Wednesday, November 28, 2012

Rights Groups Blast Bahrain

By William Fisher
“You can’t say that justice has been done when calling for Bahrain to be a republic gets you a life sentence and the officer who repeatedly fired on an unarmed man at close range only gets seven years.”

-- Judge M. Cherif Bassiouni

These were the harsh and unforgiving words used by the Egyptian judge who headed the commission of inquiry mandated by the King of Bahrain to conduct an investigation and produce a report to identify the causes of and reforms needed to eliminate the violence that has plagued the tiny Gulf nation for the past two years. This is a one-year look-back at what has been accomplished and what has not.

The original BICI report (Bahrain Independent Committee of Inquiry), was funded by, presented to, and accepted by King Hamad bin Isa Al Khalifah himself. It described in pull-no-punches detail the frequent use of excessive force by security forces, the systemic abuse and torture of detainees, mass discrimination and dismissals of workers and students, and grave violations of medical neutrality.

The report “highlighted a culture of impunity prevalent among government officials at all levels, concluding that many abuses could not have happened without the knowledge of higher echelons of the command structure."

The BICI report was welcomed by the international community as a potentially critical step toward resolving the country's escalating political crisis. One of the most common criticisms of the report was that while the documentation of the events of February and March 2011 was extremely thorough, the report's mandate and its 26 recommendations to the Government of Bahrain did not extend far enough to resolve the country's political crisis.

Nonetheless, observers in Bahrain and the international community were hopeful these recommendations – if implemented swiftly, sincerely, and thoroughly – could set the stage for genuine national reconciliation and a process of meaningful political reform.

One year later, as tensions in Bahrain continue to escalate, the Commission says any understanding of the current crisis must include an honest, accurate assessment of the progress in implementation of the BICI recommendations.

Now, one-year-on, Judge Bassiouni and his team have prepared a follow-up report. The essence of what is says: “We have strived to carefully carry out such an assessment, although the task was made considerably more difficult by the lack of transparent, relevant information from Bahraini government officials, as well as the very limited access provided to independent organizations, researchers, and journalists.”

The Commission added, “If the government is making substantially more progress on implementing the BICI recommendations than it appears based on publicly available information, then they must more transparently provide evidence to support such claims and allow access for outside observers to confirm such claims independently.”

A number of other organizations have also weighed in with their own investigations. POMED (Project on Middle East Democracy) found that “the Government of Bahrain has fully implemented only three of the BICI report's 26 recommendations. Two other recommendations were impossible for us to properly evaluate due to a lack of available information, and 15 recommendations have only been partially implemented.”

Finally, POMED’s report continued, “The government has made no meaningful progress toward six of the recommendations, which are precisely the most important steps that need to be taken:

· accountability for officials responsible for torture and severe

· human rights violations

· the release of political prisoners

· prevention of sectarian incitement

· relaxation of censorship

· controls on free expression.

POMED added, “Nearly as troubling as the failure to address key areas has been the unrealistic assessment by the Government of Bahrain of its own progress. Bahraini government officials,

including the Ambassador to the United States, have claimed in public statements to have fully implemented 18 of the 26 recommendations. It is difficult to expect the government to make significant progress on the many unfulfilled recommendations while it maintains that most of those steps have already been completed.”

“Even the full implementation of the BICI recommendations would fall well short of resolving the current political impasse in Bahrain. But such moves are essential to national reconciliation and genuine political reform. Meaningful reform that fully addresses the legitimate democratic aspirations of the Bahraini people remains the only path to lift the country out of its current crisis. As such, it is also the only approach that will stabilize the country and secure Bahrain as an ally of the United States in the long-term,” POMED concluded.

Meanwhile, Bahrain’s well-oiled and highly professional in-country public relations machinery daily cranks out and distributes world-wide a daily dose of “good news” about all the human rights progress Bahrain is making. That effort is buttressed by high profile PR consultants – including the same New York-based firm that represents Bahrain’s close neighbor, Saudi Arabia.

Minister of Justice Khalid bin Ali Al Khalifa has been the King’s point man for comments from such outside groups as POMED’s He has been serving as minister since 2004 and as such, oversaw the ministry during the events of 2011 and provided legal justification for the demolition of mosques, dissolution of civil society organizations, and persecution protesters on dubious charges of "incitement to violence."

The National Commission issued a March 2012 progress report on the implementation of the BICI recommendations. Following that report, the Minister of Justice established a follow-up commission to continue monitoring and coordination. That commission appears to be similarly dominated by figures within the ruling family and the government, casting doubts on its impartiality. It is led by Dana Al Zayani, a former employee of the Crown Prince's Economic Development Board, and Hussein Alam of the Foreign Ministry.

A second report from POMED (the Project on Middle East Democracy claims the government has shown little will to translate its few positive institutional reforms into real accountability and enforcement of new codes of conduct. While the Bahraini Government is using its PR resources to earn credit for substantial progress toward to complete implementation of the BICI recommendations, security services have continued to arrest activists.

The most prominent activist in the country, Abdulhadi Alkhawaja, head of Bahrain’s leading human rights organization, has been jailed for life after surviving a 110-day hunger strike that brought him close to death “The public prosecution has yet to investigate over 300 cases of alleged torture, some involving deaths in custody, and there has been no investigation, let alone prosecution, for command responsibility, even at the immediate supervisory level, of people killed in custody as a result of torture.”

Alkhawaja’s youngest daughter, Maryan, remains out Bahrain, usually in Europe, so she can interact with the world media. His elder daughter, Zainab Al-Khawaja, has been in and out of jail main times since abnd before The Abab Spring. POMED (the Project on Middle East Democracy) says the Interior Ministry has reportedly opened investigations into the conduct of more than one hundred police officers, but the investigations have lacked transparency.

It adds that the government recently put seven police officers on trial for the well-documented torture of medical personnel, but international human rights organizations have highlighted scores of additional examples of police abuses that have not been investigated by the Interior Ministry.

Additionally, POMED suggests there is good reason to question Inspector General al-Ghaith's impartiality and effectiveness. Al-Ghaith served as Inspector-General for the Ministry of Interior before the beginning of protests in 2011, during which time he denied documented human rights abuses. The ongoing human rights abuses, perpetrated by security services with impunity, suggests that the Inspector-General's office is not yet effective.

Since March 2011, the tiny Island nation has assumed an importance out of all proportion to its size. It is oil-rich. It provides a clear path to the open sea. It is the contiguous neighbor of one of America’s staunchest allies in the neighborhood, Saudi Arabia. And it is the home of the US Fifth Fleet, which is both a political and an economic bonanza for Bahrain.

The country is ruled by the Khalifa family, who are Sunni Muslims, A large majority of the rest of Bahrain’s population is Shia. The Shia population claims it is discriminated against in many fields, including, housing, schooling, credit, and justice.

The New York Times writes, “The Obama administration’s Middle East policy has been criticized as inconsistent and sometimes timid. Republicans have blasted President Obama for what they have portrayed as ‘leading from behind’ in Libya. Many Arabs, meanwhile, have questioned why the United States has called for the resignation of Syrian President Bashar al-Assad, after months of violent attacks against anti-government demonstrators, while adopting a more measured tone about government repression in Bahrain, a U.S. ally that hosts the Navy’s 5th Fleet.
In an editorial, the newspaper quotes Secretary of State Clinton saying, “Our choices also reflect other interests in the region with a real impact on Americans’ lives — including our fight against al-Qaeda; defense of our allies; and a secure supply of energy,” Clinton said. “There will be times when not all of our interests align ... that is just reality,” she said.

