COINTELPRO REDUX

By William Fisher

For those old enough to remember, reports of the latest FBI snooping must have brought back bitter memories of a now-hated program known as COINTELPRO.

COINTELPRO is the FBI acronym for a series of covert programs culminating in the 1970s directed against US domestic groups. In these programs, the Bureau went beyond the collection of intelligence to secret action defined to "disrupt" and "neutralize" target groups and individuals. The techniques were adopted wholesale from wartime counterintelligence, and ranged from the trivial (mailing reprints of Reader's Digest articles to college administrators) to the degrading (sending anonymous poison-pen letters intended to break up marriages) and the dangerous (encouraging gang warfare and falsely labeling members of a violent group as police informers).

Today, reports of the latest FBI snooping programs create déjà vu all over again. According to Freedom of Information Act (FOIA) documents obtained by the American Civil Liberties Union, the San Francisco FBI conducted a years-long Mosque Outreach program that collected and illegally stored intelligence about American Muslims’ First Amendment-protected religious beliefs and practices.

The ACLU charges that FBI documents obtained through the Freedom of Information Act reveal that from 2004 through at least 2008, the San Francisco FBI conducted a “mosque outreach” program through which it compiled intelligence on American Muslim religious organizations and their leaders’ and congregants’ constitutionally-protected beliefs and activities, without any suspicion of wrongdoing. The ACLU previously disclosed that the FBI turned its “community outreach” programs into a secret and systematic domestic

intelligence-gathering initiative. Now, FBI documents obtained by the ACLU of Northern California, the Asian Law Caucus, and the San Francisco Bay Guardian show that the FBI used the similar guise of “mosque outreach” to gather intelligence on mosques and Muslim religious organizations.

The organization also claims the documents also show that the FBI categorized information about Muslims’ First Amendment-protected and other entirely innocuous activities, as well as mosque locations, as “positive intelligence” and disseminated it to agencies outside the FBI. As a result, the ACLU says, the agency “wrongly and unfairly cast a cloud of suspicion over innocent groups and individuals based on their religious beliefs and associations, and placed them at risk of greater law enforcement scrutiny as potential national security threats. None of the documents indicate that the FBI told individuals interviewed that their information and views were being collected as intelligence, and would be recorded and disseminated.”

The ACLU and human rights and civil liberties groups generally have taken the position that. “The FBI’s targeting of American Muslim religious organizations for secret intelligence gathering raises grave constitutional concerns because it is an affront to religious liberty and equal protection of the law. The bureau’s use of outreach meetings to gather intelligence also undermines the trust and mutual understanding necessary to effective law enforcement. Additionally, the FBI’s retention of information gathered through “mosque outreach” in its intelligence files violates federal Privacy Act prohibitions against the maintenance of records about individuals’ First Amendment-protected activity.”

The ACLU says the San Francisco FBI documents described above bear titles such as, “Mosque Outreach Liaison,” “Mosque Outreach Contacts,” or “Mosque Liaison Contacts.” Some of these documents indicate that the FBI begins its “outreach” with questions about possible hate crimes against the Muslim community, but none of the documents appear connected to a mosque protection effort initiated after 9/11 by the FBI Civil Rights Unit to guard against anti-Muslim hate crimes.

That effort operated under a “44” FBI case file number (see for example, this 2007 San Francisco FBI memorandum). In contrast, the file numbers on the “mosque outreach” documents were redacted, and many were classified “secret,” which indicates this effort was conducted under the FBI’s national security-related investigative and intelligence authorities. Although sometimes heavily redacted, all of the documents make clear that the FBI used its outreach meetings to document religious leaders’ and congregants’ identities, personalinformation (1 & 2), and religious views, practices (1 & 2), affiliations, and travel, as well as the physical locations and layouts of mosques.

Documentation obtained through FOIA has proved to be a treasure trove of information. But, sadly for those who enjoy spy-thrillers, their content is largely prosaic and teetering on boring. Here are but a few of many examples:

• The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.

• The FBI met with members of the South Bay Islamic Association four times from 2004 to 2007. FBI agents documented as “positive intelligence” and disseminated outside the FBI an individual’s complaint of travel delays during the Hajj pilgrimage caused by the No Fly list, as well an individual’s conversation about the Hajj, “Islam in general,” Muslims’ safety in the U.S., and community fears regarding an FBI investigation of imams in Lodi, California. Two memoranda from 2006 and 2007 contain no descriptive information apart from the name and location of mosques contacted by the FBI, which the ACLU said might be appropriate to record in a normal community outreach context.

• Two 2008 FBI memoranda described contacts with representatives of the Bay Area Cultural Connections (BAYCC), which was formerly the Turkish Center Musalla. The first describes the history, mission, and activities of the BAYCC, the ethnicity of its members and its affiliation with another organization. The second memorandum indicates the FBI used a named meeting participant’s cell phone number to search LexisNexis and Department of Motor Vehicle records, and obtained and recorded detailed information about him, including his date of birth, social security number, address and home telephone number.

All the memoranda listed above were described as “positive intelligence” and disseminated outside the FBI. Some were classified as “secret.”

The ACLU says, “Almost every FBI memorandum described above was labeled ‘positive intelligence’, which means the information in it would be uploaded and retained in FBI intelligence files.

The ACLU points out that in its previous “Mapping the FBI” alerts, “we called on the FBI to stop using community outreach for intelligence purposes, to be honest with community organizations regarding what information is collected and retained during community meetings, and to purge all information collected improperly. The latest revelations make the need for these reforms even more urgent.”

“We also again call on the Department of Justice Inspector General to investigate Privacy Act violations within the FBI’s San Francisco Division, and to initiate a broader audit of FBI practices throughout the nation, to determine the scope of the problem and identify solutions. Finally, the Department of Justice must amend its 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies to ban profiling based on religion in all of its investigations,” the ACLU said.
In New York City, Muslim civil liberties organizations called for a federal investigation

and Senate hearings into a report the CIA was helping New York City police gather intelligence from mosques and minority neighborhoods. It was revealed that the mosques and neighborhoods under surveillance were not limited to New York City. Agents traveled to other jurisdictions, for example, New Jersey, without advance notice to law enforcement there.

One of the Muslim organizations, The Council on American-Islamic Relations (CAIR), says it suspects the joint CIA-police intelligence-gathering described in an Associated Press report violates the U.S. Constitution, the U.S. Privacy Act of 1974 and a presidential order banning the CIA from spying on Americans, CAIR attorney Gadeir Abbas said.

The AP report said undercover New York Police Department officers known as ``rakers'' were sent into minority neighborhoods to monitor bookstores, bars, cafes and nightclubs, and police used informants known as ``mosque crawlers'' to monitor sermons.

“The NYPD operates far outside its borders and targets ethnic communities in ways that would run afoul of civil liberties rules if practiced by the federal government,'' wrote the AP, which described the collaboration between the CIA and a U.S. police department as unprecedented. A police spokesman said ``we don't apologize'' for aggressive techniques developed since the Sept. 11, 2001 attacks. He said those techniques have helped thwart 13 plots on the city.

``It (the AP report) shows that we're doing all we reasonably can to stop terrorists from killing even more New Yorkers,'' NYPD Deputy Commissioner Paul Browne said in an email. ``We commit over a thousand officers to the fight every day to stop terrorists who've demonstrated an undiminished appetite to come back and kill more New Yorkers.''

Is This the Accountability We Were Promised?

By William Fisher

It would be a slam dunk.

If there were a Nobel Prize for Tenacity, I would nominate half a dozen organizations that, in the face of years of lost court cases and rapidly graying hair, continue to seek justice for some of the most egregious victims of the Bush/Obama “war on terror.”

These legal bulldogs keep getting their lawsuits bounced out of one federal court after another – and keep coming back for more. They have names like the American Civil Liberties Union, Human Rights First, Human Rights Watch, Amnesty USA, and literally hundreds of others.

Consider this: The despicable practice of “extraordinary rendition” began in the Clinton Administration, expanded during the eight years of George W. Bush, and remains alive and well under President Obama.

At its most fundamental level, extraordinary rendition means the CIA kidnaps people it believes are terrorism suspects and ships them off, drugged and blindfolded, to the CIA’S own secret prisons or those operated by allied countries who have long and well-documented histories of systematically torturing prisoners.

