By Lawrence Davidson
Part I – The Hero Becomes the Hunted
It was back in 2006 that Julian Assange and associates founded the Wikileaks website. Their goal was and is a noble and necessary one. Wikileaks aims at forcing the world’s governments to act with greater transparency, and therefore possibly rule more justly. It was Assange’s opinion that if governments were less able to lie and keep secrets, they would be less prone to break their own and international laws, or at least more likely to adhere to a general rule of decency allegedly shared by their citizenry. This is a truly heroic undertaking. What did Wikileaks do to accomplish this task? It created a web-based non-governmental window on government activity through which it makes public those official lies and secrets. This information is supplied to it by whistle blowers the world over.
Soon Wikileaks was telling the world about “extrajudicial killings in Kenya…toxic waste dumping on the coast of Cote d’Ivoire…material involving large banks…among other documents.” None of this got Assange into great trouble. The simple fact is that the ability of states such as Kenya and the Ivory Coast to reach out and crush an organization like Wikileaks is limited. However, in 2010 the website started publishing massive amounts of U.S. diplomatic and military documents, including damaging information on procedures at the Guantanamo Bay prison camp and a video documenting attacks on civilians in Iraq.
It is at this point that Assange, as the editor-in-chief of Wikileaks, became a criminal in the eyes of the U.S. government. The hero now became the hunted. Republican Representative Peter King of New York, an Islamophobe who unfortunately chairs the House Homeland Security Committee, labeled Wikileaks a “terrorist organization” and said that Assange ought to be “prosecuted under the Espionage Act of 1917.” On the Democratic side of the aisle, Diane Feinstein of California, chair of the Senate Intelligence Committee, claimed that Assange had harmed the national interest and “put innocent lives at risk” and therefore should be prosecuted for espionage. Actually, a good argument can be made that the stupid and corrupt policies of American politicians have done much greater harm to objectively defined national interest, particularly in the Middle East. In addition there is no evidence that any of Wikileaks’ actions have resulted in any loss of “innocent lives.” However, none of this can save Assange.
Part II – Who is the Real Criminal?
One of the serious questions raised by the case of Wikileaks and Julian Assange is just who is a criminal? If an organized crime syndicate commits illegal acts and some outside party reveals its activity, the syndicate might mark the witness for punishment. However, which one is the real criminal? Lots of governments act like organized crime syndicates. If you ask King or Feinstein what they think about the behavior of, say, Russia in Chechnya or China in Tibet, they are likely to describe that behavior as criminal. And, if Assange had just exposed the sins of Russia or China, he would be praised within the halls of Congress.
But what happens when the U.S. government behaves like an organized gang of criminals? After all, a very good case can be made that the leaders of the United States are systematically violating their own constitution with policies like indefinite detention. And the government’s behavior in Viet Nam, as well as in the run-up to the invasion of Iraq (for instance, in the application of draconian sanctions which did take the lives of up to a million innocents) and the actual occupation of that country, all violated more moral precepts than one cares to count. Then there is the practice of torturing suspected, but not actually convicted, terrorists, and the current use of drone attacks which kill more civilians than targeted enemies. Along comes Wikileaks and Assange to bear witness against some of these acts. Washington marks him for punishment. But just who is the real criminal?
It is to the enduring shame of most of the U.S. media that they did not, and still can’t, manage a straight answer to that question. The establishment press has always kept its distance from Assange, asserting that he was not a “real” journalist. This no doubt reflects the attitudes of its basically conservative owners and editors. For instance, the New York Times executive editor, Bill Keller, once called Assange a “smelly, dirty, bombastic…believer in unproven conspiracy theories….” He did this even while his own paper selectively dipped into the 391,832 Pentagon documents Wikileaks had divulged. Even then the information was used in the most innocuous fashion. I think it is fair to say that investigative journalism at a local (city or state) level still goes on in the U.S., but at the national level it has become an increasingly rare phenomenon.
Part III – Popular Disbelief
Though a noble and necessary effort, Assange’s Wikileaks experiment always faced very high odds, particularly in the U.S. This is because its revelations play themselves out within the context of an establishment culture that has long ago turned the great majority of people into subservient true believers. True believers in what? In the essential goodness of their nation as it operates in the world beyond its borders. Therefore, transparency might be acceptable for one’s local political environment where the mayor turns out to be corrupt, but foreign policy is something else again. For Americans in the post 9/11 age, foreign policy boils down to promoting democracy and development on the one hand, and protecting the citizenry from terrorists on the other. Within that frame of reference, it is nearly impossible for Americans to conceive of their national government as purposefully acting like a criminal organization. They just refuse to believe it.
Particularly in the so-called war against terrorism, most Americans see nothing noble or necessary about exposing the government’s clandestine operations. Thus, when Julian Assange points out the criminal behavior of those supposedly defending the nation, most citizens are going to feel indignant and rally around the flag. The messenger is soon the one who is seen as criminal and dangerous because he is undermining national security.
