a book containing approximately 75 to 80 photos of black males. The record contains no indication that the victim told the police that she had previously met her attacker, much less that he had spent the previous day with her husband. James was arrested on November 25, 1981, and was placed in a line up where the victim identified him again.
At trial, the prosecution relied on the testimony of the victim who identified James again in court, the detective and a physician who only testified that the victim had had intercourse within a few hours of his examination. The jury did not hear that serology testing from the rape kit excluded James as the perpetrator. (The seminal fluid and sperm recovered indicated that the attacker was a nonsecretor. James is a secretor.)
James testified on his own behalf. He maintained his innocence of the crime and said that he was asleep that morning until his stepfather woke him and then went to work. Three alibi witnesses backed up his testimony. His stepfather confirmed that he had been asleep at the time of the crime. (James’ mother had passed away, and he lived with his stepfather. James slept in the same bed as his stepfather.) Another witness testified that he saw the defendant walking to work and gave him a ride the rest of the way, and his boss testified that he arrived at work at 6:48 AM. However, James’ lawyer failed to inform the jury about the serological testing that excluded James as a suspect. The jury convicted James of aggravated rape, and he was sentenced on May 7, 1982 to life without parole.
After exhausting his appeals, James reached out to the Innocence Project, which sought to do DNA testing of the evidence recovered in the rape kit. Although officials at the Jefferson Parish Crime Laboratory were cooperative, the initial search for the evidence proved fruitless. The legal team eventually filed a motion on James’ behalf seeking testing on the evidence, but another search on February 18, 2010 also proved fruitless.
On May 3, 2010, Milton Dureau, who worked for the lab, was looking for evidence in a different case when he stumbled upon a slide from James’ case. Fortunately, he remembered the case number from his earlier search. The evidence was sent to a lab, which did STR DNA testing on the slide. The testing, which was completed on September 26, 2011, excluded James as the perpetrator in the rape.
“Misidentification has played a role in 75% of the DNA exoneration, and across racial identifications, as in this case, have proven especially unreliable,” said Thomas Golden, Partner at Willkie Farr & Gallagher LLP.
“In hind sight, it’s pretty obvious that the victim was influenced by her interactions with Mr. James the day before. The police may have also inadvertently influenced her misidentification. That’s why it’s especially important that the state enact identification reforms, especially those that require identification procedures be performed by an officer who doesn’t know the identity of the suspect,” he said.
Michael Morton was freed from prison earlier this month after serving 25 years in prison for a murder he didn’t commit. Since his release, legal wrangling has continued over an investigation into whether prosecutors committed misconduct at Morton’s original trial.
Morton’s legal team – which includes the Innocence Project – objected to the terms of a motion filed last Thursday by prosecutors in the case. And now Texas Attorney General Greg Abbott will become involved in the investigation at the request of Williamson County District Attorney John Bradley.
"As the husband of the murder victim and someone who was wrongfully convicted of the crime, Mr. Morton has a deep personal interest in seeing justice done, so we will want to consult with the Attorney General as the new investigation proceeds,” Houston attorney John Raley (of Raley & Bowick LLP) said today on behalf of Morton’s legal team. “We welcome Mr. Bradley’s pledge of cooperation with our investigation into the allegations that exculpatory evidence was hidden from Mr. Morton and the trial court, and trust there will be no more misunderstandings as to that process goes forward."
New DNA testing of crime scene evidence provides powerful new proof that Williamson County resident Christine Morton was murdered by a third-party intruder, not her husband Michael. Michael Morton, who has served 25 years in prison for the crime, has always maintained his innocence and spent the last six years fighting for DNA testing over the District Attorney’s objections. The new tests have now identified a convicted offender in the national DNA databank as the man whose DNA is mixed with the blood and hair of the murder victim on a bloody bandana recovered near the crime scene.
In light of the new evidence, the Innocence Project filed legal documents today asking the trial judge to appoint a new prosecutor in the case because District Attorney John Bradley’s bias against Michael Morton and the Innocence Project and past history on the case prevents Bradley from conducting an impartial review of the new DNA evidence and pursuing the actual assailant.
Barry Scheck charged, “It’s clear from the new DNA testing and other suppressed, exculpatory documents that law enforcement never followed up on numerous leads pointing to a third-party intruder, which might have solved the crime. But even more troubling, District Attorney Bradley knew about this evidence, yet kept these documents hidden in the State’s file while he fought tooth and nail to bar DNA testing.”
For more than six years, the Innocence Project had been seeking access to DNA testing on a stained bandana that was found on an abandoned construction site approximately 100 yards from the crime scene. Over the repeated objections of Bradley, the Texas Court of Appeals finally granted testing on the bandana last year. On June 20, 2011, the testing laboratory issued a report finding that the bandana contained the DNA of a man other than Michael, along with Christine’s blood and hair. The male DNA was put though the national DNA database and has been linked to a convicted offender.
“Michael had to spend the last six years fighting just to get access to DNA testing. Unfortunately, we now know that the District Attorney’s office knew all along that there was a good chance that the testing might point to another perpetrator in the case,” said John Raley, a Houston lawyer who has been pro bono co-counsel for Mr. Morton since 2003. “We’re hopeful the court will appoint a new prosecutor to investigate the matter because there is now a mountain of evidence pointing to Michael’s innocence, and the entire Morton family deserves to know the truth about what happened 25 years ago.”
In response to a Public Information Act request, the Innocence Project obtained the transcripts of the state’s chief investigator’s interview with the Christine’s mother that was conducted less than two weeks after the murder. In the transcript, she describes a conversation with the couple’s three-year-old son Eric, who told her in chilling detail that he witnessed an unknown man murder his mother.
The court papers note that this newly discovered evidence was turned over by the state Attorney General’s office in 2008 over the objection of Bradley, who personally reviewed the material and asked that it not be turned over because of the ongoing litigation over DNA testing.
The motion also charges that there was other newly disclosed information also pointing to a third-party intruder, including the fact that a neighbor told police that they “had on several occasions observed a male park a green van on the street behind (the Morton’s) address, then the subject would get out and walk into the wooded area off the road.” A handwritten telephone message to an investigator indicated that what appeared to be Christine’s missing Visa credit card was recovered from a store in San Antonio, but there was no indication that investigators ever pursued the individual who used the stolen card.
Given the fact that Bradley clearly knew that there was evidence of a third-party intruder, the motion argues that his repeated objections to testing of the bandana are further proof that he is incapable of objectively continuing in this case. He opposed the testing even though there was another unsolved murder in the county that bore a highly similar modus operandi.
The legal papers also note Bradley’s animosity towards the Innocence Project while serving as the Commissioner for the state Forensic Science Commission, which was asked by the Innocence Project to investigate whether the state was negligent in its prosecution and execution of Cameron Todd Willingham. The Commission ultimately found that the arson science used to convict Willingham of arson murder was outdated and without scientific basis. During his tenure as Chairman, Bradley, who was appointed by Governor Perry, repeatedly tried to derail the investigation and even referred to Willingham in the press as a “guilty monster” before the Commission had opportunity to hear from its own experts in the investigation.
Bradley, who was ultimately stripped of his chairmanship by the state Senate, was widely criticized by news outlets throughout the state because of concerns that he was incapable of being impartial. At numerous points during his tenure, he disparaged the work of the Innocence Project, specifically naming its Co-Director Scheck and state Senator Rodney Ellis, who also serves as the President of the Innocence Project Board of Directors.
The DPIC reports that recent polls conducted by Gallup and CNN indicate Americans' support for the death penalty is continuing to decline.
According to Gallup's 2011 poll, the percentage of Americans approving the death penalty as a punishment for murder dropped to its lowest level in 39 years. Only 61% supported capital punishment in theory, down from 64% last year and from 80% support in 1994. This is the lowest level of support since 1972, when the U.S. Supreme Court ruling in Furman v. Georgia voided death penalty statutes across the country.
Opposition to the death penalty (35%) in this recent poll reached a 39-year high. The Gallup poll also showed an increase from last year in those who believe the death penalty is applied too often or unfairly. Support for the death penalty dropped compared to last year among both Republicans and Democrats.
This year, among Democrats (or those leaning that way) more opposed the death penalty than supported it, a reverse from a year ago.
A recent CNN poll (conducted by ORC International) showed that when given a choice of sentences between life in prison without parole or the death penalty for the crime of murder, more Americans (50%) would opt for the life sentence than for death (48%). Seven years ago, the majority (56%) chose the death penalty over the life-without parole sentence. In CNN's recent poll, the number of Americans who believe that at least one person in the past five years has been executed for a crime that he or she did not commit increased to 72%.
So it’s possible that the light at the end of the tunnel is not an oncoming train!
The cold hand of ICE could destroy your family!
By William Fisher
A fast-growing program touted by the Obama Administration has led to thousands of US citizens being arrested and detained, separated from their children, held without bond or access to a lawyer, and without any kind of court hearing.
According to a new report, that describes the majority of people arrested under the so-called “Secure Communities” program conducted by the Department of Homeland Security (DHS) in association with local law enforcement throughout the country.
When S-Comm, as it has become known, was introduced, its stated objective was to arrest and deport “the worst of the worst” among people in this country illegally – murderers, rapists, sexual predators, and so forth. But today more than half the people caught in the grip of ICE’s cold hand have been arrested for such crimes as a broken tail light, driving without a license, overstaying a visitor’s visa. And many of them are bona fide US citizens caught up in the paperchase of a quota-driven bureaucracy.
The report, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” was released by the Chief Justice Earl Warren Institute on Law & Social Policy at the University of California Berkeley School of Law. Its authors say it is a “first-ever in-depth analysis of Secure Communities data obtained through the Freedom of Information Act.”
Secure Communities relies on local law enforcement to target noncitizens for deportation. Fingerprints from individuals booked into local jails—many on minor infractions—are sent to the Department of Homeland Security (DHS) for an immigration check, triggering arrests. This has transformed the enforcement landscape by allowing U.S. Immigration and Customs Enforcement (ICE) agents to effectively run federal immigration checks on everyone booked into a local jail.
“The results are disturbing because they point to a system that is funneling
people towards deportation without due process. Based on our findings, we
recommend that the Department of Homeland Security suspend the program until the government addresses the issues we identify, particularly wrongful U.S. citizen arrests, potential racial profiling, and lack of discretion in detention,” said Aarti Kohli, director of immigration policy at the Warren Institute and lead author of the report.
Lisa Chavez, Senior Research Associate at the Warren Institute and a co-author adds, “We had unprecedented access to federal data on ICE arrests, detentions, and deportations of people who are pulled in through Secure Communities. By following the numbers, we were able to construct a picture of who is being arrested and what happens to them after their immigration arrest.”
Key findings include:
• Approximately 3,600 United States citizens have been arrested by ICE through the Secure Communities program even though citizens, by definition, should not be subject to immigration detention;
• Approximately 88,000 families containing U.S. citizens have been affected by Secure Communities through the immigration arrest of a family member;
• Latinos comprise 93% of individuals arrested through Secure Communities though they only comprise 77% of the undocumented population in the United States;
• Only 52% of individuals arrested through Secure Communities were slated to appear before an immigration judge;
• Only 24% of the individuals arrested through Secure Communities who did have an immigration hearing were represented by an attorney. By contrast, 40% of all immigration court respondents have counsel;
• Only 2% of non-citizens arrested through Secure Communities are granted relief from deportation by an immigration judge. By contrast, 14% of all immigration court respondents are granted relief;
• A large majority (83%) of people arrested through Secure Communities is held in ICE detention as compared with an overall DHS immigration detention rate of 62%. ICE does not appear to be exercising discretion when deciding whether or not to detain Secure Communities arrestees.
