By William Fisher
More fuel may soon get thrown on the current fire over the credibility and competence of Attorney General Alberto Gonzales.
The reason is the recent disclosures that many DOJ-appointed judges charged with deciding whether to grant immigrants' requests for asylum in the United States, or deport them to countries where they could face harsh and inhumane persecution, are frequently chosen on the basis of party political affiliation, have little or no experience in immigration law, and lack nationally-uniform rules for decision-making.
Some of the results of what some critics are calling "cowboy justice" are jaw-dropping disparities in outcomes. For example, one judge is 1820% more likely to grant an asylum than another judge in the same courthouse, one US Court of Appeals is 1148% more likely to rule in favor of an asylum-seeker than another US Court of Appeals, and the fate of asylum-seekers is often decided not by the facts of the case but rather by a clerk's random assignment of an applicant to one asylum officer rather than another, or one immigration judge rather than another.
Collectively, asylum officers, immigration judges, members of the Board of Immigration Appeals, and judges of US Courts of Appeals render about 77,000 asylum decisions annually. Almost all of them involve claims that an applicant for asylum reasonably fears imprisonment, torture, or death if forced to return to her home country.
The nation's 215 Immigration Judges are required to cope with filings of over 300,000 cases a year. With only 215 Judges, a single Judge has to dispose of 1,400 cases a year or nearly twenty-seven cases a week, or more than five each business day, simply to stay abreast of his docket.
A recent study published in the Stanford University Law Review concludes that "in the world of asylum adjudication, there is remarkable variation in decision-making from one official to the next, from one office to the next, from one region to the next, from one judicial circuit to the next, and from one year to the next, even during periods when there has been no intervening change in the law."
The study adds, "When an asylum seeker stands before an official or court who will decide whether she will be deported or can remain in the United States, the result may be determined as much or more by who that official is, or where the court is located, as it is by the facts and law of the case. The arguably arbitrary factors of place and time are particularly discomfiting in asylum cases, because the result of an erroneous decision that is unfavorable to the bona fide applicant is an order of deportation to a nation where she is in grave danger."
The study is entitled "Refugee Roulette:Disparities in Asylum Adjudication." Its authors are Jaya Ramji-Nogales of Temple Univeristy Law School, and Andrew I. Schoenholtz and Philip G. Scgrag, both of Georgetown Univeristy Law Center.
The study's authors found troubling trends at each stage of the asylum-seeking process. For example, when a negative decision of an immigration judge or the Board of Immigration Appeals (BIA) is taken to its last practical stop -- a Federal Court of Appeals -- factors unrelated to the merits of cases "significantly affect an appellant's chance of obtaining a remand."
These factors, the study found, include, at the Board of Immigration Appeals, a Republican Attorney General's 2002 decision to purge the Board of many members selected by his Democratic predecessor, and to require cursory opinions, at best, rather than careful analyses of appellants' contentions. At the Court of Appeals level, the most obvious extraneous factor affecting the outcomes of cases is the region of the country in which the asylum applicant happened to settle before filing his or her application."
The researchers found that "officers who adjudicate asylum applications in some of the eight regional offices of the Department of Homeland Security's Asylum Office appear to have grant rates that reflect personal outlooks rather than an office consensus. Over the course of a seven-year period, more than 20% of the asylum officers in three of these regional offices had grant rates for applicants from asylee-producing countries that deviated from the regional norm by more than 50%. In only three offices did fewer than 10% of the asylum officers have grant rates that deviated from the regional norm by more than 50%. In one office, there was so little consensus that most of the officers deviated from the office norm by more than 50%."
A large majority of asylum-seekers is not represented by lawyers. Unrepresented asylum applicants in immigration court win at a rate of 16% while represented applicants win at a rate of 46%. Many applicants have difficulty understanding English, and translators are either non-existent or of poor quality. If a case reaches a US Court of Appeals, the judge on that court is forced to make a decision on the basis of ordinarily cursory and incomplete notes rather than verbatim transcripts of lower court proceedings. The DOJ does not require transcripts and does not provide resources for their preparation.
The study also found that female asylum-seekers are more likely to win their appeal than males.
The study confirms many of the findings of an analysis carried out by The Washington Post, which found that politicization of the asylum-seeking process is as rampant among DOJ-appointed immigration officials as it has been shown to be among US Attorneys.
The Post found that "At least one-third of the immigration judges appointed by the Justice Department since 2004 have had Republican connections or have been administration insiders, and half lacked experience in immigration law...."
The newspaper added, "These appointments, all made by the attorney general, have begun to reshape a system of courts in which judges, ruling alone, exercise broad powers -- deporting each year nearly a quarter-million immigrants, who have limited rights to appeal and no right to an attorney."
The Post analysis -- the first systematic examination of appointees to immigration courts, the relationships that led to their selection, and the experience they brought to their position - offered a number of examples to support its conclusion that party partisanship is playing an increasing role in determining who is allowed to remain in the US.
For example, the Post says, "Two newly appointed immigration judges were failed candidates for the US Tax Court nominated by President Bush; one fudged his taxes and the other was deemed unqualified to be a tax judge by the nation's largest association of lawyers. Both were Republican loyalists. Justice officials also gave immigration judgeships to a New Jersey election law specialist who represented GOP candidates, a former treasurer of the Louisiana Republican Party, a White House domestic policy adviser and a conservative crusader against pornography."
The Post review was based on DOJ records and research into the backgrounds of the 37 current judges approved by Attorney General Gonzales or his predecessor, John D. Ashcroft, starting in 2004.
That year, The Post adds, "is when the Justice Department began to jettison the civil service process that traditionally guided the selections in favor of political considerations, according to sworn congressional testimony by one senior department official and a statement by the lawyer for another official."
Since the terrorist attacks of 9/11, the Bush administration has used the nation's immigration courts and its judges to deport hundreds of non-citizens who were detained as terrorism suspects but were never charged with crimes.
Since then, the DOJ has created stiffer guidelines and new rules that make it even more difficult for people the government doesn't want to remain in the country.
The DOJ's introduction of politics into judges' selection of judges was revealed in the Congressional testimonies of former Gonzales Chief of Staff Kyle Sampson and DOJ White House Liaison Monica Goodling. While these two witnesses did specify which immigration judges had been chosen because of their political orientations, The Post study reveals the Republican ties of many.
Sampson and Goodling testified that they were told the practice was legal. But Justice spokesman Dean Boyd said that immigration judges are considered civil service employees who may not be chosen based on political factors, unlike judges in federal criminal courts. Goodling admitted in her testimony that she "may have crossed the line."
Politics is not the only issue involved in hiring immigration judges. In 2005, the government's chief immigration lawyer in El Paso for 22 years filed a lawsuit claiming she was denied a judgeship twice in favor of less-qualified white men who were hired without an open application process.
Her suit alleged that, between 2001 and late 2005, only two Latinos were appointed nationwide as immigration judges. The immigration bench is overwhelmingly male and white, even though Spanish-speaking people from Latin America make up at least 70 percent of the caseload.
The US District Court for the District of Columbia ruled against the DOJ. It found that Ms. Gonzales "had identified a particular policy that has a discriminatory effect on a particular group."
The Court ruled that of the two other applicants for the position, one lacked Ms. Gonzales' experience and another failed to meet the minimum qualifications for the job.
In 2003, the Law Review study says, it was discovered that the "reforms" mandated by Attorney General Ashcroft -- firing five Clinton appointees and encouraging others to leave, requiring most decisions to be decided by summary affirmances or very short opinions, and replacing three-member panel decision-making with single-member affirmances for most asylum cases - "resulted in a sudden and drastic reduction in the rate at which the Board rendered decisions favorable to asylum applicants."
The study concludes with a wide-ranging series of recommendations. These include:
* Within each regional asylum office and within each immigration court, the adjudicators with particularly high and particularly low grant rates should confer with each other and try to ascertain the cause of this phenomenon...If the differences are based on ideologies or preconceptions of the adjudicators, these should be discussed with the regional or national director (in the case of an asylum office) or chief immigration judge (in the case of immigration court.)
* More training should be offered to promote greater consistency. Training for immigration judges should include units on judicial temperament. For example, immigration lawyers have sometimes complained that after an immigration judge is lied to several times by nationals of a particular country, the judge tends to suspect that all nationals of that country are liars. The training could include counseling on impartiality, avoiding stereotyping, and not taking personally the misconduct that the judges sometimes encounter from people who are desperate to remain in the United States.
* The government should implement more rigorous hiring standards. To be selected as an immigration judge, a candidate should have to demonstrate that he or she is sensitive to cultural differences and likely to treat all parties respectfully; capable of managing a large docket without becoming impatient; predisposed to be very careful in judging the credibility of people who claim to be victims of trauma or torture; and able to produce well-reasoned decisions that take into account all of the evidence and arguments presented by the parties.
* Congress and the Department of Justice should provide immigration courts with resources to enable the judges to work at the standards expected of bodies that adjudicate important cases. At present, the immigration courts are severely understaffed.
* Every immigration judge should be assigned at least one law clerk, and the quality of recording and interpretation should be improved. An increase in the number of judges is only a start on improving resources.
* The government should provide appointed counsel for any indigent asylum applicant who must defend himself in a removal proceeding in immigration court. People who are trying to prove that they are refugees within the meaning of federal law should not be required to compile supporting affidavits and make highly technical legal arguments without professional advocates, when the consequence of losing may be deportation to countries in which they face imprisonment, torture, and death.
* The Board of Immigration Appeals (BIA) should keep and publish statistics on the decisions of individual members, at least in asylum cases. If one member is granting asylum or remanding asylum cases at ten times the rate of another member, the Board itself, and the public, should at least be aware of this fact.
* The DOJ should amend the BIA's operating regulations to prohibit the Board from assigning asylum cases to a single member for decision. Given the apparently huge differences of opinion among adjudicators about who deserves asylum, more than one member should review each case, and the reviewers should discuss the reasons for any differences of opinion.
* Immigration Courts should have statutory independence from the DOJ, and Immigration Judges should be confirmed by the Senate as part of a new independent agency.
* Congress should amend the judicial review provision of the Immigration and Nationality Act to restore a more normal role for the federal courts in their review of asylum decisions. Currently, the federal courts defer excessively, especially in the southern circuits, to decisions of immigration courts and the Board of Immigration Appeals, even though those decisions appear to depend to a large extent on the identity, personal characteristics, and prior work experience of the adjudicator, as well as on whether or not the asylum applicant had representation or dependents in the United States.
Monday, August 06, 2007
Friday, July 27, 2007
GOVERNMENT SEGREGATES MUSLIM PRISONERS, RESTRICTS PHONE CALLS AND VISITS
By William Fisher
Legal authorities are charging that racial profiling is responsible for low-risk Muslim prisoners convicted for crimes the Justice Department intimates are terror-related being held in a segregated unit where their communications are more severely restricted than high-profile inmates such as al-Qaeda operative Zacarias Moussaoui and Unabomber Theodore J. Kaczynski.
The facility is known as the Communications Management Unit (CMU), and is located in the medium security Federal prison at Terre Haute, Indiana. Its occupants are almost entirely Muslims.
Under the CMU program, telephone communications must be conducted using monitored phone lines, be live-monitored by staff, are subject to recording, and must be in English only. All letters must be reviewed by staff prior to delivery or sending. Visits must be non-contact only, also live-monitored, and subject to recording in English. Telephone calls and mail are monitored, the number of phone calls limited and visits are restricted to a total of four hours per month, according to special rules enforced by the Justice Department's Bureau of Prisons.
Most Federal inmates are granted 300 minutes of telephone time per month. At the CMU, the policy is one 15 minute call per week, and this can be reduced in the Warden's discretion to three minutes once a month.
Federal inmates are also ordinarily granted all-day visiting every week or every other week. CMU grants only two hours at a time, twice a month, with no physical contact, with inmate and visitor situated on opposite sides of a plexiglass window.
While critics of the CMU acknowledge that prison officials have the right to monitor inmates’ communications with the outside world, they charge that there are important problems with the CMU, including a lack of public notice about its formation and a lack of clarity about how inmates are chosen to be sent there. They also complain that the unit's communication restrictions are unduly harsh for inmates not considered high security risks.
The unit currently houses 18 convicts, and will be able to accommodate more than five times that many. Moussaoui, Kaczynski, and Atlanta Olympics bomber Eric Rudolph are held at the Government’s “supermax” prison in Florence, Colorado.
Washington lawyer Carmen Hernandez, who represents one of two non-Muslim prisoners and is president-elect of the National Association of Criminal Defense Lawyers, told Truthout that the Justice Department (DOJ) claims it does not consider sending inmates to the unit as a punitive measure. They contend that, as a result, they do not have to provide hearings and other procedures that are required when punishments are to be administered. They claim it's not a punitive measure, but when you start restricting access, it certainly would appear to be punitive. If you're going to restrict people's liberties beyond what they already are, it ought to be for a good, particularized reason, and there does not appear to be one here Hernandez said. "
Hernandez adds, “The primary problem with the opening of (the CMU) is that no one knows the criteria used to send the person imprisoned to that Unit. There was no notice of the move and no opportunity to challenge the basis of the move. Due process ordinarily requires notice and an opportunity to be heard. I do not believe that anyone who was transferred to the CMU received notice of the transfer nor the basis for the transfer.”
Howard Kieffer, a Santa Ana, California, defense lawyer who is head of Federal Defense Associates and an expert on Federal prison rules, has told lawyer/journalist Jennifer Van Bergen that the unit "screams racial profiling."