For years, small groups of people who have survived the waterboarding and the electric shocks and the sleep deprivation have, with the help of human rights organizations, filed lawsuits against the US government, seeking to hold top American policy-makers accountable for their years of pain.

And each time the survivors bring such an action, the courthouse doors are slammed in their faces. Typically, the government invokes what is known as the “State Secrets Privilege.” This once-little-used legal quirk holds that disclosure of any of the secret evidence would compromise national security.

Some lawmakers have been discussing in committees revisions to this statute since the beginning of the Obama Administration, but no one has taken any action despositive whatever.

Consequently, not a single victim of the “war on terror” has had the opportunity to tell his story in a court of law and not a single senior US official has been held accountable.

Who are these victims who keep banging on the courthouse doors?

Here are three of the most prominent:

Jeppesen DataPlan is a subsidiary of The Boeing Company, and specializes in flight planning and logistical support services for aircraft and crews, including those used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.

In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – sued Jeppesen for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process.

The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement.

The ACLU appealed the case all the way to the Supreme Court, which declined to hear it.

Khalid El-Masri: El-Masri, a German citizen, was on vacation in Macedonia. The Lebanese-born Al-Masri says he took a bus from Germany to Macedonia, where Macedonian agents confiscated his passport and detained him for 23 days, without access to anyone, including his wife.

He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania.

He claims it was a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were responsible for his rendition to Afghanistan, where he. was beaten, drugged, and subjected to various other inhumane activity while in captivity.

After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation. He was never charged with a crime.

El-Masri, who is represented by the American Civil Liberties Union (ACLU), sought an apology from then-Director of the CIA, George Tenet, and an apology and money damages from the CIA.

The lawsuit charges former CIA director George Tenet, other CIA officials and four U.S.-based aviation corporations with violations of US and universal human rights laws. It claims El-Masri was "victimized by the CIA's policy of 'extraordinary rendition'."

Maher Arar: A Canadian citizen born in Syria, Arar was passing through Kennedy International Airport in New York on his way home in 2002 when he was detained by Customs officials. He was suspected of being a terrorist.

Subsequently he was flown against his will, first, to Jordan, then to Syria, where he was jailed by Syrian intelligence. In the year following, he was tortured, forced to falsely confess to attending an al Qaeda training camp in Afghanistan, and then released after a year without ever being charged with anything.

With the help of the Center for Constitutional Rights and renowned Constitutional lawyer David Cole, Arar sued former Attorney General John Ashcroft, FBI Director Robert Mueller, and then Secretary of Homeland Security Tom Ridge, as well as numerous US immigration officials, challenging the rendition of a Canadian citizen to Syria, by the US government.

The suit charged the plaintiffs with violating Mr. Arar’s constitutional right to due process, his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act, and his rights under international law.

The suit charged that Mr. Arar’s Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S.

Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.

Further, Mr. Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court.

Mr. Arar’s claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered.

The case was filed in the United States District Court for the Southern District of New York. From there, it embarked on what is now a familiar journey – to nowhere. The Trial and Appeals Court dismissed the suit. Ultimately the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case, ending his case in U.S. courts.

But the Canadian Government took a very different approach. It convened a blue-ribbon panel to investigate the Arar incident. After a two-year probe, the Canadian government admitted it had made a serious mistake in the information it had supplied to the US on Arar. The head of the Canadian Royal Mounted Police was forced to resign, and Canada issues a formal apology to Arar and awarded him $10 million.

The US Government has steadfastly refused to even discuss the case, much less apologize. At a Congressional hearing soon after 9/11, then Secretary of State Condoleezza Rice acknowledged that the Arar case “wasn’t handled very well,” but came nowhere close to apologizing to anyone for anything.

Well, the human rights lawyers who bring these cases to court are, as one told me, “frustrated but ever-hopeful.”

It is that ever-hopeful quality that is now pressing ACLU lawyers to try yet another legal step. Denied their day in court by US Federal Judges, three Afghans and three Iraqis who say they were tortured while held by the American military at detention centers in Iraq and Afghanistan have filed a petition against the US with the Inter-American Commission on Human Rights (IAHCR).

The men were part of a group who in 2005 sued then-Defense Secretary Donald Rumsfeld and three senior military officials in federal court for torture and abuse. That case was summarily dismissed on immunity grounds before reaching the merits.

The current petition is equivalent to an international legal complaint. It asks the commission, which is an independent human rights body of the Organization of American States, to conduct a full investigation into the human rights violations and seeks an apology on behalf of the six men from the US government.

The ACLU claims that between 2003 and 2004, the men were detained in U.S.-run detention facilities in Afghanistan and Iraq, where they were subjected to torture and other cruel, inhuman and degrading treatment including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions and prolonged restraint in excruciating positions the petition charges. None of the men were ever charged with a crime.

“I think that I and the many others who suffered unfairly at the hands of the American government deserve justice,” said petitioner Ali Hussein, an Iraqi who was a 17-year-old high school student when he was detained and abused by American soldiers. “We want America to admit that what happened to us was wrong and should never be allowed to happen again to anyone anywhere.”

Hussein, who is now a law student, was shot in the neck and back before being arrested. He said that military personnel refused to provide him medical care for several hours, and when the bullets were eventually removed the procedure was done without anesthetic. He was then denied food, water and pain medication for almost two days after he was shot.

The petition states, “The US government’s own reports document that the torture and inhumane treatment that Petitioners were subjected to was not aberrational; on the contrary, it was widespread and systemic throughout the US-run detention facilities in the two countries. These same reports also document that the torture and inhumane treatment of detainees were the direct result of policies and practices promulgated and implemented at the highest levels of the US government.

The ACLU charged that “despite these reports and Petitioners’ and other detainees’ credible allegations of torture and inhumane treatment, the US government has failed to conduct any comprehensive criminal investigation, has not held accountable those responsible, and has not provided any form of redress to Petitioners and the many other victims and survivors of US torture and abuse.”

It added: “Since a remedy for these men has been denied in American courts, these six courageous men are seeking to hold the US government accountable on the world stage,” said Steven Watt, senior staff attorney with the ACLU Human Rights Program.

“No high-ranking government officials have yet been held to account for their actions, and this petition seeks to do just that and to ensure that the government respects basic human rights, including the right of everyone to be free from torture and inhumane treatment.”

 

 

The GOP’s Death Wish

By William Fisher

The Republican Party must have a death wish.

It cannot win a national election without the support of (a) Latinos (b) Women (c) African-Americans, and (d) Independents.

Yet The Grand Old Party appears to be doing everything in its power to alienate these voters forever.

A couple of weeks ago, when California Representative Darrell Issa convened an all-male panel on birth control, he contended that the issue was not women's health, but "religious freedom." So he refused to invite Sandra Fluke, a young law student to speak. .

Later, furious Democrats held their own hearing. As Diane Roberts recounts it in The Guardian, Fluke testified there that while Georgetown, the Roman Catholic-run university she attends, provides some health insurance, it does not include contraception – and the pill can cost $1,000 per year. Women take contraception for a variety of medical reasons, not only to prevent pregnancy, she said, recounting the story of a friend, a fellow student, who needed the pill to treat cysts. She couldn't afford it, got sick and had to have an ovary removed.

Fluke's reward for being candid? A profane and uninformed trashing by potty-mouth Rush Limbaugh, who called her a prostitute and a slut because she wanted to get paid (presumably insurance premiums) for having sex. He also demanded that she post videos of her sexual encounters on the Internet "so we could all see them.” Limbaugh lost a ton of sponsors, but conservative bloggers, radio interviewers and Fox News continued their attack on Fluke.

And the response of Republic Presidential candidates and their funders? Well, frontrunner Mitt Romney said meekly of Limbaugh's insults, "it's not the language I would have used." Newt Gingrich blamed "the media" for exploiting the story and said there were far more important issues – Barack Obama's "war on religion", for example. Santorem’s Daddy Warbucks reminisced on television that “back in the day” women used aspirin to keep from getting pregnant: "The gals put it between their knees. Santorem himself described contraception as "a license to do things in a sexual realm that is counter to how things are supposed to be." Pennsylvania Gov. Tom Corbett said about a bill that would require ultrasounds for women seeking to have abortions, that those who didn't want to see the fetal images could "just ... close your eyes."

