Sunday, November 27, 2011

The Liberties We’ve Lost in the ‘War on Terror” are Temporary, Right?

By William Fisher

As the country enters its second post-9/11 decade, I asked renowned human rights crusader Chip Pitts about what civil liberties/human rights we’ve collectively lost in the so-called “war on terror” as what was previously legal has now become criminal.

Here’s what he said:

“Virtually all of our most fundamental rights and liberties have been affected for the worse, with little or no awareness among the populace at large. The ignorance is no accident, but the product of conscious mendacity, manipulation and complicity among the leading political parties, all branches of government, defense contractors and the entrenched military-industrial-surveillance complex, and mainstream media – all of which (with occasional notable exceptions) are tragically pulled by various perverse incentives in the direction of trying to out-do each other in pandering to the basest fears and instincts of the American Body Politic”.

He added: “A huge number of legal violations have occurred, ranging from the momentous (illegal war) to the mundane (failure to fully notify the appropriate committees of Congress about the illegal warrantless surveillance as required under the National Security Act), but I’ll limit myself to highlighting the most significant to the rights of the American public.”

How has the ‘War on Terror’ impacted the Rule of Law?

“The first category of infringements I would place under the general rubric of undermining the Rule of Law. Although all the regressions could be put in this category, some strike more than others at the very concept itself. If the Rule of Law means anything, it means that everyone is subject to the same rules of general application and that those rules are fairly applied: a ‘government of laws, and not of men’ as founding father and American President John Adams famously put it.”

“Yet we now have a much more arbitrary system of justice, in which people can be deemed second-class citizens and have their assets seized, have their travel and other rights burdened, and be stigmatized, imprisoned, or even killed merely by essentially unreviewable executive fiat.”

“That’s the net effect of new approaches including the following, all of which impose serious burdens without the traditional checks and balances and independent reviews previously enshrined in law:

· Asset Seizure section 106 of the Patriot Act, which has led, for example, to the closure on legally dubious grounds of nearly all of the major Muslim charities in the United States, among other seizures occurring merely upon executive branch ‘designation’,

· the notoriously error-ridden ‘watch lists’ and ‘no fly’ lists which have thrown certain innocent individuals into a Kafkaesque Hell from which there’s no easy escape, setting a precedent for further pernicious ‘government by watch-list’ that extra-legally allocates benefits and burdens,

· the TSA bodyscanners, which don’t work to detect the plastic explosives which were their supposed reason for being, as noted by sources as diverse as the nonpartisan Government Accountability Office, and CNN’s Dr. Sanjay Gupta – but have been shown to pose risks to privacy and health, disproportionately burdening vulnerable populations including children, the elderly, religious objectors, and the immune-compromised who risk serious harm from the cumulative effects of long-term radiation exposure,

· the reality of profiling on racial, religious, ethnic, and national origin grounds, despite official rhetoric and policies against it, facilitated by reliance on a (likely unconstitutional) broad exception relating to national security and border-related investigations,

· the risk that anyone could be subject to the military commissions regime, a novel secondary justice system in which the executive branch is judge, jury, and executioner and in which a person may find themselves arbitrarily placed without principled distinction simply because they’ve been labeled a ‘terrorist’ or ‘enemy combatant’ (thus US citizen Jose Padilla was shifted at the last minute from the military to the civilian regime after years of being imprisoned, tortured, and denied counsel as an “enemy combatant,” and shoe bomber Richard Reid was tried in civilian court as were 400 other terrorists, but others find themselves subjected to the lower evidentiary and justice standards of the military regime, without reasoned explanation),

· Assassination (defenders call it legal ‘targeted killing’) even of US citizens off the battlefield, without due process of law, without lawyers or the right to confront the evidence or witnesses against them, without the right to trial by jury or any of the other protections guaranteed by the US Constitution.”

Haven’t we also experienced specific infringements of fundamental rights crucial to our national identity and fundamental values?