There are no greater adherents to this point of view than the political and military leaders who claim to be defenders of the nation. For them the old Barry Goldwater saying, “extremism in defense of liberty is no vice” excuses all excesses. Wikileaks both challenged and embarrassed them by making their innumerable excesses public. Thus, be they Democrats or Republicans, the so-called champions of homeland security are determined to silence him.
U.S. authorities have latched onto an exaggerated sex scandal in Sweden in which Assange is sought for questioning (though as yet not charged with any crime). They have pressured the Swedes to extradite Assange from his present UK residence when it would be much easier and efficient (as Assange has offered) for Stockholm to send court representatives to England to perform the questioning. So why do it the hard way? Because, once in Sweden, the head of Wikileaks could be given over to the Americans (something the British will not do). Assange will not cooperate in this game. As Glenn Greenwald has pointed out, “as a foreign national accused of harming U.S. national security, he has every reason to want to avoid ending up in the travesty known as the American judicial system.” When he recently lost his UK court battle against extradition, he sought asylum in the embassy of Ecuador, a country whose leaders are sympathetic to Assange’s plight. True to form, American media comment on Assange’s appeal for asylum has been disparaging.
Part IV – Conclusion
Julian Assange is now a hero on the run. And, he is probably going to stay that way for the foreseeable future. Even if he makes it to Ecuador he will need bodyguards to protect him from kidnaping or worse. As one Pentagon spokesman put it, “If doing the right thing is not good enough for [Assange] then we will figure out what other alternatives we have to compel [him] to do the right thing.” And what do America’s leaders regard as the “right thing” in this case? Obviously, keeping silent about Washington’s doing the wrong thing.
That is the nature of our world. Submerged in a culture defined by the educational and informational dictates of our leaders and their interests, many of us can not recognize when we are being lied to or misled. And, if someone tries to tell us what is happening, they sound so odd, so out of place, that we are made anxious and annoyed. So much so that, in the end, we don’t raise a finger when the messenger is hounded into silence.
Lawrence Davidson is a Professor of History at West Chester University, West Chester. His work is posted here with his permission.
Thursday, June 21, 2012
By Marjorie Cohn
The following article originally ppeared in Jurist.
The tragic case of Adnan Farhan Abdul Latif hit a dead end when the US
Supreme Court issued an order refusing to hear his case last week.
Latif, a Yemeni man, has been imprisoned at Guantanamo Bay since
January 2002, after being detained while traveling to seek medical
Latif had suffered serious head injuries as the result of a car
accident in 1994, and the Yemeni government paid for him to receive
treatment in Jordan at that time. But his medical problems persisted,
and in 1999 Yemen's Ministry of Public Health recommended that Latif
undergo tests, therapy and surgical procedures at his own expense.
Unable to afford it, Latif said he left Yemen in 2001 with the help of
a charitable worker to seek free medical treatment in Pakistan. When
he was picked up in Afghanistan — on his way to Pakistan — and
transferred to US custody in December 2001, Latif had his medical
records with him.
After a kangaroo court proceeding, a Combatant Status Review Tribunal
at Guantanamo declared Latif to be an "enemy combatant." He was not
allowed to attend the hearing, nor was he permitted to see the
evidence against him. Instead of a lawyer, he was given a "Personal
Representative" — a military officer who did not represent Latif's
Four years ago, the Supreme Court rejected the Bush administration's
argument that the detainees at Guantanamo had no right to contest the
legality of their confinement in US courts. In Boumediene v. Bush, the
Court upheld the habeas corpus rights of the detainees, saying they
must be given "a meaningful opportunity" to challenge their detention.
Latif petitioned a federal district court for a writ of habeas corpus.
The Obama administration opposed the petition, relying on information
from an interrogation report. Large sections of the report were
blacked out, so it is difficult to know exactly what the report says.
But we do know that, according to the report, Latif admitted to being
recruited for jihad, receiving weapons training from the Taliban and
serving on the front line with other Taliban troops. Latif said his
interrogators garbled his words so that their summary bears no
relation to what he actually said.
In the US District Court for the District of Columbia, Judge Henry
Kennedy granted Latif's habeas petition, concluding that it could not
"credit the information [in the Report] because there is serious
question as to whether the [Report] accurately reflects Latif's words,
the incriminating facts in the [Report] are not corroborated, and
Latif has presented a plausible alternative story to explain his
travel." It troubled Judge Kennedy that, "[n]o other detainee saw
Latif at a training camp or in battle. No other detainee told
interrogators that he fled from Afghanistan to Pakistan, from Tora
Bora or any other location, with Latif. No other type of evidence
links Latif to Al Qaeda, the Taliban, a guest house, or a training
Particularly significant to Judge Kennedy was that the "fundamentals
[of Latif's story] have remained the same." More than a dozen
interrogation summaries and statements contained "[Latif's] adamant
denials of any involvement with al Qaida [sic] or the Taliban; his
serious head injury from a car accident in Yemen; his inability to pay
for the necessary medical treatment; and his expectation and hope that
[the charitable worker] would get him free medical care."