"It's highly suspect that basically all of the people in this program are of
Middle Eastern descent," Kieffer said.
Civil liberties groups tend to agree. A spokesman for the American Civil Liberties Union says, "If they really believed these people are serious terrorists, they
wouldn't be in this unit. They'd be in Colorado with the Unabomber and the rest of the people that the Bureau of Prisons thinks are serious threats."
Religious discrimination is prohibited by Prison Bureau regulations. The regulation states that Bureau "staff shall not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs."
According to prison records cited by The Washington Post, current residents at Terre Haute include five members of the so-called Lackawanna Six, a group of Yemeni natives from Upstate New York who attended an al-Qaeda training camp; Randall Royer, a defendant prosecuted as part of the "Virginia jihad" case in Alexandria, Virginia; Enaam M. Arnaout, an Islamic charity director who pleaded guilty to diverting money to Islamic military groups in Bosnia and Chechnya; and Dr. Rafil Dhafir, a Syracuse N.Y. oncologist who was convicted of breaking the US sanctions against Iraq and various white-collar crimes.
The Post reports that the only non-Muslim inmates are an unidentified Colombian militant and Zvonko Busic, 61, former leader of a Croatian extremist group that hijacked a jetliner and set off a bomb that killed a police officer in 1976, according to prison records and defense lawyers. Busic is a client of Attorney Carmen Fernandez.
Dr. Dhafir, 58, an Iraqi-born US citizen from Syracuse, N.Y., was sentenced to 22 years for defrauding charity donors and conspiring to violate US economic sanctions against Saddam Hussein's government. Prior to his trial, politicians including former N.Y. Governor George Pataki trumpeted Dhafir’s arrest as a major victory in the war on terror. But no mention of terror was ever made in the courtroom in which a jury found him guilty of white-collar crimes.
In a recent letter to supporters, Dhafir recounted his abrupt, heavily guarded
transfer to Terre Haute in December and described it as part of "a nationwide
operation to put Muslims/Arabs in one place so that we can be closely monitored
regarding our communications."
"We are all concerned about the close intrusion on our communications," Dhafir
wrote. "We knew all along that our calls, mail and visits were monitored, but
with the new system we will have absolutely no privacy including our visits.
This is causing a great deal of anxiety and resentment especially among those
whose families speak no English."
Dhafir has come to be something of a poster-boy for what his supporters consider over-zealous prosecutions by US Attorneys. One of the most outspoken of the government’s critics is Katherine Hughes of Syracuse, who sat through every day of Dhafir’s 17-week trial.
She reports: “A founding member of the mosque in Syracuse, New York, Dhafir is a leader among the local Muslim community. An Iraqi-born oncologist, he has been a U.S. citizen for almost 30 years. Before his arrest, he and his wife, Priscilla, were very active in Syracuse civic affairs, and Dhafir often spoke at events and on local TV and radio about health and cancer care. In the early 1990s, in direct response to the humanitarian catastrophe caused by the brutal embargo on Iraq, he founded Help the Needy. For 13 years it sent food and aid to civilians suffering under U.N. sanctions imposed on Iraq at the insistence of the U.S. and Britain. Dhafir devoted much of his life to prayer and charity, and government records showed that he donated half his income to charity every year. In his oncology practice he treated those without medical insurance for free, paying for their chemotherapy out of his own pocket.
“Confident in his innocence and the American system of justice, Dhafir refused to accept a plea bargain, and the government piled on charges. When his case finally came to trial 19 months after his arrest, he faced a 60-count indictment of white-collar crime.
“The government employed many tools to inhibit Dhafir’s ability to mount a defense. Despite the facts that Syracuse’s Muslim community put up $2.3 million in bond money and that Dhafir offered to wear an electronic tag, he never was granted bail; his assets were frozen, making it more difficult to hire defense counsel; and he was denied access to both his records and his counsel. The government’s unlimited resources, moreover, allowed it to present its case in minutiae—seven government agencies had investigated Dr. Dhafir for five years before the case came to trial. The limited resources of the defense counsel, on the other hand, enabled it to call but a single witness, who testified for a mere 15 minutes.
“Although state and national officials smeared Dhafir in the press and New York Gov. George Pataki described Dhafir’s case as ‘money laundering…to help terrorist organizations’, local prosecutors successfully petitioned Judge Norman Mordue, the presiding judge who had denied Dhafir bail on four occasions, to prevent the charge of terrorism from being part of the trial. This ruling made his defense a nightmare: throughout the trial the prosecution hinted at more serious charges, but the defense was prohibited from addressing these inflammatory innuendos.” Dhafir is currently attempting to raise funds to obtain his trial transcript to prepare an appeal of his conviction.
Attorney Van Bergen writes that the CMU program was “not implemented through the process required by federal law, which stipulates the public be notified of any new changes to prison programs and be given the opportunity to voice objections. Instead, the program appears to have been ordered and implemented by a senior official at the Department of Justice.”
She elaborates: “In April of last year, the US Federal Bureau of Prisons -- part of the Department of Justice -- proposed a set of strict new regulations and, as required, there was a period of public comment. Human rights and civil liberties groups voiced strong concerns about the constitutionality of the proposed program.
“The program originally proposed was said to be applicable only to terrorists and terrorist-related criminals. The American Civil Liberties Union (ACLU), however, along with a coalition of other civil liberties groups, objected to the language of the regulation as too broad, and potentially applicable to non-terrorists and even to those not convicted of a crime but merely being held as "witnesses, detainees, or otherwise.
“After pushback from civil rights groups, the program appeared to have been dropped by the Prisons Bureau, with coalition groups believing that they had made their case regarding Constitutional rights.” However, she adds, “A similar program, the CMU, was surreptitiously implemented in December 2006.”
According to attorney Howard Kieffer, only three government offices have the authority to issue such changes in federal prison operations, and they all fall within the senior management of the Justice Department: the office of Harley Lappin, the Director of Prisons Bureau, the Office of Legal Counsel, or directly from the office of the US Attorney General, Alberto Gonzales.
Kieffer says, “It is just like the detentions after 9/11," he adds. "It's profiling."
Kieffer believes that the program not only violates federal law but the Constitution as well, saying it abridges the prisoners' right to freedom of expression and association. These inmates are "not able to communicate like other inmates," he said.
Legal authorities are charging that racial profiling is responsible for low-risk Muslim prisoners convicted for crimes the Justice Department intimates are terror-related being held in a segregated unit where their communications are more severely restricted than high-profile inmates such as al-Qaeda operative Zacarias Moussaoui and Unabomber Theodore J. Kaczynski.
The facility is known as the Communications Management Unit (CMU), and is located in the medium security Federal prison at Terre Haute, Indiana. Its occupants are almost entirely Muslims.
Under the CMU program, telephone communications must be conducted using monitored phone lines, be live-monitored by staff, are subject to recording, and must be in English only. All letters must be reviewed by staff prior to delivery or sending. Visits must be non-contact only, also live-monitored, and subject to recording in English. Telephone calls and mail are monitored, the number of phone calls limited and visits are restricted to a total of four hours per month, according to special rules enforced by the Justice Department's Bureau of Prisons.
Most Federal inmates are granted 300 minutes of telephone time per month. At the CMU, the policy is one 15 minute call per week, and this can be reduced in the Warden's discretion to three minutes once a month.
Federal inmates are also ordinarily granted all-day visiting every week or every other week. CMU grants only two hours at a time, twice a month, with no physical contact, with inmate and visitor situated on opposite sides of a plexiglass window.
While critics of the CMU acknowledge that prison officials have the right to monitor inmates’ communications with the outside world, they charge that there are important problems with the CMU, including a lack of public notice about its formation and a lack of clarity about how inmates are chosen to be sent there. They also complain that the unit's communication restrictions are unduly harsh for inmates not considered high security risks.
The unit currently houses 18 convicts, and will be able to accommodate more than five times that many. Moussaoui, Kaczynski, and Atlanta Olympics bomber Eric Rudolph are held at the Government’s “supermax” prison in Florence, Colorado.
Washington lawyer Carmen Hernandez, who represents one of two non-Muslim prisoners and is president-elect of the National Association of Criminal Defense Lawyers, told Truthout that the Justice Department (DOJ) claims it does not consider sending inmates to the unit as a punitive measure. They contend that, as a result, they do not have to provide hearings and other procedures that are required when punishments are to be administered. They claim it's not a punitive measure, but when you start restricting access, it certainly would appear to be punitive. If you're going to restrict people's liberties beyond what they already are, it ought to be for a good, particularized reason, and there does not appear to be one here Hernandez said. "
Hernandez adds, “The primary problem with the opening of (the CMU) is that no one knows the criteria used to send the person imprisoned to that Unit. There was no notice of the move and no opportunity to challenge the basis of the move. Due process ordinarily requires notice and an opportunity to be heard. I do not believe that anyone who was transferred to the CMU received notice of the transfer nor the basis for the transfer.”
Howard Kieffer, a Santa Ana, California, defense lawyer who is head of Federal Defense Associates and an expert on Federal prison rules, has told lawyer/journalist Jennifer Van Bergen that the unit "screams racial profiling."
"It's highly suspect that basically all of the people in this program are of
Middle Eastern descent," Kieffer said.
Civil liberties groups tend to agree. A spokesman for the American Civil Liberties Union says, "If they really believed these people are serious terrorists, they
wouldn't be in this unit. They'd be in Colorado with the Unabomber and the rest of the people that the Bureau of Prisons thinks are serious threats."
Religious discrimination is prohibited by Prison Bureau regulations. The regulation states that Bureau "staff shall not discriminate against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs."
According to prison records cited by The Washington Post, current residents at Terre Haute include five members of the so-called Lackawanna Six, a group of Yemeni natives from Upstate New York who attended an al-Qaeda training camp; Randall Royer, a defendant prosecuted as part of the "Virginia jihad" case in Alexandria, Virginia; Enaam M. Arnaout, an Islamic charity director who pleaded guilty to diverting money to Islamic military groups in Bosnia and Chechnya; and Dr. Rafil Dhafir, a Syracuse N.Y. oncologist who was convicted of breaking the US sanctions against Iraq and various white-collar crimes.
The Post reports that the only non-Muslim inmates are an unidentified Colombian militant and Zvonko Busic, 61, former leader of a Croatian extremist group that hijacked a jetliner and set off a bomb that killed a police officer in 1976, according to prison records and defense lawyers. Busic is a client of Attorney Carmen Fernandez.
Dr. Dhafir, 58, an Iraqi-born US citizen from Syracuse, N.Y., was sentenced to 22 years for defrauding charity donors and conspiring to violate US economic sanctions against Saddam Hussein's government. Prior to his trial, politicians including former N.Y. Governor George Pataki trumpeted Dhafir’s arrest as a major victory in the war on terror. But no mention of terror was ever made in the courtroom in which a jury found him guilty of white-collar crimes.
In a recent letter to supporters, Dhafir recounted his abrupt, heavily guarded
transfer to Terre Haute in December and described it as part of "a nationwide
operation to put Muslims/Arabs in one place so that we can be closely monitored
regarding our communications."
"We are all concerned about the close intrusion on our communications," Dhafir
wrote. "We knew all along that our calls, mail and visits were monitored, but
with the new system we will have absolutely no privacy including our visits.
This is causing a great deal of anxiety and resentment especially among those
whose families speak no English."
Dhafir has come to be something of a poster-boy for what his supporters consider over-zealous prosecutions by US Attorneys. One of the most outspoken of the government’s critics is Katherine Hughes of Syracuse, who sat through every day of Dhafir’s 17-week trial.
She reports: “A founding member of the mosque in Syracuse, New York, Dhafir is a leader among the local Muslim community. An Iraqi-born oncologist, he has been a U.S. citizen for almost 30 years. Before his arrest, he and his wife, Priscilla, were very active in Syracuse civic affairs, and Dhafir often spoke at events and on local TV and radio about health and cancer care. In the early 1990s, in direct response to the humanitarian catastrophe caused by the brutal embargo on Iraq, he founded Help the Needy. For 13 years it sent food and aid to civilians suffering under U.N. sanctions imposed on Iraq at the insistence of the U.S. and Britain. Dhafir devoted much of his life to prayer and charity, and government records showed that he donated half his income to charity every year. In his oncology practice he treated those without medical insurance for free, paying for their chemotherapy out of his own pocket.
“Confident in his innocence and the American system of justice, Dhafir refused to accept a plea bargain, and the government piled on charges. When his case finally came to trial 19 months after his arrest, he faced a 60-count indictment of white-collar crime.
“The government employed many tools to inhibit Dhafir’s ability to mount a defense. Despite the facts that Syracuse’s Muslim community put up $2.3 million in bond money and that Dhafir offered to wear an electronic tag, he never was granted bail; his assets were frozen, making it more difficult to hire defense counsel; and he was denied access to both his records and his counsel. The government’s unlimited resources, moreover, allowed it to present its case in minutiae—seven government agencies had investigated Dr. Dhafir for five years before the case came to trial. The limited resources of the defense counsel, on the other hand, enabled it to call but a single witness, who testified for a mere 15 minutes.
“Although state and national officials smeared Dhafir in the press and New York Gov. George Pataki described Dhafir’s case as ‘money laundering…to help terrorist organizations’, local prosecutors successfully petitioned Judge Norman Mordue, the presiding judge who had denied Dhafir bail on four occasions, to prevent the charge of terrorism from being part of the trial. This ruling made his defense a nightmare: throughout the trial the prosecution hinted at more serious charges, but the defense was prohibited from addressing these inflammatory innuendos.” Dhafir is currently attempting to raise funds to obtain his trial transcript to prepare an appeal of his conviction.