“We certainly have. Even a cursory review of the Constitutional protections that have been compromised illustrates the point. For example:

· The First Amendment rights of freedom of speech, press, association, assembly, religion, and petitioning government for redress of grievances, all newly under pressure from widespread warrantless surveillance, secret data mining of private data, surreptitious infiltration of peaceful protest and solidarity groups, President Obama’s increased prosecution of supposedly protected whistleblowers and leakers, and changes in the law allowing criminalization and chilling of such speech and association promoting peace and human rights under the Patriot Act’s ‘material support’ provision (which criminalized ‘expert advice and assistance’ and was upheld in the US Supreme Court’s closely divided, erroneous decision Holder v. Humanitarian Law Project),

· The Fourth Amendment rights to freedom from unreasonable searches and seizures without a warrant and probable cause to believe a crime or terrorism was involved, which also have been eroded by the FISA Amendments Act (allowing the Bush-era illegal warrantless surveillance of Americans’ phone calls, emails, and web-surfing habits), Patriot Act provisions including section 505 regarding the notorious and repeatedly abused National Security Letters (allowing the FBI to search a wide variety of library and business records without probable cause, any judicial review, or notifying the target), section 215 (the library and business records provision requiring the secret FISA court to approve searches on a mere ‘relevance’ standard and probably also being interpreted to allow a secret data mining program some Senators say would ‘stun’ and ‘anger’ the US public if revealed), section 213 (allowing ‘sneak and peek’ secret black bag job searches of homes), and section 218 (basically importing expansive foreign intelligence surveillance powers into domestic criminal law).

· The Fifth Amendment rights to due process of law has been infringed not only by the extreme measure of assassination noted above, but also by increasingly routine arbitrary changes of the rules—contrary to President Obama’s promises -- so as to block accountability for other violations of fundamental rights, as with the use of the state secrets privilege, standing, and other procedural doctrines to completely immunize those who labeled citizens like Jose Padilla ‘enemy combatants’, or those who tortured, participated in extraordinary rendition (kidnapping and ‘disappearing’ people) to places of torture, and planned and conducted warrantless surveillance,

· The Eighth Amendment rights to freedom from torture and cruel, inhuman, and degrading treatment (also protected by an international treaty, the Convention Against Torture, signed by Pres. Ronald Reagan, and by federal statute), which has been rhetorically embraced by both the Bush and Obama administrations but ignored in practice (especially by the former, but also allegedly to a lesser extent even by the latter, in cases such as those of Bradley Manning, Gulet Muhammed, and in Afghanistan and Iraq).”

Have these major infringements spilled over into the routine law enforcement and justice systems of the United States?

“Some of us had na├»ve expectations that these developments wouldn’t further affect ordinary citizens. Yet we now all know that legions of ordinary citizens already have been harmed and had their privacy and liberties infringed by National Security Letters and other Patriot Act provisions, as decades of gradual progress in expanding rights have been undermined and generations who have fought for hard-won liberties have seen both their liberty and their security dramatically reduced this past decade. This category includes:

· The increasing militarization of domestic policing and intelligence gathering, as seen in such developments as the Pentagon’s new Northern Command, the Joint Special Operations Command (JSOC) involvement in domestic intelligence and counterterror efforts, Pentagon involvement in infiltration of domestic peace and anti-war groups, increasing deployment of weaponized drones within US borders as well as at the borders, and the surveillance, biometric, and other equipment and weapons defense contractors have imported from Iraq and Afghanistan into American streets, all as described (among others) by Dana Priest and Bill Arkin in their Top Secret America Washington Post series and book, and all in great tension with our Constitutional regime and historic bias against domestic deployment of military forces as reflected in Posse Comitatus and other laws,

· Although sold as temporary, emergency counterterror measures, these laws and approaches such as the Patriot Act have only become more permanent and used overwhelmingly for routine, domestic law enforcement (such as drug cases and minor offenses) – as repeatedly confirmed in the government’s own reports, such as the recent one described by the ACLU pertaining to ‘sneak and peek’ home search warrants -- again contrary to the basic premises and fundamental laws of our democratic republic and its origins in a Declaration of Independence, Constitution, and Bill of Rights arranged precisely against such arbitrary and unconstrained power.