Judge Kennedy also reasoned that errors in the report support "an
inference that poor translation, sloppy note taking . . . [blacked
out] . . . or some combination of those factors resulted in an
incorrect summary of Latif's words." The fact that Latif was found in
possession of his medical papers when seized, according to the judge,
"corroborat[ed]" Latif's "plausible" story.
The government appealed the district court ruling to the conservative
US Court of Appeals for the District of Columbia Circuit, which
reversed the grant of habeas corpus. The appellate court admitted that
the interrogation report was "prepared in stressful and chaotic
conditions, filtered through interpreters, subject to transcription
errors, and heavily redacted [parts blacked out] for national security
purposes." But for the first time, the DC Circuit held that government
reports must be accorded a "presumption of regularity." That means
they will be presumed to be true unless the detainee can rebut that
Judge Janice Rogers Brown, who wrote the opinion for the two judges in
the majority on the three-judge appellate panel, twisted Boumediene's
statement that "innovation" could be used in habeas corpusproceedings
into a "presumption of regularity" in government reports. Judge Brown
criticized "Boumediene's airy suppositions."
The dissenting appellate judge, David S. Tatel, noted that, in
practice, the presumption of regularity will compel courts to
rubber-stamp government detentions because "it suggest[s] that
whatever the government says must be true." He concluded that the
report in Latif's case was inherently unreliable because "it
contain[s] multiple layers of hearsay." Judge Tatel accused the
majority of denying Latif the "meaningful opportunity" to contest the
lawfulness of his detention that Boumediene guarantees.
When seven detainees whose petitions had been denied by the DC
Circuit, including Latif, took their cases to the Supreme Court, they
hoped the high court would do justice. During the Bush administration,
the Court had struck down illegal and unjust executive policies. These
included the denial of habeas corpus rights to Guantanamo detainees,
the refusal to afford due process to US citizens caught in the "war on
terror" and theholding of military commissions because they violated
the Uniform Code of Military Justice and theGeneva Conventions.
But hope for justice died last week when the Court refused to even
consider the propriety of the appellate court's denial of habeas
corpus to those seven detainees. Henceforth, detainees who lose in the
DC Circuit cannot expect the Supreme Court to give them relief. Their
last stop will be at one of the most right-wing circuits in the
country, which overturns or delays all release orders by federal
judges if the government objects.
The Supreme Court's refusal to review the appellate court decisions in
these cases has rendered Boumedienea dead letter. Since 2008,
two-thirds of detainees who have filed habeas corpus petitions have
won at the district court level, yet not one of them has been released
by judicial order. Judge Tatel wrote that "it is hard to see what is
left of the Supreme Court's command in Boumediene that habeas review
Like many men at Guantanamo, Latif went on a hunger strike to assert
the only power he had in the face of utter hopelessness — the power to
refuse food. He was force-fed for three months, which, he says, "is
like having a dagger shoved down your throat." As attorney Marc D.
Falkoff writes in his chapter about Latif inThe United States and
Torture: Interrogation, Incarceration, and Abuse, "[t]he United
Nations Commission on Human Rights calls this torture."
Of the 800 men and boys held at Guantanamo since 2002, 169 remain. Of
those prisoners, 87 have had their release approved by military review
boards established during the Bush administration, and later by the
Guantanamo Review Task Force established by President Obama in 2009.
Yet they continue to languish in the prison camp.
In her opinion, Judge Brown wrote, "Luckily, this is a shrinking
category of cases. The ranks of Guantanamo detainees will not be
replenished." Indeed, Obama has sent only one new prisoner to
Guantanamo. His strategy is to assassinate "suspected militants" or
people present in "suspicious areas" with drones, obviating the
necessity of incarcerating them and dealing with their detention in
court. As Judge Brown ominously observed, "Boumediene's logic is
compelling: take no prisoners. Point taken."
Marjorie Cohn is a Professor of Law at Thomas Jefferson School of Law
and past president of the National Lawyers Guild. She is editor of "The
United States and Torture: Interrogation, Incarceration, and Abuse,"
released earlier this year in paperback by NYU Press.
Wednesday, June 20, 2012
The article below originally appeared in the pages of Prism Magazine.
By William Fisher
The year is 2003. In Saudi Arabia, the semester at the university American-born Ahmed Abu-Ali is attending in Medina is coming to an end. It’s exam time. Soon, he’ll be on a jet headed for his family’s home in Falls Church, Virginia.
But 23-year-old Abu-Ali never makes it to the airport. Or anywhere close. Instead he is arrested by Saudi security services “for questioning,” and imprisoned. And that’s where he would stay for the next twenty months. With no lawyer and no charge against him.
And where, Abu-Ali charges, he was routinely tortured, including the occasion when a “confession” was squeezed from him under extreme duress. It was a “confession” of a conspiracy to organize an Al Qaeda cell in the US, and to use guns or a suicide mission to kill the president of the United States.