“The wrongful arrest of thousands of U.S. citizens demonstrates that, too often, ICE’s protocol is arrest first, investigate second. This flies in the face of the Constitution. With these numbers finally public, ICE must confront the deep flaws in the program that have led to these wrongful arrests and to the disproportionate targeting of young Latino men,” said professor Peter L. Markowitz, director of the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law, a co-author of the report.
Cecilia Muñoz, Obama’s top adviser on immigration issues told FRONTLINE correspondent Maria Hinojosa why the administration plans to keep detaining and deporting record numbers of illegal immigrants: Secure Communities is a high-tech information-sharing program between Immigration and Customs Enforcement (ICE) and local law enforcement.
But FRONTLINE says critics, including three Democratic state governors, say the program is detaining and deporting low-level offenders or people without criminal records, contrary to the administration’s stated goal of deporting only “aliens who are convicted of a serious criminal offense.”
Muñoz told FRONTLINE the adjustments she refers to include a recent Department of Homeland Security [DHS] prosecutorial discretion memo aimed at giving ICE guidance about who to detain and deport, and a promise to review 300,000 pending deportation cases to identify people who have lived in the U.S. for years without committing crimes.
The data of the Immigration and Customs Enforcement agency’s Secure Communities program was obtained through partial settlement of a Freedom of Information Act lawsuit filed by the Cardozo law school’s Immigration Justice Clinic and the Center for Constitutional Rights (CCR) on behalf of the National Day Labor Organizing Network (NDLON).
“The government’s own data has consistently shown that most of the people
impacted by this program have no criminal record or are low-level offenders. To lock these people up in detention centers without access to attorneys or an opportunity to see a judge is undemocratic,” said Kohli.
The report makes a number of recommendations, including: increasing transparency of the program; adding safeguards to prevent U.S. citizen arrests; investigating the evidence of racial profiling of Latinos; providing access to government-appointed legal counsel; and suspending the program until these recommendations are addressed.
“The Warren Institute study demonstrates how deeply U.S. citizens’ own rights have been eroded in the name of immigration enforcement. The Obama administration should treat this study as the final nail in the coffin of a program that should have been buried long ago,” explains Sarahi Uribe, Organizer for the National Day Laborer Organizing Network.
Said CCR attorney Sunita Patel, “This new report further confirms what we know from the damning records released through our lawsuit and the experience of immigrant communities. Secure Communities has been and will always be a dangerously flawed program. The Obama Administration must disconnect immigration enforcement from law enforcement. The results of merging the two systems are erosion of public safety and civil rights.”
The S-Comm program was also the subject of a penetrating investigation of, among other abuses, sexual harassment in immigration detention facilities.
The PBS program claimed that illegal immigrants held in US immigration detention facilities filed more than 170 allegations of sexual abuse over the last four years, mostly against guards and other staff at the centers, according to government documents obtained by FRONTLINE and the American Civil Liberties Union (ACLU).
The ACLU says documents it obtained through the Freedom of Information Act (FOIA) provide a first-ever window into the breadth of the national problem of sexual abuse of detainees in immigration detention facilities. The ACLU made information from the documents public in concert with the filing by the ACLU of Texas of a federal class action damages lawsuit on behalf of three immigrant women who were sexually assaulted while in the custody of Immigration and Customs Enforcement (ICE) at the T. Don Hutto Family Residential Center in Taylor, Texas, along with numerous others who experienced similar trauma.
Government documents obtained by the ACLU contain nearly 200 allegations of sexual abuse of immigration detainees jailed at detention facilities across the nation since 2007.
The documents were obtained from the Department of Homeland Security’s Office of Inspector General, Office of Civil Rights and Civil Liberties and ICE. While the information gleaned from the documents likely does not represent the full scope of the problem given that sexual abuse is notoriously underreported, the documents nonetheless make clear that the sexual abuse of immigration detainees is not an isolated problem limited to a few rogue facilities or the result of a handful of bad apple government contractors who staff some of the nation’s immigration jails.
According to the documents, while facilities in Texas are the focus of more allegations by far than any other state, sexual abuse allegations have come from nearly every state in the nation that houses an immigration detention facility, FRONTLINE reported..
“It is clear there is an urgent need for the government to recognize just how pervasive a problem the sexual abuse of immigration detainees is and take immediate steps to fix the problem and ensure that everyone in the government’s care is protected,” said David Shapiro, staff attorney with the ACLU National Prison Project. “The detainees in immigration detention are a particularly vulnerable population. Even one incident of sexual abuse is one too many.”
Defendants named in the in the ACLU of Texas lawsuit include three ICE officials; Williamson County, Texas; Corrections Corporation of America (CCA), the nation’s largest private prison company that manages the Hutto facility; the former facility administrator for Hutto; and Donald Dunn, a guard who pleaded guilty in state court to three counts of official oppression and two counts of unlawful restraint based on his assaults of five women. Separately, Dunn has been charged with four additional federal counts of criminal violation of civil rights and is awaiting sentencing on two of them.
The FRONTLINE investigation found no evidence that the vast majority of complaints had been investigated or resolved. Most of the complaints went through the Department of Homeland Security’s Inspector General’s (IG)Office, which is the primary office responsible for investigating outside complaints. IG records show only 15 “reports of investigation,” which resulted in six substantiated or partially substantiated cases. Two guards were convicted of sexual abuse; three others have been terminated from their positions.
The documents, together with interviews of dozens of detainees, employees, investigators and officials, present a portrait of detainees with few effective recourses if they are victims of crimes while in detention. Many say they face continuous pressure to sign deportation orders. And unlike in the criminal justice system, immigration detainees do not have a guaranteed right of legal representation, and so have difficulty with access to counsel if they have a grievance.
A former mental health coordinator at Willacy Detention Center in Raymondville, Texas, told FRONTLINE that officials attempted to cover up complaints of sexual abuse, which she described as common among female detainees. The coordinator said she later resigned because of the treatment of detainees at the facility.
FRONTLINE has made repeated requests to DHS to review complaints and the department’s process of investigating sexual abuse allegations. Officials declined to comment.
“Who’s Going to Believe You?”
In 2009, a Canadian immigrant living in Florida was pulled over during a routine traffic stop. When the officer typed her name into his computer, a 10-year-old outstanding warrant for a $230 bounced check from Wal-Mart popped up. The bounced check, combined with her undocumented status, led to her detention.
The woman, whose identity FRONTLINE is withholding because she is an alleged victim of sexual assault, agreed to be interviewed under the name “Mary.”
She said that when she was taken into custody she left her four young children, all U.S. citizens, in the care of a relative. After a local sheriff’s deputy drove her to jail, the authorities notified Immigration and Customs Enforcement (ICE).
Mary was sent to Willacy. She said that when she arrived, a fellow detainee warned her that another female detainee had been raped by a male guard. Mary, who had never been behind bars, didn’t know what to believe.“This is the government. The U.S. government,” she remembered thinking. Mary said she tried to keep quiet at Willacy. She took trips to the law library to escape the dorm and work on an appeal of her deportation case.
A male guard first approached her in the library, she told FRONTLINE.“He would talk to me nicely, and ask me questions, where I’m from, and say] ‘Oh, you’re beautiful,’” she recalled.
During subsequent trips to the library, he made her uncomfortable, but she said she was too afraid to say anything. On the third encounter the guard touched her, Mary said. “He came up, and he started holding my hands, and he kissed me. I said ‘You shouldn’t be doing that. … I don’t like what you’re doing.’”
“I can help you get out of here,” the guard replied.
Mary says she pushed him away, and said she was going to report him. Who are you going to tell?” he responded. Mary said she felt alone, and didn’t tell anyone what happened. “Who’s going to listen to you?” she explained. “Who’s going to believe you?
You’re criminals. You’re a detainee. Who are you going to go complain to?”
A short time later, Mary said, the guard sexually assaulted her. She said he approached, saying, “I love big-breasted women.” She said he placed his hands in her pants, penetrated her with his fingers. Mary said she pushed him away and that the guard told her, “If you tell anyone, you wouldn’t come out of here alive to see your family.”
According to the 170 records examined by FRONTLINE, Willacy Detention Center garnered more complaints of sexual abuse than any other facility.The program said “MTC also received more than 900 grievances filed by detainees in its own internal grievance process, according to a 2009 audit by Creative Corrections, a company contracted by ICE to perform the audit. Of the 900, four grievances were resolved in favor of the detainee. There is no indication as to what the grievances were about or whether any of these were forwarded to oversight agencies in Washington, D.C.
The audit found 49 physical assault incidents at Willacy, but contained no details about the assaults or who was involved. None of the assaults was classified as sexual.
At the same time, MoveOn.org has also taken on a major immigration-related issue. The organization said, “ Jim Crow-style, state-sanctioned racism has returned to Alabama. Governor Robert Bentley and his allies recently enacted HB56, the nation's most draconian anti-immigrant law.”
The organization said the law is scaring businesses, citizens, and immigrant families alike. Sheila Hodges, a business owner in southwest Alabama, said that 30% of her employees have left the state because they are "scared" of enforcement of the new law, even though they carry documentation.
Moveon says that families in Allgood, AL, are in danger of losing water service for being suspected of having undocumented immigrants in their household.
Most heinously, the group says, there have been reports of police patrols driving around Latino neighborhoods like the one Isobel Gomez lives in near Birmingham that have her and other residents afraid to even go outside.
Immigrants and citizens in Alabama are standing up to fight against this discrimination. State Senator Billy Beasley has filed a bill to repeal this law. The U.S. Department of Justice has even stepped in to block parts of the law.
Moveon says, “Support from inside and outside Alabama will strengthen Sen. Beasley's and other local organizing efforts to repeal the entire law and bring relief to everyone impacted. Sen. Beasley said that one of the reasons he wants HB56 repealed is because ‘many folks didn't realize it would have such an impact.’”
The editor of Immigration Daily writes: “ICE announced that it deported nearly 400,000 people in Fiscal Year 2011 setting an all-time record. It is difficult to figure out exactly how many of the 400,000 were deported solely due to immigration violations, and how many due to criminal violations unrelated to immigration issues. 45% of those deported had only civil immigration offenses.
“It is unclear how large a percentage of the remaining 55% of felonies or misdemeanors were immigration-related. We look forward to the clarification of the breakdown of these numbers, to see if and to what extent the numbers conform to or depart from the stated enforcement priorities of the Obama administration.”
A fast-growing program touted by the Obama Administration has led to thousands of US citizens being arrested and detained, separated from their children, held without bond or access to a lawyer, and without any kind of court hearing.
According to a new report, that describes the majority of people arrested under the so-called “Secure Communities” program conducted by the Department of Homeland Security (DHS) in association with local law enforcement throughout the country.
When S-Comm, as it has become known, was introduced, its stated objective was to arrest and deport “the worst of the worst” among people in this country illegally – murderers, rapists, sexual predators, and so forth. But today more than half the people caught in the grip of ICE’s cold hand have been arrested for such crimes as a broken tail light, driving without a license, overstaying a visitor’s visa. And many of them are bona fide US citizens caught up in the paperchase of a quota-driven bureaucracy.
The report, “Secure Communities by the Numbers: An Analysis of Demographics and Due Process,” was released by the Chief Justice Earl Warren Institute on Law & Social Policy at the University of California Berkeley School of Law. Its authors say it is a “first-ever in-depth analysis of Secure Communities data obtained through the Freedom of Information Act.”