“That is our challenge in a country like Bahrain,” she said. There, the ruling monarchy has cracked down on Shiite protesters who it says are promoted by Iran.”
The Times goes on to say, “Both she and Obama have reiterated that mass arrests and brute force are at odds with the universal rights of Bahrain’s citizens and will not make legitimate calls for reform go away.”

In neighboring Saudi Arabia, she added, one of the world’s largest oil producers and a key counterterrorism ally, “we have had candid conversations ... about our view that democratic advancement is not just possible but a necessary part of preparing for the future,” she said.
The Shia of Bahrain have found the US position at best tepid and suffused with mixed messages. What Bahrainis want from the US is a full-throated policy supporting the many against the few.

Given the competing equities facing the US, it seems very unlikely the Bahraini majority will get anything close to their wishes any time soon.


This article originally appeared in the pages of Prism Magazine.

Monday, November 26, 2012

Where Is The Outrage?

By William Fisher
You’ve entered the US illegally or you have overstayed your visa. You have a job and a family in America. But you are undocumented and subject to deportation after a hearing before an Immigration Judge.

Now you’ve been arrested by ICE – the Immigration and Customs Enforcement agency, part of the Department of Homeland Security (DHS). Here’s what you can expect:

Roberto Medina-Martinez, a 39-year-old immigrant, died at Stewart detention center in Lumpkin Georgia in March 2009 of a treatable heart infection. An investigation conducted following his death revealed that the nursing staff failed to refer Mr. Medina for timely medical treatment and the facility physician failed to follow internal oversight procedures.

Other avoidable deaths occurred in other facilities, where staff attempted to cover them up.

A man with serious emotional health problems in the Houston Processing Center in Texas was placed in solitary confinement for months at a time, a practice which the UN Special Rapporteur on Torture has deemed torture.

At Baker, Etowah and Pinal County Detention Centers and Jails, in Beverly Hills, California, families are only able to visit with their loved ones in detention through video monitors after having driven hundreds of miles to see them.

In 2011, a 55-year-old Honduran, Jose Aguilar-Espinoza, suffered a heart attack inside Theo Lacy, in Orange County, California.

At the Pinal County Jail complaints regarding sanitation include receiving food on dirty trays, worms found in food, bugs and worms found in the faucets, receiving dirty laundry, and being overcrowded with ten other men in one cell and only one toilet.

You can also expect that you will be shipped to an ICE center far from the place of your arrest, and that the files needed to adjudicate your case will have been sent nowhere or to another erroneous destination. This will delay any court hearing – sometimes for years. In many cases, there is no written record for an Immigration Judge to review. That review suffers from lack of facts plus the frequent difficulty of working in two languages.
Back in 2009, President Obama promised to reform this inhumane system. In his first term, the Obama Administration deported over a million people. Toward the end of that term, the numbers began to decrease some, as ICE followed Obama’s orders to show more compassion.

But the reality on the ground has not changed.

Pedro Guzman, formerly detained at the Stewart Detention Center, shared his firsthand experience: “We were treated like animals-- held in pod with 64 people, no privacy, eating food that was inedible and constant yelling and disrespect from the officers. We rarely had court dates even after they were already scheduled, and they made it impossible to adjust your status in a legal and efficient way. There is absolutely no justice in the detention system.”

U.S. Rep. Jared Polis, a Democrat from Colorado, recently joined the call for justice: “It needn’t take the passage of comprehensive immigration reform for us to work together to reform the immigration detention system and close the most egregious centers

highlighted in these reports. Taxpayers shouldn’t be asked to continue to support this waste of money and resources.”

Conditions at 10 of the worst jails and prisons that house immigrants have gotten so bad, the only option is to begin shutting them down, he said.

Azadeh N. Shahshahani, National Security/Immigrants' Rights Project Director and American Civil Liberties Union Foundation of Georgia and President of National Lawyers Guild, said, “The human rights abuses at the Irwin County Detention Center and the Stewart Detention Center in Georgia in many ways exemplify the problems with using remote, highly restrictive facilities to hold immigrants.”

He added: “The immigration detention system in the United States has grown drastically over the last 15 years and the appalling conditions in the detention centers that house immigrants have reached a tipping point. Today, national and local leaders responded by saying, enough is enough!“

According to Andrea Black, the Executive Director of the Detention Watch Network, “We hope that the Administration will act. ICE claims it has taken steps to reform the detention system, but the people actually in detention are suffering as much as ever. In his second term, the president has the power to bring about change that will uplift immigrants instead of lock them up.”

Among the report’s findings:

“While immigrants suffer under prolonged detention at Polk County and the Houston Processing Center, private prison corporations are getting rich,” said Bob Libal, Executive Director of Grassroots Leadership. “It doesn’t have to be this way. ICE should prioritize release of immigrants in community support programs that are far more humane, less costly, and are effective at ensuring immigrants are able to appear at their hearings.”

Bishop Minerva G. CarcaƱo, Resident Bishop of the Los Angeles Area of the United Methodist Church, said, “The detention of hundreds of thousands of immigrants in this country for profit and political gain is a moral outrage. Detention centers are not the answer to our broken immigration policies.”

The immigration detention system in the United States has grown drastically over the last 15 years and the appalling conditions in the detention centers that house immigrants have reached a tipping point. Today, national and local leaders responded by saying, “enough is enough!”

The Detention Watch Network has released a series of reports titled, “Expose and Close,” to reveal the widespread pattern of mistreatment at ten of the worst immigrant prisons across the country.

Adcovates are calling on President Obama to do what’s right and close these detention centers as well as issued a list of reforms to ensure the safety, dignity and well-being of immigrants held in detention.

According to Andrea Black, Executive Director of the Detention Watch Network, “We hope that the Administration will act. ICE claims it has taken steps to reform the detention system, but the people actually in detention are suffering as much as ever. In his second term, the president has the power to bring about change that will uplift immigrants instead of lock them up.”

The group is demanding the closure of ten jails and prisons across the nation that exemplify some of the most appalling conditions of immigrant detention. These facilities include Etowah County Detention Center (AL), Pinal County Jail (AZ), Houston Processing Center (TX), Polk County Detention Facility (TX), Stewart Detention Center (GA), Irwin County Jail (GA), Hudson County Jail (NJ), Theo Lacy Detention Center (CA), Tri-County Detention Center (IL), and Baker County Jail (FL).

In a related development, a group of ICE (Immigration and Customs Enforcement) agents is going to court, saying new Obama administration directives on removing illegal immigrants could put them in violation of federal law.

Ten ICE agents have filed a lawsuit in federal court in Dallas against Department of Homeland Security Secretary Janet Napolitano and ICE Director John Morton.

The organization NumbersUSA, with it's self-proclaimed stance of "for lower immigration," quickly claimed a stake in the suit, saying on its website that it was "financing the effort" of the agents' suit.
NumbersUSA also emphasized on its site that Kris Kobach, the Republican Kansas secretary of state who worked on Arizona's controversial immigration law and is an informal adviser to presumed Republican presidential nominee Mitt Romney, is representing the suing agents.