And in another big GOP idea that will further endear the front-runner to women and independents, Romney's is cheering up his Republican caucus in Congress by proposing to "get rid of" Planned Parenthood, which provides vital health services to women all over the country. Its abortion practice represents less than three per cent of its total care, and no federal tax dollars are involved in that part of the practice. For many women, Planned Parenthood is their sole health care provider. So its destruction would be exactly what you’d propose if your mission was to completely lose your last vestige of credibility with women voters.

And Newt Gingrich’s view that African American kids have no model of the value of work because of the physical and familial environments they grow up in. His solution: Hire the kids to work as janitors in the public schools. Predictably, this from the GOP’s self-appointed “man of big ideas,” will not win him any awards from the NAACP.

There is also ample evidence that the vibes emanating from the three Presidential wannabees is having negative consequences for many of those who are on the so-called “down ticket” – Republicans who are running for lesser offices ranging from US Senator to town manager.

Case in point: The Republican candidate running for former Rep. Gabrielle Gifford’s (D-AZ) seat on Friday responded to Santorum’s opposition to women serving in combat by saying she wanted to “kick him in the jimmy.”

Now, as for the Latino vote, the Republican Party has done zilch, zero, nada, to even acknowledge their existence. Gingrich has called Spanish “the language of the ghettos.”

Santorem, campaigning in Puerto Rico, said there could be no Statehood without “fluent command of English.”

However, Gingrich apparently favors some version of the Dream Act, while Santorem and Romney have both taken a hard line on immigration reform, as if to seal their death pact with this constituency.

It would seem that the wingnuts of the GOP have gotten snookered, first, by believing their own far-right propaganda about Obama’s birthplace, birth certificate, and suchlike, and second, by the demographic changes that have been taking place over the last decade.

Despite their presence in 2008, it doesn’t seem that Republicans understand or accept the reality that they will soon be presenting their ideas to a nation in which their traditional majority has become a minority.

More important, as pointed out by Tom Curry, national affairs writer with MSNBC, “The potential clout of Latino voters has become as familiar a story line as the gender gap. But what might make 2012 different is the edge Latinos could give President Barack Obama and the Democrats in battleground states which aren’t thought of as immigration portals or left-leaning strongholds.”

Curry notes that the 2010 Census revealed that in the past decade the adult Latino population has nearly doubled in Nevada, Virginia, and North Carolina. “Also, it's increased by 60 percent or more in two Midwestern battleground states, Indiana and Ohio,” he says, adding:

“Obama won all five of those states in 2008 — two of them by very narrow margins — and they are likely to be decisive in next year’s balloting.”

“What the Census figures suggest is that the road to White House in 2012 may well go through the Hispanic community” said Frank Sharry, executive director of America’s Voice, an advocacy group that favors allowing illegal immigrants to work toward U.S. citizenship,” Curry says..

In Nevada, for example, Latinos were about 11 percent of registered voters in 2008, according to the Census’s Current Population Survey. About 90 percent of those registered actually voted, and according to exit polls, 76 percent of them cast ballots for Obama.

Likewise in Colorado, where Latinos comprised 9 percent of registered voters, with 87 percent of those individuals voting on Election Day. Obama won about three out of five Colorado Latino voters. .Nevada and Colorado were among the nine states that went for George W. Bush in 2004 but for Obama in 2008.

Based on 2008 exit poll data, Curry concludes, “if Latino voters were subtracted from the total, Obama would have lost two of the states that he won: New Mexico and Indiana. Even without those two states, he would still have won far more than the 270 electoral votes needed to win the White House, but those voters helped create a larger margin.”

No election is ever a slam-dunk. Voting day is months away, and – overnight – something could happen that could change the entire electoral calculus for November.

But even with that huge caveat, it’s difficult to see how the Republican Party – at least the one we used to know – which has so many really smart and well-informed members, could have ended up with three substandard candidates and a seemingly blissful ignorance of the societal factors that are likely to seal their fate.

Saudi Arabia Needs a Dose of Andy Borowitz

By William Fisher

Truth to tell, I thought I was reading another piece of wonderful political satire by Andy Borowitz, who is one of the few literate political comics capable of making me laugh these days.

But no, it wasn’t Andy. It was a gent named Bandar Al-Iban who was telling me that Saudi Arabia is “among the first countries to preserve and protect human rights derived from the provisions of Islamic teachings.” That seemed pretty funny too!

Because we know from multiple credible sources that Saudi Arabia is arguably the most conservative and repressive country in the Middle East.. The guys who run its jails are known to engage in prisoner torture systematically. Saudi has one of the region’s most sophisticated system for blocking Internet and social networking communications.

It’s illegal for more than a few people to meet together without a permit. There are no guarantees of freedom of religion. Women have virtually no rights at all. When they claim they’ve been raped and take their case to court, they are more often than not the party found guilty. In the villages of the country, if they are caught having an affair, they and their partner can be stoned to death. Women can’t be seen in public without a male relative present. They’re not even allowed to drive their own cars, having to use drivers instead.

Only recently, in a huge symbolic victory, women got authority to sell lingerie to other women, without men working in the shop. And when pro-democracy demonstrations began in neighboring Bahrain, Saudi troops trundled over the causeway connecting the two countries and took up positions with the government military. Saudi jails are full of bloggers and others who tried to express themselves publicly.

Case in point: Sa’ud Mukhtar Al-Hashimi, 47, was arrested in Saudi Arabia by Saudi secret forces and has been detained since 2 February 2007. He has been a prominent figure of the “reformers” movement, which has called for constitutional reform and democratic rights in the country. Over the past five years, he has been physically and psychologically tortured and was not brought before a judge until 2011. His detention has been deemed arbitrary and illegal by those advocating for his rights in Saudi as well as the United Nations’ Working Group on Arbitrary Detention. He remains imprisoned until today.

Now Bandar Al-Iban knows all this, of course. And he must be a pretty smart operator because he graduated from no less a pillar of American higher education than Johns Hopkins University in Baltimore. Furthermore, he is Chairman of the government’s Human Rights Commission.

Still, what he is trying to sell us about Saudi human rights is unclear to me. He writes, “Human rights is a necessary need and strategic choice for all countries and people.” But we know that The Arab Spring was simply not allowed to happen in Saudi, where the government used a carrot-and-stick approach to making sure it didn’t happen. First, the government offered substantial sums of cash to ordinary citizens, to placate any discontent they might harbor. Then the government launched a large investment initiative in job-training for those citizens.

While this cotton-candy bribery is going on, the government is making it crystal clear that it takes a dim view of any Saudis of who have the temerity to organize pro-democracy demonstrations. At one point, a Day of Action was scheduled, similar to those that have taken place in venues like Tahrir square. But the government’s message was apparently intimidating enough that only one person showed up. Meanwhile, Saudis who are speaking out, or writing articles and blogs, are being jailed.

Still, Mr. Al-Iban insists: “The Kingdom used to reinforce the principles of justice, equality and inculcate them in all members of society to ensure all rights and legitimate freedoms. It has paid attention to achieving comprehensive and sustainable development in order to raise the standard of living and ensure the prosperity and stability for citizens and residents and promote and preserve their rights. The Kingdom has boosted its protection capabilities by enacting legislation and issuing regulations to protect human rights and exercise justice and monitor any abuse and violations.”

He adds: “The establishment of the Human Rights Commission confirms the leadership intention to safeguard the citizen’s welfare and rights” by, for example, continuing to support the judiciary with additional funding, enacting new legislation and amending the existing laws to strengthen the concept of human rights.

Mr. Al-Iban points to Article 26 of the Basic System of Government, which says: “The country shall protect human rights according to Islamic law.” The problem here is that in countries governed by Islamic (Sharia) law, this law becomes the country’s highest form of jurisprudence, thus relegating to a back seat all the United Nations and other treaties and agreements in human rights, to which Saudi Arabia is a signatory.

It should also be noted that the pace of completion and implementation of is has glacial. The Arab League began discussing an “Arab Charter of Human Rights” in 1960. A first version was approved in 1994 and a final version was not adopted until 2004.