Attorney Van Bergen writes that the CMU program was “not implemented through the process required by federal law, which stipulates the public be notified of any new changes to prison programs and be given the opportunity to voice objections. Instead, the program appears to have been ordered and implemented by a senior official at the Department of Justice.”
She elaborates: “In April of last year, the US Federal Bureau of Prisons -- part of the Department of Justice -- proposed a set of strict new regulations and, as required, there was a period of public comment. Human rights and civil liberties groups voiced strong concerns about the constitutionality of the proposed program.
“The program originally proposed was said to be applicable only to terrorists and terrorist-related criminals. The American Civil Liberties Union (ACLU), however, along with a coalition of other civil liberties groups, objected to the language of the regulation as too broad, and potentially applicable to non-terrorists and even to those not convicted of a crime but merely being held as "witnesses, detainees, or otherwise.
“After pushback from civil rights groups, the program appeared to have been dropped by the Prisons Bureau, with coalition groups believing that they had made their case regarding Constitutional rights.” However, she adds, “A similar program, the CMU, was surreptitiously implemented in December 2006.”
According to attorney Howard Kieffer, only three government offices have the authority to issue such changes in federal prison operations, and they all fall within the senior management of the Justice Department: the office of Harley Lappin, the Director of Prisons Bureau, the Office of Legal Counsel, or directly from the office of the US Attorney General, Alberto Gonzales.
Kieffer says, “It is just like the detentions after 9/11," he adds. "It's profiling."
Kieffer believes that the program not only violates federal law but the Constitution as well, saying it abridges the prisoners' right to freedom of expression and association. These inmates are "not able to communicate like other inmates," he said.
EXECUTIVE PRIVELEGE CLAIMS SEEN AS PART OF GOVERNMENT SECRECY PATTERN
By William Fisher
Amid claims of Executive Privilege by President Bush in the firing of US Attorneys, a bipartisan coalition of civil liberties groups has published a new report charging that the Administration’s stonewalling is simply part of a six-year pattern of unprecedented government secrecy.
The report – “Government Secrecy: Decisions Without Democracy 2007” – was prepared by advocacy groups, OpenTheGovernment.org and People For the American Way Foundation. It documents how executive power has dramatically expanded while executive accountability has diminished.
The report charges that “Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.”
According to Patrice McDermott, director of OpenTheGovernment.org., "As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem. It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."
"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas.
He added: "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."
The report includes a preface written by former conservative Republican Congressman Bob Barr and former Clinton White House Chief of Staff John Podesta.
Barr and Podesta charge that “In the aftermath of the 9/11 terrorist attacks, the current administration has laid claim to a dramatic expansion of executive power,
sometimes with congressional approval, as with the Patriot Act, and sometimes
through legally dubious assertions, as with the National Security Agency’s
domestic surveillance program. At the same time, the administration has
routinely withheld information that should be made public, thereby insulating
itself from democratic accountability.”
Secrecy, they write, “has been advanced in a myriad of ways, including excessive classification, brazen assertions of ‘executive privilege’ and ‘state secrets’, new control markings to restrict ‘sensitive but unclassified’ information, and new limits on Freedom of Information Act requests.”
The report acknowledges that the government should keep certain kinds of
information secret. “Our laws recognize the need to protect national security
information, such as intelligence sources and military plans, for example, as
well as personally identifiable data, such as information provided on tax
returns,” Barr and Podesta write.
But they add that the secrecy claims asserted by the administration “go far beyond what is contemplated by the law — and far beyond what is healthy for democracy, which depends on an informed citizenry.”
“Citizens deprived of relevant information cannot participate in their government’s decisions or hold their leaders accountable. Without this check, government officials are more likely to make decisions contrary to the public interest, abuse their authority, and engage in corrupt activities…The administration’s embrace of secrecy comes frustratingly at a time of great opportunity for government openness,” they say.
The Internet and other new information technologies, the report explains, “make it far easier and cheaper for government to disseminate information and interact with the public. Through government Websites, for example, citizens can now access the Congressional Record, track environmental pollution in their neighborhoods, and comment on regulatory proposals.”
But they conclude that, “Instead of building on this foundation…the executive branch is retrenching — in a host of cases, government information previously available through the Internet has been removed.”
A foreword to the new report charges that “Excessive secrecy is the enemy of public accountability and democratic governance. Unfortunately, it is becoming standard operating procedure for many government officials. Vice President Dick Cheney’s recent insistence that his office is not subject to secrecy regulations that apply to the executive branch is just the latest evidence of a systematic campaign to keep information about government activities out of the hands of the American public. Freedom of Information laws are grounded in the recognition that knowledge about the government’s actions is the necessary first step in oversight and accountability.”
It says that governments have “discovered that secrecy is a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the ruling regime. When governments claim that a broad secrecy mandate is essential to protect national security, they mostly mean that it is essential to protect the political interests of the administration. The harm to national security through breaches of secrecy is always exaggerated.”
The new report was written by David Banisar. Banisar is Director of the Freedom of Information Project of Privacy International in London and a Visiting Research Fellow at the UK’s Leeds University law school. Previously he was a Research Fellow at the Kennedy School of Government at Harvard University and co-founder and Policy Director of the Electronic Privacy Information Center in Washington, DC.
The report comes at a time of intense debate about what many believe is the Bush Administration’s obsession with secrecy, placing the Constitutionally enshrined doctrine of separation of powers under extraordinary challenge. While Congress struggles to exercise its oversight responsibilities as one of the country’s three co-equal branches of government, another branch, the Executive, seeks to deny legislators the people and documents lawmakers require to meet those responsibilities.
The current controversy was generated by the firings of nine US Attorneys, but has moved into a number of other areas. One of these is the admission by the former White House Liaison at the DOJ, Monica Goodling, that she “crossed the line” in questioning applicants for career positions about their political beliefs.
Another is the alleged arm-twisting of then-Attorney General John Ashcroft, in his intensive care hospital room following surgery. Then-White House Counsel Alberto Gonzales and then Bush Chief of Staff Andrew Card reportedly went to the attorney general’s hospital room to persuade him to approve the extension of a secret intelligence program that Ashcroft’s deputy had declined to authorize.
Both houses of Congress have been investigating the reasons for the Bush Administration’s firing of the US Attorneys, alleged perjury by Attorney General Gonzales in testimony before the Senate Judiciary Committee, and the role of the White House in engineering the firings.
The White House has claimed executive privilege in refusing to allow former White House Counsel Harriet Miers and current White House Chief of Staff Josh Bolten to respond to subpoenas from the Senate Judiciary Committee.
The House Judiciary Committee voted Wednesday to recommend contempt citations against Miers and Bolten.
The “battle of the branches” continued to escalate during the week. On Thursday,
four Democratic members of the Senate Judiciary Committee asked the Solicitor General of the US, Paul Clement, to appoint a special counsel to investigate possible perjury charges against Gonzales in connection with his testimony about the hospital visit to Ashcroft.
The chairman of the committee, Democratic Senator Patrick Leahy of Maine, did not join with his committee colleagues, instead choosing to offer Gonzales an opportunity to amend his testimony.
The action came after the White House vowed it would instruct the US Attorney in the District of Columbia not to seek a grand jury indictment.
The Solicitor General is part of the Department of Justice, but is meant to be independent of the Attorney General. However, because he is part of the Executive Branch, most observers believe he is unlikely to act on the Senators’ request.
In a further blow in what can only be described as a bad week for the Administration, FBI Director Robert Mueller testified to the House Judiciary Committee on Thursday that the intelligence program Gonzales and Card attempted to have approved by the ailing John Ashcroft was in fact the NSA’s Domestic Surveillance Program, also known as the warrantless wiretaps program.
In testimony before the Senate earlier in the week, Attorney General Gonzales claimed it was another program for which they sought Ashcroft’s approval.
Finally, Sen. Leahy issued subpoenas to White House political adviser Karl Rove and one of his deputies, demanding their testimony by Aug. 2 in the panel's long-running investigation into the firings of the US attorneys and the alleged politicization of the Justice Department.
Knowledgeable sources said it was unlikely the White House would allow Rove’s testimony, thus opening the possibility of additional contempt citations or involvement by the courts.
The issue of excessive secrecy in the Bush Administration also surfaced elsewhere during the past few weeks. Last week, in a report to the president that found serious shortcomings in the process, the government’s Information Security Oversight Office (ISOO) said there were 20.5 million decisions to classify government secrets last year.
More than one in ten documents the ISOO reviewed lacked a basis for classification, and called into question the propriety of the decisions to remove them from public disclosure, the ISOO report said.
The ISOO’s annual review highlighted what it termed "the high error rate," and said it could be addressed only by a process of continuous oversight.
The report came as the office of Vice President Dick Cheney continued to refuse to cooperate with the office of the National Archives. Executive branch agencies give the ISOO data on how much material they classify and declassify. Cheney's office provided the information in 2001 and 2002, but has provided no further information since then.
"The reviews of actual decision making are striking, given the vice president's refusal to report" to the ISOO, said Meredith Fuchs, general counsel at the National Security Archive, a private advocacy group concerned with public disclosure of government secrets.
The White House claimed that an executive order from the president was never intended to define the vice president's office as “an agency.”
In another development shrouded in the issue of government secrecy, a federal appeals court ruled that the government must make available whatever information it has on Guantánamo detainees who are challenging their detention. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from defense attorneys.
The ruling rejected an effort by the Justice Department to limit disclosures to detainees’ lawyers, but opened the way for new legal battles over the government’s reasons for holding the men indefinitely.
The court said it would be impossible to review the military tribunals “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the
denominator.”
At the same time, the Court also issued a new order that substantially curtails the ability of attorneys to work with clients at Guantánamo. Civil rights groups charged that this ruling compromises attorney-client privilege.
“If we don’t have access to key information, how can we trust the government process?” asked attorney Wells Dixon of the Center for Constitutional Rights (CCR), an advocacy group that represents many of the GITMO detainees.
Dixon said the decision “will make it even more difficult for us to represent our clients. We’re extremely disappointed that the Court of Appeals has given its imprimatur to the notion that attorney-client privilege can be abolished with the stroke of a pen.”
The Detainee Treatment Act of 2005 (DTA) allows detainees to challenge their designation as “enemy combatants.” But the CCR and other human rights and legal groups have long maintained that the DTA review process is no substitute for the right to habeas corpus and fair hearings that operate under the rule of law.
The CCR says the CSRT process that is reviewed by the DTA hearings is itself flawed because CSRTs allow the use of secret evidence, torture evidence, and hearsay. They also exclude lawyers from the process, and deny detainees the right to see much of the evidence against them.
Detainees’ lawyers have argued that the military officials running the hearings
may have failed to collect information that might support the detainees’ cases.
The cases were filed shortly before the Supreme Court declined to hear two of the CCR’s habeas petitions. The Court took the position that detainees should first exhaust the review process set up by the DTA. But last month, in an unusual turnaround, the Court reversed itself and decided to hear the two cases during its next session, which begins in October 2007.
The Court’s surprising self-reversal potentially opened the door to scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants. As these cases proceed, their centerpiece is likely to be the confluence of government secrecy, national security, separation of powers, and the preservation of constitutional rights.
Whether related to national security or to a host of domestic issues, concern about excessive government secrecy is unlikely to go away any time soon. For some observers, the current controversy is reminiscent of the final months of the administration of President Richard M. Nixon, when the executive branch battled unsuccessfully to block judicial oversight.
In the wide range of current controversies, virtually all observers doubt that the Executive and Legislative branches of government will ever be able to resolve their differences and that executive privilege and other secrecy-related issues will once again have to be decided by the third branch of government, the Courts.
Amid claims of Executive Privilege by President Bush in the firing of US Attorneys, a bipartisan coalition of civil liberties groups has published a new report charging that the Administration’s stonewalling is simply part of a six-year pattern of unprecedented government secrecy.
The report – “Government Secrecy: Decisions Without Democracy 2007” – was prepared by advocacy groups, OpenTheGovernment.org and People For the American Way Foundation. It documents how executive power has dramatically expanded while executive accountability has diminished.
The report charges that “Over the past six years, President Bush has used executive orders to limit use of the Freedom of Information Act and Presidential Records Act, expanded the power to classify information for national security reasons, and created a range of new categories of "sensitive" information. In some cases, the government has gone so far as to reclassify documents that had been available to the general public for many years.”
According to Patrice McDermott, director of OpenTheGovernment.org., "As Congress and the White House clash over this administration's unprecedented secrecy, Americans need to know the full scope of the problem. It is up to us, with and through our elected officials, to preserve our heritage of open and accountable government."
"Increased secrecy is just one of the ways that the Bush Administration has made the government less accountable," said People For the American Way Foundation President Ralph G. Neas.
He added: "This report is an eye-opener even for those who think they already know the extent of the problem. At a time when technology should make it easier than ever to promote openness in government, George W. Bush and Dick Cheney have taken unprecedented steps to cloak themselves in secrecy."
The report includes a preface written by former conservative Republican Congressman Bob Barr and former Clinton White House Chief of Staff John Podesta.
Barr and Podesta charge that “In the aftermath of the 9/11 terrorist attacks, the current administration has laid claim to a dramatic expansion of executive power,
sometimes with congressional approval, as with the Patriot Act, and sometimes
through legally dubious assertions, as with the National Security Agency’s
domestic surveillance program. At the same time, the administration has
routinely withheld information that should be made public, thereby insulating
itself from democratic accountability.”