The suit cites Obama administration decisions to allow young people brought to the U.S. before the age of 16 who meet certain criteria to apply for a two-year relief period under the so-called Dream Act in which they couldn't be deported.
The complaint also objects to the policy of "prosecutorial discretion," in which ICE agents are supposed to focus their attention on dangerous criminals who are illegal immigrants. In a nutshell, the agents do not want to obey the new policies and do not want to face any disciplinary actions or lawsuits if they continue to arrest any type of immigrant who is in the United States illegally.

"We are federal law enforcement officers who are being ordered to break the law. This directive puts ICE agents and officers in a horrible position," Chris Crane, one of the agents filing suit and the president of the ICE agents and officers union, said, according to a news release posted on the NumbersUSA web site.

Matt Chandler, a spokesman for the Department of Homeland Security, responded, "DHS uses prosecutorial discretion to assist in focusing vigorously on the removal of individuals who are convicted criminals, repeat immigration law violators, and recent border-crossers."

Chandler said the Deferred Action for Childhood Arrivals decision is a temporary measure until Congress takes action on reforming immigration policies and that it "ensures that responsible young people, who are Americans in every way but on paper, have an opportunity to remain in the country and make their fullest contribution."

We Americans are fond of telling each other and the world how zealously we guard the civil rights of people who live in our country peacefully. We are also quick to draw a distinction between immigration detention and imprisonment at Guantanamo.
But in reality, the difference is marginal. The main difference is that, if you’re imprisoned in an immigration detention facility, you might one day get released – back to where you came from.

You rarely read about this dilemma in our newspapers or see it on television. You can’t care about something you know nothing about. And that’s what most of us know. Nothing. ICE has dropped a heavy shroud of secrecy over the issue. In their so-called debates, our presidential candidates rolled their eyes at the ceiling and pretended the subject was not on anyone’s agenda.

We can only hope that in Obama’s second term he will find the courage to put it on his agenda – to stand up to the know-nothings we keep sending to the Congress of the United States.

Saturday, November 24, 2012

Prosecuting the Prosecutor

By William Fisher

Prosecutorial Misconduct. We hear about it so rarely that it often becomes a big media deal, good for a day or more in the 24-hour news cycle.

Well, in three weeks, a Texas Court of Inquiry will be the scene of that kind of big media deal.

The Court will be reviewing allegations of prosecutorial misconduct against former District Attorney Kenneth Anderson. The former prosecutor – since appointed by Gov. Rick Perry to be a County Judge -- will be defending himself against charges that he withheld critical information in a first-degree murder case in Williamson County, near Austin.

The absence of that information caused Michael Morton to serve 25 years in prison for a crime he didn’t commit.

Ken Anderson was the prosecutor in 1987 when Michael Morton was sentenced to life in prison for the slaying of his wife at their home in Williamson County. A year ago, DNA evidence cleared Morton and he was freed. Another man now faces a murder trial in his wife's death.

Back in February, a Texas Judge ruled that there was probable cause to believe that Anderson violated state criminal law by refusing to turn over evidence that contributed to Morton’s wrongful murder conviction.

“As Mr. Morton’s case so painfully illustrates, tragic consequences can result when prosecutors put aside their ethical obligations in their zeal to win convictions, yet far too often their misdeeds go unpunished,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

According to Paul Cates of The Innocence Project, the judge’s ruling came in response to a report submitted by the Innocence Project asking the court to recommend a Court of Inquiry. That body enables a unique Texas legal procedure that can be initiated by a judge, to investigate whether Anderson committed wrongdoing by refusing to turn over to the trial court as ordered evidence pointing to Morton’s innocence. If the judge or a jury sides with the bar, the judge would decide a penalty ranging from public reprimand to disbarment.

Morton always maintained that his wife’s murder was committed by a third party intruder. The Innocence Project conducted depositions with key witnesses and uncovered other evidence showing that Anderson did not turn over the transcript of the victim’s mother telling lead investigator Sgt. Don Wood that Morton’s three-year-old son told her that Morton was not the attacker, a message to Wood dated two days after the murder reporting that what appeared to be the victim’s Visa card was recovered at a store in San Antonio, and a report from a neighbor observing someone staking out the Morton’s house before the murder.

Morton’s defense attorneys suspected all along that the prosecution was in possession of evidence pointing to Morton’s innocence because of the prosecution’s unusual decision not to call its lead investigator Sgt. Don Woods at trial. The defense raised these concerns with the trial judge who ordered Anderson to turn over all of the reports by Woods so that he could conduct a review of the reports. Although Anderson has repeatedly claimed to have no recollection of his prosecution of Morton, Anderson claimed for the first time in his deposition that his understanding of the trial judge’s order was that he turn over only those reports by Woods dealing with Morton’s statements.

This explanation contradicts all other participants’ understanding of the judge’s order and the judge’s own handwritten notes on the pre-trial hearing docket which state: “Court to conduct in camera [in chambers] inspection of report of officer Don Wood in connection with D[efendant’]s Brady motion.”

Evidence suggesting Morton's innocence, including a bloody bandana found near the crime scene, was kept from the defense. DNA testing of the bandana led to Morton's exoneration in 2011, and implicated another man who is also suspected of subsequently murdering another woman. Anderson's successor as D.A., John Bradley, who fought against allowing DNA testing in Morton's case, has said he now believes he was wrong, adding, "We shouldn’t set up barriers to the introduction of new evidence."

According to the bar's lawsuit, Anderson violated professional conduct rules by withholding five items. They include a memo to the sheriff's lead investigator in the case regarding a tip that a check made out to the victim was cashed nine days after she was killed; a phone message to the investigator that the victim's credit card was recovered in San Antonio; and a sheriff's department report from neighbors describing a man parking a van on the street behind the Mortons' home several time before the August 1986 killing.

The bar also alleges he withheld the transcript of a taped interview between the investigator and Morton's mother-in-law; and a condensed transcript of the taped interview.

The taped interview included the victim's mother saying her 3-year-old grandson told her that he witnessed the killing, gave details about it and said his father wasn't home at the time. Morton, who was convicted on circumstantial evidence, maintained he was working when the murder took place and that an intruder was responsible for his wife's death.
"(Anderson) affirmatively told the trial court that he had no evidence favorable to the accused," the lawsuit said. "That statement was false."

Morton was freed last year after DNA testing not available at the time of his trial revealed his wife's blood and DNA from another man on a bloody bandanna found near the Mortons' house around the time of the killing. The DNA tests are not mentioned in the disciplinary petition against Anderson.

Research by the Prosecutorial Oversight coalition illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas.
The coalition includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas; the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.

The research was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year. The group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.

From 2004 to 2008, courts found that prosecutors committed error in 91 cases. Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.” In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction. From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.

The coalition notes that this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal. Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.

Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction. (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed.

Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 8 of the cases, resulting in 7of the reversals. Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).

“As best we can determine, most prosecutors’ offices don’t even have clear internal systems for preventing and reviewing misconduct. But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct,” said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“We don’t accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors,” he said.

Results from this study indicate that of the 65 DNA exoneration cases involving documented appeals and/or civil suits addressing prosecutorial misconduct, 31 (48%) resulted in court findings of error, with 18% of findings leading to reversals (harmful error).