Dr. Ibrahim Shiddi, a Member of the Human Rights Commission and president of the Permanent Arab Commission for Human Rights, said discussions on human rights have increased in the present and there has been a radical shift from a focus on domestic legislation to international agreements regulating human rights.

“Do not be surprised by the attention given to human rights in the Arab world. It seems this interest is evident by the increase by Arab countries participating in human rights discussions in the international arena as well as the ratification of agreements and treaties on human rights issued by the United Nations or issued by the regional organizations, such as the Islamic Conference Organization which issued the Cairo Declaration on Human Rights in Islam and the Arab League which issued the Arab Charter of Human Rights.”

Well, we in fact have heard precious little free discussion of human rights by governments anywhere in the Middle East and North Africa. We have seen symposia and round-tables to discuss the subject. And we have heard a few high-flying declarations of reforms that rarely seem to materialize, followed by more people being arrested and jailed.

The grim truth is that countries like Saudi Arabia are terrified of what they believe will follow any loosening of the chains of silence every Saudi citizen carries around his neck – an Arab Spring for Saudi Arabia.

The Saudis have been telling the world for decades that the country is instituting many reforms, but that they need to go slowly because of internal political pressures. But it’s not clear whether these pressures are actually nurtured by the government to maintain the status quo.

Whatever, this turns out to be a very un-funny story. Apologies to Andy Borowitz!

PRISONER TRANSFER TO AFGHANS LIKELY TO PRODUCE MORE, NOT LESS, TORTURE

By William Fisher

A leading human rights group is “gravely concerned” that the well-being of more than 3,000 prisoners the US has agreed to turn over to the Afghans “depends on vague assurances of humane and fair treatment, despite evidence of torture and other mistreatment.”

The US-based Human Rights First (HRF) added that the transfer was agreed last week despite Afghanistan showing little evidence of having established a mechanism to assure due process of detainees. “This renders the agreement badly flawed and HRF is gravely concerned about these shortcomings,” the organization said in a statement.

HRF and numerous other organizations have been working for several years to end to the indefinite detention of Afghans and others being held without charge. HRF said it “welcomes efforts to transfer custody and responsibility for detention to Afghan authorities,” but also sounded a note of caution.

The prisoner transfer, it said, could only be achieved “on conditions that assure humane treatment and fair trials.” 

 The organization notes that the agreement announced today depends on vague assurances of humane and fair treatment, despite evidence of torture and other mistreatment that detainees have suffered in Afghan hands, and despite that Afghanistan has shown little evidence of having established a mechanism to assure due process of detainees. This renders the agreement badly flawed and Human Rights First is gravely concerned about these shortcomings.

An October 2011 report by the United Nations documented widespread and systematic torture and mistreatment in Afghan prisons. The allegations were so serious and credible that NATO immediately suspended transfer of prisoners to 16 Afghan prisons. The UN report highlighted that nearly all torture observed in Afghan jails took place during interrogations for the purpose of seeking confessions.

The Afghan government denied that torture was systematic, but acknowledged "deficiencies," including keeping prisoners in indefinite detention and not allowing them to see lawyers. The government asserted that abuses were due to a lack of training and resources. The government also pledged to uphold all national and international standards regarding protection of prisoners.

“The United States has done a good job of improving conditions of confinement for detainees at Bagram, but this agreement provides no reason to believe that those improved conditions will be maintained when this facility is under Afghan control,” said HRF’s Gabor Rona. 

He added: “The agreement also provides few details about the due process rights of the detainees. In order to implement this agreement consistent with U.S. obligations, the United States and Afghanistan must specify the legal basis for continued detention, the grounds upon which a person may be detained, the procedures for challenging detention, and the procedures for fair trial of those criminally charged.”

HRF also cautioned that the US is obligated under international law not to transfer detainees to a situation where they are at risk of being tortured. Recent reports from the United Nations indicate that Afghan authorities still use abuse and torture to coerce confessions from detainees. This raises concerns about how the U.S. will meet this obligation.

“The U.S. should make clear its continued obligation of the United States to refrain from transferring any detainee for whom there is a credible risk of ill-treatment or other violation of humanitarian and human rights law, including the right to due process,” said Rona.

He also noted that “it remains unclear if the U.S. will continue to conduct Detainee Review Boards at Bagram over the next year, and if it will continue to support Afghan trials at the Parwan Justice Center adjacent to the Bagram Air Base after the transfer of detainees is completed. The adequacy of those proceedings has concerned Human Rights First in the past, as discussed in our 2011 report, Detained and Denied in Afghanistan: How to Make U.S. Detention Comply with the Law.“

The U.S. has supported the improvement of Afghan national security trials at the Parwan facility. The United States should continue to provide resources and training to improve these proceedings and to ensure that all Afghan detainees transferred by the U.S. to Afghan authority receive a fair trial,” said Rona.

The prisoner transfer agreement, however, is not yet set in stone. The US held out for-, and was granted, a six- month period to observe the transfer process and satisfy itself that prisoners are not being tortured or abused, and that they are receiving due process, legal help, and contact with their families.

Bagram has been a major headache for the US and a constant source of friction between NATO and the Karzai Government. Karzai has refused to acknowledge that Afghan prison guards have tortured and abused men captured in battles with the Taliban and other insurgent groups. But sources experienced in the ways of the Afghans say centuries-old tribal hatreds and rivalries have resulted in prisoner abuse and even death long before the presence of NATO forces there.

But the prisoner transfer agreement has been finalized at a particularly fragile moment in the relationships between the Afghans and the US/NATO forces, as well as between the Karzai Government and Taliban elements with whom the US and Karzai have been attempting to negotiate a peace deal.

The prisoner deal capped a violent week . An Afghan teacher brought in to teach basic reading and writing to Afghan security forces, along with two Afghan soldiers, turned guns on American soldiers today, killing two, NATO officials said. Days later, a U.S. soldier walked off his base in Afghanistan and opened fire on local villagers Sunday, Afghan and U.S. officials said, killing 16 people.

The weekend killings come on the heels of the accidental burning of Qurans at a U.S. military base. The action sparked a wave of violent protests that left scores of Afghans and six Americans dead.

During a phone call of apology from President Obama to Karzai, the Afghan president is quoted as having told the president he doesn’t trust the Americans.

Meanwhile, US public enthusiasm for the war is reaching new lows. A sizable majority of Americans are telling polling organizations they don’t think the war was worth fighting.

Obama has announced a time-table in which all US and NATO troops will be out of Afghanistan by 2014. Other senior administration officials have suggested the pullout might come earlier than that.

Most human rights organizations and prisoner advocacy groups take the view that the Afghan Government does not possess the professional and technical resources, much less the discipline, to supervise a prison housing more than 3,000 people.

In fact, Human Rights Watch (HRW) believes that "greater police involvement in jails is likely to lead to more torture, not less." This is the view of HRW's Asia Director, Brad Adams.

Despite Karzai's insistence on the transfer of all prisoners to Afghan control, "Criminal justice in Afghanistan will not be improved by giving the police free rein of the prisons," said Adams.

"The snail's pace of human rights improvement over the past year heightens anxieties about Afghanistan's future," Adams said. "Basic rights are still not a reality for most Afghans. The country suffers from abuses without accountability, lack of rule of law, poor governance, laws and policies that harm women, attacks on civilians, and corruption."

"Under-resourced and poorly trained Afghan Police units frequently rely on abusive law enforcement methods. Giving police greater control over prisoners -in particular pretrial detainees - increases the risk of torture and cruel, inhuman, or degrading treatment as they try to obtain confessions and other information from suspects," he asserted.

Alabama Justice: The Case of Thomas Arthur

By William Fisher

Unless Governor Robert Bentley has some amazing epiphany in the next
three weeks, the Great State of Alabama will execute a prisoner who in all likelihood is innocent of a murder that took place 30 years ago.

And if you're in the mood for sleepless turning and tossing in bed until then, account of this case written by Andrew Cogen in the Atlantic, It is about Alabama Justice at its very worst!

This is the case of Thomas Arthur, who was convicted of the 1982 murder of one Troy Wicker, despite the confession of Bobby Ray Gilbert as the killer.

Arthur has always maintained his innocence, but now the State of Alabama
is denying him access to never-before-examined DNA on an item recovered
from the crime scene that could identify who was actually involved in the
crime. Arthur's attorneys have agreed to pay for the DNA testing.