Secure Communities relies on local law enforcement to target noncitizens for deportation. Fingerprints from individuals booked into local jails—many on minor infractions—are sent to the Department of Homeland Security (DHS) for an immigration check, triggering arrests. This has transformed the enforcement landscape by allowing U.S. Immigration and Customs Enforcement (ICE) agents to effectively run federal immigration checks on everyone booked into a local jail.
“The results are disturbing because they point to a system that is funneling
people towards deportation without due process. Based on our findings, we
recommend that the Department of Homeland Security suspend the program until the government addresses the issues we identify, particularly wrongful U.S. citizen arrests, potential racial profiling, and lack of discretion in detention,” said Aarti Kohli, director of immigration policy at the Warren Institute and lead author of the report.
Lisa Chavez, Senior Research Associate at the Warren Institute and a co-author adds, “We had unprecedented access to federal data on ICE arrests, detentions, and deportations of people who are pulled in through Secure Communities. By following the numbers, we were able to construct a picture of who is being arrested and what happens to them after their immigration arrest.”
Key findings include:
• Approximately 3,600 United States citizens have been arrested by ICE through the Secure Communities program even though citizens, by definition, should not be subject to immigration detention;
• Approximately 88,000 families containing U.S. citizens have been affected by Secure Communities through the immigration arrest of a family member;
• Latinos comprise 93% of individuals arrested through Secure Communities though they only comprise 77% of the undocumented population in the United States;
• Only 52% of individuals arrested through Secure Communities were slated to appear before an immigration judge;
• Only 24% of the individuals arrested through Secure Communities who did have an immigration hearing were represented by an attorney. By contrast, 40% of all immigration court respondents have counsel;
• Only 2% of non-citizens arrested through Secure Communities are granted relief from deportation by an immigration judge. By contrast, 14% of all immigration court respondents are granted relief;
• A large majority (83%) of people arrested through Secure Communities is held in ICE detention as compared with an overall DHS immigration detention rate of 62%. ICE does not appear to be exercising discretion when deciding whether or not to detain Secure Communities arrestees.
“The wrongful arrest of thousands of U.S. citizens demonstrates that, too often, ICE’s protocol is arrest first, investigate second. This flies in the face of the Constitution. With these numbers finally public, ICE must confront the deep flaws in the program that have led to these wrongful arrests and to the disproportionate targeting of young Latino men,” said professor Peter L. Markowitz, director of the Kathryn O. Greenberg Immigration Justice Clinic at Cardozo School of Law, a co-author of the report.
Cecilia Muñoz, Obama’s top adviser on immigration issues told FRONTLINE correspondent Maria Hinojosa why the administration plans to keep detaining and deporting record numbers of illegal immigrants: Secure Communities is a high-tech information-sharing program between Immigration and Customs Enforcement (ICE) and local law enforcement.
But FRONTLINE says critics, including three Democratic state governors, say the program is detaining and deporting low-level offenders or people without criminal records, contrary to the administration’s stated goal of deporting only “aliens who are convicted of a serious criminal offense.”
Muñoz told FRONTLINE the adjustments she refers to include a recent Department of Homeland Security [DHS] prosecutorial discretion memo aimed at giving ICE guidance about who to detain and deport, and a promise to review 300,000 pending deportation cases to identify people who have lived in the U.S. for years without committing crimes.
The data of the Immigration and Customs Enforcement agency’s Secure Communities program was obtained through partial settlement of a Freedom of Information Act lawsuit filed by the Cardozo law school’s Immigration Justice Clinic and the Center for Constitutional Rights (CCR) on behalf of the National Day Labor Organizing Network (NDLON).
“The government’s own data has consistently shown that most of the people
impacted by this program have no criminal record or are low-level offenders. To lock these people up in detention centers without access to attorneys or an opportunity to see a judge is undemocratic,” said Kohli.
The report makes a number of recommendations, including: increasing transparency of the program; adding safeguards to prevent U.S. citizen arrests; investigating the evidence of racial profiling of Latinos; providing access to government-appointed legal counsel; and suspending the program until these recommendations are addressed.
“The Warren Institute study demonstrates how deeply U.S. citizens’ own rights have been eroded in the name of immigration enforcement. The Obama administration should treat this study as the final nail in the coffin of a program that should have been buried long ago,” explains Sarahi Uribe, Organizer for the National Day Laborer Organizing Network.
Said CCR attorney Sunita Patel, “This new report further confirms what we know from the damning records released through our lawsuit and the experience of immigrant communities. Secure Communities has been and will always be a dangerously flawed program. The Obama Administration must disconnect immigration enforcement from law enforcement. The results of merging the two systems are erosion of public safety and civil rights.”
The S-Comm program was also the subject of a penetrating investigation of, among other abuses, sexual harassment in immigration detention facilities.
The PBS program claimed that illegal immigrants held in US immigration detention facilities filed more than 170 allegations of sexual abuse over the last four years, mostly against guards and other staff at the centers, according to government documents obtained by FRONTLINE and the American Civil Liberties Union (ACLU).
The ACLU says documents it obtained through the Freedom of Information Act (FOIA) provide a first-ever window into the breadth of the national problem of sexual abuse of detainees in immigration detention facilities. The ACLU made information from the documents public in concert with the filing by the ACLU of Texas of a federal class action damages lawsuit on behalf of three immigrant women who were sexually assaulted while in the custody of Immigration and Customs Enforcement (ICE) at the T. Don Hutto Family Residential Center in Taylor, Texas, along with numerous others who experienced similar trauma.
Government documents obtained by the ACLU contain nearly 200 allegations of sexual abuse of immigration detainees jailed at detention facilities across the nation since 2007.
The documents were obtained from the Department of Homeland Security’s Office of Inspector General, Office of Civil Rights and Civil Liberties and ICE. While the information gleaned from the documents likely does not represent the full scope of the problem given that sexual abuse is notoriously underreported, the documents nonetheless make clear that the sexual abuse of immigration detainees is not an isolated problem limited to a few rogue facilities or the result of a handful of bad apple government contractors who staff some of the nation’s immigration jails.
According to the documents, while facilities in Texas are the focus of more allegations by far than any other state, sexual abuse allegations have come from nearly every state in the nation that houses an immigration detention facility, FRONTLINE reported..
“It is clear there is an urgent need for the government to recognize just how pervasive a problem the sexual abuse of immigration detainees is and take immediate steps to fix the problem and ensure that everyone in the government’s care is protected,” said David Shapiro, staff attorney with the ACLU National Prison Project. “The detainees in immigration detention are a particularly vulnerable population. Even one incident of sexual abuse is one too many.”
Defendants named in the in the ACLU of Texas lawsuit include three ICE officials; Williamson County, Texas; Corrections Corporation of America (CCA), the nation’s largest private prison company that manages the Hutto facility; the former facility administrator for Hutto; and Donald Dunn, a guard who pleaded guilty in state court to three counts of official oppression and two counts of unlawful restraint based on his assaults of five women. Separately, Dunn has been charged with four additional federal counts of criminal violation of civil rights and is awaiting sentencing on two of them.
The FRONTLINE investigation found no evidence that the vast majority of complaints had been investigated or resolved. Most of the complaints went through the Department of Homeland Security’s Inspector General’s (IG)Office, which is the primary office responsible for investigating outside complaints. IG records show only 15 “reports of investigation,” which resulted in six substantiated or partially substantiated cases. Two guards were convicted of sexual abuse; three others have been terminated from their positions.
The documents, together with interviews of dozens of detainees, employees, investigators and officials, present a portrait of detainees with few effective recourses if they are victims of crimes while in detention. Many say they face continuous pressure to sign deportation orders. And unlike in the criminal justice system, immigration detainees do not have a guaranteed right of legal representation, and so have difficulty with access to counsel if they have a grievance.
A former mental health coordinator at Willacy Detention Center in Raymondville, Texas, told FRONTLINE that officials attempted to cover up complaints of sexual abuse, which she described as common among female detainees. The coordinator said she later resigned because of the treatment of detainees at the facility.
FRONTLINE has made repeated requests to DHS to review complaints and the department’s process of investigating sexual abuse allegations. Officials declined to comment.
“Who’s Going to Believe You?”
In 2009, a Canadian immigrant living in Florida was pulled over during a routine traffic stop. When the officer typed her name into his computer, a 10-year-old outstanding warrant for a $230 bounced check from Wal-Mart popped up. The bounced check, combined with her undocumented status, led to her detention.
The woman, whose identity FRONTLINE is withholding because she is an alleged victim of sexual assault, agreed to be interviewed under the name “Mary.”
She said that when she was taken into custody she left her four young children, all U.S. citizens, in the care of a relative. After a local sheriff’s deputy drove her to jail, the authorities notified Immigration and Customs Enforcement (ICE).
Mary was sent to Willacy. She said that when she arrived, a fellow detainee warned her that another female detainee had been raped by a male guard. Mary, who had never been behind bars, didn’t know what to believe.“This is the government. The U.S. government,” she remembered thinking. Mary said she tried to keep quiet at Willacy. She took trips to the law library to escape the dorm and work on an appeal of her deportation case.
A male guard first approached her in the library, she told FRONTLINE.“He would talk to me nicely, and ask me questions, where I’m from, and say] ‘Oh, you’re beautiful,’” she recalled.
During subsequent trips to the library, he made her uncomfortable, but she said she was too afraid to say anything. On the third encounter the guard touched her, Mary said. “He came up, and he started holding my hands, and he kissed me. I said ‘You shouldn’t be doing that. … I don’t like what you’re doing.’”
“I can help you get out of here,” the guard replied.
Mary says she pushed him away, and said she was going to report him. Who are you going to tell?” he responded. Mary said she felt alone, and didn’t tell anyone what happened. “Who’s going to listen to you?” she explained. “Who’s going to believe you?
You’re criminals. You’re a detainee. Who are you going to go complain to?”
A short time later, Mary said, the guard sexually assaulted her. She said he approached, saying, “I love big-breasted women.” She said he placed his hands in her pants, penetrated her with his fingers. Mary said she pushed him away and that the guard told her, “If you tell anyone, you wouldn’t come out of here alive to see your family.”
According to the 170 records examined by FRONTLINE, Willacy Detention Center garnered more complaints of sexual abuse than any other facility.The program said “MTC also received more than 900 grievances filed by detainees in its own internal grievance process, according to a 2009 audit by Creative Corrections, a company contracted by ICE to perform the audit. Of the 900, four grievances were resolved in favor of the detainee. There is no indication as to what the grievances were about or whether any of these were forwarded to oversight agencies in Washington, D.C.
The audit found 49 physical assault incidents at Willacy, but contained no details about the assaults or who was involved. None of the assaults was classified as sexual.
At the same time, MoveOn.org has also taken on a major immigration-related issue. The organization said, “ Jim Crow-style, state-sanctioned racism has returned to Alabama. Governor Robert Bentley and his allies recently enacted HB56, the nation's most draconian anti-immigrant law.”
The organization said the law is scaring businesses, citizens, and immigrant families alike. Sheila Hodges, a business owner in southwest Alabama, said that 30% of her employees have left the state because they are "scared" of enforcement of the new law, even though they carry documentation.
Moveon says that families in Allgood, AL, are in danger of losing water service for being suspected of having undocumented immigrants in their household.
Most heinously, the group says, there have been reports of police patrols driving around Latino neighborhoods like the one Isobel Gomez lives in near Birmingham that have her and other residents afraid to even go outside.