While not a perfect comparison, there has been one large, nationwide study of prosecutorial misconduct. The Center of Public Integrity found that among all 11,452 documented appeals alleging some type of prosecutorial misconduct between 1970 and 2002, 2,012 appeals led to reversals or remanded indictments, indicating harmful error—a rate of 17.6%. This is nearly identical to the rate of harmful error findings of 18 % in the DNA exoneration cases.

Over the past decade, the power of judges has decreased because of sentencing guidelines and other factors, while the power of prosecutors has jumped off the charts. Bar associations have found accusations of prosecutors’ misconduct embarrassing – this is peer review with potentially career-ending authority – and difficult to prove.

But it’s possible that lawyers, at least those in Texas, will see the findings of the Court of Inquiry as a too-long-delayed wake-up call.

Thursday, November 22, 2012

Thanksgiving 2012

By William Fisher

As my kitchen fills with more and more family members and “cooks for a day” on this Thanksgiving, I have slunk away to my little home office because I have been promising to write something about Thanksgiving – and my procrastination time has run out.

Thinking about the several hundred articles I’ve written so far in 2012, they are 95 per cent critical – highly critical, mostly of things our government has done (in my view) badly or not at all.

I have railed against Guantanamo, military commissions and indefinite detention. I have condemned our President for the burgeoning surveillance state we have become. Likewise, his drone “kill list.” I have charged that our policies and facilities for detaining undocumented workers for deportation are needlessly cruel and ineffective. And I keep thinking of how much money we could have saved or spent elsewhere if we had abolished the clueless Transportation Safety Administration (TSA). I have suggested that it’s long past time for Janet Napolitano to leave. I have been embarrassed by Mr. Mitt Romney’s flip-flops, his disgraceful disregard for facts, and his patrician conviction that 47 per cent of our country is worthless.

I have also been saddened by some of the major initiatives President Obama has promised to execute during his second four years. We wish him luck with such issues as climate change and comprehensive immigration reform. But he cannot govern the country without laws, and he is unlikely to get the laws he needs from Paleolithic Republicans who can focus only on the next snarky sound bite.

This list could run to many pages and would still be disgracefully incomplete. You’d be totally justified not wanting to read any more of these un-happy columns. But you get the idea.

This, after all, started out as “The Happy Column.” And it started with a pretty clear vision in my head of what we could give genuine thanks for on this Thanksgiving Day 2012.

At the top of that list is the fact that I’m writing this blogpost – and there hasn’t yet been a knock on the door from the secret police. They may well be hanging on every word I type, but while we still have a Constitution, I’m not getting arrested.

In something like 50 countries around the world, I would now be in custody. I’d be in prison and likely being tortured.

In those countries – and I’m not only talking about failed states like Yemen, Somalia, North Korea, et cetera, but substantial nations, like Israel and Iran, and other mature countries that pass judgments on other nations from the safety of the UN Security Council.

I’d be in the same degree of hot water if I participated in a mass protest, regardless of the subject. Or if I insulted the head of state. Or if I said anything even a tad derogatory about the military.

The key to this our relatively safe and happy Thanksgiving is the Rule of Law. And that is the cardinal difference between the United States and most of the rest of the world. We have it. Others don’t.

Some members of the Judiciary Branch of our Government have attempted to trash that sacred rule – sometimes with scarifying success. But that situation may be reversible.

It’s good that Obama has four more years. But when we get to Thanksgiving Day 2016, our government’s deficits will still be there – hopefully, different deficits than this year’s – but the list of things we did right will be longer.

Thursday, November 15, 2012

Muslim and Arab Groups Hit Back at Government Tactics

By William Fisher
Muslim-oriented organizations in the US – once seen as role models of cooperation with the government – are increasingly taking tougher stands against harassment by authorities, and don’t expect that to change because of the reelection of Barack Obama.

James Zogby, widely known as a pollster and president of the Arab American Institute, recalled before the U.S. Commission on Civil Rights that while then President George W. Bush was urging the nation to regard Muslims as their fellow Americans he was instructing his Attorney General to round up and jail ‘Middle Eastern-looking men.’

He said this type of discrimination had started in the 1970s but had only exploded into today’s Islamophobia after the terrorist attacks of September 11, 2001.

Zogby told the Committee, “From released government files we have learned of the extent of harassment of Arab Americans and Arab student activists during this period -- from Operation Boulder in the Nixon era, and the broad surveillance program against Palestinian student organizations in the 70s and 80s, to the extensive intelligence files on Arab American activists maintained by the FBI, sometimes in collaboration with outside groups, that were then used to harass members of my community.”

The attacks of September 11 “were a dual tragedy for Arab Americans. We are Americans and it was our country that was attacked. At the same time, because some assumed our collective guilt, Arab Americans and Muslims -- and others perceived to be Arab and Muslim -- became victims of hundreds of hate crimes,” he said, adding:

“But something important happened, making it clear that despite the enormity of the crime that had been committed, a new dynamic was at work. Many Americans rallied to our defense. President Bush spoke out against hate crimes, as did the Senate and the House of Representatives which both passed resolutions condemning bias against Arab Americans and Muslims. Federal and local law enforcement investigated and prosecuted hate crimes, and ordinary citizens defended and protected us, refusing to allow bigots to define America.”

He noted that he and his family received death threats, he said, “but for the first time, the perpetrators were arrested by the FBI, prosecuted by the DOJ, and convicted and sentenced for their crimes.”

But, he continued, “all was not well during the (George W.) Bush years.”

At the same time that these positive developments were occurring, “an entirely different message was being sent by then Attorney General John Ashcroft. In addition to mass deportations and the shameful ‘special registration’ program, Ashcroft issued new profiling guidelines that created a loophole allowing ethnic, religious, and racial profiling, leading to wide-spread singling out of Arabs and Muslims by a number of law enforcement agencies.”

Nonetheless, Muslim and Arab groups doggedly insisted on meetings with the various government actors, hopefully to develop strategies and tactics that would service the government’s needs while not interfering with the civil rights of members.

He testified that, with the election of Barack Obama, “we had hopes that we would see an end to these abusive practices. But policies that we had believed would change have not. We had hoped to see an end to the more controversial provisions of the Patriot Act. This did not happen. The Justice Department profiling guidelines remain in place and continue to be used by a number of agencies to the detriment of my community.”

Arab American citizens who have family in Canada or who conduct business in Canada are routinely profiled, experiencing disgraceful and humiliating treatment at the hands of Customs and Border Patrol. And we are also deeply disturbed by press accounts of the NYPD/CIA surveillance program, he said.

He charged that law enforcement has employed a variety of techniques against Muslim and Arab-Americans, including the use of coerced informants, widespread ‘ethnic mapping’, spying and reporting on innocent people going about their daily routines, reports that the FBI has used their community outreach programs to "collect and illegally store intelligence information on Americans' political and religious beliefs -- a clear violation of trust.”

It was about at this point that the charitable organizations began to cut off any hope of constructive dialogue. CAIR, a major charity, cut off its program of periodic consultations with the FBI – with each party accusing the other of not being honest.

Earlier, CAIR had been one of the leaders of a movement within the organizations to work closely with Treasury to create a “white list” of charities to which an organization member could give worry-free. But Treasury refused to participate in the exercise.

These negative practices, Zogby said, “create fear in my community and create suspicion about us in the broader society. This, in turn, leads to alienation and has the potential to radicalize some. It also leads to an atmosphere where suspicion can grow -- making us more vulnerable to hate crimes.”