The Arthur case was never a slam-dunk. There was no physical evidence
that linked Arthur to the murder, and his sentence was secured almost
entirely by the testimony of the victim's wife, Judy Wicker.

At first, Wicker told the authorities that Arthur was not involved in the
crime, but when she was convicted for hiring someone to murder her
husband, she arranged a deal with the prosecution.

In exchange for a recommendation of early release from prison, she changed her original testimony and implicated Arthur. Since then, Gilbert has testified under oath to the murder. Gilbert said he had an affair with Wicker and soon agreed to kill her husband.State courts, however, have ruled that Gilbert's confession was not credible, and have opposed DNA testing.

Thomas Arthur has sat on Alabama's death row for over 25 years. He has
been scheduled for execution four times. Hair and finger prints found at the crime scene did not match his. No physical evidence linked him to the
murder. No murder weapon was ever found. Eyewitnesses said he was 75
miles away when the murder was committed. DNA testing of the crime
scene in 2009 came back negative for Thomas Arthur. Thomas Arthur's
DNA was not present on any of the crime scene evidence.

The state's key witness, the victim's wife, Judy Wicker (Mary Turner now)
was convicted of murdering her husband for $90,000.00 of insurance money.
She was given a life sentence. In her first seven sworn statements while
under oath, Judy Wicker testified Thomas Arthur had nothing to do with the murder.

Judy and her sister Theresa were both found at the crime scene with blood
on their clothes. Neither woman was tested for GSR (Gun Shot Residue) to
see if they had fired a weapon. The bloody clothes have never been DNA- tested to see if Troy Wicker's blood was on them.

After serving 10 years in prison Judy Wicker was released from prison in
exchange for a new testimony to say Thomas Arthur killed her husband. She
also changed her testimony to say it was Thomas Arthur that beat her up and killed her husband.

In the original interviews, Judy Wicker now stated Thomas Arthur had sex
with her after killing her husband. This version changed after the interviews and police never charged Thomas Arthur with rape. Originally Judy had said a black man beat her up and raped her. Judy Wicker's statements disappeared from the records along with much of the physical evidence including the rape kit.

Arthur's defense is in the hands of the Innocence Project, which reports that there have been 289 post-conviction exonerations in the US, 17 of which involved the freeing of prisoners on death row.

The Innocence Project says, "After years of denying DNA testing to Thomas
Arthur, who faces execution for a murder he says he didn't commit, Alabama's Attorney General now claims that the evidence in the case is
missing. Last week the Innocence Project wrote a letter to Gov. Bob Riley calling on him to intervene with a thorough search and inventory of all the agencies that may have been in possession of the evidence at some time."

The Innocence Project maintains that the state Attorney General's office has not conducted a thorough search for evidence in Arthur's case. In an
affidavit filed several weeks ago, the Attorney General's office said it started looking for the evidence just six months ago – even though Arthur first requested DNA testing six years ago. The Attorney General's office made a couple of phone calls to ask agencies if they had the evidence, then deemed it "missing" based on those phone calls.

The Innocence Project charges that "Investigators ignored key evidence and did not disclose key evidence that could of proven Thomas Arthur's
innocence. This conviction was based on very weak circumstantial evidence
and the key witness is a convicted murderer and has committed perjury."

They point out that Thomas Arthur has never had his first habeas corpus
review. His most recent execution, scheduled for July 31, 2008, was stayed by the Alabama Supreme Court after the stay had already been denied by the Alabama Supreme Court. Another man, Bobby Ray Gilbert, said that he committed the murder.
The July 31st, 2008 execution was stayed based on the Gilbert confession. A hearing was scheduled for April 15th, 2009 in Jefferson County Circuit
Court before Judge Theresa Pulliam. After hearing testimony from Gilbert
and several others, Judge Pulliam ordered DNA testing on three pieces of
physical evidence that were collected at the crime scene in 1982.

The three pieces of evidence were clothing worn by the victim's wife, Judy Wicker, a wig prosecutors and Judy Wicker said Thomas Arthur wore before, during and after the murder, and a single strand of hair found at the crime scene on Judy Wicker's shoe. Other key pieces of physical
evidence were not available for testing, including a rape kit, because the State had lost them. On July 10th, 2009, DNA test results were turned over to Judge Pulliam.

Judge Pulliam "sealed" the test results and prevented the defense from
disclosing results.

On August 10, 2009, Judge Pulliam ruled Bobby Ray Gilbert lied and that
DNA test results proved he was not at the crime scene and could not have
committed the murder. She also ruled Thomas Arthur perpetrated fraud against the court and provided Bobby Ray Gilbert with information to aid in his confession. There was no evidence to prove Thomas Arthur provided
information to Bobby Ray Gilbert.

However, The Innocence Project takes another view. "Lets assume he did
provide information to Gilbert. What would this prove? It would prove
Thomas Arthur was attempting to prove his innocence in the only way he
could, to have the DNA tested. The courts would not allow him to test the
DNA evidence simply because of his claims of innocence."

The United States Supreme Court has ruled DNA testing to prove your
innocence is not a constitutional right.

The most crucial piece of evidence, the wig worn by the killer could not be DNA tested by Alabama's Forensic Department because they lacked the
advanced equipment needed for the test. Arthur requested that a more
advanced lab at the defense's expense test the wig. Pulliam denied the
request.

Says the Innocence Project: "Additional DNA evidence that includes blood,
hair and semen was recovered and still exists, but it has never been DNA
tested. Yet the State of Alabama not only refuses to DNA test the crime
scene evidence -- but it is also refusing to allow Arthur to have the evidence DNA tested at his own expense."

The group adds: "It makes one wonder, if DNA test results prove one man
was not at the crime scene and is lying about committing this murder, then how is it possible those same DNA test results cannot confirm Thomas
Arthur was not at the crime scene? How can the same DNA test results say
one man was not there and then say the other man was there? DNA test
results were the same for both men: Negative."

It is unacceptable that the state of Alabama is prepared to put a potentially innocent man to death rather than let him conduct a simple test that could prove his innocence.

In a case such as this, where the state is seeking to put to death one of its citizens, it is of the utmost importance that there be no lingering doubt as to the guilt of the convicted. In Thomas Arthur's case, however, there is evidence that he may be innocent. It is unacceptable that the state of Alabama would set an execution date and refuse to allow DNA testing that could definitively answer these lingering questions.

There have been 289 post-conviction DNA exonerations in United States
history. These stories are becoming more familiar as more innocent people
gain their freedom through post-conviction testing. They are not proof,
however, that our system is righting itself.

The common themes that run through these cases — from global problems
like poverty and racial issues to criminal justice issues like eyewitness
misidentification, invalid or improper forensic science, overzealous police and prosecutors and inept defense counsel — cannot be ignored and
continue to plague our criminal justice system.

•Seventeen people had been sentenced to death before DNA proved their
innocence and led to their release.

•The average sentence served by DNA exonerees has been 13 years.

•About 70 percent of those exonerated by DNA testing are members of
minority groups.

•In almost 40 percent of DNA exoneration cases, the actual perpetrator has been identified by DNA testing.

•Exonerations have been won in 35 states and Washington, D.C.

Whether Thomas Arthur will be added to these stats remains to be seen.

Sending Americans into Exile – the Obama Way!