Immigrants and citizens in Alabama are standing up to fight against this discrimination. State Senator Billy Beasley has filed a bill to repeal this law. The U.S. Department of Justice has even stepped in to block parts of the law.
Moveon says, “Support from inside and outside Alabama will strengthen Sen. Beasley's and other local organizing efforts to repeal the entire law and bring relief to everyone impacted. Sen. Beasley said that one of the reasons he wants HB56 repealed is because ‘many folks didn't realize it would have such an impact.’”
The editor of Immigration Daily writes: “ICE announced that it deported nearly 400,000 people in Fiscal Year 2011 setting an all-time record. It is difficult to figure out exactly how many of the 400,000 were deported solely due to immigration violations, and how many due to criminal violations unrelated to immigration issues. 45% of those deported had only civil immigration offenses.
“It is unclear how large a percentage of the remaining 55% of felonies or misdemeanors were immigration-related. We look forward to the clarification of the breakdown of these numbers, to see if and to what extent the numbers conform to or depart from the stated enforcement priorities of the Obama administration.”
FBI USING RACIAL, ETHNIC PROFILING TO SNOOP ON US CITIZENS, ACLU CHARGES
By William Fisher
The American Civil Liberties Union (ACLU) is charging that field offices of the Federal Bureau of Investigation (FBI) are engaged in “unconstitutional and widespread” ethnic and racial profiling, stereotyping certain types of crimes to entire minority communities.
As revealed in documents the ACLU has obtained so far through the Freedom of Information Act (FOIA), targeted communities include:
· Arab Americans in Michigan;
· African-Americans in Georgia;
· Chinese and Russian-Americans in California;
· Broad swaths of Latino-American communities in multiple states.
The FBI has also engaged in religious profiling of Muslim American communities in Michigan. “Based on false stereotypes ascribing criminal propensity to minority communities, the FBI is collecting demographic data to map where people from these communities live,” the ACLU said.
The group added, “Nationwide, the FBI is gathering reports on innocent Americans' so-called “suspicious activity” and sharing it with unknown numbers of federal, state and local government agencies.”
In response, the ACLU said its “Mapping the FBI” initiative seeks to expose misconduct, abuse of authority, and unconstitutional profiling and other violations of Americans' rights and liberties across the country.
“As our nation's predominant law enforcement agency, the FBI should be tracking true threats, not wasting resources and inappropriately mapping American communities on the basis of race, ethnicity, national origin, or religion. Law enforcement programs based on evidence and facts are more effective than a system based on racial stereotypes or mass suspicion,” the ACLU said.
It explained that, in the decade since 9/11, “long-standing safeguards on the FBI's investigative and intelligence collection activities have been erased, allowing it to engage in racial and profiling and to initiate intrusive investigations with little or no suspicion of wrongdoing. Taken together, the changes in the FBI's authority have vastly expanding its ability to engage in unlawful and abusive surveillance of innocent Americans.”
The ACLU said it is working in the courts, in Congress and in communities to “expose the ways in which the FBI's expanded authority threatens civil rights and civil liberties.”
The group’s activities include:
Eye on the FBI: Consolidating information obtained through ACLU records requests, lawsuits and reports, the ACLU's “Eye on the FBI” alerts provide regular and detailed analysis of FBI activities that pose a threat to civil liberties. These activities include the use of factually incorrect and bigoted biased counterterrorism materials and FBI racial profiling.
Racial and Ethnic Mapping: 34 ACLU affiliates have filed public records requests to uncover how the FBI is using racial and ethnic demographic information and data about “ethnic-oriented” business and facilities to “map” and investigate local communities. ACLU affiliates in Michigan, New Jersey and Northern California are in federal court to enforce their records requests and secure information for the public.
eGuardian: The ACLU has sued the FBI and the Justice Department to learn more about an FBI monitoring and information-sharing program known as “eGuardian,” through which the bureau collects so-called “Suspicious Activities Reports” (SARs) from local, state and federal law enforcement agencies nationwide.
Spy Files: This ACLU effort paints a comprehensive picture of the vast and expanding infrastructure of surveillance in the U.S. today by local, state and federal law enforcement—including the FBI. Documents obtained by the ACLU show that through this de facto domestic intelligence system, our government is monitoring and recording Americans' First Amendment-protected beliefs and activities.
FBI Interviews: The ACLU is working to educate individuals and community organizations across the country about their rights when encountering law enforcement. Over the past two years, the FBI has significantly increased its use of “voluntary” interviews – especially within specific racial, ethnic, and religious communities – often encouraging interviewees to serve as informants in their communities.
Michael German, a former F.B.I. agent who now works for the A.C.L.U., connected the ethnic mapping to a controversy over F.B.I. training and reference materials, first reported by Wired magazine, that portrayed all Muslims as having a proclivity for terrorism. The A.C.L.U. released additional such materials; the bureau promised last month to review its training and reference materials that refer to culture or religion.
Mr. German said the racial mapping documents and the disputed training documents showed a common “theme of mass suspicion of an entire group based on racial characteristics or religion.” He said the trained agents might be “predisposed to treating everyone from a particular group as suspect.”
Hina Shamsi, the director of the A.C.L.U.’s National Security Project, said the documents showed that the loosened rules had led to an “extremely pernicious” practice of ascribing propensity to crimes to people based on their ethnicity or religion.
“It’s counterproductive because it alienates local communities from their
government, and it also sends the message that the government views prejudice as acceptable,” she said.
Reaction from the Arab-American community was equally forceful.
Hassan Jaber, executive director, of ACCESS (The Arab Community Center for Economic & Social Services), said, “The ACLU information released today sheds a disturbing spotlight on practices that should have been rendered to the dustbin of history. Our organization and many others with whom we work dedicate ourselves to the support of a vibrant American democracy. This happens when all Americans become involved in their communities.”
He added, “Unwarranted surveillance based on racial and ethnic profiling has the opposite effect, creating fear and distance among the targeted communities. This report, combined with recent news of FBI surveillance of day-to-day activities among Muslims in NY, and information about the problematic training techniques employed by the FBI, are causes for serious concern. We believe this situation demands immediate attention and examination.
Documents received by the ACLU in response to its FOIA request paint an alarming picture of FBI Field Office activities. For example:
• A 2009 Detroit FBI field office memorandum references State Department-designated terrorist groups originating in the Middle East and Southeast Asia and asserts that “because Michigan has a large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment by these terrorist groups.”
• A 2009 Atlanta FBI Intelligence Note purports to identify potential threats from “Black Separatist” groups (identified as including the National Black Panther Party and the Nation of Islam) and documents population increases among “black/African-American populations in Georgia” from 2000 to 2007.
• Two 2009 San Francisco FBI memoranda state that the “San Francisco domain is home to one of the oldest Chinatowns in North America and one of the largest ethnic Chinese populations outside mainland China,” and justify the opening of an investigation involving racial and national origin mapping because “[w]ithin this community there has been organized crime for generations.” The memoranda similarly justify mapping of the “sizable Russian population” in the region by referencing the existence of “Russian criminal enterprises” in San Francisco.
• Several documents from FBI offices in Alabama, New Jersey, and Georgia show that the FBI is using the threat posed by the criminal gang Mara Salvatrucha (MS-13), which was originally started by Salvadoran immigrants, to justify broad investigations targeting a wide variety of Latino-American communities. The Mobile, Alabama FBI’s Intelligence Note (which states that MS-13’s “primary criminal activity” in Mobile is “graffiti”) contradicts the Newark FBI’s assessment of the gang’s ethnic composition, stating that while “MS-13 members are typically Salvadorans, Guatemalans, and Honduran nationals or first-generation descendants . . . MS-13 has been known to admit Mexicans, Dominicans, and non-Hispanic individuals.” Yet the Mobile FBI office singled out and mapped demographic data for immigrants born in Central America.
The ACLU claims problems of this type emanate from a 2003 Justice Department publication, “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” The guidance prohibited the DOJ from using race “to any degree” in law enforcement investigations (unless describing a specific suspect).
But it carved out a loophole permitting racial and ethnic profiling in national security and border integrity investigations. Exploiting this loophole, in 2008, the FBI issued its Domestic Investigation and Operations Guide (DIOG), which permits FBI agents to conduct Domain Management assessments, which include the authority to collect, analyze and “map” racial and ethnic demographic information and the location of ethnic-oriented business and facilities.
The DIOG also allows the FBI to collect and track “behavioral characteristics reasonably associated with a particular criminal or terrorist element of an ethnic community.” This Domain Management authority is not limited to national security and border integrity investigations.
In 2010, 34 ACLU affiliates filed coordinated FOIA requests with their local FBI field offices to uncover records showing how the FBI has used its racial and ethnic profiling authority under the Guidance on Race and the DIOG.
The ACLU is calling on Attorney General Eric Holder to:
• Enforce the Guidance on Race’s prohibition against the use of race to “any degree” in law enforcement investigations;
• Amend the Guidance on Race to prohibit racial and ethnic profiling without any exceptions, and to add religion and national origin to the barred profiling criteria; and
• Ensure the FBI amends the DIOG to incorporate existing prohibitions on the use of race and ethnicity in FBI investigations, and to incorporate the above amendments to the Guidance on Race.
The American Civil Liberties Union (ACLU) is charging that field offices of the Federal Bureau of Investigation (FBI) are engaged in “unconstitutional and widespread” ethnic and racial profiling, stereotyping certain types of crimes to entire minority communities.
As revealed in documents the ACLU has obtained so far through the Freedom of Information Act (FOIA), targeted communities include:
· Arab Americans in Michigan;
· African-Americans in Georgia;
· Chinese and Russian-Americans in California;
· Broad swaths of Latino-American communities in multiple states.
The FBI has also engaged in religious profiling of Muslim American communities in Michigan. “Based on false stereotypes ascribing criminal propensity to minority communities, the FBI is collecting demographic data to map where people from these communities live,” the ACLU said.
The group added, “Nationwide, the FBI is gathering reports on innocent Americans' so-called “suspicious activity” and sharing it with unknown numbers of federal, state and local government agencies.”
In response, the ACLU said its “Mapping the FBI” initiative seeks to expose misconduct, abuse of authority, and unconstitutional profiling and other violations of Americans' rights and liberties across the country.
“As our nation's predominant law enforcement agency, the FBI should be tracking true threats, not wasting resources and inappropriately mapping American communities on the basis of race, ethnicity, national origin, or religion. Law enforcement programs based on evidence and facts are more effective than a system based on racial stereotypes or mass suspicion,” the ACLU said.
It explained that, in the decade since 9/11, “long-standing safeguards on the FBI's investigative and intelligence collection activities have been erased, allowing it to engage in racial and profiling and to initiate intrusive investigations with little or no suspicion of wrongdoing. Taken together, the changes in the FBI's authority have vastly expanding its ability to engage in unlawful and abusive surveillance of innocent Americans.”
The ACLU said it is working in the courts, in Congress and in communities to “expose the ways in which the FBI's expanded authority threatens civil rights and civil liberties.”
The group’s activities include:
Eye on the FBI: Consolidating information obtained through ACLU records requests, lawsuits and reports, the ACLU's “Eye on the FBI” alerts provide regular and detailed analysis of FBI activities that pose a threat to civil liberties. These activities include the use of factually incorrect and bigoted biased counterterrorism materials and FBI racial profiling.