The government’s pursuit of Muslims and Muslim Arabs (Arabs practice many religions including Christianity) has had an enormous negative impact on charitable giving, which is an important part of the Islamic faith.

In the aftermath of 9/11 the government reactivated an old law and incorporated it into the newly minted USA Patriot Act. It metes out stiff punishments for acts that “provide material support” to terrorist organizations and groups that likely to become terrorists.

These penalties apply even when the ‘material support’ consists of training in peaceful resolution of differences – one of the more bizarre cases to come before the Supreme Court.

In 2010, then Attorney General Michael Mukasey and other high-profile government officials and former officials participated in a seminar in Paris in which they praised an organization known as the Mujahedeen Khalq. Did these luminaries commit a crime, asked their lawyer, David Cole? No, it was free speech, he answered, but added, “Not necessarily.”

The New York Times reported that “the problem was that the US government had labeled the Mujahedeen Khalq a ‘foreign terrorist organization’, making it a crime to provide it, directly or indirectly, with any material support.”

Cole explained: According to the Justice Department under Mr. Mukasey himself, as well as under the current attorney general, Eric Holder, material support includes not only cash and other tangible aid, but also speech coordinated with a “foreign terrorist organization” for its benefit. It is therefore a felony, the government has argued, to file an amicus brief on behalf of a “terrorist” group, to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.

Cole says he argued just that in the Supreme Court, on behalf of the Los Angeles-based Humanitarian Law Project, which fought for more than a decade in American courts for its right to teach the Kurdistan Workers’ Party in Turkey how to bring human rights claims before the United Nations, and to assist them in peace overtures to the Turkish government.

But in June, the Supreme Court ruled against us, stating that “all such speech could be prohibited, because it might indirectly support the group’s terrorist activity.” Chief Justice John Roberts reasoned that “a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group’s “legitimacy,” and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends. Under the court’s decision, former President Jimmy Carter’s election monitoring team could be prosecuted for meeting with and advising Hezbollah during the 2009 Lebanese elections,” Cole said.

The government has similarly argued that providing legitimate humanitarian aid to victims of war or natural disasters is a crime if provided to or coordinated with a group labeled as a “foreign terrorist organization” — even if there is no other way to get the aid to the region in need.

Yet The New York Times recently reported that the Treasury Department, under a provision ostensibly intended for humanitarian aid, was secretly granting licenses to American businesses to sell billions of dollars worth of food and goods to the very countries we have blockaded for their support of terrorism. Some of the ‘humanitarian aid’ exempted? Cigarettes, popcorn and chewing gum,” Cole revealed.

Under current law, it seems, the right to make profits is more sacrosanct than the right to petition for peace, and the need to placate American businesses more compelling than the need to provide food and shelter to earthquake victims and war refugees.

Cole concluded: “Congress should reform the laws governing material support of terrorism. It should make clear that speech advocating only lawful, nonviolent activities — as Michael Mukasey and Rudolph Giuliani did in Paris — is not a crime.”
There have been a number of apparent miscarriages of justice in the administration of the “material support” law, which is run by the Treasury Department. Much of it has focused on excessive sentencing.

For example, a young Brooklyn man was sentenced to 15 years in prison for providing suitcase storage for socks and raincoats. A Syracuse, NY, oncologist formed a charity, Help the Needy, to send clothing and other humanitarian supplies to children in Iraq. Though the word ‘terrorist’ was barred from his trial, he was convicted of violating US sanctions and sentenced to (YEARS) in prison. Five leaders of The Holy Land Foundation, once America’s largest Muslim-oriented charity, received heavy prison sentences last week following a mistrial and a second trial in which they were found guilty. Then the Supreme Court declined to hear their appeal.
The appeal was based largely on the Sixth Amendment to the Constitution, which traditionally has meant an accused person was guaranteed face-to-face court-time with his/her accuser. The trial court ruled that two anonymous Israelis could serve as expert witnesses for the prosecution.

The two most senior Holy Land executives received sentences of 65 years each. Another received 15 years.

The government has also invoked the so-called State Secrets doctrine to persuade judges that any discussion of any part of any government lawsuit would compromise national security. Thus, no victim of the government’s anti-terror efforts has ever received a day in court.

But perhaps the most insidious form of harassment and discrimination is seen in the FBI’s “neighborhood mapping” program. This program uses both paid and unpaid informants to infiltrate Muslim and Arab-American neighborhoods and become familiar figures in the restaurants, movies, concerts, meetings and other occasions attended by their targets.

These informants perform two main tasks. They gather and report to the FBI any information they believe to be incriminating. Secondly, aided by others, the FBI puts together plots and plans for terrorist-type actions which agents pass along to their targets – who sometimes take the bait. There has never been a prosecution in which an FBI informant was not implicated.

"Everyone understands that the FBI has a job to do, but it is wrong and counterproductive for the bureau to target American Muslim religious groups for secret intelligence gathering and place innocents at risk of investigation as national security threats," ACLU attorney Hina Shamsi said.

Since the 2001 terrorist attacks, the FBI has stepped up its outreach to Muslim neighborhoods and efforts to recruit sources and gather intelligence in those areas. Though the federal government says those two efforts are completely separate, civil rights lawyers and some Muslims have complained that the FBI uses one to accomplish the other.

One of the most proactive and aggressive Muslim-oriented groups is the Muslim Legal Fund of America, which finances legal cases in which they perceive a civil liberties violation or where the government is criminalizing lawful behavior under the guise of fighting terrorism.

John Janney, Communications and Operations Director of the MLFA, responded to Prism’s question about government intrusion into mosques and Muslim communities. He told us the problems he sees are three-fold:

First Amendment: We feel that recruiting imams to spy on their communities for the government is an encroachment of the First Amendment's separation of church and state as well as the freedom to exercise religion without fear of government interference or retribution. The state has no legitimate business undermining the constitutionally-protected religious activities of any faith group.

Preemptive Prosecution: The FBI is recruiting, motivating, creating the plot, selecting the targets, and supplying fake explosives to individuals who would likely never be engaged in such activities without the FBI's encouragement. Essentially, the FBI is creating criminal acts in order to foil them. They are utilizing Dick Cheney's 1% Doctrine that says if there is a 1% chance of something bad happening, treat it as if it is a certainty. The FBI is finding naive community members and convincing them to commit crime -- not catching them, but convincing them first and then trapping them.

Makes us Less Safe: If the FBI is focusing so much attention on creating fake terrorists plots for individuals they recruit to carry out, then who is looking for real terrorists? It's a rather frightening thought and it seriously lowers confidence in those who are sworn to protect us.

However, there is a central reality that we must face: our messages are best communicated to and received by those who we have greater chance of influencing -- those who will actually listen and consider the message. So, any communication or advocacy we do will be for the Muslim community and supporters of civil liberties in general. One campaign we are starting soon is called "Think."

For the MLFA, standard operating procedure has morphed from ‘cooperate with law enforcement, reach an accommodation,’ to encouraging community members to THINK before answering any call to violence by someone who has befriended you, because that person might actually be an FBI informant.

Wednesday, November 07, 2012

“Justice Has Fled America” -- Reviewing the Holy Land Case

 By William Fisher

“Prior to this case, an anonymous expert has never been permitted in a US criminal trial as there is no genuine way to cross examine someone whose identity is unknown.”