By William Fisher


You’re going on a business trip abroad. Or a vacation. Or you’re returning to the country of your parents’ birth to visit family there. You check in at the airport, go through security, and find your seat in the plane. Now the engines are at full throttle, you’re rolling, and in seconds, you’re airborne. What you don’t know is that, if your government gets its way, you’ll never be airborne again headed for the US. Even though you are a native-born US citizen or a permanent resident with a green card. Because the moment your flight was wheels up, your name was added to the dreaded No Fly List. But you don’t know any of this. You’re just sitting there, enjoying your flight, blissfully unaware that someone’s put a target on your back. Will you ever know you’ve been put on the no-fly list? Yes. When? When you attempt to board your flight back to the US. You will not be allowed to board. Instead you’ll be taken to a room somewhere in the airport, where you’ll be questioned by officers you’ve never seen before. And questioned. And questioned. And questioned. They think you’re a terrorist. And they want to know all about you, your terrorist associates, what your plans are, who you saw overseas, the whole nine yards. This goes on for days. You’re exhausted. Your family has no idea where you are. They’re frantically phoning anyone they think might have some information, including the FBI, the CIA, the NSA, and so forth. And, of course, their lawyers, if they have lawyers. So far, your gracious “hosts” haven’t asked you if you even want a lawyer, and they are not likely to do so. Every evening your hosts let you go – where can you go? -- to the American Embassy or Consulate, where you talk to anyone who will listen and try to find out why you’re stuck in this nightmare. This can go on for weeks or for a month or more. Finally, you manage to reach out to an organization like the American Civil Liberties Union. You tell your story. But they’ve heard it all before – from people in precisely the same predicament as you are in. They’ve learned how to navigate these rocky shoals of counter-terrorism. After what seems an absolutely endless delay, you are unceremoniously put on a plane headed for the US. You have not been found guilty of anything. You have not been exonerated of any crime. You are exactly the same person you were when this awful journey began – except that you are now on the no-fly list and you’re mad as hell. Why did this happen to you? You’ll have to tell me. Because our Government certainly isn’t going to. They won’t even confirm that you are on a no-fly list, or any list, much less why. Now the ACLU represents 15 US citizens and permanent residents who have received this kind of inhumane treatment. Most of these folks didn’t know one another. Today they are bonded by the Keystone Kops antics of our counter-terrorism programs. And bonded even more tightly by the adventure on which they are about to embark. Ten of them are suing the U.S. government. With the help of the ACLU, they have filed a first-of-its-kind lawsuit on behalf of 10 U.S. citizens and lawful residents who are prohibited from flying to or from the United States or over U.S. airspace because they are on the government's "No Fly List." None of the individuals in the lawsuit, including a disabled U.S. Marine Corps veteran stranded in Egypt and a U.S. Army veteran stuck in Colombia, have been told why they are on the list or given a chance to clear their names. "More and more Americans who have done nothing wrong find themselves unable to fly, and in some cases unable to return to the U.S., without any explanation whatsoever from the government," said Ben Wizner, staff attorney with the ACLU National Security Project. "A secret list that deprives people of the right to fly and places them into effective exile without any opportunity to object is both un-American and unconstitutional." The ACLU, along with its affiliates in Oregon, Southern California, Northern California and New Mexico, filed the lawsuit against the U.S. Department of Justice, the FBI and the Terrorist Screening Center in U.S. District Court for the District of Oregon. According to the ACLU's legal complaint, thousands of people have been added to the "No Fly List" and barred from commercial air travel without any opportunity to learn about or refute the basis for their inclusion on the list. The result is a vast and growing list of individuals who, on the basis of error or innuendo, have been deemed too dangerous to fly but who are too harmless to arrest. "Without a reasonable way for people to challenge their inclusion on the list, there's no way to keep innocent people off it," said Nusrat Choudhury, a staff attorney with the ACLU National Security Project. "The government's decision to prevent people from flying without giving them a chance to defend themselves has a huge impact on people's lives – including their ability to perform their jobs, see their families and, in the case of U.S. citizens, to return home to the United States from abroad." She added: “The infuriating thing about this whole episode is that when each one of them tried to correct the problem through the existing redress system, the government refused to tell them why they were put on the No Fly List and to provide them a reasonable chance to defend themselves. Denying people such fundamental rights in complete secrecy and without due process is unconstitutional.” So for all you travelers: Next time you’re planning a trip, pray you’ll be able to return to ‘the land of the free’. And don’t forget to take your Frequent Interrogation card with you. This article was originally published on the website of Prism Magazine.

FOIA: Honored in the Breach!