Racial and Ethnic Mapping: 34 ACLU affiliates have filed public records requests to uncover how the FBI is using racial and ethnic demographic information and data about “ethnic-oriented” business and facilities to “map” and investigate local communities. ACLU affiliates in Michigan, New Jersey and Northern California are in federal court to enforce their records requests and secure information for the public.
eGuardian: The ACLU has sued the FBI and the Justice Department to learn more about an FBI monitoring and information-sharing program known as “eGuardian,” through which the bureau collects so-called “Suspicious Activities Reports” (SARs) from local, state and federal law enforcement agencies nationwide.
Spy Files: This ACLU effort paints a comprehensive picture of the vast and expanding infrastructure of surveillance in the U.S. today by local, state and federal law enforcement—including the FBI. Documents obtained by the ACLU show that through this de facto domestic intelligence system, our government is monitoring and recording Americans' First Amendment-protected beliefs and activities.
FBI Interviews: The ACLU is working to educate individuals and community organizations across the country about their rights when encountering law enforcement. Over the past two years, the FBI has significantly increased its use of “voluntary” interviews – especially within specific racial, ethnic, and religious communities – often encouraging interviewees to serve as informants in their communities.
Michael German, a former F.B.I. agent who now works for the A.C.L.U., connected the ethnic mapping to a controversy over F.B.I. training and reference materials, first reported by Wired magazine, that portrayed all Muslims as having a proclivity for terrorism. The A.C.L.U. released additional such materials; the bureau promised last month to review its training and reference materials that refer to culture or religion.
Mr. German said the racial mapping documents and the disputed training documents showed a common “theme of mass suspicion of an entire group based on racial characteristics or religion.” He said the trained agents might be “predisposed to treating everyone from a particular group as suspect.”
Hina Shamsi, the director of the A.C.L.U.’s National Security Project, said the documents showed that the loosened rules had led to an “extremely pernicious” practice of ascribing propensity to crimes to people based on their ethnicity or religion.
“It’s counterproductive because it alienates local communities from their
government, and it also sends the message that the government views prejudice as acceptable,” she said.
Reaction from the Arab-American community was equally forceful.
Hassan Jaber, executive director, of ACCESS (The Arab Community Center for Economic & Social Services), said, “The ACLU information released today sheds a disturbing spotlight on practices that should have been rendered to the dustbin of history. Our organization and many others with whom we work dedicate ourselves to the support of a vibrant American democracy. This happens when all Americans become involved in their communities.”
He added, “Unwarranted surveillance based on racial and ethnic profiling has the opposite effect, creating fear and distance among the targeted communities. This report, combined with recent news of FBI surveillance of day-to-day activities among Muslims in NY, and information about the problematic training techniques employed by the FBI, are causes for serious concern. We believe this situation demands immediate attention and examination.
Documents received by the ACLU in response to its FOIA request paint an alarming picture of FBI Field Office activities. For example:
• A 2009 Detroit FBI field office memorandum references State Department-designated terrorist groups originating in the Middle East and Southeast Asia and asserts that “because Michigan has a large Middle-Eastern and Muslim population, it is prime territory for attempted radicalization and recruitment by these terrorist groups.”
• A 2009 Atlanta FBI Intelligence Note purports to identify potential threats from “Black Separatist” groups (identified as including the National Black Panther Party and the Nation of Islam) and documents population increases among “black/African-American populations in Georgia” from 2000 to 2007.
• Two 2009 San Francisco FBI memoranda state that the “San Francisco domain is home to one of the oldest Chinatowns in North America and one of the largest ethnic Chinese populations outside mainland China,” and justify the opening of an investigation involving racial and national origin mapping because “[w]ithin this community there has been organized crime for generations.” The memoranda similarly justify mapping of the “sizable Russian population” in the region by referencing the existence of “Russian criminal enterprises” in San Francisco.
• Several documents from FBI offices in Alabama, New Jersey, and Georgia show that the FBI is using the threat posed by the criminal gang Mara Salvatrucha (MS-13), which was originally started by Salvadoran immigrants, to justify broad investigations targeting a wide variety of Latino-American communities. The Mobile, Alabama FBI’s Intelligence Note (which states that MS-13’s “primary criminal activity” in Mobile is “graffiti”) contradicts the Newark FBI’s assessment of the gang’s ethnic composition, stating that while “MS-13 members are typically Salvadorans, Guatemalans, and Honduran nationals or first-generation descendants . . . MS-13 has been known to admit Mexicans, Dominicans, and non-Hispanic individuals.” Yet the Mobile FBI office singled out and mapped demographic data for immigrants born in Central America.
The ACLU claims problems of this type emanate from a 2003 Justice Department publication, “Guidance Regarding the Use of Race by Federal Law Enforcement Agencies,” The guidance prohibited the DOJ from using race “to any degree” in law enforcement investigations (unless describing a specific suspect).
But it carved out a loophole permitting racial and ethnic profiling in national security and border integrity investigations. Exploiting this loophole, in 2008, the FBI issued its Domestic Investigation and Operations Guide (DIOG), which permits FBI agents to conduct Domain Management assessments, which include the authority to collect, analyze and “map” racial and ethnic demographic information and the location of ethnic-oriented business and facilities.
The DIOG also allows the FBI to collect and track “behavioral characteristics reasonably associated with a particular criminal or terrorist element of an ethnic community.” This Domain Management authority is not limited to national security and border integrity investigations.
In 2010, 34 ACLU affiliates filed coordinated FOIA requests with their local FBI field offices to uncover records showing how the FBI has used its racial and ethnic profiling authority under the Guidance on Race and the DIOG.
The ACLU is calling on Attorney General Eric Holder to:
• Enforce the Guidance on Race’s prohibition against the use of race to “any degree” in law enforcement investigations;
• Amend the Guidance on Race to prohibit racial and ethnic profiling without any exceptions, and to add religion and national origin to the barred profiling criteria; and
• Ensure the FBI amends the DIOG to incorporate existing prohibitions on the use of race and ethnicity in FBI investigations, and to incorporate the above amendments to the Guidance on Race.
Thursday, October 20, 2011
Is “Occupy Wall Street” America’s Arab Spring?
By William Fisher
A cursory look might suggest that Occupy Wall Street has little in common with the Arab Spring. After all, in the US, even the poorest Americans have a good deal more “things” and resources than those we saw in Tahrir Square and the other revolutionary launch sites.
But a longer look would reveal a surprising commonality of circumstances and demands. Egypt, for example, has practically no middle class and what there is appears to be vanishing. The US once had a robust middle class, which gave birth to many of the past reforms in education, health and social policy. Now, the numbers of Americans who self-identify as middle class is shrinking.
In both countries, shameful numbers of people are living are living below the poverty line. Millions are unemployed in each country. In Egypt, students with PhD. degrees are driving taxis; in the US, they’re turned away from these jobs as “overqualified.”
The Egyptian economy is in even worse shape than America’s. Foreign investment has come to a virtual standstill while the people mount full-throated attacks on their new military rulers and the Army retaliates by muzzling freedom or speech, press, assembly, etc. – i.e. the precise freedoms for which so many were killed and injured in Tahrir Square. The bottom has dropped out of Egypt’s tourism industry, a major source of employment and a major earner of foreign exchange that Egypt needs to buy the products its people want.
Egyptian bankers have a lot in common with American banks these days. In Egypt, business loans have never been granted on the basis of a good idea. Credit is traditionally available to people who are well connected politically, whether they have good ideas or not. The situation in the US today may not be quite that bad, but it’s getting close. Despite the incessant GOP references to small business as “the job creators,” credit for small business is a virtual trickle.
Like their Arab cousins, American participants in Occupy Wall Street have had to deal with the police. While US cops don’t (usually) torture and abuse their prisoners, they arrested hundreds. And, as in Tahrir Square, the harder the police cracked down, the more determined the protesters became.
Finally, there is the issue of transparency and accountability. In Egypt, public officials majored in stealing funds from the public purse to enrich themselves. The theft and fraud was carried out behind a steel curtain, with both the banks and the government being complicit. It’s been that way in Egypt for decades, and it hasn’t changed one iota since the revolution. But at least in Egypt, the major miscreants are being put on trial by the interim government.
In the US, the culprits were the banks, mortgage brokers, and rating agencies. But, unlike in Egypt, there are no American trials. In the US, not a single major figure in the collapse of 2008 has been indicted, much less tried.
So the Tahrir Square protesters – and their counterparts in many other countries in North Africa and the Middle East – are at many levels railing against many of the same kinds of abuses as their American cousins. A major difference between the US and Arab protesters is that the Arabs have been forced to endure the curse of crony capitalism and authoritarian government for a very long time.
But cut through all the opposition rhetoric and the messages seem clear and unified. In both the Middle East and in the US, demonstrators are railing against the well-off – not for having become well-off, but for HOW they became well-off. And in both countries, protestors are decrying the way the government-corporate “partnership” has inundated every corner of society in vast sums of money to buy the silence of the masses.
I don’t know how much the big-ticket capitalists in either country have spent for this silence, but so far they got a bum deal.
Far from keeping silent, Occupy Wall Street is likely to grow into more and more US cities, picking up thousands more angry Americans in the process.
Look for the same dynamic to take root in Egypt, Tunisia, Bahrain, Yemen, Syria, perhaps even Saudi Arabia in time.
Get used to it. The Arab uprisings and the Occupy Wall Street movement are not likely to be going away any time soon.
A cursory look might suggest that Occupy Wall Street has little in common with the Arab Spring. After all, in the US, even the poorest Americans have a good deal more “things” and resources than those we saw in Tahrir Square and the other revolutionary launch sites.
But a longer look would reveal a surprising commonality of circumstances and demands. Egypt, for example, has practically no middle class and what there is appears to be vanishing. The US once had a robust middle class, which gave birth to many of the past reforms in education, health and social policy. Now, the numbers of Americans who self-identify as middle class is shrinking.
In both countries, shameful numbers of people are living are living below the poverty line. Millions are unemployed in each country. In Egypt, students with PhD. degrees are driving taxis; in the US, they’re turned away from these jobs as “overqualified.”
The Egyptian economy is in even worse shape than America’s. Foreign investment has come to a virtual standstill while the people mount full-throated attacks on their new military rulers and the Army retaliates by muzzling freedom or speech, press, assembly, etc. – i.e. the precise freedoms for which so many were killed and injured in Tahrir Square. The bottom has dropped out of Egypt’s tourism industry, a major source of employment and a major earner of foreign exchange that Egypt needs to buy the products its people want.
Egyptian bankers have a lot in common with American banks these days. In Egypt, business loans have never been granted on the basis of a good idea. Credit is traditionally available to people who are well connected politically, whether they have good ideas or not. The situation in the US today may not be quite that bad, but it’s getting close. Despite the incessant GOP references to small business as “the job creators,” credit for small business is a virtual trickle.
Like their Arab cousins, American participants in Occupy Wall Street have had to deal with the police. While US cops don’t (usually) torture and abuse their prisoners, they arrested hundreds. And, as in Tahrir Square, the harder the police cracked down, the more determined the protesters became.
Finally, there is the issue of transparency and accountability. In Egypt, public officials majored in stealing funds from the public purse to enrich themselves. The theft and fraud was carried out behind a steel curtain, with both the banks and the government being complicit. It’s been that way in Egypt for decades, and it hasn’t changed one iota since the revolution. But at least in Egypt, the major miscreants are being put on trial by the interim government.
In the US, the culprits were the banks, mortgage brokers, and rating agencies. But, unlike in Egypt, there are no American trials. In the US, not a single major figure in the collapse of 2008 has been indicted, much less tried.