The speaker is Michael Ratner. He is the leader emeritus of the Center for Constitutional Rights, a public service law firm that fought for the Holy Land group and in dozens of other unrelated cases.
The anonymous “experts” Ratner refers to were two Israelis who appeared at the trial as prosecution witnesses under assumed names. This, despite the clear and uncompromising language of the Sixth Amendment to the US Constitution, which says: “In all criminal prosecutions, the accused shall enjoy the right to …be confronted with the witness.”

The appellants argued that the trial judge's decision to permit the two Israeli witnesses to testify anonymously violated the Confrontation Clause of the Constitution. But in a unanimous decision, the Appeals Court ruled that, "while no trial is perfect, this one included, we conclude from our review of the record, briefs, and oral argument, that the defendants were fairly convicted."

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.
But Ratner’s view is 180 degrees from the Government’s. He says, “As I look at history, Stalin's show trials come to mind. The denial of the last appeal by the Supreme Court confirms that justice has fled America. If you’re Muslim and especially if you are involved with humanitarian aid for Palestinians, do not expect justice; expect to be hounded, driven from your endeavors and jailed. This country is in the midst of a plague of Islamophobia.”

Thus, it was in that depressing environment that the Supreme Court last week brought the Holy Land Foundation (HLF) case to the end of its last appellate avenue. SCOTUS declined to hear their appeal.

The Government had accused HLF – once the largest Muslim-oriented charity in the US -- of providing material support in the Palestinian territories to Hamas, which the US had now designated as a terrorist organization.

HLF was shut down on December 4, 2001, by presidential executive order and without due process. The charity's offices were raided by federal agents, who seized all documents, assets and funds of the organization as well as personal property of employees.

After prosecutors found that all funds raised by the charity went to humanitarian aid and that there were no illegal financial transactions from HLF, they employed the "material support" statute as amended by the USA Patriot Act – a statute that civil liberty advocates call dangerously vague – to charge the five men with indirectly supporting terrorism through their legal charitable work.

The prosecution's argument was that the ‘zagat’committees used to distribute aid were "under the influence" of HAMAS – despite the fact that none of these committees were on the government's list of banned foreign organizations and were used by other charities to distribute humanitarian aid in the region. It is worth noting that some of these charitable committees were still receiving US funding through the USAID program as late as 2006.

The defendants faced two trials. In the first, in 2007, after 19 days of deliberations, the jury was unable to come to a definitive conclusion and the case ended in a mistrial.

During the 2007 trial, lawyers representing the Muslim Legal Fund of America said that the Justice Department fabricated quotes and modified transcripts. Critics faulted much of the evidence given during the trial. The New York Times journalist Leslie Eaton said Israeli agents using pseudonyms testified for the prosecution.

The government did not allege that the foundation paid directly for suicide bombings, but instead that the foundation supported terrorism by sending more than $12 million to charitable groups, known as ‘zakat’ committees, which build hospitals and feed the poor. The prosecution said the committees were controlled by Hamas, and contributed to terrorism by helping Hamas spread its ideology and recruit supporters.

The jurors had acquitted on some counts but were deadlocked on other charges ranging from tax violations to providing material support for terrorists. One defendant was acquitted of most of the 32 charges against him. While the first trial produced no convictions, the judge ruled it a mistrial and granted prosecutors another opportunity to put the five men on trial.

The second trial ended in harsh convictions. Again, the key witness for the prosecution was an anonymous expert who defense attorneys complained they were unable to adequately cross-examine – a fact at odds with the Sixth Amendment. 

Following the first trial, the New York Times reported: The decision today is "a stunning setback for the government, there's no other way of looking at it," said Matthew D. Orwig, a partner at Sonnenschein Nath & Rosenthal who was, until recently, United States Attorney for the Eastern District of Texas. "This is a message, a two-by-four in the middle of the forehead," Orwig said. "If this doesn’t get their attention, they are just in complete denial," he said of Justice Department officials, whom he said may not have recognized how difficult such cases are to prosecute."

Experts found the jury's failure to come to a definitive conclusion to be evidence of weakness in the government's ability to provide clear enough evidence against the charity. The Los Angeles Times quoted Georgetown University law professor David Cole as saying: "If the government can shut them down and then not convince a jury the group is guilty of any wrongdoing, then there is something wrong with the process.”

“The whole case was based on assumptions that were based on suspicions", said one of the jurors, who added: "If they had been a Christian or Jewish group, I don't think [prosecutors] would have brought charges against them."

The federal government began a retrial on August 18, 2008. On November 24, 2008, the jury delivered guilty verdicts against HLF and five individual defendants. Holy Land was found guilty of giving more than $12 million to support Hamas.

The jury found against HLF on all 108 charges. The charges included conspiracy to provide material support to a foreign terrorist organization, providing material support to a foreign terrorist, and conspiracy to commit money laundering.

The government was ecstatic. "Today's verdicts are important milestones in America's efforts against financiers of terrorism," Patrick Rowan, assistant attorney general for national security, said after the trial. "This prosecution demonstrates our resolve to ensure that humanitarian relief efforts are not used as a mechanism to disguise and enable support for terrorist groups."

The five convicted individuals were Ghassan Elashi, former CEO Shukri Abu-Baker, Mufid Abdulqader, Abdulrahman Odeh, and Mohammad El-Mezain.

Abu-Baker was sentenced to 65 years. Elashi, also a member of the founding Board of Directors of the Texas branch of the Council on American-Islamic Relations (CAIR), was also sentenced to 65 years. El-Mezain, former endowments director, received 15 years.

Because of the potential lengthy sentences for the criminal convictions, the individual defendants were remanded into custody without bail pending any appeal. A 2011 NPR report claimed some of the people associated with this group were being held in a new and highly restrictive prison known as the Communications Management Unit.

It has since been learned that the Communications Management Unit is a self-contained group within a facility managed by the United States Federal Bureau of Prisons (BOP) that severely restricts, manages and monitors all outside communication (telephone, mail, visitation) of inmates in the unit. A substantial majority of its inmates are Muslims.

"It is a dark day for America when our nation's highest court refuses to hear a case that is affecting everyone's ability to get a fair trial in America," said Khalil Meek, Executive Director of Muslim Legal Fund. "If judges are allowed to prevent defenders from challenging the credibility of expert witnesses, then our Sixth Amendment loses its teeth and our civil liberties suffer further erosion."

The verdict and the harsh sentences outraged Holy Land supporters.

Prof. David Cole told Prism, "In this case, the government made it a crime to engage in charity, without any evidence that a single penny went to further any violent, much less terrorist, act.  The defendants now face decades in jail for having done nothing more than raising money to feed the hungry.”

Francis E, Boyle, a law professor at the University of Illinois, pointed out that The Holy Land Foundation was well known as being the leading source in this country for providing humanitarian assistance to the Palestinians. “For that very reason it was targeted for persecution and destruction by the pro-Israeli neoconservatives in the (George W.) Bush Administration. After a valiant Defense, the Holy Land Five lost their case in the same reactionary United States Supreme Court that gave the American people Bush Junior as President in 2000.” 

And Prof. Chip Pitts, Lecturer at Stanford Law School and Former Chair of Amnesty International USA, told Prism, “When prosecutors single out Muslim charities and effectively shut down nearly all of them in the wake of 9/11, and when courts bend the rules to prevent suspects from confronting their accusers, it’s hard not to see prejudice at work distorting the right to equal justice under law.   
“The Supreme Court’s failure to review this case and correct its many procedural and substantive errors is yet another sign of the increasingly degraded rule of law in the United States.  Similar prejudice is endangering sensible policies with respect to allies like Turkey and Egypt. 