At the same time, Abu-Ali’s parents, naturalized US citizens living in Northern Virginia, find themselves crazed by the frustration of effectively having their son “disappeared” – a victim of extraordinary rendition in plain sight -- and being unable to get a coherent story from either the Saudis, who are holding him, or the US, which they strongly suspect is apparently managing his incarceration.
Finally, in August 2004, after the FBI executed a search warrant on their home, Abu-Ali’s parents’ frustration reached a boiling point. They filed a habeas corpus lawsuit in the U.S. District Court of the District of Columbia, seeking a legal justification of Abu-Ali’s detention, and his ultimate release.
The legal team for the habeas action included high-profile constitutional rights scholar, Georgetown University law professor David Cole and other prominent civil rights lawyers, including Morton Sklar.
The government’s position had been that Abu-Ali was too dangerous to be brought to the US. But then it dropped its legal IED. It flew Abu-Ali to the United States. This mooted Judge Bates’s question, as lawyer Cassel put it, “whether the government could proceed upon secret evidence to block his return.”
Now that he was back in the States, it was a stretch to deny that the Abu-Ali’s Saudi detention was not with U.S. consent - indeed, according to attorney David Cole, his return was arguably facilitated at the U.S.'s behest.
It was only Judge Bates's interest in Abu Ali's case that changed the government's mind.
Judge Bates was concerned about the potentially indefinite imprisonment of a U.S. citizen, with the U.S.'s consent, in a foreign prison where due process is ignored and torture is common.
He had reason to be suspicious. Saudi Arabia’s human rights record had long been a disaster. It is generally acknowledged to be the most orthodox and repressive of the Arab regimes in the Middle East. It retains that role, even after the so-called Arab Awakening and the grisly situation in Syria.
The State Department Country Reports on Human Rights Practices for 2003 says Saudi Arabian security forces "tortured detainees" and that "torture and abuse were used to obtain confessions from prisoners." The report also cites " … credible reports that security forces continued to torture and abuse detainees and prisoners, arbitrarily arrest and detain persons, and hold them in incommunicado detention."
But now that Abu Ali was physically in the US, the government had to charge him with something – presumably that would reassure the public that the government was waging the “war on terror” relentlessly and successfully.
Abu-Ali was arraigned on February 22. The Government used Abu-Ali’s Saudi-prison confession, with an FBI agent testifying at the hearing on the bail motion, that Ali had confessed to Saudi officials that “he associated with persons involved with al-Qaeda, received things of value from them, and talked with one or more of them about how to assassinate President Bush, whether by car bomb or shooting.”
The government’s charge of conspiracy also seemed questionable. When the indictment was made available to the public, it raised an even larger question about the entire prosecution. Nowhere in the indictment is Abu-Ali tied to any terrorist event or action. Legal experts asked, “If his only transgression was conversation – speech -- what is the crime? Where’s the beef?”
Plainly, there was not enough evidentiary support for a charge of conspiracy to assassinate President Bush. Conspiracy normally requires an agreement, and an overt act in furtherance of the agreement. Nothing in the indictment suggests that Abu-Ali either agreed to attempt to assassinate Bush, or took any action as a step to doing so.
So, instead, the indictment simply charges Abu-Ali with having "associated" with alleged terrorists. Specifically, it claims that he talked about wanting to kill Bush with these persons, and that he received money from one or more of them -- for what purpose, it is unclear. Abu-Ali’s lawyers also argued that if their client had confessed at all, the confession was obtained under extreme duress – torture – and would have been inadmissible in court.
Justice Department attorneys said US courts lacked jurisdiction over cases involving US citizens in foreign custody. District Judge John D. Bates rejected the notion that "when the United States acts against citizens abroad it can do so free of the Bill of Rights." He ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu-Ali's arrest and detention.
The government’s “position is as striking as it is sweeping," the judge said. He warned that its behavior would allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even "to deliver American citizens to foreign governments to obtain information through the use of torture."
The indictment was later amended to add charges of conspiracy to assassinate the president, conspiracy to hijack aircraft, and conspiracy to destroy aircraft. The indictment alleged that Abu-Ali had joined a terrorist cell in Medina, led by senior al-Qaeda members Ali Al-Faqasi and Zubayr Al-Rimi, and that among the plots they were developing were a plan to assassinate the President of the United States, and a plan to mount 9/11-style attacks using planes transiting through the US.
Pretrial hearings began in the fall of 2005. The government's evidence was focused on the confession Abu-Ali had allegedly made while in Saudi custody. Abu-Ali challenged the admissibility of the confession, claiming: (1) it was involuntary due to alleged torture he had suffered at the hands of the Saudis; and (2) he should have been given certain constitutional protections (including Miranda warnings), because the interrogations were a joint venture between the FBI and Saudi authorities, rather than a purely Saudi interrogation, which would not have been subject to the same scrutiny under the U.S. Constitution.
After an extended pre-trial suppression hearing, in which Abu-Ali himself testified, Judge Gerald Bruce Lee, who presided over the case, ruled that Abu-Ali's confession to Saudi agents was admissible.