So the Tahrir Square protesters – and their counterparts in many other countries in North Africa and the Middle East – are at many levels railing against many of the same kinds of abuses as their American cousins. A major difference between the US and Arab protesters is that the Arabs have been forced to endure the curse of crony capitalism and authoritarian government for a very long time.
But cut through all the opposition rhetoric and the messages seem clear and unified. In both the Middle East and in the US, demonstrators are railing against the well-off – not for having become well-off, but for HOW they became well-off. And in both countries, protestors are decrying the way the government-corporate “partnership” has inundated every corner of society in vast sums of money to buy the silence of the masses.
I don’t know how much the big-ticket capitalists in either country have spent for this silence, but so far they got a bum deal.
Far from keeping silent, Occupy Wall Street is likely to grow into more and more US cities, picking up thousands more angry Americans in the process.
Look for the same dynamic to take root in Egypt, Tunisia, Bahrain, Yemen, Syria, perhaps even Saudi Arabia in time.
Get used to it. The Arab uprisings and the Occupy Wall Street movement are not likely to be going away any time soon.
Monday, October 17, 2011
Those Pesky Renditions Again!
By William Fisher
If you thought you were finished reading about CIA “black sites” and “extraordinary renditions,” you were just a tad premature.
Turns out that after all the investigations in a raft of countries, a virtual treasure trove of never-seen-before documents has reached the major European legal charity, Reprieve.
As a result, Reprieve is calling on Lithuanian authorities to re-open their investigation into CIA renditions and secret prisons on their own soil, and to focus on a newly-discovered web of new documents exposing well-disguised CIA flights through Europe that demonstrate the European Union’s complicity in the CIA’s secret prisons program.
Reprieve charges that “data focusing on Lithuania, but linked to suspected CIA activity in a raft of other countries in Europe, North America, the Middle East and North Africa, has been identified by Reprieve investigators and passed to the Lithuanian prosecutor.”
In a letter to Lithuania’s Deputy Prosecutor General, Darius Raulušaitis, Reprieve’s Director, Clive Stafford Smith said: “Compelling new information that has now come to light about the landings of CIA-connected planes in Lithuania makes a rigorous and wide-ranging investigation all the more urgent. It is now clear that previous efforts to chart the extent of the CIA’s rendition operations in Europe revealed ONLY the tip of the iceberg.”
Reprieve claims that the new documents show that:
· Lithuania’s attempts to establish what the CIA did in the country between 2004-06 have been oddly unsuccessful, failing to identify key clues to several potential rendition flights;
· Two flights entered Lithuania from Morocco and Bucharest – known secret prison sites – in February 2005, around the time that ‘High Value Detainee’ Abu Zubaydah was transferred to a CIA black site in Lithuania;
· A crucial plane identified by the previous Lithuanian inquiry (registered as N787WH) tried to disguise its true destination (Lithuania) by filing a route plan to Gothenburg, Sweden;
· Many other European countries now linked to the CIA’s rendition flight program have questions to answer, including Austria, Canada, Germany, Iceland, Jordan, Portugal, Romania and the USA;
Filling in key details, Reprieve said:
· Documents recently released by Reprieve show how the US-based conglomerate, Computer Sciences Corporation (CSC), contracted a Richmor Aviation plane, N85VM, to perform renditions and other government missions on behalf of the CIA between 2002 and 2005.
· Confidential documents in possession of Reprieve show that the same corporation contracted two other jets in February 2005 to fly into Lithuania from two other known secret prison sites: Morocco and Bucharest. The flight plans of each plane included multiple stop-offs, and multiple possibilities for disguising the true provenance and purpose of the flights. The arrival of these planes in Lithuania was confirmed by a freedom of information request made jointly by Reprieve and Access Info Europe.
· The planes flew into Lithuania within 24 hours of each other in February 2005 – significant timing in the light of public source accounts stating that “high value detainee” Abu Zubaydah was moved from Morocco to Lithuania around this time.
· Records collected by a previous Lithuanian inquiry showed that a plane registered as N787WH flew from Bucharest, Romania to Lithuania on 18 February 2005. Documents obtained by Reprieve and the Helsinki Foundation for Human Rights show that this plane disguised its true destination by filing a route plan to Gothenburg, Sweden. Furthermore, it has yet to be disclosed where this plane stopped prior to Bucharest; in particular, the question arises as to whether it shared some of the same stop-off points as N724CL, which landed in Lithuania en route from Morocco on the previous day.
· Freedom of Information replies from the Lithuanian Civil Aviation Authority, showing the landings of N724CL and N787WH in Lithuania; from Vilnius Airport, confirming the landing of N724CL in Vilnius; and from the Polish civil aviation authority showing the overflight permission for N787WH and its disguised route plan (to Gothenburg) are available on Reprieve's website.
Lydia Medland of Access Info Europe said: “Once information about violations of human rights has come to light through compliance with the public’s right to know, government have an obligation both to act on this information and to ensure that they release all other related documents.”
Access Info Europe is a human rights organization dedicated to promoting and protecting the right of access to information in Europe and globally as a tool for holding governments accountable.
Computer Sciences Corporation is an American information technology (IT) and outsourcing company headquartered in Falls Church, Virginia. It is one of the largest independent outsourcing organizations in the world, employing about 93,000 people in 90 countries.
Amid the intense white noise surrounding the killing of bin Laden and al-Awlaki, the trial of the so-called “underwear bomber”, and the recent alleged terrorist plots against the homeland, extraordinary rendition and CIA black sites have virtually vanished from the news.
The Washington DC press corps seems quite content taking down its stenography and presenting it as news. I can find no evidence that Reprieve’s latest disclosures resulted in any coverage whatsoever from the Beltway press corps, either in print or on radio or television.
Is it important that the public has a way to access this kind of information? You betcha! A government’s commitment to transparency – not just in words but in actions – is a pretty good barometer of how well it trusts its own people. When governments stonewall, it is those very people – taxpayers and voters – who begin to distrust those it hired to do the people’s business.
President Obama promised a new era of transparency and accountability when he took office. American citizens are still waiting for him to deliver.
If you thought you were finished reading about CIA “black sites” and “extraordinary renditions,” you were just a tad premature.
Turns out that after all the investigations in a raft of countries, a virtual treasure trove of never-seen-before documents has reached the major European legal charity, Reprieve.
As a result, Reprieve is calling on Lithuanian authorities to re-open their investigation into CIA renditions and secret prisons on their own soil, and to focus on a newly-discovered web of new documents exposing well-disguised CIA flights through Europe that demonstrate the European Union’s complicity in the CIA’s secret prisons program.
Reprieve charges that “data focusing on Lithuania, but linked to suspected CIA activity in a raft of other countries in Europe, North America, the Middle East and North Africa, has been identified by Reprieve investigators and passed to the Lithuanian prosecutor.”
In a letter to Lithuania’s Deputy Prosecutor General, Darius Raulušaitis, Reprieve’s Director, Clive Stafford Smith said: “Compelling new information that has now come to light about the landings of CIA-connected planes in Lithuania makes a rigorous and wide-ranging investigation all the more urgent. It is now clear that previous efforts to chart the extent of the CIA’s rendition operations in Europe revealed ONLY the tip of the iceberg.”
Reprieve claims that the new documents show that:
· Lithuania’s attempts to establish what the CIA did in the country between 2004-06 have been oddly unsuccessful, failing to identify key clues to several potential rendition flights;
· Two flights entered Lithuania from Morocco and Bucharest – known secret prison sites – in February 2005, around the time that ‘High Value Detainee’ Abu Zubaydah was transferred to a CIA black site in Lithuania;
· A crucial plane identified by the previous Lithuanian inquiry (registered as N787WH) tried to disguise its true destination (Lithuania) by filing a route plan to Gothenburg, Sweden;
· Many other European countries now linked to the CIA’s rendition flight program have questions to answer, including Austria, Canada, Germany, Iceland, Jordan, Portugal, Romania and the USA;
Filling in key details, Reprieve said:
· Documents recently released by Reprieve show how the US-based conglomerate, Computer Sciences Corporation (CSC), contracted a Richmor Aviation plane, N85VM, to perform renditions and other government missions on behalf of the CIA between 2002 and 2005.
· Confidential documents in possession of Reprieve show that the same corporation contracted two other jets in February 2005 to fly into Lithuania from two other known secret prison sites: Morocco and Bucharest. The flight plans of each plane included multiple stop-offs, and multiple possibilities for disguising the true provenance and purpose of the flights. The arrival of these planes in Lithuania was confirmed by a freedom of information request made jointly by Reprieve and Access Info Europe.
· The planes flew into Lithuania within 24 hours of each other in February 2005 – significant timing in the light of public source accounts stating that “high value detainee” Abu Zubaydah was moved from Morocco to Lithuania around this time.
· Records collected by a previous Lithuanian inquiry showed that a plane registered as N787WH flew from Bucharest, Romania to Lithuania on 18 February 2005. Documents obtained by Reprieve and the Helsinki Foundation for Human Rights show that this plane disguised its true destination by filing a route plan to Gothenburg, Sweden. Furthermore, it has yet to be disclosed where this plane stopped prior to Bucharest; in particular, the question arises as to whether it shared some of the same stop-off points as N724CL, which landed in Lithuania en route from Morocco on the previous day.
· Freedom of Information replies from the Lithuanian Civil Aviation Authority, showing the landings of N724CL and N787WH in Lithuania; from Vilnius Airport, confirming the landing of N724CL in Vilnius; and from the Polish civil aviation authority showing the overflight permission for N787WH and its disguised route plan (to Gothenburg) are available on Reprieve's website.
Lydia Medland of Access Info Europe said: “Once information about violations of human rights has come to light through compliance with the public’s right to know, government have an obligation both to act on this information and to ensure that they release all other related documents.”
Access Info Europe is a human rights organization dedicated to promoting and protecting the right of access to information in Europe and globally as a tool for holding governments accountable.
Computer Sciences Corporation is an American information technology (IT) and outsourcing company headquartered in Falls Church, Virginia. It is one of the largest independent outsourcing organizations in the world, employing about 93,000 people in 90 countries.
Amid the intense white noise surrounding the killing of bin Laden and al-Awlaki, the trial of the so-called “underwear bomber”, and the recent alleged terrorist plots against the homeland, extraordinary rendition and CIA black sites have virtually vanished from the news.
The Washington DC press corps seems quite content taking down its stenography and presenting it as news. I can find no evidence that Reprieve’s latest disclosures resulted in any coverage whatsoever from the Beltway press corps, either in print or on radio or television.
Is it important that the public has a way to access this kind of information? You betcha! A government’s commitment to transparency – not just in words but in actions – is a pretty good barometer of how well it trusts its own people. When governments stonewall, it is those very people – taxpayers and voters – who begin to distrust those it hired to do the people’s business.
President Obama promised a new era of transparency and accountability when he took office. American citizens are still waiting for him to deliver.
Saturday, October 01, 2011
Bahrain's Doctors Sentenced
By William Fisher
As 20 of Bahrain’s physicians were being sentenced to prison terms of 5-15 years for treating victims of peaceful demonstrations, the US Government was readying the red bows on a package of $200 million in military sales to the tiny Gulf nation.
The arms sale comes less than three months after the US included Bahrain on a list of human rights offenders requiring the United Nations’ attention. According to Al Jazeera, the US Government report showed a $112m rise in sales to Bahrain, much of it involving aircraft and military electronics. The US also licensed $760,000 in exports of rifles, shotguns and assault weapons in 2010. US military exports to Bahrain in 2009 totaled $88m.