· The way the laws have, as described above, been used to immunize high officials and the powerful from accountability of any type (no torture victim has received his or her day in US court!) at the very time laws for lesser violations have resulted in the United States carrying the dubious honor of having imprisoned more of its population, in both absolute and percentage terms, than any other nation in the world. This discrepancy remains a substantial driver for the Occupy movement and can be expected to continue to drive social instability, protest, and conflict unless and until the gaps in transparency and accountability are remedied and again realigned with the original, sensible Constitutional vision and allocation of rights and powers.”
_____________________________________________________________
Chip Pitts teaches human rights and corporate social responsibility law at Stanford Law School and Oxford University, and serves as a volunteer activist for a number of organizations and initiatives seeking to advance human rights, civil liberties, social justice, and economic development.

US Congress: Very Busy Doing Nothing at All

By William Fisher

While the US Congress is busy doing nothing, the nothing they’re not doing contains stuff that’s really important.

Yes, even more important than naming middle schools and post offices (which they seem to have mastered).

For example, if there’s anyone left in Washington who doesn’t believe that the Republican Party’s opposition to everything is exactly that – even being against non-partisan measures that not long ago drew significant Republican enthusiasm – well just consider the brick wall Senator Jim Webb is crashing into just now.

Last year, Senator Jim Webb, Democrat of Virginia, introduced legislation to establish a bipartisan National Criminal Justice Commission, with support from more than 100 organizations, including the National Sheriffs’ Association, the International Association of Chiefs of Police, the U.S. Conference of Mayors and the Innocence Project.

Webb’s National Criminal Justice Commission Act would create a blue-ribbon, bipartisan commission of experts charged with undertaking an 18-month top-to-bottom review of the nation’s criminal unfair, cruel and dysfunctional justice system and offer concrete recommendations for reform.

While blue-ribbon commissions are often seen in Washington as ways to sweep serious issues under the rug, we believe this one might have been different simply because of the guy leading the charge.

Jim Webb is no flaming liberal. He is a thoughtful Democrat, refreshingly undoctrinaire on a host of issues. He is as tenacious as a pitbull. He has a good eye for serous problems crying out for serious solutions.

Well, our justice/prison system has no trouble qualifying for that definition. In what much of the civilized world regards as a catastrophic failure of imagination, we have nurtured a love affair with locking people up. At this moment, according to the US Bureau of Justice Statistics (BJS), 2,292,133 adults are incarcerated in US federal and state prisons, and county jails; thousands of alleged illegal immigrants being held in detention for deportation; and more thousands of young offenders being held in a range of juvenile facilities. The World Prison Brief puts the The United States has the highest documented incarceration rate in the world.

During the past decade, our prison population has grown exponentially. Private for-profit prisons have experienced a windfall, since their revenue comes from the numbers of prison beds they fill. Judges using Federal minimum guidelines impose wildly different sentences for similar crimes.

We have more prisoners than China, North Korea, and Iran, and our rates of recidivism are the highest in the world.

In its first time out of the box, Senate Republicans blocked the passage of Webb’s initiative. In media coverage following the vote, writers from across the political spectrum condemned the Republican filibuster. Why? Just because. Were there substantive changes the Senate GOP wanted to make? If there were we never got to hear about them. Instead, there was the usual vote to bring the bill to the floor. It needed 60 votes to pass. It didn’t even come close.

Conservative columnist Reihan Salam called the vote against the creation of a Criminal Justice Commission an "absolute scandal” in the National Review.

The Virginian Pilot said in an editorial that the vote represented “Senate negligence” and the Roanoke Times said the vote “snuffs out the last fumes of hope that the legislative body can accomplish anything remotely useful.”

Sen. Webb says he is not deterred. He said: “We will keep fighting for a comprehensive review of the justice system, with the help of the thousands of sheriffs, police, mayors and justice advocates who have joined us in pressing for reform.”

Well. Good luck with that Senator. It still takes 60 votes to pass and, for the foreseeable future, all those law-and-order Republicans aren’t likely to do anything to disrupt the Wild West ambience they have come to love. They’ll be the first to tell you: “Inmates Don’t Vote.”