Secrecy, they write, “has been advanced in a myriad of ways, including excessive classification, brazen assertions of ‘executive privilege’ and ‘state secrets’, new control markings to restrict ‘sensitive but unclassified’ information, and new limits on Freedom of Information Act requests.”
The report acknowledges that the government should keep certain kinds of
information secret. “Our laws recognize the need to protect national security
information, such as intelligence sources and military plans, for example, as
well as personally identifiable data, such as information provided on tax
returns,” Barr and Podesta write.
But they add that the secrecy claims asserted by the administration “go far beyond what is contemplated by the law — and far beyond what is healthy for democracy, which depends on an informed citizenry.”
“Citizens deprived of relevant information cannot participate in their government’s decisions or hold their leaders accountable. Without this check, government officials are more likely to make decisions contrary to the public interest, abuse their authority, and engage in corrupt activities…The administration’s embrace of secrecy comes frustratingly at a time of great opportunity for government openness,” they say.
The Internet and other new information technologies, the report explains, “make it far easier and cheaper for government to disseminate information and interact with the public. Through government Websites, for example, citizens can now access the Congressional Record, track environmental pollution in their neighborhoods, and comment on regulatory proposals.”
But they conclude that, “Instead of building on this foundation…the executive branch is retrenching — in a host of cases, government information previously available through the Internet has been removed.”
A foreword to the new report charges that “Excessive secrecy is the enemy of public accountability and democratic governance. Unfortunately, it is becoming standard operating procedure for many government officials. Vice President Dick Cheney’s recent insistence that his office is not subject to secrecy regulations that apply to the executive branch is just the latest evidence of a systematic campaign to keep information about government activities out of the hands of the American public. Freedom of Information laws are grounded in the recognition that knowledge about the government’s actions is the necessary first step in oversight and accountability.”
It says that governments have “discovered that secrecy is a source of power and an efficient way of covering up the embarrassments, blunders, follies and crimes of the ruling regime. When governments claim that a broad secrecy mandate is essential to protect national security, they mostly mean that it is essential to protect the political interests of the administration. The harm to national security through breaches of secrecy is always exaggerated.”
The new report was written by David Banisar. Banisar is Director of the Freedom of Information Project of Privacy International in London and a Visiting Research Fellow at the UK’s Leeds University law school. Previously he was a Research Fellow at the Kennedy School of Government at Harvard University and co-founder and Policy Director of the Electronic Privacy Information Center in Washington, DC.
The report comes at a time of intense debate about what many believe is the Bush Administration’s obsession with secrecy, placing the Constitutionally enshrined doctrine of separation of powers under extraordinary challenge. While Congress struggles to exercise its oversight responsibilities as one of the country’s three co-equal branches of government, another branch, the Executive, seeks to deny legislators the people and documents lawmakers require to meet those responsibilities.
The current controversy was generated by the firings of nine US Attorneys, but has moved into a number of other areas. One of these is the admission by the former White House Liaison at the DOJ, Monica Goodling, that she “crossed the line” in questioning applicants for career positions about their political beliefs.
Another is the alleged arm-twisting of then-Attorney General John Ashcroft, in his intensive care hospital room following surgery. Then-White House Counsel Alberto Gonzales and then Bush Chief of Staff Andrew Card reportedly went to the attorney general’s hospital room to persuade him to approve the extension of a secret intelligence program that Ashcroft’s deputy had declined to authorize.
Both houses of Congress have been investigating the reasons for the Bush Administration’s firing of the US Attorneys, alleged perjury by Attorney General Gonzales in testimony before the Senate Judiciary Committee, and the role of the White House in engineering the firings.
The White House has claimed executive privilege in refusing to allow former White House Counsel Harriet Miers and current White House Chief of Staff Josh Bolten to respond to subpoenas from the Senate Judiciary Committee.
The House Judiciary Committee voted Wednesday to recommend contempt citations against Miers and Bolten.
The “battle of the branches” continued to escalate during the week. On Thursday,
four Democratic members of the Senate Judiciary Committee asked the Solicitor General of the US, Paul Clement, to appoint a special counsel to investigate possible perjury charges against Gonzales in connection with his testimony about the hospital visit to Ashcroft.
The chairman of the committee, Democratic Senator Patrick Leahy of Maine, did not join with his committee colleagues, instead choosing to offer Gonzales an opportunity to amend his testimony.
The action came after the White House vowed it would instruct the US Attorney in the District of Columbia not to seek a grand jury indictment.
The Solicitor General is part of the Department of Justice, but is meant to be independent of the Attorney General. However, because he is part of the Executive Branch, most observers believe he is unlikely to act on the Senators’ request.
In a further blow in what can only be described as a bad week for the Administration, FBI Director Robert Mueller testified to the House Judiciary Committee on Thursday that the intelligence program Gonzales and Card attempted to have approved by the ailing John Ashcroft was in fact the NSA’s Domestic Surveillance Program, also known as the warrantless wiretaps program.
In testimony before the Senate earlier in the week, Attorney General Gonzales claimed it was another program for which they sought Ashcroft’s approval.
Finally, Sen. Leahy issued subpoenas to White House political adviser Karl Rove and one of his deputies, demanding their testimony by Aug. 2 in the panel's long-running investigation into the firings of the US attorneys and the alleged politicization of the Justice Department.
Knowledgeable sources said it was unlikely the White House would allow Rove’s testimony, thus opening the possibility of additional contempt citations or involvement by the courts.
The issue of excessive secrecy in the Bush Administration also surfaced elsewhere during the past few weeks. Last week, in a report to the president that found serious shortcomings in the process, the government’s Information Security Oversight Office (ISOO) said there were 20.5 million decisions to classify government secrets last year.
More than one in ten documents the ISOO reviewed lacked a basis for classification, and called into question the propriety of the decisions to remove them from public disclosure, the ISOO report said.
The ISOO’s annual review highlighted what it termed "the high error rate," and said it could be addressed only by a process of continuous oversight.
The report came as the office of Vice President Dick Cheney continued to refuse to cooperate with the office of the National Archives. Executive branch agencies give the ISOO data on how much material they classify and declassify. Cheney's office provided the information in 2001 and 2002, but has provided no further information since then.
"The reviews of actual decision making are striking, given the vice president's refusal to report" to the ISOO, said Meredith Fuchs, general counsel at the National Security Archive, a private advocacy group concerned with public disclosure of government secrets.
The White House claimed that an executive order from the president was never intended to define the vice president's office as “an agency.”
In another development shrouded in the issue of government secrecy, a federal appeals court ruled that the government must make available whatever information it has on Guantánamo detainees who are challenging their detention. But it also stated that “highly sensitive information” – likely to be information concerning the torture of detainees – can be withheld from defense attorneys.
The ruling rejected an effort by the Justice Department to limit disclosures to detainees’ lawyers, but opened the way for new legal battles over the government’s reasons for holding the men indefinitely.
The court said it would be impossible to review the military tribunals “without seeing all the evidence, any more than one can tell whether a fraction is more or less than half by looking only at the numerator and not the
denominator.”
At the same time, the Court also issued a new order that substantially curtails the ability of attorneys to work with clients at Guantánamo. Civil rights groups charged that this ruling compromises attorney-client privilege.
“If we don’t have access to key information, how can we trust the government process?” asked attorney Wells Dixon of the Center for Constitutional Rights (CCR), an advocacy group that represents many of the GITMO detainees.
Dixon said the decision “will make it even more difficult for us to represent our clients. We’re extremely disappointed that the Court of Appeals has given its imprimatur to the notion that attorney-client privilege can be abolished with the stroke of a pen.”
The Detainee Treatment Act of 2005 (DTA) allows detainees to challenge their designation as “enemy combatants.” But the CCR and other human rights and legal groups have long maintained that the DTA review process is no substitute for the right to habeas corpus and fair hearings that operate under the rule of law.
The CCR says the CSRT process that is reviewed by the DTA hearings is itself flawed because CSRTs allow the use of secret evidence, torture evidence, and hearsay. They also exclude lawyers from the process, and deny detainees the right to see much of the evidence against them.
Detainees’ lawyers have argued that the military officials running the hearings
may have failed to collect information that might support the detainees’ cases.
The cases were filed shortly before the Supreme Court declined to hear two of the CCR’s habeas petitions. The Court took the position that detainees should first exhaust the review process set up by the DTA. But last month, in an unusual turnaround, the Court reversed itself and decided to hear the two cases during its next session, which begins in October 2007.
The Court’s surprising self-reversal potentially opened the door to scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants. As these cases proceed, their centerpiece is likely to be the confluence of government secrecy, national security, separation of powers, and the preservation of constitutional rights.
Whether related to national security or to a host of domestic issues, concern about excessive government secrecy is unlikely to go away any time soon. For some observers, the current controversy is reminiscent of the final months of the administration of President Richard M. Nixon, when the executive branch battled unsuccessfully to block judicial oversight.
In the wide range of current controversies, virtually all observers doubt that the Executive and Legislative branches of government will ever be able to resolve their differences and that executive privilege and other secrecy-related issues will once again have to be decided by the third branch of government, the Courts.
Tuesday, July 17, 2007
PATH TO CITIZENSHIP BLOCKED FOR LEGAL IMMIGRANTS
By William Fisher
Critics of the Bush Administration are charging that the recent collapse of immigration legislation in the current session of Congress was rooted in fear of “people not like me” – and that it is not only impacting undocumented immigrants but also legal US residents who have been waiting to up to seven years to take their citizenship oaths.
And one advocacy group, the Council on American-Islamic Relations (CAIR), is claiming that the delays are disproportionately disadvantaging Muslims.
The organization’s Maryland and Virginia chapter says there is a perception in the Muslim community that the citizenship delays are based on religion and national origin.
The group’s civil rights manager, Morris Days, points out that the Immigration and Naturalization Act requires that the Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) administer the oath of citizenship no later than 120 days after completion of the naturalization process. But he claims the USCIS “has delayed the oaths for many Muslims based on an unlegislated rule that requires rechecking applicant's files.”
CAIR is calling on the DHS to expedite the cases of local Muslims who have been waiting for up to seven years to take their citizenship oaths.
The group says the individuals experiencing the delays are legal residents who have fulfilled all requirements necessary to become American citizens. “In some cases, the delays are causing personal hardships for those separated from family members or who are in careers that require citizenship for advancement,” it adds.
Days says, "Every citizen and permanent resident has a right to expect fundamental fairness in a process that determines important societal benefits such as citizenship. The problem is that there has been no time frame for applicants to be given citizenship oaths, which results in their lives and futures being in limbo."
CAIR's 2006 annual report on the status of American Muslim civil rights that shows citizenship delays as the top concern.
CAIR, America's largest Islamic civil liberties group, has 33 offices and chapters nationwide and in Canada. According to its website, the organization’s mission is “to promote justice, enhance the understanding of Islam, and empower American Muslims.”
While the organization says it has worked closely with the DHS and other government agencies to identify radical Islamists but at the same time to combat “Islamophobia,” CAIR has not escaped controversy. It has been named an unindicted co-conspirator in the government’s prosecution of a Muslim-oriented charity, The Holy Land Foundation, for providing material support for terrorists. Holy Land’s leaders are currently on trial in Richardson, Texas, charged with collecting funds in the US that were illegally funneled to Palestinian militant groups such as Hamas. The government charges are that the Foundation raised funds for Hamas, which used the money freed up by their donations to conduct terrorism, with the knowledge of Foundation officials.
Hamas, which won a large majority of seats in the Palestinian parliament following elections in January 2006, is on the State Department’s list of terrorist organizations. The election gave Hamas the right to form the next cabinet under the Palestinian Authority's president, Mahmoud Abbas, the leader of the opposition political party, Fatah.
But the two Palestinian factions have been deeply divided since the election, and amid recent armed conflict in Gaza, Abbas dismissed the Hamas Prime Minister and his government, and appointed a new government.
The US shut down the Holy Land Foundation three months after 9/11, saying it sent millions of dollars to the Middle East to help “indoctrinate children to grow up into suicide bombers.” While a number of other charities dedicated to Muslim causes have also been shut down, the Holy Land case is the nation’s biggest terror-financing case yet: The government says that seven foundation organizers illegally sent at least $12 million overseas to Hamas.
CAIR has denied any involvement in support for Hamas or any other group labeled as a terrorist organization.
The Holy Land and related cases present Muslim-Americans with a particularly sensitive issue, since charitable giving is one of the basic tenets of Islam.
In a related development, in June the State Department issued a bulletin encouraging thousands of highly skilled workers to apply for green cards by July 2. The New York Times reported that the bulletin “prompted untold numbers of doctors, medical technicians and other professionals, many of whom have lived here with their families for years, to assemble little mountains of paper. They got certified records and sponsorship documents, paid for medical exams and lawyers and sent their applications in. Many canceled vacations to be in the United States when their applications arrived, as the law requires.”
But it was later revealed that the State Department had issued the bulletin only to prod CIS to expedite green card processing. Since 2000, 182,694 green cards
have gone un-issued because CIS did not process them in time. The annual supply of green cards is capped by law, and demand consistently outstrips supply.
CIS worked through a weekend to process tens of thousands of applications. But after that weekend, the State Department announced that all 140,000 employment-based green cards had been used and that no additional applications would be accepted.
CIS says the law forbids it to accept the applications, but the American Immigration Lawyers Association disagrees with this interpretation. It is preparing a class-action lawsuit to compel the bureaucracy to accept the application surge for which it was responsible.
