By William Fisher
In the wake of the failed attempt to blow up a Detroit-bound airliner on Christmas day, legal experts and human rights advocates are pushing back against calls from politicians to halt the planned release of prisoners from Guantanamo Bay to their home country, Yemen.
The would-be bomber, a 23-year-old Nigerian, was disarmed and taken down by passengers and crew of Northwest Airlines flight 253. Now in government custody, he was carrying an explosive device in his underwear. Law enforcement officials believe the bomb was made in Yemen, where an al Qaeda wing has claimed responsibility for the attempted bombing.
The incident triggered calls from several elected officials to abandon the closing of the prison at Guantánamo, which they claimed would be dangerous and premature. Some also suggested specifically that the release of Yemeni prisoners be halted.
But human rights advocates are urging President Obama to reject the use of the incident to further delay the closure of the prison and release of the detainees who are scheduled for release after review of their cases by a high-level Administration task force.
The reaction of the American Civil Liberties Union (ACLU) is representative. Jonathan Hafetz, an ACLU staff attorney, told us, "The principal problem with Guantanamo has been the US government's prolonged detention of individuals without charge. If the government has evidence, it should present it in a court of law, where justice can be done. The prior administration detained people more or less arbitrarily and released them in the same manner, all without judicial review (including the two former Gitmo who were initially linked to the recent bombing attempt). This misguided and illegal practice of detention outside the criminal process -- a process that best preserves our liberty and security -- should end."
A similar view was expressed by the Center for Constitutional Rights (CCR), a legal advocacy group that has mobilized dozens of lawyers to defend Guantanamo detainees. In a statement, CCR said, “We know from the military’s own records that most of the detainees at Guantánamo have no link to terrorism. CIA and military sources have repeatedly told reporters that most detainees ‘don’t have anything to do with’ terrorism, ‘didn't belong there’, and ‘weren't fighting.”
The group added, “It is worth recalling that the two former detainees allegedly linked to Al Qaeda in Yemen were released from Guantánamo by the Bush administration, not set free by court order or after the sort of cautious, formal assessment process that the Task Force is undertaking now, but based on purely political calculations.”
“Halting the repatriation of Yemeni men cleared by the Task Force after months of careful review is unconscionable,” it said.
Legal experts we contacted were also critical of proposals to halt Guantanamo releases.
David Frakt, Professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee, told us, “We can never know with absolute certainty that a person released from Guantanamo will not join a jihadist movement and seek to harm Americans. What we have to focus on is whether we have a lawful basis to detain someone. If they have committed a crime, they should be put on trial. If they have engaged in hostilities against the U.S. not amounting to a crime, they may be held under the laws of war. If there is insufficient evidence to lawfully detain someone, they must be released. It is possible that by holding innocent people for several years in very harsh conditions that we may have turned some detainees against us, but the overwhelming majority of released detainees have shown no interest in violent conflict and have returned home to try to reconstruct their lives in peaceful ways.“
He added, “Those opposed to the closure of Guantanamo will seize upon any reason to delay the release of detainees and will put as many obstacles in President Obama's way as they can come up with. The longer Guantanamo stays open, the more that they can say ‘we told you it wasn't going to be easy’ and the more they can claim that President Obama's policies are basically no different that President Bush's.”
And Brian J. Foley, Visiting Associate Professor at Boston University School of Law, told us, "This seems to be either a false concern used tendentiously by U.S. officials to keep alive their unjustifiable and inhumane policy, or an illogical overreaction based on officials' fear and cowardice. If the government cannot prove that these individuals at Guantanamo are dangerous or complicit in terrorism, then how officials can believe that an attempted attack near Detroit has somehow turned all these people into terrorists makes no sense. Call it National Security State alchemy!”
He added, “Perhaps we should just go ahead and imprison any and all non-criminal citizens, because somewhere someone has tried to commit a crime?"
Republicans lawmakers were quick to use the airliner bomb incident to portray the Obama Administration as “soft on terrorism.”
Rep. Pete Hoekstra of Michigan, who is running for governor of his state, sent out a fundraising letter, criticizing the response of those he called "weak-kneed liberals." He is the ranking member of the House Intelligence Committee.