And while we are on the subject of Congress keeping busy doing nothing, The Washington Post reminds us that this week, the Senate is likely to take up a defense reauthorization bill that effectively – and unnecessarily – ties the hands of the President to deal with terrorism cases.

One is a requirement that terrorism suspects who are not U.S. nationals be held in military custody. We agree with the Post, which says, “Military detention should be an option available to the president, but requiring it in all cases prevents him from taking full advantage of some of the country’s most powerful counterterrorism tools.”

The Post reasons, “Law enforcement officials and national security specialists, for example, could be forced to hand over a suspect even if they were making headway in gathering intelligence. This could also thwart the FBI’s ability to surveil a suspected terror ring and gather information for fear that identifying suspects could force it to prematurely capture and hand over these individuals to the military.”

Makes sense to us!

Congress has also constructed yet another hog-tie for the President. Republicans have proposed that the executive branch be forbidden from using Defense Department funds to construct a U.S. facility or adapt an existing one to hold detainees now at the U.S. naval base in Guantanamo Bay, Cuba.

“This provision,” says the Post, “is little more than fear-mongering and ignores the country’s long track record of imprisoning convicted terrorists, including “shoe bomber” Richard Reid, without incident. Lawmakers should also eliminate onerous restrictions on the president’s ability to transfer detainees to their home or third countries.”

We could not agree more.

Any Senate action would have to be reconciled with the House version of the bill, which Mr. Obama has rightly threatened to veto. A filibuster in the Senate, or any other reason to fail to reach agreement, would dump the whole issue in the lap of the Courts, thus ignoring the traditional role of the other two branches in matters of this kind.

The Post concludes: “The country needs a sensible antiterrorism policy to combat an unconventional and unrelenting enemy. The president and lawmakers should be the architects of such a plan.”

Amen, but don’t hold your breath.

Bahrain: All the King’s Men

By William Fisher

With conflict wracking larger and more influential countries like Egypt and Syria, last week’s developments in Bahrain might well get pushed to the bottom of the world’s news budget or ignored altogether.

But that would be shameful and shortsighted.

Because what happened in the tiny Gulf kingdom last week is truly remarkable. A reigning monarch commissioned a report that was devastating in its condemnation of his regime – and the King accepted it and vowed to implement its recommendations.

Skeptics are saying talk is cheap – follow the feet. And where the Middle East is concerned, a healthy dollop of skepticism is always welcome.

Especially because the report to King Hamad bin Isa Al Khalifa left no room for doubt as to who was responsible for widespread death and destruction: All the King’s Men. All the King’s Men are Sunni Muslims. The vast majority of Bahrain’s people are Shia Muslims. The Royal Commission found this situation to be central to the conflict. (The King disagreed.)

The commission, headed by Egyptian judge Mahmoud Cherif Bassiouni, also found "systemic use" of “physical and psychological mistreatment, which in many cases amounted to torture, with respect to a large number of detainees" held in detention by the authorities.

The Guardian newspaper reports that the commission also demolished a key government claim, stating baldly that it found no "discernible link" between specific incidents in Bahrain and Iran — a charge heard repeatedly.

Bassiouni's team also found that some mosques and prayer houses that were destroyed by the government had no building permits. However, the report says, "The government should have realized that … the timing [and] the manner in which demolitions were conducted and the fact that these were primarily Shia … would be perceived as a collective punishment and … inflame the tension between the government and the Shia population".

The report also confirmed that hundreds of students were dismissed from university after being photographed demonstrating. And more than 1,600 people say they were dismissed or suspended from their jobs. It added that Shia employees were often treated differently from non-Shia, "creating a reasonable presumption that many were subjected to discrimination."

Maybe, in accepting the report and promising reforms, the Royal Family is simply trying to mollify its subjects. But window dressing is not going to impress the opposition. Just a whiff of insincerity in the dialogue the King says he wants and the people will be out in the street once more.

Correcting the abuses committed by the security forces will not be easy, but it is not impossible. The King needs to replace the people in charge of the security services. He must resist appointing someone who is a member of the Royal Family. The entire culture of the security forces must be changed. It must be fair. It must respect the rule of law. It must abandon torture. And it must be inclusive of Bahrain’s Shia majority. And King Hamad and his people need to recognize his people’s inherent right to peacefully protest. That’s a very tall order, but it is doable over time.