On July 30, a new fee schedule for immigrants takes effect, substantially increasing the application cost.
Critics of the Bush Administration are charging that the recent collapse of immigration legislation in the current session of Congress was rooted in fear of “people not like me” – and that it is not only impacting undocumented immigrants but also legal US residents who have been waiting to up to seven years to take their citizenship oaths.
And one advocacy group, the Council on American-Islamic Relations (CAIR), is claiming that the delays are disproportionately disadvantaging Muslims.
The organization’s Maryland and Virginia chapter says there is a perception in the Muslim community that the citizenship delays are based on religion and national origin.
The group’s civil rights manager, Morris Days, points out that the Immigration and Naturalization Act requires that the Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) administer the oath of citizenship no later than 120 days after completion of the naturalization process. But he claims the USCIS “has delayed the oaths for many Muslims based on an unlegislated rule that requires rechecking applicant's files.”
CAIR is calling on the DHS to expedite the cases of local Muslims who have been waiting for up to seven years to take their citizenship oaths.
The group says the individuals experiencing the delays are legal residents who have fulfilled all requirements necessary to become American citizens. “In some cases, the delays are causing personal hardships for those separated from family members or who are in careers that require citizenship for advancement,” it adds.
Days says, "Every citizen and permanent resident has a right to expect fundamental fairness in a process that determines important societal benefits such as citizenship. The problem is that there has been no time frame for applicants to be given citizenship oaths, which results in their lives and futures being in limbo."
CAIR's 2006 annual report on the status of American Muslim civil rights that shows citizenship delays as the top concern.
CAIR, America's largest Islamic civil liberties group, has 33 offices and chapters nationwide and in Canada. According to its website, the organization’s mission is “to promote justice, enhance the understanding of Islam, and empower American Muslims.”
While the organization says it has worked closely with the DHS and other government agencies to identify radical Islamists but at the same time to combat “Islamophobia,” CAIR has not escaped controversy. It has been named an unindicted co-conspirator in the government’s prosecution of a Muslim-oriented charity, The Holy Land Foundation, for providing material support for terrorists. Holy Land’s leaders are currently on trial in Richardson, Texas, charged with collecting funds in the US that were illegally funneled to Palestinian militant groups such as Hamas. The government charges are that the Foundation raised funds for Hamas, which used the money freed up by their donations to conduct terrorism, with the knowledge of Foundation officials.
Hamas, which won a large majority of seats in the Palestinian parliament following elections in January 2006, is on the State Department’s list of terrorist organizations. The election gave Hamas the right to form the next cabinet under the Palestinian Authority's president, Mahmoud Abbas, the leader of the opposition political party, Fatah.
But the two Palestinian factions have been deeply divided since the election, and amid recent armed conflict in Gaza, Abbas dismissed the Hamas Prime Minister and his government, and appointed a new government.
The US shut down the Holy Land Foundation three months after 9/11, saying it sent millions of dollars to the Middle East to help “indoctrinate children to grow up into suicide bombers.” While a number of other charities dedicated to Muslim causes have also been shut down, the Holy Land case is the nation’s biggest terror-financing case yet: The government says that seven foundation organizers illegally sent at least $12 million overseas to Hamas.
CAIR has denied any involvement in support for Hamas or any other group labeled as a terrorist organization.
The Holy Land and related cases present Muslim-Americans with a particularly sensitive issue, since charitable giving is one of the basic tenets of Islam.
In a related development, in June the State Department issued a bulletin encouraging thousands of highly skilled workers to apply for green cards by July 2. The New York Times reported that the bulletin “prompted untold numbers of doctors, medical technicians and other professionals, many of whom have lived here with their families for years, to assemble little mountains of paper. They got certified records and sponsorship documents, paid for medical exams and lawyers and sent their applications in. Many canceled vacations to be in the United States when their applications arrived, as the law requires.”
But it was later revealed that the State Department had issued the bulletin only to prod CIS to expedite green card processing. Since 2000, 182,694 green cards
have gone un-issued because CIS did not process them in time. The annual supply of green cards is capped by law, and demand consistently outstrips supply.
CIS worked through a weekend to process tens of thousands of applications. But after that weekend, the State Department announced that all 140,000 employment-based green cards had been used and that no additional applications would be accepted.
CIS says the law forbids it to accept the applications, but the American Immigration Lawyers Association disagrees with this interpretation. It is preparing a class-action lawsuit to compel the bureaucracy to accept the application surge for which it was responsible.
On July 30, a new fee schedule for immigrants takes effect, substantially increasing the application cost.
Thursday, July 05, 2007
EXACTLY WHAT ARE CONSERVATIVE JUDGES CONSERVING?
By William Fisher
If you listen to their rhetoric, the mission of the Conservative movement is to get big government off the people’s backs and out of their lives, live by what the framers of the Constitution intended, and help the least of us to enjoy the same liberties as the most of us.
That’s what they say they expect from our lawmakers and from our courts. And they’ll tell you it’s the reason they get apoplectic about what they call “activist judges.”
If we needed any more proof of their hypocrisy after the disgrace of the Terry Schiavo affair, it would be easy to find in the decisions of the Supreme Court session just ended.
The Supreme Court is supposed to be the last resort for the least of us, the one door always open to ordinary citizens seeking justice.
So consider how the Court ruled this term:
It struck down the modest and voluntarily adopted plans of Seattle and Louisville to re-integrate their public schools. By a 5-4 vote, the Justices decided, as The New York Times put it, that the equal protection clause of the14th Amendment was really intended to protect white students from integration.
It ruled against an prison inmate who filed an appeal based on a deadline set by a federal judge because the judge gave him a wrong date.
It overturned a jury’s award of $79.5 million in punitive damages against cigarette manufacturer Philip Morris.
It ruled that it was OK for manufacturers to impose minimum prices on retailers.
It upheld the federal ban on so-called “partial-birth” abortions.
It ruled that taxpayers lacked the ‘standing’ to challenge the Bush administration’s faith-based initiatives.
And it rewarded the most powerful of us by striking down parts of the campaign finance law that limited the funding of so-called “issue ads” by wealthy contributors.
Most of these decisions will make life tougher, not easier, for the least of us. And some thumbed their noses at the stare decisis riff that Chief Justice John Roberts sang so sonorously during his confirmation hearings.
The Philip Morris decision overturned a ruling by the Oregon Supreme Court based on the manufacturer’s 40 years of lying about the connection between smoking and cancer. The campaign finance ruling was a gift to big money interests and the K Street mob. The retail price case, another gift to the rich and powerful, overturned a 96-year-old precedent. The missed deadline case overturned two previous decisions. The faith-based case sidestepped the Constitution’s separation of church and state mandate, but ignored the role of the Court itself as the last safe harbor for ordinary citizens who are hurt when government policies damage the society they live in. In the so-called abortion case, the Court overturned its own 2000 decision, which mandated protection for the health of the mother. And in the racial integration cases, the justices stood Brown v. Board on its head.
The ideology of the current court has been cemented by the addition of President Bush’s two nominees – Chief Justice Roberts and Justice Samuel Alito. During their confirmation hearings, these two men went to great pains to paint themselves as “incrementalists” who regarded stare decisis – previous decisions – as near-sacred. They testified ad nauseam to their “modest” approach to legal change.
Having used these platitudes to snooker enough members of the Senate Judiciary Committee to win their lifetime seats on the nation’s highest Court, they are now to free to join their two ideological brothers – Justices Antonin Scalia and Clarence Thomas – to form the solid four in five-to-four decisions. The fifth brother is Justice Anthony Kennedy, who was expected by some to stand in the “middle ground” so often occupied by now retired Justice Sandra Day O’Connor.
But the folly of that expectation should have been clear when Justice Kennedy, in his partial birth abortion opinion, paternalistically cautioned that upholding this surgical procedure might cause women to do things they might later regret. Someone needs to tell Justice Kennedy the 19th Century is over!
So what exactly are these so-called Conservatives conserving? The interests of the richest and most powerful among us? The idea that women need daddies to help them reach rational decisions? The integrity of the Constitution and the decisions of lower courts? The Constitutional glue of precedent?
There are indeed times when precedent impedes progress and obstructs justice. That was true when the Supreme Court of Chief Justice Warren Burger overturned a half-century of Plessy v. Ferguson “separate but equal” racial doctrine to rule that separate could never be equal.
Then, and at most times in our country’s history, overturning precedent has been in the service of increasing freedom for the least of us. This Court term has seen a 180-degree turn away from that proud tradition. It has resulted in less, not more, freedom.
Conserving the freedoms of the least of us seems to be what Conservatives have forgotten.
Today’s Supreme Court makes you wonder how Conservatives define “judicial activism.”
If you listen to their rhetoric, the mission of the Conservative movement is to get big government off the people’s backs and out of their lives, live by what the framers of the Constitution intended, and help the least of us to enjoy the same liberties as the most of us.
That’s what they say they expect from our lawmakers and from our courts. And they’ll tell you it’s the reason they get apoplectic about what they call “activist judges.”
If we needed any more proof of their hypocrisy after the disgrace of the Terry Schiavo affair, it would be easy to find in the decisions of the Supreme Court session just ended.
The Supreme Court is supposed to be the last resort for the least of us, the one door always open to ordinary citizens seeking justice.
So consider how the Court ruled this term:
It struck down the modest and voluntarily adopted plans of Seattle and Louisville to re-integrate their public schools. By a 5-4 vote, the Justices decided, as The New York Times put it, that the equal protection clause of the14th Amendment was really intended to protect white students from integration.
It ruled against an prison inmate who filed an appeal based on a deadline set by a federal judge because the judge gave him a wrong date.
It overturned a jury’s award of $79.5 million in punitive damages against cigarette manufacturer Philip Morris.
It ruled that it was OK for manufacturers to impose minimum prices on retailers.
It upheld the federal ban on so-called “partial-birth” abortions.
It ruled that taxpayers lacked the ‘standing’ to challenge the Bush administration’s faith-based initiatives.
And it rewarded the most powerful of us by striking down parts of the campaign finance law that limited the funding of so-called “issue ads” by wealthy contributors.
Most of these decisions will make life tougher, not easier, for the least of us. And some thumbed their noses at the stare decisis riff that Chief Justice John Roberts sang so sonorously during his confirmation hearings.
The Philip Morris decision overturned a ruling by the Oregon Supreme Court based on the manufacturer’s 40 years of lying about the connection between smoking and cancer. The campaign finance ruling was a gift to big money interests and the K Street mob. The retail price case, another gift to the rich and powerful, overturned a 96-year-old precedent. The missed deadline case overturned two previous decisions. The faith-based case sidestepped the Constitution’s separation of church and state mandate, but ignored the role of the Court itself as the last safe harbor for ordinary citizens who are hurt when government policies damage the society they live in. In the so-called abortion case, the Court overturned its own 2000 decision, which mandated protection for the health of the mother. And in the racial integration cases, the justices stood Brown v. Board on its head.
The ideology of the current court has been cemented by the addition of President Bush’s two nominees – Chief Justice Roberts and Justice Samuel Alito. During their confirmation hearings, these two men went to great pains to paint themselves as “incrementalists” who regarded stare decisis – previous decisions – as near-sacred. They testified ad nauseam to their “modest” approach to legal change.
Having used these platitudes to snooker enough members of the Senate Judiciary Committee to win their lifetime seats on the nation’s highest Court, they are now to free to join their two ideological brothers – Justices Antonin Scalia and Clarence Thomas – to form the solid four in five-to-four decisions. The fifth brother is Justice Anthony Kennedy, who was expected by some to stand in the “middle ground” so often occupied by now retired Justice Sandra Day O’Connor.
But the folly of that expectation should have been clear when Justice Kennedy, in his partial birth abortion opinion, paternalistically cautioned that upholding this surgical procedure might cause women to do things they might later regret. Someone needs to tell Justice Kennedy the 19th Century is over!
So what exactly are these so-called Conservatives conserving? The interests of the richest and most powerful among us? The idea that women need daddies to help them reach rational decisions? The integrity of the Constitution and the decisions of lower courts? The Constitutional glue of precedent?
There are indeed times when precedent impedes progress and obstructs justice. That was true when the Supreme Court of Chief Justice Warren Burger overturned a half-century of Plessy v. Ferguson “separate but equal” racial doctrine to rule that separate could never be equal.
Then, and at most times in our country’s history, overturning precedent has been in the service of increasing freedom for the least of us. This Court term has seen a 180-degree turn away from that proud tradition. It has resulted in less, not more, freedom.
Conserving the freedoms of the least of us seems to be what Conservatives have forgotten.
Today’s Supreme Court makes you wonder how Conservatives define “judicial activism.”
Wednesday, June 27, 2007
ANOTHER BITTER BATTLE LOOMS AS CONGRESS STRUGGLES TO DEAL WITH PRISONER RIGHTS
By William Fisher
Sometime this summer, Congress will again address the question of whether “war-on-terror” prisoners should have access to Federal courts to question the basis for their detention. The debate promises to be as bitterly contentious as the current battles over immigration and Iraq, and raises the question of whether wafer-thin Democratic House and Senate majorities can muster enough votes to override a likely Presidential veto.
Center-stage in the upcoming debate are two pieces of legislation that would amend the Military Commissions Act (MCA) of 2006 to “restore” the habeas corpus rights banned by that law.