Speaking on Fox News, Hoekstra argued that the slowness of Obama’s reaction showed terrorism wasn’t high on his agenda. “On many other instances and occasions the president is out front. He’s out front leading very early on a lot of different issues. When it comes to terrorism to the threat to the homeland, the president has decided to stay silent for 72 hours. He needs to explain that, he said. Why this is not a priority? It should be his No. 1 priority.”
A similar line was taken by Rep. Peter King of New York. In a TV appearance, King said, “I'm disappointed it's taken the president 72 hours to even address this issue. Basically nobody, the president, the vice president, the attorney general, nobody except [Homeland Security] Secretary [Janet] Napolitano has come out. And she said yesterday everything worked well. What I hope the president would do is treat this in a bipartisan way, acknowledge that mistakes were made and Promise we'll do all we can to make sure it doesn't happen again."
But criticism of the administration was not by Republicans exclusively. The senior Democrat on the Senate intelligence committee said she wants no more Guantanamo Bay detainees released to Yemen.
“Guantanamo detainees should not be released to Yemen at this time,” said Sen. Dianne Feinstein of California. “It is too unstable.”
Feinstein’s warning came just nine days after the Department of Justice announced the most recent transfer of 12 detainees from Guantanamo Bay to Afghanistan, Yemen and Somaliland. Six of the 12 were transferred to the government of Yemen.
The Obama Administration has said it will continue to release Guantanamo detainees, including those from Yemen. A substantial majority of the detainees remaining at Guantanamo is from Yemen.
Monday, January 04, 2010
Thursday, December 24, 2009
ONE COURT’S CATCH-22
By William Fisher
Last August, a federal judge threw out a lawsuit challenging the government’s right to spy on Americans' international e-mails and telephone calls without warrants or suspicion of any kind, because the folks who brought the suit couldn’t prove what may be unprovable.
The original lawsuit was filed by the American Civil Liberties Union last July on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations. The suit sought to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.
The plaintiffs' argued that their work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. They said they should be allowed to challenge the law because there was a high likelihood that their communications would be monitored under the law in the future, and because it had forced them to take “costly and burdensome” measures to protect the confidentiality of their communications.
But the judge, John G. Koeltl of the Southern District of New York, dismissed the case, ruling that the plaintiffs did not have “standing” to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.
Last week, the ACLU asked an appeals court to overturn Judge Koeltl’s decision. Jameel Jaffer, Director of the ACLU National Security Project, said, "To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact, it's possible that no one will ever be able to prove what the court says is required.”
The ACLU position is that judicial review is necessary because the plaintiffs have been, and continue to be, injured by what it calls “the unconstitutional spying statute.”
“Because the plaintiffs engage in international communications that the government is likely to intercept under the new statute, they face a serious risk that the confidentiality of their sensitive and confidential communications will be compromised,” the ACLU says.
As a result, it adds, the plaintiffs have been forced "to take costly and burdensome measures to protect the privacy of their communications," including making international trips to collect information that they previously would have exchanged by phone or e-mail. The risk of government interception is especially burdensome for the plaintiffs who are attorneys, according to the brief, because they are ‘ethically required by codes of professional conduct’ to protect the confidentiality of their communications.” The ACLU also argues that, if endorsed by the appeals court, the lower court's ruling would permanently insulate many surveillance laws from judicial review.
"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," says Jaffer. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws,” he asserts.
"If Americans are prohibited from challenging the FAA unless they can show that their own communications have been collected under it, the law may never be subject to judicial review at all. The appellate court should overturn the lower court ruling and allow this challenge to go forward."
In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.
In July 2008, the FISA Amendments Act of 2008 (FAA) was signed by then-President George W. Bush, who admitted that, in the wake of the terrorist attacks of September 11, 2001, he had authorized intelligence agencies to disregard the FISA law and conduct warrantless wiretaps. Bush then asked Congress to, in effect, make the practice lawful.
The FAA was presented as a way of “updating” the Foreign Intelligence Surveillance Act (FISA). But according to the ACLU, “the law meant to ‘update’ FISA instead gutted the original law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to our communications without a warrant.”