Much less certain is whether the pervasive discrimination felt by the Shia population can be reversed. The Shia majority complains of being zeroed out of competition for top jobs in both the public and private sectors and discriminated against in housing, finance and the country’s social life. They say this discrimination has existed for many years and has become firmly embedded in Bahraini culture, thus even more difficult to correct.

But unless the majority begins to see concrete signs that the King is at least trying to effect this transformation, we can expect more divisiveness and conflict, death and destruction.

King Hamad has a tough job ahead. But he has also an enormous opportunity. Pray that he takes it.

WITHER OCCUPY?

By William Fisher

Whenever I can, I try to watch David Brooks and Mark Shields in their weekly conversations with Newshour host Jim Lehrer. The reason is that this is one of the few, very few, opportunities we get these days to hear the views of a conservative who is not frothing at the mouth and threatening to abolish three (or was it two?) Cabinet departments.

But every once in a while something David says brings me up short and last Friday was one of those whiles. He and Mark were talking about the Occupy movement. David was wondering what the end game was. He was saying there is no leadership and with no leadership Occupy’s objectives could never be translated into permanent political change. That kind of change happens only when there are people lobbying hard for it in Washington, and the Occupy folks have no lobbyists – in fact the very idea is anathema to them.

Shields took a different view. He said the Occupy movement had changed the national conversation about income distribution. That was a subject, said Shields, that hasn’t been seriously discussed among ordinary citizens forever.

Brooks looked surprised. He said he couldn’t remember any other subject that has been discussed more, by more people, with more solutions.

That got a big rise out of Shields. He had a look on his face that said, “This is preposterous.” It was clear they were bringing news from their respective parallel universes!

And, truth to tell, maybe there’s some “right” in both positions. Maybe, in David’s world of think tanks and policy wonks, income redistribution is on the agendas of most reputable economists. I would expect these guys to be reading The New York Times.

But, out in the hinterlands, where a good deal of Shields’s constituency is, this is not exactly the sexiest subject on the agenda. In fact, it is not unfair to say that it is a subject that causes people’s eyes to glaze over in rapid order.

This disconnect between the nation’s capitol and the nation’s heartland extends far beyond who’s getting how much of the national wealth pie. For that subject is subsumed by larger issues such as the “appropriate” roles and size of government.

The “Tea Party” embraced that question, but by and large their answers were un-constructive, motivated by pandering and based on ideology rather than fact. They looked wild-eyed and ill-informed.

When the Occupy Movement ends up in the corridors of power in our nation’s capitol – and, one way or another, it will -- it can’t afford to look ill-informed.

It must come with ideas the average voter can understand. These ideas would begin to right the wrongs of income concentration, without destroying our wealthy citizens or fomenting revolution.

The ideas are out there. Eventually, what Occupy will need is an audience of legislative champions who understand our Tax Code. And the importance of incrementalism.

US Congress: Very Busy Doing Nothing at All

By William Fisher

While the US Congress is busy doing nothing, the nothing they’re not doing contains stuff that’s really important.

Yes, even more important than naming middle schools and post offices (which they seem to have mastered).

For example, if there’s anyone left in Washington who doesn’t believe that the Republican Party’s opposition to everything is exactly that – even being against non-partisan measures that not long ago drew significant Republican enthusiasm – well just consider the brick wall Senator Jim Webb is crashing into just now.

Last year, Senator Jim Webb, Democrat of Virginia, introduced legislation to establish a bipartisan National Criminal Justice Commission, with support from more than 100 organizations, including the National Sheriffs’ Association, the International Association of Chiefs of Police, the U.S. Conference of Mayors and the Innocence Project.

Webb’s National Criminal Justice Commission Act would create a blue-ribbon, bipartisan commission of experts charged with undertaking an 18-month top-to-bottom review of the nation’s criminal unfair, cruel and dysfunctional justice system and offer concrete recommendations for reform.