In the Senate, Senator Patrick Leahy (D-VT), chairman of the Judiciary Committee, and the Committee’s top Republican, Senator Arlen Specter of Pennsylvania, have introduced the Habeas Corpus Restoration Act of 2007. The measure would restore habeas corpus protections by repealing provisions of the MCA. The legislation was favorably reported out by the Judiciary Committee in May.
In the House, Armed Services Committee Chairman Ike Skelton (D-MO) and Judiciary Committee Chairman John Conyers (D-MI) have introduced legislation that would uphold the principle of habeas corpus by amending the MCA to allow individuals detained, often for many years without formal charges, to have their day in court.
The House bill would allow prisoners to challenge their indefinite detention without trial and permit habeas courts to review the actions of the Military Commissions established under the MCA. . Detainees being held in active combat zones, such as Iraq and Afghanistan, would continue to be barred from filing habeas petitions.
Another bill, titled the "Restoring the Constitution Act of 2007” has been introduced in the Senate by a group of Senate Democrats headed by Presidential hopeful Senator Chris Dodd of Connecticut. That legislation would restore
habeas corpus rights to all detainees in US custody and narrowly define
what it means to be an "enemy combatant" against the United States.
The bill would also prevent the executive branch from making blanket
determinations about who is an enemy combatant and would restrict the
President’s authority to interpret when certain human rights standards apply to
detainees. The legislation would limit the label "enemy combatant" to a person
"who directly participates in hostilities in a zone of active combat against the
United States" or who took part in the terrorist attacks of Sept. 11, 2001.
Congress-watchers speculate that the Dodd legislation will be incorporated into the Leahy-Specter proposal before these measures move to the Senate floor for debate and votes. It is still unclear when either the Senate or the House will schedule floor debates.
The MCA was hurriedly passed by a then Republican-controlled Congress in late 2006, after the Supreme Court dealt a significant blow to the Bush Administration by ruling that, without statutory authority, the President did not have the power to designate people as “unlawful enemy combatants” and hold them indefinitely without charges.
The resulting legislation, signed by President Bush in early 2007, gave the President even greater scope to detain people as enemy combatants, since its provisions applied not only to those “captured on the battlefield” but also to legal aliens living in the US and to American citizens as well.
Jose Padilla became the “poster child” for the latter category of detainees. An American citizen, he was arrested at Chicago’s O’Hare International Airport in (DATE) and held incommunicado in a US Navy brig for three years (CHECK). He was transferred to Federal prison and charged only to head off a Supreme Court case that would likely have ruled his imprisonment unconstitutional.
While public officials such as then Attorney General John Ashcroft used the media to publicly accuse Padilla of conspiring to detonate a radioactive “dirty bomb” in the US, these charges were nowhere to be found in the criminal indictment eventually obtained by the Department of Justice. Padilla is currently on trial in a Federal court in Miami, charged with conspiring to provide material support for terrorism.
In introducing his legislation, Senator Leahy said, “It is urgent that we restore our legal traditions and reestablish this fundamental check on the ability of the Government to lock someone away without meaningful judicial review of its action.”
He added: “The sweep of this habeas provision goes far beyond the few hundred detainees currently held at Guantanamo Bay, and includes an estimated 12 million lawful permanent residents in the United States today.”
Representative Conyers declared, “Habeas Corpus is one of the fundamental touchstones of our constitutional democracy. We cannot preach freedom abroad if we are not willing to give prisoners the ability to establish their innocence; and, we cannot advance the cause of fighting terrorism at home if our government takes constitutionally dubious short cuts.”
His thoughts were echoed by Armed Services Committee Chairman Skelton. “The last thing that we want is to convict an individual for terrorism and then have that conviction overturned because of fatal flaws in the Military Commissions law passed in the previous Congress. Military judges have already dismissed charges against two suspected terrorists because of deficiencies in the legal framework hurriedly adopted last year. Amending the habeas provisions of the Military Commissions Act will significantly improve this law and help us stay true to our nation’s values,” he said.
The principle of habeas corpus, originally contained in the Magna Carta, has been one of the cornerstones of US law since the nation’s founding. It gives a detainee the right to go to court to challenge the authority of the prison or jail warden to continue to hold him or her.
Since the attacks of 9/11, the Bush Administration detention policies have suffered multiple legal setbacks.
In 2004, the Supreme Court in the case of Yaser Hamdi, a US citizen captured in Afghanistan, held that enemy aliens in Guantanamo may file habeas corpus petitions to challenge various aspects of their detention. The Court also noted that enemy combatants could be detained, but that some process would have to be implemented to determine these prisoners’ status and guilt. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are US citizens must have the ability to challenge their detention before an impartial judge.
Two years later, in an even more far-reaching ruling, the Supreme Court struck down the military commissions President Bush established to try suspected members of al-Qaeda. By a 5-3 majority (Chief Justice Roberts recused himself because of prior involvement in this case) the Court rejected the President’s key
anti-terrorism measure and the Administration’s assertion of virtually unlimited executive power.
The Court’s majority ruled that the commissions, which were outlined by Bush in a military order in November 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.
The Military Commissions set up by the Bush Administration could not try Salim Ahmed Hamdan, a former aide to Osama bin Laden. Detainees at Guantanamo Bay, Cuba, must have courts-martial, the Court ruled, or the president can ask for legislation to proceed differently.
In undertaking to try Hamdan and subject him to criminal punishment, “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens wrote in the majority opinion.
The Court’s decision addressed only military commissions. But numerous legal scholars said its rejection of unbridled presidential power would likely be applied to other areas such as warrantless wiretapping. Many in the legal and human rights advocacy communities also said the Court’s reference to the Geneva Conventions could provide a basis for new legal claims by detainees held at Guantanamo Bay.
The Hamdan decision led directly to the then Republican majorities in Congress, where the President was able to muster substantial support for enactment of the MCA.
The pending Congressional measures challenging the MCA are strongly supported by most in the legal and human rights advocacy communities, which have been using the courts and the media to wage a relentless battle against what it views as President Bush’s unconstitutional and over-reaching claims of his commander-in-chief authorities in time of war.
The President’s critics include such groups as the American Civil Liberties Union, Amnesty International, Human Rights Watch, Human Rights First, the Center for Victims of Torture, Open Society Institute, and the Center for Constitutional Rights.
Mary Shaw of Amnesty International USA, probably sums up the view of such organizations. She told Truthout, “With passage of the Military Commissions Act human rights violations perpetrated by the Bush administration in the ‘war on terror’ have in effect been given the Congressional stamp of approval. This raises serious questions about the US government's commitment to due process and the rule of law.”
She added, “The ‘war on terror’ must not be used as an excuse to deny the basic human rights of any person. Amnesty International will continue to campaign for US ‘war on terror’ detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.”
Multiple challenges to the MCA were filed even before President Bush signed the act into law. For example, the case of Ali Saleh Kahlah al-Marri challenged the authority the law gives the President to declare a legal US resident as an ‘enemy combatant’ and jail him forever without pressing charges.
In another rebuke to the Bush administration, a divided federal appeals court ruled that Al-Marri -- held in a US Navy brig in South Carolina for four years in military custody – cannot be detained indefinitely without being charged.
The 2-1 decision by the 4th US Circuit Court of Appeals in Virginia said the accused terrorist can instead be given a criminal trial in a civilian court.
“The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,'' the court said. Al-Marri, a citizen of Qatar, “can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely.''
Al-Marri was in the US legally when he was arrested in December 2001 during the investigation of the Sept. 11 attacks. He was the first terrorism defendant labeled an illegal enemy combatant by the government.
The Supreme Court declined to review the lower court decision.
Many other suits were also filed even before the MCA officially became law, with defense lawyers asking federal judges to strike down key parts of the measure as unconstitutional.
For example, one suit was filed on behalf of a Guantanamo detainee, Majid Khan, one of the 14 so-called high-value Al Qaeda suspects transferred to Guantanamo from secret Central Intelligence Agency prisons. He was expected to be among the first to be tried under the new law.
The Khan suit says that despite being held in secret CIA detention for 3-1/2 years, Khan, whose family lives in Baltimore, has never had a hearing before a neutral judge or military panel to determine the legality of his detention.
It claims that as a CIA prisoner, Khan was subjected to torture and cruel, inhuman, or degrading treatment, and coerced into making false and unreliable statements.
Before Khan’s suit could make it to a civilian Court, his case was referred to a Combatant Status Review Tribunal (CSRT), a body set up by the military to determine whether a detainee should be tried by a Military Commission.
According to the Center for Constitutional Rights (CCR), which represents Khan, “The transcript of the CSRT hearing contains statements by witnesses refuting much of the unsupported government allegations presented against Majid and written and oral statements detailing his torture while imprisoned at the CIA prison and at Guantanamo. Majid continued to demand to see his attorneys and proclaim his innocence, stating that statements he made under torture while imprisoned by the CIA are “definitely not true.” Majid stated that he had “nothing to hide” and, in addition to refuting all of the government’s unclassified allegations, Majid twice volunteered to take a lie detector test.”
The CCR is demanding that Khan be granted immediate access to his attorneys to address his claims of innocence and his abusive treatment at the hands of US officials. CCR also calls for an independent investigation into their client’s
“torture and abuse both at CIA secret prisons and at Guantanamo.”
Suits like these join more than 400 other detainee cases filed on behalf of prisoners at Guantánamo that are currently pending before US district or appeals court judges in Washington.
Bush administration officials contend that the suits are a major distraction in the war on terror. They argue that Al Qaeda suspects are no more entitled to litigate legal claims against the US in American courts than were German POWs in World War II.
The defense attorneys say the new tribunal rules have put them at a disadvantage even before the trials begin. They claim that one of their greatest obstacles is their inability to speak with clients unless they travel to Guantanamo.
Marine Lt. Col. Colby Vokey, an attorney for one 20-year-old detainee, said his client refused to leave his cell last week, and they were unable to meet during his visit to Guantanamo. He said his client is not told when he visits and likely chose not to move because it is one of his only ways of resisting his jailers.
"Everything about Guantanamo is an obstruction. It's practically impossible to represent somebody down there," said Vokey, adding that he has not been able to show Khadr any evidence because guards have refused to let him bring it into their meetings.
The new rules would also tighten censorship of mail from attorneys and give the military more control over what lawyers can discuss with their clients. The number of face-to-face meetings between defense attorneys and detainees would be limited to a total of four. There are now no restrictions on the number of times they can meet.
The government says current rules have allowed detainees to receive books or articles about terrorist attacks in Iraq, London and Israel, as well as details of the prisoner abuse investigation at Iraq's Abu Ghraib prison.
The Combat Status Review Tribunals (CSRTs) have also been the subject of widespread criticism as “kangaroo courts.” The most recent attack on these bodies has come from Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer. He is a former member of a CRST.
In a court affidavit, Abraham wrote that military prosecutors were provided with only “generic” material that didn’t hold up to the most basic legal challenges. Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and those intelligence agencies.
“What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Abraham said in the affidavit, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an “enemy combatant.”
These are some of the issues likely to be fiercely debated when Congress brings the proposed new anti-MCA legislation to the floors of the House and Senate. While Democrats enjoy a tiny minority in the Senate, the habeas corpus issue is sure to face stiff opposition from such Senators as Lindsey Graham, (R-SC), an Air Force Reserve Officer who has served as a military lawyer and judge for many years. Graham does not believe enemy combatants have ever had a right to file habeas writs.
The MCA debate is likely to be even more raucous in the House. While Reps. Conyers and Skelton chair two of the body’s most powerful committees – and both are close allies of Speaker Nancy Pelosi (D-CA) – House members up for reelection in 2008 will be wary of casting any votes that could make them vulnerable to charges of being “soft on terrorism.”
Finally, the White House has signaled its intention to veto any legislation that “weakens” the MCA, and it remains unclear that either body could garner the votes needed to override a veto.
Sometime this summer, Congress will again address the question of whether “war-on-terror” prisoners should have access to Federal courts to question the basis for their detention. The debate promises to be as bitterly contentious as the current battles over immigration and Iraq, and raises the question of whether wafer-thin Democratic House and Senate majorities can muster enough votes to override a likely Presidential veto.
Center-stage in the upcoming debate are two pieces of legislation that would amend the Military Commissions Act (MCA) of 2006 to “restore” the habeas corpus rights banned by that law.
In the Senate, Senator Patrick Leahy (D-VT), chairman of the Judiciary Committee, and the Committee’s top Republican, Senator Arlen Specter of Pennsylvania, have introduced the Habeas Corpus Restoration Act of 2007. The measure would restore habeas corpus protections by repealing provisions of the MCA. The legislation was favorably reported out by the Judiciary Committee in May.
In the House, Armed Services Committee Chairman Ike Skelton (D-MO) and Judiciary Committee Chairman John Conyers (D-MI) have introduced legislation that would uphold the principle of habeas corpus by amending the MCA to allow individuals detained, often for many years without formal charges, to have their day in court.
The House bill would allow prisoners to challenge their indefinite detention without trial and permit habeas courts to review the actions of the Military Commissions established under the MCA. . Detainees being held in active combat zones, such as Iraq and Afghanistan, would continue to be barred from filing habeas petitions.
Another bill, titled the "Restoring the Constitution Act of 2007” has been introduced in the Senate by a group of Senate Democrats headed by Presidential hopeful Senator Chris Dodd of Connecticut. That legislation would restore
habeas corpus rights to all detainees in US custody and narrowly define
what it means to be an "enemy combatant" against the United States.
The bill would also prevent the executive branch from making blanket
determinations about who is an enemy combatant and would restrict the
President’s authority to interpret when certain human rights standards apply to
detainees. The legislation would limit the label "enemy combatant" to a person
"who directly participates in hostilities in a zone of active combat against the
United States" or who took part in the terrorist attacks of Sept. 11, 2001.