By William Fisher Remember those heady days in January 2009? Obama’s first week as President. We Dems were so disgusted with eight years of George Bush’s “secret governance” that we were ready to believe that anything the Obama Administration did could only be a major improvement. I remember being particularly joyous that one of our new President’s first-day-in-office pledges was to fulfill his campaign promise to lead the “most transparent administration in history.” He said: “My Administration is committed to creating an unprecedented level of openness in Government.” While laying out principles he wished to see his agencies adopt in the proceeding months, he ordered federal officials to err on the side of openness. The President wrote that FOIA should be “administered with a clear presumption: In the face of doubt, openness prevails.” That was to be the default position. Following through on the President’s memorandum, Obama’s new attorney general, Eric Holder, issued a directive to emphasize the importance of the FOIA law’s purpose and “to ensure that it is realized in practice.” Holder ordered that unless there was a compelling state interest in secrecy, our citizenry was entitled to know what their government was up to. It was to be a real change in mind set. The public was not the enemy! Like millions of others, I expected full disclosure of Bush’s secret wiretapping, torture of prisoners, the CIA’S secret prisons and its destruction of interrogation videotapes. I also expected an end to the use of the “state secrets privilege” as a way of keeping embarrassing cases out of court. Well, all I can say is that I, having worked in the Kennedy Administration, should have known better. A lot better. I should have known that many government employees seem to have a predilection for secrecy. Maybe it comes from Bacon’s dictum that “knowledge is power.” Or maybe they think it’s just safer not to call attention to oneself. Whatever the reasons, I sure wasn’t ready for what came next. Since Obama’s historic first day in office, numerous studies and surveys have been carried out by researchers in and out of government. The most recentof these has been published by TRAC – the Transactional Records Access Clearing House, a research unit at Syracuse University. Its findings are not pretty. The Attorney General’s memorandum said the Department of Justice would “defend a denial of a FOIA request only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law.” The FOIA law has been amended many times and it appears that most of the amendments have tilted toward finding more and more reasons NOT to disclose. Even a partial list of exclusions presents information seekers with a formidable task. The TRAC research considered whether or not a key component of that March 2009 directive which set forth new “defensive standards” for FOIA litigation has been obeyed. Yet here are two shockers: TRAC says available evidence indicates that no affirmative steps needed to implement the new defensive standards were ever taken. Further, there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding. In short, the new defensive standards seem to have become simply empty words on paper. Furthermore, TRAC and many others charge that, after three years, the Freedom of Information Act – the basic building block of government transparency -- is still in shackles. According to Trevor Timm of the Electronic Frontier Foundation (EFF), the Obama Administration “has been just as secretive—if not more so—than his predecessors, and the Freedom of Information Act (FOIA) has become the prime example of his administration’s lack of progress.” Similarly, TRAC found little evidence that these new standards are actually being followed. In fact, some individuals interviewed by TRAC expressed the opinion that Justice Department attorneys had become even more aggressive in defending anything that federal agencies chose to withhold. Under the Freedom of Information Act, if an agency does not provide records requested under FOIA, the requestor can file an action in federal court seeking a court order to compel their disclosure. When an agency’s withholding is challenged in court, attorneys from the Justice Department are typically called upon to defend the agency’s action. Therefore the standards used by these attorneys in determining which withholding actions will be defended, and which will not, send a powerful signal to federal agency officials and FOIA staff on the extent to which the agency will have a free hand in withholding government records. In addition, whatever the ultimate decision of the courts, the sclerotic pace of federal litigation means that the decision to defend an agency’s withholding effectively postpones the need to turn over documents to the public for many years. Thus, agencies can use this tactic to effectively delay access to sought-after records until public interest in their contents dies down. And delay they have. In 1997, a request was made by The New York Times under the FOIA. It received a response in 2012. The response was sent by Federal Express, Priority Overnight. The National Archives and Records Administration says its oldest request is from September 1992, asking for information from the White House Office of Science and Technology about nuclear weapons safeguards, testing and disarmament negotiations. The documents requested are from 1961. Another request from 1992 is for State Department documents relating to nuclear weapons accidents in 1958 through 1960. A third asked, in 1993, for documents dating to the American occupation of Italy after World War II, specifically about the Sicilian Mafia. The National Security Archive, a non-governmental non-profit group based in Washington that is a heavy user of the Freedom of Information Act, reported last July 4, on the 45th anniversary of President Lyndon B. Johnson’s signing of the law, on some older cases that were still open. Those included a 1995 request for information on Pakistani surface-to-air missiles and a 1998 request to the George Bush Presidential Library for documents relating to the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The bombing happened in 1988. The AP's review of annual Freedom of Information Act reports filed by 17 major agencies found that the administration's use of nearly every one of the law's nine exemptions to withhold information from the public increased during fiscal year 2009. And just this year, in a FOIA case that TRAC filed, and that is now before the Second Circuit Court of Appeals, the Justice Department attorney argued that the government was entitled to withhold the names of many political appointees on government employment rolls — extending even to withholding the name of the head of a federal agency — even though names of federal employees had been a matter of public record since 1816. In that same case, the DOJ attorney also argued that data compiled for statistical purposes containing the county or city where federal workers were located was exempt from disclosure on privacy grounds, whether or not it was possible to associate the data with any identifiable individual. The White House described Obama’s directive as "historic," but the Office of Management and Budget still has not responded to the AP's request under the Freedom of Information Act to review internal e-mails and other documents related to that effort. For example, the Federal Aviation Administration cited the “deliberative process exemption “ --- one of the most frequently used exclusions -- in refusing the AP's request for internal memos on its decisions about data showing collisions between airplanes and birds. The FAA initially tried to withhold the bird-strike database from the public, but later released it under pressure. It is ironic that the “deliberative process exemption” -- which allows the government to withhold documents dealing with its internal decision making process -- is one that Obama explicitly told the agencies not to use. Yet in Obama’s first year in office, the use of the “deliberative process exemption” rose from 47,395 times in 2008 to 70,779 times in 2009. This was the exemption claimed by the Federal Aviation Administration (FAA) to withhold nearly all records about its approval for Air Force One to fly over New York City for publicity shots – a flight that prompted fears in the city of a Sept. 11-style attack. It also withheld internal communications during the aftermath of the public relations gaffe. Other exemptions cover information on national defense and foreign relations, internal agency rules and practices, trade secrets, personal privacy, law enforcement proceedings, supervision of financial institutions and geological information on wells. One, known as Exemption 3, covers dozens of types of information that Congress shielded from disclosure when passing other laws. In provisions often vaguely worded and buried deep in legislation, Congress has granted an array of special protection over the years: information related to grand jury investigations, additives in cigarettes, juvenile arrest records, the identities of people applying restricted-use pesticides to their crops, and the locations of historically significant caves. All can be legally withheld from the public. The federal government cited Exemption 3 protections to withhold information at least 14,442 times in the last budget year, compared with at least 13,599 in the previous one. Journalists have been among the most consistent users of FOIA requests. But the obstacles, and the time, money and people-power needed to surmount them, have shown signs of discouraging this constituency. Trevor Timm of the EFF reports that the Associated Press looked at the administration’s commitment to transparency in 2010 and concluded Obama was using FOIA exemptions to withhold information from requesters more than Bush did in his final year, despite receiving fewer overall requests. Worse, more than a year after Obama and Holder’s memos, a National Security Archive study found “less than one-third of the 90 federal agencies that process such FOIA requests have made significant changes in their procedures.” Even FOIA requests on transparency were held up: An Associated Press study concluded that the bottom line was that, one year into its promise of greater government transparency, the Obama administration was more often citing exceptions to the nation's open records law to withhold federal records even as the number of requests for information declined. Obama's directive appears to have been widely ignored.Major agencies cited the “deliberative” exemption at least 70,779 times during the 2009 budget year, up from 47,395 times during President George W. Bush's final full budget year, according to annual reports filed by federal agencies. Obama was president for nine months in the 2009 period. One of the frustrating realities about the FOIA process is the enormous backlog of requests government agencies have to contend with, which means many months or years could pass before a request is finally processed and a response received.. Court calendars jam-packed with FOIA cases are also having the effect of putting civil trials on hold, sometimes for years. Much of the Obama administration's early effort seems to have been aimed at clearing out this backlog of old cases: The number of requests still waiting past deadlines spelled out in the open-records law fell from 124,019 in budget year 2008 to 67,764 at the end of the most recent budget year. There is no way to tell whether people whose cases were closed ultimately received the information they sought. The agencies cited exemptions at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Over the same period, the number of information requests declined by about 11 percent, from 493,610 requests in fiscal 2008 to 444,924 in 2009. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request. The administration has stalled even over records about its own efforts to be more transparent. The AP is still waiting – after months – for records it requested about the White House's "Open Government Directive," rules it issued in December directing every agency to take immediate, specific steps to open their operations up to the public. The chairman of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., was so concerned about what he called "exemption creep" that last year he successfully pressed for a new law that requires exemptions to be "clear and unambiguous." Recently, Attorney General Eric Holder said the government is making progress. In a speech at the start of Sunshine Week, when news organizations promote open government and freedom of information, Holder noted that the Justice Department turned over all documents in information requests in more than 1,000 more cases than it had the previous year. "Put simply, I asked that we make openness the default, not the exception," Holder said. "I'm pleased to report that the disturbing 2008 trend – a reduction in this department's rate of disclosures – has been completely reversed. While we aren't where we need to be just yet, we're certainly on the right path." Scott Hodes, an attorney in private practice who specializes in FOIA litigation, was asked whether there was an effort to change, Hodes was blunt, saying that he believes DOJ attorneys handling FOIA cases don’t consider the documents at the center of a FOIA denial case, and maintain a policy of always defending the cases. “They will still pretty much defend a ham sandwich in a FOIA exemption case,” Hodes told TRAC. The reason for this, Hodes said, was because there was no backing for a change from higher up in the agency that provided the support or infrastructure for attorneys handling cases to decide not to defend a case. “I think the important thing is that there has been no training, specifically for FOIA litigators. There’s no guidelines — there isn’t even discussion of when they should release something. Quite frankly, they’re not serious about it.” If Hodes has found no change, and instead a stolid insistence on defending cases no matter what, others have seen the opposite — an increased aggressiveness in defending cases. Jason Aldrich, a staff attorney at Judicial Watch who worked on two lawsuits that were examined by TRAC to see if they were affected by the new policy (neither were), said that in 12 years of litigating FOIA-related cases, extending back to the Clinton administration, he has seen no signs that DOJ attorneys are less likely to defend a case. “I’m not really seeing any additional openness or willingness to exercise discretion, if anything people are just hunkering down, especially anything that looks like it might be remotely political,” he told TRAC. The AP's review of annual Freedom of Information Act reports filed by 17 major agencies found that the administration's use of nearly every one of the law's nine exemptions to withhold information from the public increased during fiscal year 2009, which ended last October. The agencies cited exemptions at least 466,872 times in budget year 2009, compared with 312,683 times the previous year, the review found. Over the same period, the number of information requests declined by about 11 percent, from 493,610 requests in fiscal 2008 to 444,924 in 2009. Agencies often cite more than one exemption when withholding part or all of the material sought in an open-records request. Proponents of “smaller, leaner government” contend that there are simply to many people involved in the FOIA process. But others contend that fewer hands would only make the delays longer. It was back in 1966 that Lyndon Johnson signed the Freedom of Information Act into law, driven by the indefatigable Bill Moyers, his press secretary. Unlike Johnson’s much-publicized signing of the Civil Rights Bill, Wikipedia tells us that he had such mixed feelings about the FOIA legislation that he refused to hold any kind of ceremony that would attract the media's attention. His fear was that opening the government's files to the masses might result in the accidental or intentional revelation of national secrets. Seven years later, Rosemary Woods, President Nixon’s secretary, was reviewing a key Watergate tape, and erased 18.5 minutes of conversation. Wags in Washington, DC, bestowed on her a “virtual” award for Worst Open Government Performance. The “honor” became an annual capitol chuckle. The winner in 2011 was – wait for it – the US Departmentof Justice.

Federal Prison Sentences Not Uniform

By William Fisher

New research reveals that typical prison sentences handed down by Federal judges for drugs, white collar and other kinds of crimes from 2007 to 2011 can vary widely from sentences meted out by other judges for similar cases in the same district.

Based on an analysis of more than 370,000 cases completed in the nation's federal courts during the last five years, this finding “raises questions about the extent to which federal sentences are influenced by the particular judge who was assigned to decide it rather than just the specific facts and circumstances of that case.”

This first-of-its-kind, judge-by-judge review was carried out by the Transactional Records Access Clearinghouse (TRAC) of Syracuse University and is based on hundreds of thousands of records obtained under the Freedom of Information Act as a result of a series of lawsuits against the Justice Department.