Abu-Ali testified that on the first day, his interrogators asked him whether he knew specific people and whether he knew about bombings in Riyadh. At one point, his blindfold was taken off. Abu-Ali said he then saw the bruised face of a man through a window in the door to the room. The man was asked if he knew Abu-Ali, and he shook his head no, then was taken away.
Abu-Ali testified he was not fed this day. He says the Saudis hit him, slapped him, punched him in the stomach, and pulled his beard, ears, and hair. He was not allowed to use the bathroom, even when he asked to wash up for prayers. The next day, the Saudis continued hitting him. At one point, he was taken from the chair in which he was sitting, and his handcuffs were handcuffed to a chain or other handcuffs in the floor, leaving him with his knees to his chest on the ground, hunched over with his head on his fists, and his feet shackled. Then someone began to strike him on the back and to yell, “confess!”
Abu-Ali said it was “very painful” and that it was the “first time I felt extreme pain.” Eventually, Abu-Ali told them he would cooperate. The beating stopped, and he was taken back to his cell.
The jury trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Abu-Ali was sentenced to 30 years in prison for his crime.
On appeal, the United States Court of Appeals for the Fourth Circuit upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines which call for life in prison. Judge Lee re-sentenced Abu-Ali to life in prison.
In the “Supermax” prison in Florence Colorado, Abu-Ali is held in solitary confinement under “Special Administrative Measures” (SAMs).
“My brother has spent the past five years in solitary confinement, under 23-hour lockdown, in a 7x12 cell. He has one recreational hour in which he must get strip-searched if he wishes to leave his cell. He gets one unscheduled telephone call a month to his family, and receives the newspaper by the time news becomes history. If I send him a letter wishing him a happy birthday, he gets it 60 days later. When I visit him, once a year, I speak to him from behind a glass window. He is literally in a dungeon, over 20 meters beneath the ground,” says Mariam Abu-Ali, one of the prisoner’s sisters.
In August 2008, he requested permission to receive two books by Barack Obama, Dreams from My Father and The Audacity of Hope. Under SAMs, permission was denied by prison authorities on the grounds that the books contained material "potentially detrimental to national security."
Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter resulting in perpetual isolation, a form of torture under international law.
Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter “resulting in perpetual isolation, a form of torture under international law. The SAMs limit certain “privileges,” including, but not limited to, correspondence, visits, media interviews and telephone use,” Mariam Abu-Ali adds.
The financial and emotional impact of Abu-Ali’s trial and conviction on his family is different but no less painful. Prism discussed these issues with Mariam Abu-Ali, who is now 23, graduated from Georgetown, studying government and Arabic. She works for a not-for-profit that promotes Muslim values.
“We are not a family with a lot of money, so we were forced to ask for financial support from the community,” she told us.
“But there is so much Islamophobia in the country, and so much fear among American Muslims, that we weren’t able to tap into institutional resources such as Muslim American organizations or even mosques.”
She explained: “By and large most of those who gave money did so as individuals and did so secretly. Muslim organizations always came up with reasons they couldn’t support us.”
“Most people have no idea what it means financially when the government charges you with a crime. You need the best lawyers you can get, and lawyers are not cheap. Once the trial is over, if there is a conviction, you have to deal with prison visits. One of the truly draconian regulations at the Supermax is that there can only be two family visits a year. Each trip per person costs at least $2000. Once the prison authorities cancelled a family visit. Another time, we couldn’t scrape up the money,” she said, adding:
“Regardless of [inmates’] innocence or guilt, it is their right to be treated humanely. If we believe in the inherent dignity of each human being, then we should be outraged by these abuses. Unfortunately, abuse here in the United States rarely receives media attention.”
But the heart of the court’s pushback against the government came in Judge Bates’s eloquent memorandum written during the habeas hearing, before any criminal trial was contemplated. Judge Bates was a George W. Bush nominee to the court.
At one point, Judge Bates asked whether the government could identify “any case in which . . . even the legal theory for dismissal is not known to the other side?’ The government could not.”
He added: “Abu-Ali has been subjected to torture while in the Saudi prison. The United States does not offer any facts in rebuttal.”
He continued, “Abu-Ali was not captured on a battlefield or in a zone of hostilities -- rather, he was arrested in a university classroom while taking an exam.”
“Such principles, however, have never been read to extinguish the fundamental due process rights of a citizen of the United States to freedom from arbitrary detention at the will of the executive, and to access to the courts through the Great Writ of habeas corpus to challenge the legality of that detention.”
“The present posture of this case requires this Court to accept petitioner's well-supported allegations, to which the United States has not responded.”
Whether or not to allow the “confession” into the trial as evidence became moot when Ali was charged by the US with providing material support for a terrorist organization and conspiracy to kill President Bush.
With that, Judge Brady dismissed the Abu-Ali family’s habeas suit, and Ahmed’s trial on the government’s new criminal charges began the next day. The new judge was Gerald Bruce Lee, a Bill Clinton appointee.