Bahrain, a tiny island nation that is home to the US Navy’s 5th Fleet, occupies a strategic position in White House priorities. That position is enhanced by Bahrain’s proximity to the oil field of East Saudi Arabia. Saudi troops have been assistant Bahraini authorities in putting down the demonstrations.
Since mid-February, the kingdom has confronted demonstrators with cordons of armed military and police firing live ammunition. At least 31 people have died and hundreds more have been injured in the clashes.
The Kingdom is ruled by a Sunni monarch and his family, while the large majority of the king’s subjects are Shia. The Shia have complained for years of discrimination in employment, housing, health care and the minutiae daily life.
The Crown Prince of Bahrain has visited President Obama and State Department officials recently, complaining he was worried about Bahrain’s “image” for tourism. The country has recently retained the services of two high-profile US-based public relations firms to represent it.
In court proceedings, 20 Bahraini male and female doctors have been sentenced to 5-15years imprisonment by Military Court for treating injured protesters. The sentenced doctors had been detained for 5 or more months, reportedly tortured, and deprived from access to lawyer and family most of time.
The doctors were working in Salmaniya hospital, frantically trying to save the lives of men, woman and children wounded by government security forces. It has been reliably reported that these forces then closed off the entrance to the hospital and would not let anyone in or out. Wounded patients were removed from their beds and taken to unknown government facilities, where many died.
Reuters reports that the possibility that American-built weapons might have been used against protesters has raised questions in the US Congress and led the department to review its defense trade relationships with several Middle East nations.
The Obama administration has been virtually silent on the subject of Bahrain. It has criticized the use of violence against dissenters by police and military units but has not exacted specific repercussions against Bahrain’s government.
Jeff Abramson, deputy director of the Arms Control Association, told Mother Jones magazine that “the political upheaval across the Middle East has brought to light the problems of providing arms to repressive regimes. The hope is we’ll now begin to see a rethinking of the willingness to do that”.
The new report showed that licensed US defense sales to other Middle East and North African nations caught up in democracy protests remained mostly unchanged.
Maria McFarland of Human Rights Watch told Mother Jones, “This is exactly the wrong move after Bahrain brutally suppressed protests and is carrying out a relentless campaign of retribution against its critics. By continuing its relationship as if nothing had happened, the US is furthering an unstable situation.”
In another legal case, Ali AlTaweel was sentenced to death by military court and Ali Attiya was sentence to life imprisonment for allegedly killing riot police officer AlMuraisi.
“Ten people were accused in the case of cutting the tongue of the Prayer Caller “Mo’athen” Erfan, two of which were charged with Incitement only. They were all sentenced to 15 years imprisonment despite the lawyers presenting substantial evidence against the allegations of the prosecution.
The military appeal court dismissed the appeal for the 14 prominent figures yesterday and upheld the sentences ranging between three years to life imprisonment. A number of those figures are still on hunger strike since the 24th of September demanding the release of the female detainees.
In a separate case, the Bahrain Youth Society for Human Rights said 32 civilians were sentenced to 15 years imprisonment for arson on a royal family member’s farm. Hussain Ahmed, who the group says “was arrested only because he is Abdulhadi Alkhawaja’s son in law”, will have his verdict read on 2nd October. His lawyer stated that Hussain’s case is unique because there is absolutely nothing against him, not even the usual posts on facebook or twitter, and all that is being held against him is his extracted confession under torture. He has been detained for 174 days, and is a 22 year old university student,” Abdulhadi Alkhawaja is a prominent human rights activist in Bahrain. He is currently in prison awaiting trial.
Meanwhile, Bahrain said on Tuesday it had released 25 Shi’ite women arrested last week over protest for political reforms and denied that they had been abused in detention.
Police detained 45 women who shouted anti-government slogans in a Manama mall a day before parliamentary by-elections boycotted by the main Shi’ite opposition party, Wefaq.
An Interior Ministry official said allegations of mistreatment in detention were not true, the statement said. Amnesty International said on Monday it feared the detainees had been tortured.
“They were apprehended without arrest orders, interrogated without lawyers present and some of them reportedly tortured or otherwise ill-treated,” the London-based group said.
Bahraini security forces have arrested and beaten more than 40 females protesting against the parliamentary by-elections in Bahrain, the country’s main opposition group, al-Wefaq, says.
The female Bahrainis, including seven minors aged between 12 and 15, were arrested on Friday, one day before the by-elections — boycotted by the opposition — to replace 18 lawmakers who resigned from the parliament in protest to the crackdown on anti-government demonstrators.
“More than 40 Bahraini women were savagely arrested… in a commercial center,” al-Wefaq said in a statement on Monday, adding that they were “beaten and humiliated.”
Al-Wefaq condemned the females’ arrests as “savage and inhumane,” saying that they had only been expressing their “right to freedom of expression”.
Election results in Bahrain show that more than 80 percent of the electorate refused to vote in the by-elections in the country.
According to a Bahraini government website, less than one in every five voters cast their ballots on Saturday.
Of the 144,513 eligible voters in 14 districts only 25,130 came out to vote, representing a 17.4 percent turnout, the Bahraini government’s elections website (www.vote.bh) reported.
The Al-Wefaq leader, Sheikh Ali Salman, said the results showed that Bahrainis rejected the king’s reforms, adding, “There is no such thing as Bahraini democracy. There has to be peaceful rotation of power.”
“If there is no transition, Bahrain will remain in a crisis of security and human rights, this is a historic moment,” he added.
Finally, Mahdi Abu Deeb, president of the Bahrain Teacher’s Society, who was sentenced to 10 years imprisonment, is “still on hunger strike and his life and well being is at threat.” He started his hunger strike on September 11 and stopped taking his medication on the 16th.
As 20 of Bahrain’s physicians were being sentenced to prison terms of 5-15 years for treating victims of peaceful demonstrations, the US Government was readying the red bows on a package of $200 million in military sales to the tiny Gulf nation.
The arms sale comes less than three months after the US included Bahrain on a list of human rights offenders requiring the United Nations’ attention. According to Al Jazeera, the US Government report showed a $112m rise in sales to Bahrain, much of it involving aircraft and military electronics. The US also licensed $760,000 in exports of rifles, shotguns and assault weapons in 2010. US military exports to Bahrain in 2009 totaled $88m.
Bahrain, a tiny island nation that is home to the US Navy’s 5th Fleet, occupies a strategic position in White House priorities. That position is enhanced by Bahrain’s proximity to the oil field of East Saudi Arabia. Saudi troops have been assistant Bahraini authorities in putting down the demonstrations.
Since mid-February, the kingdom has confronted demonstrators with cordons of armed military and police firing live ammunition. At least 31 people have died and hundreds more have been injured in the clashes.
The Kingdom is ruled by a Sunni monarch and his family, while the large majority of the king’s subjects are Shia. The Shia have complained for years of discrimination in employment, housing, health care and the minutiae daily life.
The Crown Prince of Bahrain has visited President Obama and State Department officials recently, complaining he was worried about Bahrain’s “image” for tourism. The country has recently retained the services of two high-profile US-based public relations firms to represent it.
In court proceedings, 20 Bahraini male and female doctors have been sentenced to 5-15years imprisonment by Military Court for treating injured protesters. The sentenced doctors had been detained for 5 or more months, reportedly tortured, and deprived from access to lawyer and family most of time.
The doctors were working in Salmaniya hospital, frantically trying to save the lives of men, woman and children wounded by government security forces. It has been reliably reported that these forces then closed off the entrance to the hospital and would not let anyone in or out. Wounded patients were removed from their beds and taken to unknown government facilities, where many died.
Reuters reports that the possibility that American-built weapons might have been used against protesters has raised questions in the US Congress and led the department to review its defense trade relationships with several Middle East nations.
The Obama administration has been virtually silent on the subject of Bahrain. It has criticized the use of violence against dissenters by police and military units but has not exacted specific repercussions against Bahrain’s government.
Jeff Abramson, deputy director of the Arms Control Association, told Mother Jones magazine that “the political upheaval across the Middle East has brought to light the problems of providing arms to repressive regimes. The hope is we’ll now begin to see a rethinking of the willingness to do that”.
The new report showed that licensed US defense sales to other Middle East and North African nations caught up in democracy protests remained mostly unchanged.
Maria McFarland of Human Rights Watch told Mother Jones, “This is exactly the wrong move after Bahrain brutally suppressed protests and is carrying out a relentless campaign of retribution against its critics. By continuing its relationship as if nothing had happened, the US is furthering an unstable situation.”
In another legal case, Ali AlTaweel was sentenced to death by military court and Ali Attiya was sentence to life imprisonment for allegedly killing riot police officer AlMuraisi.
“Ten people were accused in the case of cutting the tongue of the Prayer Caller “Mo’athen” Erfan, two of which were charged with Incitement only. They were all sentenced to 15 years imprisonment despite the lawyers presenting substantial evidence against the allegations of the prosecution.
The military appeal court dismissed the appeal for the 14 prominent figures yesterday and upheld the sentences ranging between three years to life imprisonment. A number of those figures are still on hunger strike since the 24th of September demanding the release of the female detainees.
In a separate case, the Bahrain Youth Society for Human Rights said 32 civilians were sentenced to 15 years imprisonment for arson on a royal family member’s farm. Hussain Ahmed, who the group says “was arrested only because he is Abdulhadi Alkhawaja’s son in law”, will have his verdict read on 2nd October. His lawyer stated that Hussain’s case is unique because there is absolutely nothing against him, not even the usual posts on facebook or twitter, and all that is being held against him is his extracted confession under torture. He has been detained for 174 days, and is a 22 year old university student,” Abdulhadi Alkhawaja is a prominent human rights activist in Bahrain. He is currently in prison awaiting trial.
Meanwhile, Bahrain said on Tuesday it had released 25 Shi’ite women arrested last week over protest for political reforms and denied that they had been abused in detention.
Police detained 45 women who shouted anti-government slogans in a Manama mall a day before parliamentary by-elections boycotted by the main Shi’ite opposition party, Wefaq.
An Interior Ministry official said allegations of mistreatment in detention were not true, the statement said. Amnesty International said on Monday it feared the detainees had been tortured.
“They were apprehended without arrest orders, interrogated without lawyers present and some of them reportedly tortured or otherwise ill-treated,” the London-based group said.
Bahraini security forces have arrested and beaten more than 40 females protesting against the parliamentary by-elections in Bahrain, the country’s main opposition group, al-Wefaq, says.
The female Bahrainis, including seven minors aged between 12 and 15, were arrested on Friday, one day before the by-elections — boycotted by the opposition — to replace 18 lawmakers who resigned from the parliament in protest to the crackdown on anti-government demonstrators.
“More than 40 Bahraini women were savagely arrested… in a commercial center,” al-Wefaq said in a statement on Monday, adding that they were “beaten and humiliated.”
Al-Wefaq condemned the females’ arrests as “savage and inhumane,” saying that they had only been expressing their “right to freedom of expression”.
Election results in Bahrain show that more than 80 percent of the electorate refused to vote in the by-elections in the country.
According to a Bahraini government website, less than one in every five voters cast their ballots on Saturday.
Of the 144,513 eligible voters in 14 districts only 25,130 came out to vote, representing a 17.4 percent turnout, the Bahraini government’s elections website (www.vote.bh) reported.
The Al-Wefaq leader, Sheikh Ali Salman, said the results showed that Bahrainis rejected the king’s reforms, adding, “There is no such thing as Bahraini democracy. There has to be peaceful rotation of power.”
“If there is no transition, Bahrain will remain in a crisis of security and human rights, this is a historic moment,” he added.