“These are grave trends which jeopardize both domestic tranquility and authentic national security.  They should not only concern us all, but must prompt concerted and strong demands for a return to principles of fairness, reason, and justice.”

Denial of certiorari was a huge blow to the remaining charities patronized by Muslims, which for several years had been engaged in planning, reorganizing and even talking with the Government (The Treasury Department, which is in charge of ‘material support” matters) about creating a ‘white list’ of permissible charities. For a time, contributions to other Muslim-oriented charities fell off a cliff, though they have since climbed closer to past norms.

Now, supporters of The Holy Land Five will be crafting initiatives to bring what they consider a travesty of justice to broad public attention. But, in the interests of truth, it needs to be said that these kinds of campaigns, while they are valuable as public education tools, rarely succeed in changing the minds of judges.

Sunday, November 04, 2012

In Defense of Richard Falk--An Analysis

The essay below was written by Lawrence Davidson, a professor of history at West Chester University. We continue to be impressed by his sharp analysis and his willlingness to speak truth to power.

By Lawrence Davidson

Part I - Who is Richard Falk and What Has He Done?

Richard Falk is the present United Nations Special Rapporteur for the Palestinian Territories. His job is to monitor the human rights situation in the territories, with particular reference to international law, and report back to both the U.N. General Assembly and the United Nations Human Rights Council. He is professor emeritus of international law at Princeton University and well qualified for his United Nations post.
Professor Falk was appointed in 2008 to a six year term in his present position. That means he has been telling the unsettling truth about Israeli behavior for four years now, with another two to go. Repeatedly he has documented Israeli violations of international law and its relentless disregard for Palestinian human rights. For instance:

-- In his 2008 report Falk documented the “desperate plight of civilians in Gaza.”
-- In his 2009 report Falk described Israel’s assault on the Gaza Strip as a “war crime of the greatest magnitude.”-- In his 2010 report Falk documented Israel’s array of apartheid policies.
-- In his 2011 report Falk documented Israeli policies in Jerusalem and labelled them “ethnic cleansing.”

-- And finally, in this latest report for the year 2012, Falk has concentrated on two subjects:

First, Israel’s treatment of Palestinian prisoners which, he concludes, is so bad as to warrant investigation by the International Court of Justice (ICJ). It should be noted that Israel does not recognize the jurisdiction of the ICJ. However, condemnation by this organization would, within the context of growing awareness of Zionist crimes, help further educate public opinion.

Second, Falk documents the assistance given Israel’s expansion of colonies on the Palestinian West Bank by a number of multinational corporations, including Motorola, Hewlett-Packard and Caterpillar Inc. This assistance may be profitable, but it is also manifestly illegal. The CEOs and board members of these companies stand in violation of international laws including provisions of the Geneva Conventions. Since no nation, nor the UN itself, seems ready to prosecute them, Professor Falk has recommended a boycott of the guilty firms “in an effort to take infractions of international law seriously.”

Part II - Reactions

In a sane world this work would make Richard Falk a universally acclaimed defender of justice. But ours is not a sane world. And so you get the following sort of responses from both Israel and its supporters:

Karaen Peretz, the spokeswomen for the Israeli Mission at the United Nations, found Professor Falk’s latest report “grossly biased.” This is a sort of response used by someone who cannot dispute the evidence and so must resort to attacking the character of the one presenting the evidence. Peretz also asserted that “Israel is deeply committed to advancing human rights and firmly believes that this cause will be better served without Falk and his distasteful sideshow. While he spends pages attacking Israel, Falk fails to mention even once the horrific human rights violations and ongoing terrorist attacks by Hamas.”
Actually, this is not true. Back in 2008 Falk requested that his mandate from the UN Human Rights Council be extended to cover infringements of human rights by Palestinian governments just so he would not seen as partisan. Subsequently, Mahmoud Abbas’s pseudo Palestinian Authority called for Falk’s resignation. In this job, you just can’t win.

In any case, Falk’s documenting of Israel’s crimes puts the lie to Peretz’s claim that Israel is “deeply committed to advancing human rights” and that documentation cannot be dismissed as a “sideshow.” Relative to sixty four years of ethnic cleansing, it is the militarily insignificant missiles out of Gaza that are the “sideshow.” And, can we honestly assume that Ms Peretz’s attitude toward Professor Falk would turn for the better if in this report he had mentioned Hamas “even once”?
Then there is United States Ambassador to the United Nations Susan Rice. She echoed Peretz by describing Falk as being “highly biased,” Well, what sort of attitude is one suppose to have toward overwhelming evidence persisting over many years? Isn’t one supposed to be “biased” in favor of such evidence? To ignore it doesn’t make you balanced or fair. It makes you either corrupt or in a deep state of denial.
Ms Rice goes on to say that “Mr. Falk’s recommendations do nothing to further a peaceful settlement...and indeed poison the environment for peace.” These are pretty strong words, but if considered critically they make little sense. First of all, Falk’s mandate requires him to reveal the facts about human rights violations in the Palestinian territories. It makes no reference to “furthering a peaceful settlement.” That is what the U.S. government claims to be doing. And its record in this regard is pitiful. Second, just why should conclusively documenting practices that may well be standing in the way of a settlement, be equated with “poisoning the environment for peace”? That doesn’t add up at all.

There are many other spokespeople who have reacted negatively to Falk’s latest report ranging from the Canada’s Foreign Affairs Minister to representatives of the companies caught on the wrong side of the law. And, remarkably, they all sing the same song: Falk is bias, ad nauseum. They can do no better because they cannot refute the professor”s evidence. Thus, all of these well positioned, well paid representatives of nations and multinational businesses are reduced to sounding like lawyers defending the mafia.

Part III - Conclusion

Professor Falk’s experience should serve as a warning to both those who would, on the one hand, make a career out of being a spokesperson for governments or companies, and on the other, those who would dedicate themselves to “speaking truth to power.” Taking on the role of the former is the equivalent of selling your soul to leadership whose sense of right and wrong goes no further than their own local interests. Taking on the role of the latter is to face seemingly endless frustration for, as Noam Chomsky once noted, power already knows the truth and doesn’t care one jot for it.

Yet, for those who would travel down this latter road, Richard Falk is as good a role model as can be found. Having dedicated himself to the role of truth teller he is to be commended for his devotion to justice and sheer durability. He is a hero who, hopefully, will have his praises sung long after Ms Peretz and Ms Rice are deservedly forgotten.


Saturday, November 03, 2012

Whaddya Mean, Don't Vote!

By William Fisher

Thank God, we are almost finished with the stupidest, least helpful, most

irrelevant, presidential contest in living memory.

Garnished with the most brainless series of "debates" in the history of

Presidential candidacy.

At least, when it began -- during the primary -- some of it was fun, in a

prurient way. Women came forward to accuse Herman Cain of crotch-grapping. Rick

Perry couldn't remember the third of the three Cabinet departments he was

promising to abolish. And so forth.

Funny? Yes, up to a point. After that, downright embarrassing. Not for the

candidates; they're free to make total fools of themselves -- and they did.

Embarrassing for the country.