The criminal trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Ali was sentenced to 30 years in prison for his crime. While prosecutors had pushed for a life sentence, Judge Lee explained that the (relatively) light sentence was handed down because Abu Ali's actions "did not result in one single actual victim.”
One legal court-watcher was overheard to comment, “With this fear of terror and terrorists, a prosecutor could indict a ham sandwich, without the ham”
Abu-Ali appealed, only to get more bad news. The United States Court of Appeals for the Fourth Circuit not only upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines, which call for life in prison. Judge Lee then re-sentenced Abu-Ali to life in prison.
There are a number of take-aways from the Ali case. One is the complete and pathetic impotence of anyone who finds himself trapped between two sovereign but cooperating states. A second is the emotional and financial catastrophe for the family of the detained or convicted that begins well before a prosecutor is able to produce an indictment. A third corruption of due process occurs when either side indicts un-named conspirators, or introduces them as witnesses in court, without revealing their identity or the content of their testimony.
Finally, the Abu-Ali case may well represent a new twist in that quaint term, “extraordinary rendition.” Abu-Ali was a young man who was diverted from returning to his home in the US, and was instead snatched out of a college classroom during an exam and “rendered” to prison in a country not his home where inmates have a history of being mistreated. That is one of the classic definitions of “extraordinary rendition.”
Moreover, other hallmarks of “extraordinary rendition” also appear to be present: “disappearance,” lack of due process, intermittent or non-existent consular services, and absence of legal counsel.
The only difference here is that most of the parties to this “disappearance” knew exactly where Abu-Ali was most of the time. Those who didn’t know had the greatest need to know: The Abu-Ali family, who would make the arrangements for legal representation and try to ensure civilized treatment for their kin.
Prism discussed this issue with Mariam Abu-Ali.
She told us, “He wasn't buried in a secret CIA black hole prison, but we were not aware of his detention until the FBI raided our home a week later, and after that we had no access to him at all for over a month. So at this time we were not even sure if he was dead or alive.”
She added, “The US government also denied any involvement in his detention, so we did not know of the joint interrogations until much later/ post our lawsuit.”
The US Government lied to Abu-Ali and his family. His trial made clear that the case against him was being executed by the FBI and Saudi Security jointly. But anyone who has a government knows that governments lie. They lie legitimately to protect state secrets or illegitimately to cover-up their previous lies or other embarrassing incidents.
It’s too late to reverse what’s already done. Barring some legal miracle, Abu-Ali will spend the rest of his life in prison under what most experts agree is a cruel case of over-sentencing triggered by the Federal Guidelines the government fashioned to help judges to be judges.
The best that can be done now is for Abu-Ali to seek relief from the unnecessary and uncivilized regimen called SAMs – a regimen that in effect condemns the inmate to a life in solitary confinement. And what we know beyond doubt is the impact of isolation – on inmate health and life itself.
In a month or so, Abu-Ali will be back in Court asking the Justice Department to end the SAMs imposed on Abu-Ali. Let us hope the government lawyers still remember that Justice is half their name.
Tuesday, June 12, 2012
The following article originally appeared in the pages of Prism Magazine.
By William Fisher
There are people like Mitt Romney who say things like fear makes us stronger. They reason that, if we are motivated by fear, say, of the “war on terrorism,” fear may be the emotion that gets us galvanized, but if the result is the strongest military in the world, no one will attack us. Millions of Americans believe this.
But there are many other points of view. Prof. David Cole of the Georgetown Law School reminds us of one of them: Historically, fear has caused the US to restrict civil liberties and abuse human rights during wartime.
It is now more than a decade since the tragic attacks of September 11, 2001. There are many who contend that the dangerous erosion of our freedoms began that awful day and have only accelerated since then.
George W. Bush’s Attorney General, John Ashcroft, began the “war on terrorism” by having the FBI and local law enforcement round up hundreds of “Middle-Eastern-looking” men (many of them not Muslims but Sikhs) and jailing them without charges or access to lawyers or families.
From that point forward, the downward spiral of repression has gathered speed. The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.
On October 26, 2001, President George W. Bush signed the Patriot Act into law. For many Americans – those who are politically aware and politically active – life has never been the same since. America was on its way to becoming a quasi-police state. The Surveillance State!
For millions of other Americans – the uninformed, the uncaring, the ignorant – life-as-usual was often tinged with fear and anger at the inhumanity of the World Trade Center attacks. That fear and anger were fed by our government. It assured that our officials would get everything they demanded in the way of material and human and financial resources to vanquish this new enemy.
Or as linguistics professor George Lakoff puts it, “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”
September 11 and the USA patriot Act began a process that would strip American democratic values to the bare bone, threatening to leave only the shell of a once-great nation.
Many with this point of view believe it will be generations before these basic American values will be restored, if ever.
Scott Horton, lawyer-journalist who writes for Harper’s.com, told Prism, “ Participation in discussions and decision-making about vital national-security issues is a fundamental part of any democracy. Indeed, if the people don't have the right to some say about decisions to go to war or make peace, then no matter what it proclaims their country isn't really much of a democracy.”