Finally, Mahdi Abu Deeb, president of the Bahrain Teacher’s Society, who was sentenced to 10 years imprisonment, is “still on hunger strike and his life and well being is at threat.” He started his hunger strike on September 11 and stopped taking his medication on the 16th.
He's Dead, But Is It Legal?
By William Fisher
Now that U.S.-born Islamist cleric Anwar al-Awlaki, a member of Al Qaeda in the Arabian Peninsula, has been killed by a drone strike in Yemen, human rights groups and legal experts are again debating the central question: Was it legal?
And today, as was the case in previous discussions of this question, the answer seems far from unanimous.
Most of the major human rights groups condemned the killing as an affront to the U.S. Justice system and the values underlying it.
Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union (ACLU), said, "U.S. airstrikes in Yemen today killed an American citizen who has never been charged with any crime."
He added, "The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. It is a mistake to invest the President - any President - with the unreviewable power to kill any American whom he deems to present a threat to the country."
Vincent Warren, executive director of the Center for Constitutional Rights (CCR), which had previously brought a challenge in federal court to the legality of the authorization to target U.S. citizen Anwar al-Awlaki in Yemen, agrees.
He said, "The assassination of Anwar al-Awlaki by American drone attacks is the latest of many affronts to domestic and international law. The targeted assassination program that started under President Bush and expanded under the Obama administration essentially grants the executive the power to kill any U.S. citizen deemed a threat, without any judicial oversight, or any of the rights afforded by our Constitution. If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law."
A prominent national Muslim civil rights and advocacy organization reiterated that the calls to violence made by Anwar al-Awlaki, "have been firmly rejected by American Muslims."
In a statement reacting to al-Awlaki's death, the Washington-based Council on American-Islamic Relations (CAIR) said:
"As we have stated repeatedly in the past, the American Muslim community firmly repudiated Anwar al-Awlaki's incitement to violence, which occurred after he left the United States. While a voice of hate has been eliminated, we urge our nation's leaders to address the constitutional issues raised by the
assassination of American citizens without due process of law."
Law professors we contacted are not quite so unanimous.
For example, Marjorie Cohn a professor at the Thomas Jefferson law school, told us, "Targeted assassinations violate international law. Sometimes called political assassinations or extrajudicial executions, they are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. They are unlawful, even in armed conflict."
She noted that a 1998 United Nations report concluded that "extrajudicial executions can never be justified under any circumstances, not even in time of war."
Professor Francis A. Boyle of the University of Illinois College of Law described the killing as "a real body blow against the United States Constitution by the Obama administration -- the murder and assassination of a U.S. citizen in gross violation of the Fifth Amendment: 'No person shall ...be deprived of life, liberty or property without due process of law.' The fact that this Mafia-style 'hit' on a U.S. citizen was authorized by President Obama, who is a graduate of Harvard Law School and used to teach constitutional law at the University of Chicago Law School proves how degraded and bankrupt legal education at such elite institutions has become."
But Prof. Peter M. Shane of Ohio State law school takes a different view. He told us, "I don't think there's much real doubt that the killing was lawful. The right to use military force for national self-defense is recognized by Article 51 of the United Nations Charter. The Authorization to Use Military Force enacted in the wake of 9/11 explicitly authorizes the President to use "all necessary and appropriate force against those . . . organizations . . . he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
He concluded: "There is no question that this authorization allows the use of military force against al Qaeda, and it likewise seems beyond dispute that al-Awlaki sought out and played a leadership role in al Qaeda or a co-belligerent organization, continuing to both plan and call for attacks against the United States and Americans. As a citizen of the United States, al-Awlaki may well have been entitled to some form of 'due process' in the determination that he was actually at war with the United States; I imagine that what due process requires in cases like his, however, is a course of fact-finding within the executive branch that is stringent in its rigor and intensity. I would be surprised to learn that such fact-finding had not taken place, especially since the facts justifying his targeting seem clear."
But some of the most forceful rejections of Prof. Shane's position came from two journalists, both of whom are lawyers.
Scott Horton, Contributing Editor of Harper's Magazine, told us that "the manner of Al-Awlaki's death raises a series of important questions about U.S. policies concerning targeted killings or extrajudicial executions."
He continued: "The broader problem is this: if it's okay for the United States to kill al-Awlaki in Yemen, then why wouldn't it be okay for the Russians to plant a car bomb in a vehicle used by a Chechen leader in London or Vienna, or for the Chinese to drop a bomb on a Uighur in Istanbul or Athens? The conditions in Yemen and the dysfunctionality of the criminal justice system there would be critical points for a distinction--and it is therefore extremely important for the White House to speak up and explain itself. Covering everything with the curtain of "covert action" only serves to undermine our security in the end if it makes us look capricious or foolish."
And Glenn Greenwald, writing in Salon.com, was even more unshakable in his view that the US had committed an egregious error that would come back to haunt the nation for years to come. He declared, "The due-process-free assassination of U.S. citizens is now reality."
He wrote, "It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-Awlaki. No effort was made to indict him for any crimes (despite a report last October that the Obama administration was 'considering' indicting him)."
He continued: "Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki's father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were "state secrets" and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner."
Greenwald added, "The U.S. thus transformed someone who was, at best, a marginal figure into a martyr, and again showed its true face to the world. The government and media search for The Next bin Laden has undoubtedly already commenced. What's most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar ("No person shall be deprived of life without due process of law"), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What's most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government's new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government."
Now that U.S.-born Islamist cleric Anwar al-Awlaki, a member of Al Qaeda in the Arabian Peninsula, has been killed by a drone strike in Yemen, human rights groups and legal experts are again debating the central question: Was it legal?
And today, as was the case in previous discussions of this question, the answer seems far from unanimous.
Most of the major human rights groups condemned the killing as an affront to the U.S. Justice system and the values underlying it.
Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union (ACLU), said, "U.S. airstrikes in Yemen today killed an American citizen who has never been charged with any crime."
He added, "The targeted killing program violates both U.S. and international law. As we've seen today, this is a program under which American citizens far from any battlefield can be executed by their own government without judicial process, and on the basis of standards and evidence that are kept secret not just from the public but from the courts. The government's authority to use lethal force against its own citizens should be limited to circumstances in which the threat to life is concrete, specific and imminent. It is a mistake to invest the President - any President - with the unreviewable power to kill any American whom he deems to present a threat to the country."
Vincent Warren, executive director of the Center for Constitutional Rights (CCR), which had previously brought a challenge in federal court to the legality of the authorization to target U.S. citizen Anwar al-Awlaki in Yemen, agrees.
He said, "The assassination of Anwar al-Awlaki by American drone attacks is the latest of many affronts to domestic and international law. The targeted assassination program that started under President Bush and expanded under the Obama administration essentially grants the executive the power to kill any U.S. citizen deemed a threat, without any judicial oversight, or any of the rights afforded by our Constitution. If we allow such gross overreaches of power to continue, we are setting the stage for increasing erosions of civil liberties and the rule of law."
A prominent national Muslim civil rights and advocacy organization reiterated that the calls to violence made by Anwar al-Awlaki, "have been firmly rejected by American Muslims."
In a statement reacting to al-Awlaki's death, the Washington-based Council on American-Islamic Relations (CAIR) said:
"As we have stated repeatedly in the past, the American Muslim community firmly repudiated Anwar al-Awlaki's incitement to violence, which occurred after he left the United States. While a voice of hate has been eliminated, we urge our nation's leaders to address the constitutional issues raised by the
assassination of American citizens without due process of law."
Law professors we contacted are not quite so unanimous.
For example, Marjorie Cohn a professor at the Thomas Jefferson law school, told us, "Targeted assassinations violate international law. Sometimes called political assassinations or extrajudicial executions, they are unlawful and deliberate killings carried out by order of, or with the acquiescence of, a government, outside any judicial framework. They are unlawful, even in armed conflict."
She noted that a 1998 United Nations report concluded that "extrajudicial executions can never be justified under any circumstances, not even in time of war."
Professor Francis A. Boyle of the University of Illinois College of Law described the killing as "a real body blow against the United States Constitution by the Obama administration -- the murder and assassination of a U.S. citizen in gross violation of the Fifth Amendment: 'No person shall ...be deprived of life, liberty or property without due process of law.' The fact that this Mafia-style 'hit' on a U.S. citizen was authorized by President Obama, who is a graduate of Harvard Law School and used to teach constitutional law at the University of Chicago Law School proves how degraded and bankrupt legal education at such elite institutions has become."
But Prof. Peter M. Shane of Ohio State law school takes a different view. He told us, "I don't think there's much real doubt that the killing was lawful. The right to use military force for national self-defense is recognized by Article 51 of the United Nations Charter. The Authorization to Use Military Force enacted in the wake of 9/11 explicitly authorizes the President to use "all necessary and appropriate force against those . . . organizations . . . he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
He concluded: "There is no question that this authorization allows the use of military force against al Qaeda, and it likewise seems beyond dispute that al-Awlaki sought out and played a leadership role in al Qaeda or a co-belligerent organization, continuing to both plan and call for attacks against the United States and Americans. As a citizen of the United States, al-Awlaki may well have been entitled to some form of 'due process' in the determination that he was actually at war with the United States; I imagine that what due process requires in cases like his, however, is a course of fact-finding within the executive branch that is stringent in its rigor and intensity. I would be surprised to learn that such fact-finding had not taken place, especially since the facts justifying his targeting seem clear."
But some of the most forceful rejections of Prof. Shane's position came from two journalists, both of whom are lawyers.
Scott Horton, Contributing Editor of Harper's Magazine, told us that "the manner of Al-Awlaki's death raises a series of important questions about U.S. policies concerning targeted killings or extrajudicial executions."
He continued: "The broader problem is this: if it's okay for the United States to kill al-Awlaki in Yemen, then why wouldn't it be okay for the Russians to plant a car bomb in a vehicle used by a Chechen leader in London or Vienna, or for the Chinese to drop a bomb on a Uighur in Istanbul or Athens? The conditions in Yemen and the dysfunctionality of the criminal justice system there would be critical points for a distinction--and it is therefore extremely important for the White House to speak up and explain itself. Covering everything with the curtain of "covert action" only serves to undermine our security in the end if it makes us look capricious or foolish."
And Glenn Greenwald, writing in Salon.com, was even more unshakable in his view that the US had committed an egregious error that would come back to haunt the nation for years to come. He declared, "The due-process-free assassination of U.S. citizens is now reality."
He wrote, "It was first reported in January of last year that the Obama administration had compiled a hit list of American citizens whom the President had ordered assassinated without any due process, and one of those Americans was Anwar al-Awlaki. No effort was made to indict him for any crimes (despite a report last October that the Obama administration was 'considering' indicting him)."
He continued: "Despite substantial doubt among Yemen experts about whether he even has any operational role in Al Qaeda, no evidence (as opposed to unverified government accusations) was presented of his guilt. When Awlaki's father sought a court order barring Obama from killing his son, the DOJ argued, among other things, that such decisions were "state secrets" and thus beyond the scrutiny of the courts. He was simply ordered killed by the President: his judge, jury and executioner."
Greenwald added, "The U.S. thus transformed someone who was, at best, a marginal figure into a martyr, and again showed its true face to the world. The government and media search for The Next bin Laden has undoubtedly already commenced. What's most striking about this is not that the U.S. Government has seized and exercised exactly the power the Fifth Amendment was designed to bar ("No person shall be deprived of life without due process of law"), and did so in a way that almost certainly violates core First Amendment protections (questions that will now never be decided in a court of law). What's most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government's new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government."
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