Just think of it. The people who thought they would be absolutely dandy leaders

of the richest, most powerful country in the world, unable to enunciate a simple

declarative sentence!

But what there was of fun soon melted into disaster -- when people began to

realize what wasn't being debated. Climate change. Immigration. Our

off-the-charts incarceration rate. Our so-called "war on drugs.' Racial

profiling. Our military-industrial complex. Our vanishing middle-class. Our

abandon of the mentally ill. And on and on and on.

There is arguably only one other kind of issue so elemental that its omission

conceals the incendiary material that could actually bring us down.

It is our civil liberties -- the freedoms we are guaranteed in the first ten

amendments to the Constitution -- the Bill of Rights.

By which I mean such issues as prisons, extraordinary renditions, Guantanamo,

indefinite detention, military commissions, gun crime, warrantless wiretapping,

National Security Letters, the Drone Kill List, Afghan corruption, infiltrating

Muslim mosques, the rule of law, religious freedom, judges who aren't

ideologues, and on and on and on.

In hour after hour after catatonic hour, the words "civil liberties' were not

mentioned once. Not once.

Yet there are no values that come even close to constructing the picture of

America these freedoms help us build and maintain.

And on these, our candidates were silent.

To my in-box this morning came an article written by an Internet friend of mine.

It urged me to "not vote, or vote independent." Well, as Rachel Maddow likes to

say, "That would be fulfilling someone else's plan."

And indeed it would. So, no I won't sit this one out. I'll vote for Barack Obama

as far superior in everyway to the tin-man of Washington.

I'd rather vote for Gordon Gecko.

And hope we do better four years from now.

Warrantless Wiretapping and Transparency Uber Alles

By William Fisher
Shortly after the terrorist attacks of September 11, 2001, President George W. Bush authorized the NSA to secretly wiretap Americans’ international communications without any warrant, suspicion of wrongdoing or court oversight at all.
The Bush administration managed to keep this secret for years, until July 2008 when – with a perfectly straight face and on the heels of some noisy media attention – the president signed the FISA amendments into law. An hour later, the American Civil Liberties Union went to court on behalf of a large number of human rights groups, journalists and attorneys seeking to have the Supreme Court declare the law unconstitutional.
According to testimony from two veteran NSA operatives, Bill Binney and J. Kirk Wiebe, they knew – “together with large numbers of our colleagues, we objected to the abandonment of constitutional protections.” In an article in POLITICO, they say they were told to “mind our own business.”
“But this is exactly the kind of intrusion into our private lives that the Founding Fathers wanted to prevent. We resigned in protest.”
But their first day in court was a bust. The court ruled that the two whistleblowers had no standing to sue since they couldn’t prove they were ‘impacted’ – subject to surveillance.
But, they ask, “how can we prove such a thing when the information about who the government monitors is secret and the process of surveillance is designed to be undetectable?”

So they’ll try again later this month, when the Supreme Court will hear oral arguments in the case. Its decision, say the whistleblowers, could define the government’s ability to monitor innocent Americans’ international communications without a warrant.
The lawsuit, Amnesty International v. Clapper, argues that the Constitution bars the National Security Agency from listening to or reading Americans’ international conversations and emails without court oversight, even if Congress blesses the NSA’s actions.
The National Security Agency (NSA) is a cryptologic intelligence agency of the United States Department of Defense (DOD) responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S. government communications and information systems which involves information security and cryptanalysis/cryptography.
The NSA was created to listen to and analyze foreign communications to protect the nation from threats outside our borders. Today, it is bigger than the CIA and FBI combined.

Binney and Wiebe write, “Our touchstone was the Fourth Amendment’s protections against unreasonable searches and seizures and its guarantee that warrants could be issued only with probable cause and against specific targets. Whenever we suspected that an American abroad or someone inside the United States might be involved in terrorism or espionage, we carefully gathered the evidence and presented it to the Foreign Intelligence Surveillance Court, which meets in secret to protect classified information. Only if that court gave us permission would we monitor an American’s communications.”
Then, they recount, came the horrific crimes of Sept. 11, 2001, and “we lost our moorings.” Shortly after that terrible day, “President George W. Bush authorized the NSA to wiretap Americans’ international communications without any warrant, suspicion of wrongdoing or court oversight at all.”
Binney and Wiebe contend that their argument is that “we have standing to challenge the law’s constitutionality because as human rights advocates, journalists and attorneys, we rely on confidentiality in our international communications with victims of human rights abuses, whistle-blowers and government officials–and our work is severely impacted by the law.”
And that, they say, gets at the heart of the unconstitutionality of the FISA Amendments Act. The law, they write:
  • Violates the First (freedom of speech, freedom of the press) and Fourth (against unreasonable searches and seizures) Amendments to the U.S. Constitution.  
  • Invests the National Security Agency with sweeping power to monitor Americans’ international phone calls and emails without a probable cause or warrant requirement, so its effect is to allow the NSA to conduct dragnet surveillance, not just surveillance directed at suspected terrorists and criminals.  
  • Does not provide for meaningful judicial review or congressional or public oversight.  
But Binney and Wiebe caution that the Supreme Court won’t be considering any of these claims when it hears oral arguments in their case. The Court will only be pondering whether the plaintiffs have the right to bring a case at all.
The Foreign Intelligence Surveillance Act (FISA), enacted by Congress after the abuses of the 1960s and 70s, regulates the government’s conduct of intelligence surveillance inside the United States. It generally requires the government to seek warrants before monitoring Americans’ communications. In 2001, however, President Bush authorized the National Security Agency to launch a warrantless wiretapping program, and in 2008 Congress ratified and expanded that program, giving the NSA almost unchecked power to monitor Americans’ international phone calls and emails.
The plaintiffs in Amnesty v. Clapper include human rights, media, and legal organizations. The government claims that the group shouldn’t be able to sue without first showing that their communications have been or will be monitored under the statute – but in a Kafkaesque move, the government refuses to reveal who has and hasn’t been spied on.
Binney and Wiebe conclude by explaining why the courts’ ability to review the law is so important.
“The framers established our independent courts to be the final bulwark of liberty. They recognized that the political branches – Congress and the president – couldn’t be relied on alone to protect our rights, particularly in times of crisis. That is as true today as it has ever been. Threats to national security cannot be an excuse to throw out the very system that has been our nation’s strength for over 200 years. We cannot allow the rhetoric of fear to justify."

“Dedication to Open Government” is another principal the NSA says it is committed to. Its web site says, “It is our goal to make NSA/CSS records available to the public in a timely manner and in accordance with applicable laws and policies.”
It adds, “These are our commitments to you, our fellow citizens:
We will act with integrity to advance the rights, goals, and values of the Nation.
We will adhere to the spirit and the letter of the Constitution and the laws and regulations of the United States.
We will combat terrorism around the globe – when necessary, putting our lives on the line to preserve the Nation.
We will provide our policymakers, negotiators, ambassadors, law enforcement community, and military the vital intelligence they need to protect and defend the Nation.
We will defend the national security networks vital to our Nation.
We will be a trusted steward of public resources and place prudent judgment over expediency.
We will continually strive for transparency in all our review, monitoring, and decision-making processes.
We will honor Open Government and Transparency mandates by making timely and accurate information available to the public, subject to valid privacy, confidentiality, Constitution of the United States against all enemies, foreign and domestic.”
Meanwhile, Kafka is having one huge belly-laugh after another.