This has been combined with information obtained directly from the federal courts. Together, these data indicate that long-term efforts to improve the consistency of the federal sentences through the adoption of complex sentencing guidelines have not been entirely successful in curtailing large judge-to-judge differences in sentencing practices.

TRAC’S purpose, it said, is to improve the fairness and effectiveness of the courts’ functioning. “With this thought in mind, TRAC has collected hundreds of thousands of required records, analyzed them in a new way and developed a sophisticated online system so that judges, law schools, scholars, public interest groups, Congress and others can easily access them and be better informed about the best ways to achieve the broad goal of improving the federal courts.”

TRAC said,” A key requirement for achieving justice is that the judges in a court system have sufficient discretion to consider the totality of circumstances in deciding that a sentence in a specific case is ‘just’. No set of rules, including the federal sentencing guidelines, can substitute for this necessary flexibility.”

But, TRAC added, “A fair court system also requires ‘equal justice’ under the law. This means that the average or typical sentences of the judges will not be widely different for similar kinds of cases. So the goal of systematically examining sentences is not to develop a lockstep sentencing system. Rather, the goal is to provide both the courts and the public with accurate information so that they can examine whether justice is being achieved.”

Here are a few examples of disparate sentences provided by TRAC involving drug convictions:

In the Northern District of Texas, which includes Dallas and Fort Worth, the median or typical sentence for each district court judge for drug cases for the past five years was calculated. (If a judge had a median or typical sentence of ten, half of her sentences would be below that number, half above.)

Eight judges who had each handed down at least 40 drug sentences are at the low end of this small group. For these federal judges, the median sentence was 60 months.

At the other extreme, however was another judge whose median sentence was 160 months. Nor did the sentences of the remaining six judges cluster together. In fact their typical sentences were also quite varied. Assuming the drug cases handled by these eight judges were assigned on an approximately random basis, this variation is hard to explain, TRAC says.

In the Eastern District of Virginia, which includes Alexandria, Norfolk and Richmond, there were fifteen judges who had each sentenced at least 40 drug offenders. Here the range in the typical sentences of judges was again very broad. The median sentence for three judges was 120 months, four times that of the median sentence of another judge with 30 months, TRAC says.

TRAC explains that “Part of these differences might be accounted for by differences in the composition of cases assigned judges located in different offices within the district. Alexandria judges had median sentences, which ranged from a low of 30 months to a high of 87 months, while Norfolk judges ranged from 79.5 months to 120 months. Thus, even within each office, the range in median sentences was still large.”

While large district-to-district differences were not uncommon, there were other districts where there was relatively strong agreement in the sentencing practices of the judges.

For example, the Minnesota District Court was one where fairly close agreement among judges on sentencing occurred. The nine district court judges there who had handled at least 40 drug cases clustered closely on their median sentences with a low of 52 and a high of 64 months.

Districts with two or three judges often showed more agreement. However, this wasn't always the case. The District of Columbia federal court, for example, had only three judges who had handled at least 40 drug cases. Here there was one judge with a median of only 27 months and another with a median sentence of 77 months, and the third was 51 months.

Similar patterns of differences in judge-to-judge median sentences were observed in other types of cases, including for white-collar crimes. In the Northern District of Illinois that includes Chicago, for example, the records showed there were a total of eight judges who had sentenced 40 or more defendants on white-collar crime charges from FY 2007 through FY 2011. The median sentence of these eight judges ranged from a low of zero -- that is, at least half of the defendants before that judge received no prison time -- to a high of 39 months.

The basis for TRAC's unique analysis was the case-by-case records that included each sentence imposed by federal district judges on defendants convicted of a federal crime during the past five years, FY 2007 - FY 2011. Excluded were cases handled by magistrate judges or special judges sitting by designation.

“To ensure that we only looked at judges who had sentenced a sufficient volume of individuals to make comparisons meaningful, we excluded judges that during this period had not sentenced at least 50 defendants. This left us with sentencing records on 885 district judges who had sentenced a total of 372,232 defendants over the past five years. The average number of defendants each had sentenced was 420,” TRAC declared.

The researchers developed an interactive tool to examine the record of individual judges, carrying out a detailed comparison of how the average and the median sentences for that judge compared with colleagues sitting on the same court.

“Background information on the judge, such as when she or he had been appointed, and their status as a regular versus senior status judge was noted. This tool also allowed us to check on the composition of the cases handled by each judge compared with those handled in that district, and drill in and do sentencing comparisons on subsets of similar cases — for example, similar types of cases (drugs, white collar, immigration, etc.) or similar lead charges,” TRAC explained.

The TRAC research may represent another step in the journey from a “Judge As King” approach, in which the judge is free to hand down significantly varying sentences for essentially the same crime; to Federal Sentencing requirements, in which the judge has virtually no discretion; to the current system of Federal Sentencing as guidelines only, thus allowing judges to take account of material differences between similar cases.

Though the Federal Sentencing Guidelines were originally styled as mandatory, the Supreme Court's 2005 decision in United States v. Booker found that the Guidelines violated the Sixth Amendment right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory.

In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington (2004), the Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. Above-Guidelines-range sentences are imposed at a rate double that of the rate before Booker.

Last year, the U.S. Sentencing Commission completed a thorough analysis of the application and effects of mandatory minimum sentences. It was the first systematic review of mandatory minimum sentences in 20 years. The Commission said, ”During those two decades the number of mandatory minimum sentences has grown exponentially, and with that growth the number of inmates serving mandatory sentences has ballooned, filling our prisons to bursting.”

Key findings of the report:

In fiscal year 2010, two of every three offenders convicted of an offense carrying a mandatory minimum penalty were drug offenders. Almost half of all drug offenders (48.7%) who were convicted of an offense carrying a mandatory minimum penalty were convicted of an offense carrying a 10-year penalty.

Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by black offenders (31.5%), white offenders (27.4%) and other race offenders (2.7%).

Offenders subject to a mandatory minimum penalty at sentencing received an average sentence of 139 months, compared to an average sentence of 63 months for those offenders who received relief from a mandatory minimum penalty.

The type of drug involved in drug cases significantly impacts the application of mandatory minimum penalties. In fiscal year 2010, the highest rate of conviction of such penalties was in methamphetamine cases (83.2%) while the lowest rate for the major drug types was in marijuana cases (44.3%).

The majority of offenders in nearly every function, including low-level secondary and miscellaneous functions, were convicted of an offense carrying a mandatory minimum penalty, although higher-level functions tended to be convicted of such statutes at higher rates.



The Commission’s analysis found that, for every function, the quantity of drugs involved in the offense resulted in a base offense level that included or exceeded the five-year mandatory minimum penalty.

Furthermore, the Commission’s analysis revealed that the quantity of drugs involved in an offense was not closely related to the offender’s function in the offense.

In fiscal year 2010, drug offenders convicted of a statute carrying a mandatory minimum penalty went to trial more than twice (4.5%) as often as drug offenders who were not convicted of an offense carrying a mandatory minimum penalty (1.6%). Furthermore, on average, the longer the mandatory minimum penalty an offender was facing, the less likely the offender was to plead guilty.

The Commission described one finding as particularly disturbing. “Mandatory minimums are justified on the basis that they will help get ‘the big fish’. The commission’s analysis of a 15 percent sample of fiscal year 2009 cases indicates that the mandatory minimum penalties sweep up a lot of minnows, rather than the big fish. Among all drug cases, couriers accounted for 23 percent of the prosecutions with street-level dealers another 17.2 percent, meaning that very small players accounted for over 40 percent of the cases. Going after these small fish was not what Congress intended when it passed mandatory minimum sentences.”

The commission concluded that for a mandatory minimum to be just it must meet these criteria: it should not be excessively severe, it must be narrowly tailored to apply only to those offenders who warrant such punishment, and it must be applied consistently.

The US houses the world’s largest prison population. According to the US Bureau of Justice Statistics (BJS) 2,266,800 adults were incarcerated in US federal and state prisons, and county jails at year-end 2010 — about .7% of adults in the US resident population. Additionally, 4,933,667 adults at year-end 2009 were on probation or on parole. In total, 7,225,800 adults were under correctional supervision (probation, parole, jail, or prison) in 2009 — about 3.1% of adults in the U.S. resident population.

In addition, there were 86,927 juveniles in juvenile detention in 2007.