He added, “Since 9/11, all aspects of national-security decision making have been progressively enshrouded in secrecy and the public's right to know about them and have some say about what is done have been radically reduced. The extremes this process has reached became clear last spring, when the president committed U.S. forces to extended hostilities in Libya with no public discussion, no Oval Office speech announcing he was doing it, and no consultation with or approval from Congress.”
He concluded, “It established war-making as a unique presidential prerogative--the president would consult his shadowy top-secret-clearance holding national security experts, but no one else really had anything to say about it. This is the most fundamental loss of civil liberties we have seen in the last several decades; it is a subversion of the very essence of our democracy.”
Bruce Fein, one of the country’s outstanding Conservative attorneys and a member of the Reagan Administration, is particularly alarmed about the Obama Administration’s claim to be able to use unmanned drones and other methods to kill America’s enemies, including US citizens, and its support of indefinite detention without charge or trial of allies of Al Qaeda.
He told Prism,”The right to life has been extinguished by President Obama’s unilateral and limitless power to assassinate any person he says is a national security threat. The right to liberty has been extinguished by the President’s NDAA authority to detain for life without accusation or trial any person he decrees is substantially aiding an associated force of Al Qaeda. These time honored rights tracing back to Article 39 of the Magna Charta of 1215 will be restored only when the political culture embraces liberty rather than domination, control, and a futile quest for a risk-free existence as the nation’s signature.”
A similar sentiment was voiced by Prof. Jonathan Hafetz of Seton Hall law school. “One of the most basic freedoms that we have lost since 9/11 is the principle that no person should be imprisoned on suspicion of wrongdoing without being charged and provided a fair trial. The continued practice of indefinite detention and the use of military commissions rather than federal courts to try terrorism suspects has undermined a proud tradition dating back more than 200 years and undermined respect for the rule of law. It was an unnecessary step and one that will come back to haunt us,” he told Prism.
Kevin Johnson, dean of the law school at the University of California, Davis, worries about another by-product of fear: immigration.
He told Prism, “I believe that the post-September 11 ‘war on terror’ had a serious impact on the civil rights of immigrants and certain groups of U.S. citizens. Initially, the U.S. government imposed immigration and other restrictions on Arab and Muslim non-citizens. The concern with ‘terrorism’ morphed into a call for tighter enforcement of the U.S./Mexico border, even though there have been no documented efforts by terrorists to come into the country through the southern border.”
He continued: “The result has been greatly increased border enforcement efforts, record levels of detentions, and record levels of removals of non-citizens from the United States. For fiscal year 2010, the Obama administration deported nearly 400,000 non-citizens, with well over 99% having nothing whatsoever to do with terrorism. Many of them were guilty of relatively minor crimes but were picked up by local police and turned over the federal authorities under programs like Secure Communities. Families have been torn apart as non-citizen parents have been deported and U.S. citizen children have remained in the country (or effectively deported with their parents).”
He adds, “The ‘war on terror’ in transforming the public view of immigration has made comprehensive immigration reform extremely difficult for Congress to pass, which has had negative impacts on Latino and Asian immigrants and their families in the United States.”
Another perspective is offered by Colonel Morris D. Davis, a faculty member at the Howard University School of Law, US Air Force officer and lawyer who was appointed to serve as the third Chief Prosecutor in the Guantanamo military commissions. He resigned from that position and retired from active duty in October 2008.
Col. Davis told Prism, “A real challenge would be to name a liberty that has not been diminished. Think back to before September 11, 2001: extrajudicial assassination of U.S. citizens by order of the President, warrantless wiretapping, indefinite detention without charge or trial, impunity for torture, the use of state secrets and qualified immunity to block an aggrieved party from his or her day in court, a government groping before you can board an airplane, profiling people and infiltrating groups because of religious beliefs; those types of things were unimaginable…or at least they were in America.”
He added, “We went from being the “land of the free and home of the brave” to a nation of the constrained and the cowardly.”
Prof. Peter Shane of the Ohio State and Harvard law schools, put it this way: "What seems to me to have been lost -- or at least severely compromised -- since 9/11 is a sense that government actors who violate civil liberties in the alleged name of national security ought to be held to account. In the wake of FBI and CIA abuses during the Vietnam Era, we had the Church Committee investigation, which not only created a clear historical record of those abuses, but also laid the groundwork for what became the Foreign Intelligence Surveillance Act.”
He concluded: "In the wake of the Bush Administration's seeming disregard for law, we have had no equivalent effort. As a result, we, as Americans, can hardly have an intelligent, democratic debate about whether and how our civil liberties have been compromised and what to do about it. It is our national complacency in the absence of accountability that I find most troubling."
Among the most comprehensive worry-lists comes from Chip Pitts, former head of Amnesty USA and currently a lecturer at Stanford and Oxford.
He spoke to Prism from South Korea. “I believe it’s clear that in response to the increasingly common global issues of growing inequality, persistent poverty, shrinking economic opportunity, evaporating job security, and corrupt money in politics used to buy power, governments around the world have taken exactly the opposite approaches of what they should have.”