While blue-ribbon commissions are often seen in Washington as ways to sweep serious issues under the rug, we believe this one might have been different simply because of the guy leading the charge.

Jim Webb is no flaming liberal. He is a thoughtful Democrat, refreshingly undoctrinaire on a host of issues. He is as tenacious as a pitbull. He has a good eye for serous problems crying out for serious solutions.

Well, our justice/prison system has no trouble qualifying for that definition. In what much of the civilized world regards as a catastrophic failure of imagination, we have nurtured a love affair with locking people up. At this moment, according to the US Bureau of Justice Statistics (BJS), 2,292,133 adults are incarcerated in US federal and state prisons, and county jails; thousands of alleged illegal immigrants being held in detention for deportation; and more thousands of young offenders being held in a range of juvenile facilities. The World Prison Brief puts the The United States has the highest documented incarceration rate in the world.

During the past decade, our prison population has grown exponentially. Private for-profit prisons have experienced a windfall, since their revenue comes from the numbers of prison beds they fill. Judges using Federal minimum guidelines impose wildly different sentences for similar crimes.

We have more prisoners than China, North Korea, and Iran, and our rates of recidivism are the highest in the world.

In its first time out of the box, Senate Republicans blocked the passage of Webb’s initiative. In media coverage following the vote, writers from across the political spectrum condemned the Republican filibuster. Why? Just because. Were there substantive changes the Senate GOP wanted to make? If there were we never got to hear about them. Instead, there was the usual vote to bring the bill to the floor. It needed 60 votes to pass. It didn’t even come close.

Conservative columnist Reihan Salam called the vote against the creation of a Criminal Justice Commission an "absolute scandal” in the National Review.

The Virginian Pilot said in an editorial that the vote represented “Senate negligence” and the Roanoke Times said the vote “snuffs out the last fumes of hope that the legislative body can accomplish anything remotely useful.”

Sen. Webb says he is not deterred. He said: “We will keep fighting for a comprehensive review of the justice system, with the help of the thousands of sheriffs, police, mayors and justice advocates who have joined us in pressing for reform.”

Well. Good luck with that Senator. It still takes 60 votes to pass and, for the foreseeable future, all those law-and-order Republicans aren’t likely to do anything to disrupt the Wild West ambience they have come to love. They’ll be the first to tell you: “Inmates Don’t Vote.”

And while we are on the subject of Congress keeping busy doing nothing, The Washington Post reminds us that this week, the Senate is likely to take up a defense reauthorization bill that effectively – and unnecessarily – ties the hands of the President to deal with terrorism cases.

One is a requirement that terrorism suspects who are not U.S. nationals be held in military custody. We agree with the Post, which says, “Military detention should be an option available to the president, but requiring it in all cases prevents him from taking full advantage of some of the country’s most powerful counterterrorism tools.”

The Post reasons, “Law enforcement officials and national security specialists, for example, could be forced to hand over a suspect even if they were making headway in gathering intelligence. This could also thwart the FBI’s ability to surveil a suspected terror ring and gather information for fear that identifying suspects could force it to prematurely capture and hand over these individuals to the military.”

Makes sense to us!

Congress has also constructed yet another hog-tie for the President. Republicans have proposed that the executive branch be forbidden from using Defense Department funds to construct a U.S. facility or adapt an existing one to hold detainees now at the U.S. naval base in Guantanamo Bay, Cuba.

“This provision,” says the Post, “is little more than fear-mongering and ignores the country’s long track record of imprisoning convicted terrorists, including “shoe bomber” Richard Reid, without incident. Lawmakers should also eliminate onerous restrictions on the president’s ability to transfer detainees to their home or third countries.”

We could not agree more.

Any Senate action would have to be reconciled with the House version of the bill, which Mr. Obama has rightly threatened to veto. A filibuster in the Senate, or any other reason to fail to reach agreement, would dump the whole issue in the lap of the Courts, thus ignoring the traditional role of the other two branches in matters of this kind.

The Post concludes: “The country needs a sensible antiterrorism policy to combat an unconventional and unrelenting enemy. The president and lawmakers should be the architects of such a plan.”

Amen, but don’t hold your breath.