Congress-watchers speculate that the Dodd legislation will be incorporated into the Leahy-Specter proposal before these measures move to the Senate floor for debate and votes. It is still unclear when either the Senate or the House will schedule floor debates.
The MCA was hurriedly passed by a then Republican-controlled Congress in late 2006, after the Supreme Court dealt a significant blow to the Bush Administration by ruling that, without statutory authority, the President did not have the power to designate people as “unlawful enemy combatants” and hold them indefinitely without charges.
The resulting legislation, signed by President Bush in early 2007, gave the President even greater scope to detain people as enemy combatants, since its provisions applied not only to those “captured on the battlefield” but also to legal aliens living in the US and to American citizens as well.
Jose Padilla became the “poster child” for the latter category of detainees. An American citizen, he was arrested at Chicago’s O’Hare International Airport in (DATE) and held incommunicado in a US Navy brig for three years (CHECK). He was transferred to Federal prison and charged only to head off a Supreme Court case that would likely have ruled his imprisonment unconstitutional.
While public officials such as then Attorney General John Ashcroft used the media to publicly accuse Padilla of conspiring to detonate a radioactive “dirty bomb” in the US, these charges were nowhere to be found in the criminal indictment eventually obtained by the Department of Justice. Padilla is currently on trial in a Federal court in Miami, charged with conspiring to provide material support for terrorism.
In introducing his legislation, Senator Leahy said, “It is urgent that we restore our legal traditions and reestablish this fundamental check on the ability of the Government to lock someone away without meaningful judicial review of its action.”
He added: “The sweep of this habeas provision goes far beyond the few hundred detainees currently held at Guantanamo Bay, and includes an estimated 12 million lawful permanent residents in the United States today.”
Representative Conyers declared, “Habeas Corpus is one of the fundamental touchstones of our constitutional democracy. We cannot preach freedom abroad if we are not willing to give prisoners the ability to establish their innocence; and, we cannot advance the cause of fighting terrorism at home if our government takes constitutionally dubious short cuts.”
His thoughts were echoed by Armed Services Committee Chairman Skelton. “The last thing that we want is to convict an individual for terrorism and then have that conviction overturned because of fatal flaws in the Military Commissions law passed in the previous Congress. Military judges have already dismissed charges against two suspected terrorists because of deficiencies in the legal framework hurriedly adopted last year. Amending the habeas provisions of the Military Commissions Act will significantly improve this law and help us stay true to our nation’s values,” he said.
The principle of habeas corpus, originally contained in the Magna Carta, has been one of the cornerstones of US law since the nation’s founding. It gives a detainee the right to go to court to challenge the authority of the prison or jail warden to continue to hold him or her.
Since the attacks of 9/11, the Bush Administration detention policies have suffered multiple legal setbacks.
In 2004, the Supreme Court in the case of Yaser Hamdi, a US citizen captured in Afghanistan, held that enemy aliens in Guantanamo may file habeas corpus petitions to challenge various aspects of their detention. The Court also noted that enemy combatants could be detained, but that some process would have to be implemented to determine these prisoners’ status and guilt. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees who are US citizens must have the ability to challenge their detention before an impartial judge.
Two years later, in an even more far-reaching ruling, the Supreme Court struck down the military commissions President Bush established to try suspected members of al-Qaeda. By a 5-3 majority (Chief Justice Roberts recused himself because of prior involvement in this case) the Court rejected the President’s key
anti-terrorism measure and the Administration’s assertion of virtually unlimited executive power.
The Court’s majority ruled that the commissions, which were outlined by Bush in a military order in November 2001, were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions.
The Military Commissions set up by the Bush Administration could not try Salim Ahmed Hamdan, a former aide to Osama bin Laden. Detainees at Guantanamo Bay, Cuba, must have courts-martial, the Court ruled, or the president can ask for legislation to proceed differently.
In undertaking to try Hamdan and subject him to criminal punishment, “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction," Justice John Paul Stevens wrote in the majority opinion.
The Court’s decision addressed only military commissions. But numerous legal scholars said its rejection of unbridled presidential power would likely be applied to other areas such as warrantless wiretapping. Many in the legal and human rights advocacy communities also said the Court’s reference to the Geneva Conventions could provide a basis for new legal claims by detainees held at Guantanamo Bay.
The Hamdan decision led directly to the then Republican majorities in Congress, where the President was able to muster substantial support for enactment of the MCA.
The pending Congressional measures challenging the MCA are strongly supported by most in the legal and human rights advocacy communities, which have been using the courts and the media to wage a relentless battle against what it views as President Bush’s unconstitutional and over-reaching claims of his commander-in-chief authorities in time of war.
The President’s critics include such groups as the American Civil Liberties Union, Amnesty International, Human Rights Watch, Human Rights First, the Center for Victims of Torture, Open Society Institute, and the Center for Constitutional Rights.
Mary Shaw of Amnesty International USA, probably sums up the view of such organizations. She told Truthout, “With passage of the Military Commissions Act human rights violations perpetrated by the Bush administration in the ‘war on terror’ have in effect been given the Congressional stamp of approval. This raises serious questions about the US government's commitment to due process and the rule of law.”
She added, “The ‘war on terror’ must not be used as an excuse to deny the basic human rights of any person. Amnesty International will continue to campaign for US ‘war on terror’ detention policies and practices to be brought into full compliance with international law, and for repeal of any law that fails to meet this test.”
Multiple challenges to the MCA were filed even before President Bush signed the act into law. For example, the case of Ali Saleh Kahlah al-Marri challenged the authority the law gives the President to declare a legal US resident as an ‘enemy combatant’ and jail him forever without pressing charges.
In another rebuke to the Bush administration, a divided federal appeals court ruled that Al-Marri -- held in a US Navy brig in South Carolina for four years in military custody – cannot be detained indefinitely without being charged.
The 2-1 decision by the 4th US Circuit Court of Appeals in Virginia said the accused terrorist can instead be given a criminal trial in a civilian court.
“The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,'' the court said. Al-Marri, a citizen of Qatar, “can be returned to civilian prosecutors, tried on criminal charges, and, if convicted, punished severely.''
Al-Marri was in the US legally when he was arrested in December 2001 during the investigation of the Sept. 11 attacks. He was the first terrorism defendant labeled an illegal enemy combatant by the government.
The Supreme Court declined to review the lower court decision.
Many other suits were also filed even before the MCA officially became law, with defense lawyers asking federal judges to strike down key parts of the measure as unconstitutional.
For example, one suit was filed on behalf of a Guantanamo detainee, Majid Khan, one of the 14 so-called high-value Al Qaeda suspects transferred to Guantanamo from secret Central Intelligence Agency prisons. He was expected to be among the first to be tried under the new law.
The Khan suit says that despite being held in secret CIA detention for 3-1/2 years, Khan, whose family lives in Baltimore, has never had a hearing before a neutral judge or military panel to determine the legality of his detention.
It claims that as a CIA prisoner, Khan was subjected to torture and cruel, inhuman, or degrading treatment, and coerced into making false and unreliable statements.
Before Khan’s suit could make it to a civilian Court, his case was referred to a Combatant Status Review Tribunal (CSRT), a body set up by the military to determine whether a detainee should be tried by a Military Commission.
According to the Center for Constitutional Rights (CCR), which represents Khan, “The transcript of the CSRT hearing contains statements by witnesses refuting much of the unsupported government allegations presented against Majid and written and oral statements detailing his torture while imprisoned at the CIA prison and at Guantanamo. Majid continued to demand to see his attorneys and proclaim his innocence, stating that statements he made under torture while imprisoned by the CIA are “definitely not true.” Majid stated that he had “nothing to hide” and, in addition to refuting all of the government’s unclassified allegations, Majid twice volunteered to take a lie detector test.”
The CCR is demanding that Khan be granted immediate access to his attorneys to address his claims of innocence and his abusive treatment at the hands of US officials. CCR also calls for an independent investigation into their client’s
“torture and abuse both at CIA secret prisons and at Guantanamo.”
Suits like these join more than 400 other detainee cases filed on behalf of prisoners at Guantánamo that are currently pending before US district or appeals court judges in Washington.
Bush administration officials contend that the suits are a major distraction in the war on terror. They argue that Al Qaeda suspects are no more entitled to litigate legal claims against the US in American courts than were German POWs in World War II.
The defense attorneys say the new tribunal rules have put them at a disadvantage even before the trials begin. They claim that one of their greatest obstacles is their inability to speak with clients unless they travel to Guantanamo.
Marine Lt. Col. Colby Vokey, an attorney for one 20-year-old detainee, said his client refused to leave his cell last week, and they were unable to meet during his visit to Guantanamo. He said his client is not told when he visits and likely chose not to move because it is one of his only ways of resisting his jailers.
"Everything about Guantanamo is an obstruction. It's practically impossible to represent somebody down there," said Vokey, adding that he has not been able to show Khadr any evidence because guards have refused to let him bring it into their meetings.
The new rules would also tighten censorship of mail from attorneys and give the military more control over what lawyers can discuss with their clients. The number of face-to-face meetings between defense attorneys and detainees would be limited to a total of four. There are now no restrictions on the number of times they can meet.
The government says current rules have allowed detainees to receive books or articles about terrorist attacks in Iraq, London and Israel, as well as details of the prisoner abuse investigation at Iraq's Abu Ghraib prison.
The Combat Status Review Tribunals (CSRTs) have also been the subject of widespread criticism as “kangaroo courts.” The most recent attack on these bodies has come from Lt. Col. Stephen Abraham, a 26-year veteran of military intelligence who is an Army reserve officer and a California lawyer. He is a former member of a CRST.
In a court affidavit, Abraham wrote that military prosecutors were provided with only “generic” material that didn’t hold up to the most basic legal challenges. Despite repeated requests, intelligence agencies arbitrarily refused to provide specific information that could have helped either side in the tribunals, according to Abraham, who said he served as a main liaison between the Combat Status Review Tribunals and those intelligence agencies.
“What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” Abraham said in the affidavit, filed in a Washington appeals court on behalf of a Kuwaiti detainee, Fawzi al-Odah, who is challenging his classification as an “enemy combatant.”
These are some of the issues likely to be fiercely debated when Congress brings the proposed new anti-MCA legislation to the floors of the House and Senate. While Democrats enjoy a tiny minority in the Senate, the habeas corpus issue is sure to face stiff opposition from such Senators as Lindsey Graham, (R-SC), an Air Force Reserve Officer who has served as a military lawyer and judge for many years. Graham does not believe enemy combatants have ever had a right to file habeas writs.
The MCA debate is likely to be even more raucous in the House. While Reps. Conyers and Skelton chair two of the body’s most powerful committees – and both are close allies of Speaker Nancy Pelosi (D-CA) – House members up for reelection in 2008 will be wary of casting any votes that could make them vulnerable to charges of being “soft on terrorism.”
Finally, the White House has signaled its intention to veto any legislation that “weakens” the MCA, and it remains unclear that either body could garner the votes needed to override a veto.
Friday, June 22, 2007
STATE DEPARTMENT SEEKS TO OUTSOURCE IRAQ DIPLOMACY
By William Fisher
The Bush Administration is seeking to recruit foreigners to fill 16 critical jobs at the massive new American Embassy in Baghdad while close to 50 experienced American Foreign Service Officers remain in legal limbo at the State Department in Washington.
This is the claim being made by an organization known as Concerned Foreign Service Officers (CFSO). It comes on the heels of an urgent memo to Secretary of State Condoleeza Rice from the US Ambassador to Iraq, Ryan Crocker, who complained that his embassy was seriously understaffed and asserted that too many of its personnel were inexperienced.
The pool of up to 50 consists of seasoned Foreign Service Officers who have had their security clearances suspended by State's Bureau of Diplomatic Security (DS). CFSO says DS frequently suspends security clearances based on bogus allegations, without due process, and often takes years to complete its investigations. During that time, experienced diplomats cannot serve abroad and are given make-work assignments in Washington.
One senior State Department official, not a member of CFSO, says the practices of the Bureau of Diplomatic Security have turned it into "the State Department's own version of Guantanamo."
In a statement, the CFSO said that, "as part of its efforts to staff critical positions in the American Embassy in Baghdad, the State Department sent a telegram to all American diplomatic and consular posts worldwide, seeking to recruit locally-employed staff to serve in temporary duty assignments in Iraq."
The organization noted that "locally-employed staff are foreign nationals who do not hold security clearances."
At the same time, the group charged, "The State Department has a pool of nearly fifty career Foreign Service Officers 'in limbo', pending resolution of security clearance suspensions," adding, "Like the locally employed staff being solicited, they do not have security clearances. Unlike the locally employed staff, they are all American citizens, and all have held Top Secret or higher clearances in the past. The list includes officers with years or even decades of experience performing or supervising the jobs being offered. Many are more than willing to go to Iraq and indeed, many have repeatedly bid on other Iraq positions and been turned down due to their security clearance status."
According to CFSO, "None of the officers in question is accused of any crime, nor any act against the interests of the United States. Almost all of them are accused of technical violations of a security regulation; the vast majority having to do with a decades-out-of-date cold-war-era contact-reporting policy that even the Department itself has acknowledged is contradictory and obsolete."
CFSO, a group of some 60 diplomats including several ambassadors, has been sharply critical of the State Department's Diplomatic Security apparatus for what it terms is its cavalier approach to what often proves to be career-ending actions because of the protracted periods before a suspension is investigated and resolved. This process, it says, often takes years.