He continued: “Instead of listening to and responding to the legitimate tragically taken the opportunity to diminish meaningful rights to peaceful dissent and protest (including by ridiculous “free speech zones” that completely neuter protest and by threats of arrest or imprisonment even for non-violent actions). I’ve now seen this in a number of countries around the world, including here in South Korea as well as the US and in Europe, applied against diverse movements such as Occupy, Los Indignatos, the Russian dissidents, the remnants of the Arab Spring, and now the Canadian students and their allies.”
Sounding a note of caution, he said, “Everyone should be extremely disturbed by this growing tendency of governments, following the US lead, to casually change laws to allow repression, to import weapons from theaters of war abroad for use by police departments and ‘joint task forces at home, and generally to kill or chill dissent by threats and use of force, arrest, application of the ‘terrorist label, and now even indefinite detention and assassination without due process of law.”
Pitts asks, “What will it take to reverse the losses? An even more effective, democratic, cross-coalition, grassroots US and global people’s ‘movement of movements’, powered by privacy and rights-respecting new media social networks which allow individuals and groups to support each other and come together to creatively use the framework of the Universal Declaration of Human Rights to strategize, take common action, and peacefully deploy both classic and new techniques of non-violence that attract ever-greater numbers to the cause of a more sustainable and just, rights-based economy and politics.”
“The movement will be driven mainly by the 99%, but will also include current members of the 1% who prefer peaceful evolution to violent revolution. It will either dramatically transform or more likely sidestep the existing establishment parties, and connect people from diverse countries and perspectives globally who are ready for change – and see the urgent need for change before we have another financial crisis and even more repressive cycles of chaos and repression.”
There are also virtually endless lawsuits by groups who charge the corruption of their rights of citizenship. One of them is Muslim Advocates, which filed an unprecedented lawsuit against the New York Police Department challenging its policy of targeting innocent American Muslims for surveillance based on their faith. It is the first lawsuit by victims of the NYPD's discriminatory spying program.
As documented by the Associated Press, American Muslims were targeted in New York City, as well as in towns, mosques, businesses, and college campuses throughout the northeast, including New Jersey. Records show that the NYPD took copious notes on the details of American Muslims’ daily lives. Examples of the NYPD spying program include photographing an elementary school for girls, eavesdropping on grocery store patrons, and photographing attendees of Friday prayers as well as their license plates.
Author Nick Meyer addressed yet another related issue. He wrote:
“The attorney-client privilege assuring confidentiality between the two parties is one of the most cherished rights of the American law system, but according to internationally recognized lawyer, author and professor Francis A. Boyle of the University of Illinois-Champaign law school, government agents violated that privilege in a jarring summer 2004 visit.
Speaking to The Arab American News, Boyle confirmed to Meyer that he was visited by two agents from a joint FBI-CIA anti-terrorist fusion center located about a 90-minute drive away in Springfield, Ill. in his office in Champaign, who attempted to persuade him to become an informant on his Arab American and American Muslim clients.
Meyer writes that Boyle repeatedly refused their requests to violate his clients' constitutional rights, only to find himself placed on the U.S. Government's terrorist watch list.
Boyle told Prism there are several no-fly lists and he was on all of them. He said he was told he would stay on the watch list forever until the agencies that "put me on there took me off."
The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.
On October 26, 2001: President George W. Bush signed the Patriot Act into law.
In the early days after the attacks, we were constantly reminded that America is not only the land of the free, but also the home of the brave. On the evening of attacks, President Bush addressed the nation, and stated, “Our country is strong. Terrorist acts can shake the foundation of our biggest buildings, but they cannot touch the foundation of America.”
Which caused the American Civil Liberties Union (ACLU) to remark: “We could not have imagined that in the decade to follow, our country would engage in policies that directly defied American values and undermined our Constitution. We lost our way when, instead of addressing the challenge of terrorism consistent with our values, our government chose the path of torture and targeted killing, of Guantánamo and military commissions, of warrantless government spying and the entrenchment of a national surveillance state, all of which now define the post-9/11-era. That is not who we are, or who we want to be.”
Ten years later, our nation still faces the challenge of acting, not out of fear, but out of courage and confidence.
To quote the ACLU again, “The way forward lies in decisively turning our backs on the policies and practices that violate our greatest strength: our Constitution and the commitment it embodies to the rule of law. It is that strength which is the best rejoinder our nation has to violence and to those who advocate it. Liberty and security do not compete in a zero-sum game; our freedoms are the very foundation of our strength and security. Consistent application of the law is what ensures that practices don't change simply because of a change in the White House.”
This does not suggest that we should simply let terrorists – foreign or home-grown – run amok in our country. These miscreants must be caught and held to account. But a smarter stragegy rather than our current kitchen sink approach might enjoy a more substantial level of success.
Our choice is not between safety and freedom; in fact it is our fundamental values that are the very foundation of our strength and security.
Quoting George Lakoff again: “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”