In a May 31 cable, Ambassador Crocker told Secretary that the embassy in Baghdad -- the largest and most expensive U.S. embassy -- lacks enough well-qualified staff members and that its security rules are too restrictive for Foreign Service officers to do their jobs.
"Simply put, we cannot do the nation's most important work if we do not have the Department's best people," Crocker said in the memo.
The Baghdad embassy has a budget of more than $1 billion and a staff that has expanded to more than 1,000 Americans and 4,000 third-country nationals.
The State Department claims that 99 percent of the positions in the embassy and in regional reconstruction teams have been filled. But State officials have privately conceded that in the rush to fill slots -- each person serves only one year -- not enough attention has been paid to the management of the flux of people.
CFSO says the Foreign Service Officers whose security clearances have been suspended could be part of the solution. It points out that none of these FSOs have been accused of "any act related to their job performance or their ability to perform the duties of the jobs being offered" to third country national. It says most "have received numerous awards and commendations for their job performance. Six have received Department-wide awards for excellence and three have received the Department's award for Heroism."
CFSO adds that, "Despite the fact that their State Department security clearances are suspended, several still hold valid clearances, at the Secret level or above, from the Department of Defense or other agencies. To assert that these uncleared American Foreign Service Officers are somehow less trustworthy or less capable than equally uncleared foreign-citizen staff would be absurd."
Most of the FSOs with suspended clearances "are employed in clerical positions well below their level of experience and expertise, some are doing nothing at all, and some are performing support work very similar to the work being offered in Iraq," says the CSFO, adding, "It is hard to understand how xeroxing and scanning documents eight hours a day, five days a week, at a Department of State annex, is a better use of a senior-level Foreign Service Officer's time and salary, than working within his or her field, albeit at a lower level of responsibility, in Embassy Iraq."
CFSO says that once a security clearance is suspended, it often takes years to complete an investigation, and most suspensions ultimately lead to revocation. "For a Foreign Service Officer, losing a security clearance is tantamount to losing a job. Diplomats with suspended clearances are given desk jobs in Washington that require little or none of their expertise and experience. Experienced officers in whom the agency has invested large amounts of training are sidelined and unavailable for use by the agency."
CFSO charges that the Bureau of Diplomatic Security (DS) within the State Department is "increasingly misusing a poorly managed and poorly regulated security clearance process to circumvent personnel regulations, to bypass equal employment opportunity and other civil-rights laws, to avoid due process in the established discipline and suitability processes and to punish dissenters and whistleblowers within the agency."
It claims that security clearance investigations are increasingly being carried out in a military-type environment by inexperienced personnel, "thus greatly extending the period during which a diplomat with a suspended clearance is unable to do any meaningful work."
The organization adds that these "acts of diplomatic security misfeasance and incompetence threaten the national security of the United States by reducing the reliability and integrity of State Department security operations...."
In a related development, the Bush Administration is urging Congress to give the State Department the authority to place diplomats with suspended security clearances on "leave without pay" (LWOP) - thus effectively ending most of their careers.
In a June 11 letter to House Foreign Affairs Committee chairman Tom Lantos (D-CA), the influential American Foreign Service Association (AFSA) - the diplomats' union - said it strongly opposed the State Department's proposal to permit it to suspend a member of the Foreign Service without pay when there is reasonable cause to believe that the member has committed a crime, even if there is no connection between the alleged crime and the member's position as a Foreign Service employee, or when the member's security clearance has been suspended."
AFSA said "the change would be profoundly unfair to employees."
It charged that the provision "would permit the Department to place on leave without pay an employee who committed an off-duty misdemeanor that has no connection to his or her job as a Foreign Service Officer (for example, driving under the influence of alcohol)."
AFSA said it "strenuously objects" to the provision because it would permit the Department to place an employee on indefinite leave without pay when the employee's security clearance is suspended. The Department's Diplomatic Security (DS) bureau, it says, has absolute discretion to suspend an employee's clearance. "The employee is not entitled to any details or documents regarding the basis for the suspension and has no right of response," AFSA says.
The organization pointed out that the US Court of Appeals for the Federal Circuit recently overturned the Department of Justice's indefinite suspension of a DEA employee based on the suspension of his security clearance, finding "the employee had been denied due process because he did not have a meaningful opportunity to respond to the basis of the proposed LWOP."
AFSA added, "In addition to our concerns about due process, we are also very concerned about the lengthy period of time that an employee could be placed in a leave without pay status. Although the Foreign Affairs Manual states that DS will seek to investigate the underlying allegations and make a decision to either reinstate or move to revoke the clearance within 90 days, in reality, these cases take much longer. In AFSA's experience, most of these cases take two to three years to process, and on occasion four, five, or even more years before a final decision is rendered."
It cited one case where the employee's clearance was suspended in April 2004, saying, "DS has interviewed the employee on a number of occasions but has taken no further action regarding his security clearance. Another employee's clearance was suspended in November 2002. The employee is still waiting for a decision from DS regarding his clearance. Numerous other cases have taken two to three years to resolve."
"The scant information provided to an employee when his or her clearance is suspended and the lengthy time it takes before a final decision is made makes it profoundly unfair to place an employee on LWOP, particularly when one recognizes that many of these employees ultimately have their clearances reinstated because the allegations were unsubstantiated or did not warranted revocation of their clearance. To force employees onto LWOP during this period would amount to a presumption of guilt, without affording the employee even minimal due process. It would impose a severe penalty on employees before the investigation and adjudication of their cases are even completed," AFSA's letter stated.
State's Bureau of Diplomatic Security did not respond to telephone messages left by Truthout.
The Bush Administration is seeking to recruit foreigners to fill 16 critical jobs at the massive new American Embassy in Baghdad while close to 50 experienced American Foreign Service Officers remain in legal limbo at the State Department in Washington.
This is the claim being made by an organization known as Concerned Foreign Service Officers (CFSO). It comes on the heels of an urgent memo to Secretary of State Condoleeza Rice from the US Ambassador to Iraq, Ryan Crocker, who complained that his embassy was seriously understaffed and asserted that too many of its personnel were inexperienced.
The pool of up to 50 consists of seasoned Foreign Service Officers who have had their security clearances suspended by State's Bureau of Diplomatic Security (DS). CFSO says DS frequently suspends security clearances based on bogus allegations, without due process, and often takes years to complete its investigations. During that time, experienced diplomats cannot serve abroad and are given make-work assignments in Washington.
One senior State Department official, not a member of CFSO, says the practices of the Bureau of Diplomatic Security have turned it into "the State Department's own version of Guantanamo."
In a statement, the CFSO said that, "as part of its efforts to staff critical positions in the American Embassy in Baghdad, the State Department sent a telegram to all American diplomatic and consular posts worldwide, seeking to recruit locally-employed staff to serve in temporary duty assignments in Iraq."
The organization noted that "locally-employed staff are foreign nationals who do not hold security clearances."
At the same time, the group charged, "The State Department has a pool of nearly fifty career Foreign Service Officers 'in limbo', pending resolution of security clearance suspensions," adding, "Like the locally employed staff being solicited, they do not have security clearances. Unlike the locally employed staff, they are all American citizens, and all have held Top Secret or higher clearances in the past. The list includes officers with years or even decades of experience performing or supervising the jobs being offered. Many are more than willing to go to Iraq and indeed, many have repeatedly bid on other Iraq positions and been turned down due to their security clearance status."
According to CFSO, "None of the officers in question is accused of any crime, nor any act against the interests of the United States. Almost all of them are accused of technical violations of a security regulation; the vast majority having to do with a decades-out-of-date cold-war-era contact-reporting policy that even the Department itself has acknowledged is contradictory and obsolete."
CFSO, a group of some 60 diplomats including several ambassadors, has been sharply critical of the State Department's Diplomatic Security apparatus for what it terms is its cavalier approach to what often proves to be career-ending actions because of the protracted periods before a suspension is investigated and resolved. This process, it says, often takes years.
In a May 31 cable, Ambassador Crocker told Secretary that the embassy in Baghdad -- the largest and most expensive U.S. embassy -- lacks enough well-qualified staff members and that its security rules are too restrictive for Foreign Service officers to do their jobs.
"Simply put, we cannot do the nation's most important work if we do not have the Department's best people," Crocker said in the memo.
The Baghdad embassy has a budget of more than $1 billion and a staff that has expanded to more than 1,000 Americans and 4,000 third-country nationals.
The State Department claims that 99 percent of the positions in the embassy and in regional reconstruction teams have been filled. But State officials have privately conceded that in the rush to fill slots -- each person serves only one year -- not enough attention has been paid to the management of the flux of people.
CFSO says the Foreign Service Officers whose security clearances have been suspended could be part of the solution. It points out that none of these FSOs have been accused of "any act related to their job performance or their ability to perform the duties of the jobs being offered" to third country national. It says most "have received numerous awards and commendations for their job performance. Six have received Department-wide awards for excellence and three have received the Department's award for Heroism."
CFSO adds that, "Despite the fact that their State Department security clearances are suspended, several still hold valid clearances, at the Secret level or above, from the Department of Defense or other agencies. To assert that these uncleared American Foreign Service Officers are somehow less trustworthy or less capable than equally uncleared foreign-citizen staff would be absurd."
Most of the FSOs with suspended clearances "are employed in clerical positions well below their level of experience and expertise, some are doing nothing at all, and some are performing support work very similar to the work being offered in Iraq," says the CSFO, adding, "It is hard to understand how xeroxing and scanning documents eight hours a day, five days a week, at a Department of State annex, is a better use of a senior-level Foreign Service Officer's time and salary, than working within his or her field, albeit at a lower level of responsibility, in Embassy Iraq."
CFSO says that once a security clearance is suspended, it often takes years to complete an investigation, and most suspensions ultimately lead to revocation. "For a Foreign Service Officer, losing a security clearance is tantamount to losing a job. Diplomats with suspended clearances are given desk jobs in Washington that require little or none of their expertise and experience. Experienced officers in whom the agency has invested large amounts of training are sidelined and unavailable for use by the agency."
CFSO charges that the Bureau of Diplomatic Security (DS) within the State Department is "increasingly misusing a poorly managed and poorly regulated security clearance process to circumvent personnel regulations, to bypass equal employment opportunity and other civil-rights laws, to avoid due process in the established discipline and suitability processes and to punish dissenters and whistleblowers within the agency."
It claims that security clearance investigations are increasingly being carried out in a military-type environment by inexperienced personnel, "thus greatly extending the period during which a diplomat with a suspended clearance is unable to do any meaningful work."
The organization adds that these "acts of diplomatic security misfeasance and incompetence threaten the national security of the United States by reducing the reliability and integrity of State Department security operations...."
In a related development, the Bush Administration is urging Congress to give the State Department the authority to place diplomats with suspended security clearances on "leave without pay" (LWOP) - thus effectively ending most of their careers.
In a June 11 letter to House Foreign Affairs Committee chairman Tom Lantos (D-CA), the influential American Foreign Service Association (AFSA) - the diplomats' union - said it strongly opposed the State Department's proposal to permit it to suspend a member of the Foreign Service without pay when there is reasonable cause to believe that the member has committed a crime, even if there is no connection between the alleged crime and the member's position as a Foreign Service employee, or when the member's security clearance has been suspended."
AFSA said "the change would be profoundly unfair to employees."
It charged that the provision "would permit the Department to place on leave without pay an employee who committed an off-duty misdemeanor that has no connection to his or her job as a Foreign Service Officer (for example, driving under the influence of alcohol)."
AFSA said it "strenuously objects" to the provision because it would permit the Department to place an employee on indefinite leave without pay when the employee's security clearance is suspended. The Department's Diplomatic Security (DS) bureau, it says, has absolute discretion to suspend an employee's clearance. "The employee is not entitled to any details or documents regarding the basis for the suspension and has no right of response," AFSA says.
The organization pointed out that the US Court of Appeals for the Federal Circuit recently overturned the Department of Justice's indefinite suspension of a DEA employee based on the suspension of his security clearance, finding "the employee had been denied due process because he did not have a meaningful opportunity to respond to the basis of the proposed LWOP."
AFSA added, "In addition to our concerns about due process, we are also very concerned about the lengthy period of time that an employee could be placed in a leave without pay status. Although the Foreign Affairs Manual states that DS will seek to investigate the underlying allegations and make a decision to either reinstate or move to revoke the clearance within 90 days, in reality, these cases take much longer. In AFSA's experience, most of these cases take two to three years to process, and on occasion four, five, or even more years before a final decision is rendered."
It cited one case where the employee's clearance was suspended in April 2004, saying, "DS has interviewed the employee on a number of occasions but has taken no further action regarding his security clearance. Another employee's clearance was suspended in November 2002. The employee is still waiting for a decision from DS regarding his clearance. Numerous other cases have taken two to three years to resolve."
"The scant information provided to an employee when his or her clearance is suspended and the lengthy time it takes before a final decision is made makes it profoundly unfair to place an employee on LWOP, particularly when one recognizes that many of these employees ultimately have their clearances reinstated because the allegations were unsubstantiated or did not warranted revocation of their clearance. To force employees onto LWOP during this period would amount to a presumption of guilt, without affording the employee even minimal due process. It would impose a severe penalty on employees before the investigation and adjudication of their cases are even completed," AFSA's letter stated.
State's Bureau of Diplomatic Security did not respond to telephone messages left by Truthout.
Subscribe to:
Posts (Atom)