The ACLU lawsuit was filed on the same day the FAA was signed into law.
Critics have asserted that the Administration's warrantless spying program is a violation of the Fourth Amendment to the United States Constitution against warrantless search and a criminal violation of FISA. The Fourth Amendment to the U.S. Constitution prohibits searches and seizures without a court order and probable cause.
Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gave the court established by FISA an extremely limited role in overseeing the government’s surveillance activities.
The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."
This is not the first time Congressional action has impacted FISA. The USA Patriot Act, passed in 2001 and re-authorized in 2006, amended FISA to make it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.
Several provisions of the Patriot Act are due to expire at the end of this year, and Congress is currently considering changes to these provisions.
The Foreign Intelligence Surveillance Act (FISA) was introduced in 1977 by Senator Edward M. Kennedy of Massachusetts and signed into law by President Jimmy Carter in 1978.
The act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s use of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution.
The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
The Act returned to public prominence in December 2005 following publication by The New York Times of an article that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency (NSA) since at least 2002.
Last August, a federal judge threw out a lawsuit challenging the government’s right to spy on Americans' international e-mails and telephone calls without warrants or suspicion of any kind, because the folks who brought the suit couldn’t prove what may be unprovable.
The original lawsuit was filed by the American Civil Liberties Union last July on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations. The suit sought to stop the government from conducting surveillance under the FISA Amendments Act (FAA), which gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls.
The plaintiffs' argued that their work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States. They said they should be allowed to challenge the law because there was a high likelihood that their communications would be monitored under the law in the future, and because it had forced them to take “costly and burdensome” measures to protect the confidentiality of their communications.
But the judge, John G. Koeltl of the Southern District of New York, dismissed the case, ruling that the plaintiffs did not have “standing” to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.
Last week, the ACLU asked an appeals court to overturn Judge Koeltl’s decision. Jameel Jaffer, Director of the ACLU National Security Project, said, "To say that plaintiffs can't challenge this statute unless they can show that their own communications have been collected under it is to say that this statute may not be subject to judicial review at all. The vast majority of people whose communications are intercepted under this statute will never know about it – in fact, it's possible that no one will ever be able to prove what the court says is required.”
The ACLU position is that judicial review is necessary because the plaintiffs have been, and continue to be, injured by what it calls “the unconstitutional spying statute.”
“Because the plaintiffs engage in international communications that the government is likely to intercept under the new statute, they face a serious risk that the confidentiality of their sensitive and confidential communications will be compromised,” the ACLU says.
As a result, it adds, the plaintiffs have been forced "to take costly and burdensome measures to protect the privacy of their communications," including making international trips to collect information that they previously would have exchanged by phone or e-mail. The risk of government interception is especially burdensome for the plaintiffs who are attorneys, according to the brief, because they are ‘ethically required by codes of professional conduct’ to protect the confidentiality of their communications.” The ACLU also argues that, if endorsed by the appeals court, the lower court's ruling would permanently insulate many surveillance laws from judicial review.
"Allowing this case to move forward is essential to protecting innocent Americans' e-mail and telephone communications from dragnet, suspicionless government monitoring," says Jaffer. "Without court oversight, individual privacy rights are left to the mercy of the political branches. The courts have not only the authority but also the obligation to ensure that individual rights are not trampled by overbroad surveillance laws,” he asserts.
"If Americans are prohibited from challenging the FAA unless they can show that their own communications have been collected under it, the law may never be subject to judicial review at all. The appellate court should overturn the lower court ruling and allow this challenge to go forward."
In November, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the implementation of the new law, including reports indicating how the FAA is being interpreted and used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights. The FOIA request seeks records from the National Security Agency, the Justice Department, the Director of National Intelligence and the Inspector Generals at each of these agencies. The government has not yet released any of the records requested.
In July 2008, the FISA Amendments Act of 2008 (FAA) was signed by then-President George W. Bush, who admitted that, in the wake of the terrorist attacks of September 11, 2001, he had authorized intelligence agencies to disregard the FISA law and conduct warrantless wiretaps. Bush then asked Congress to, in effect, make the practice lawful.
The FAA was presented as a way of “updating” the Foreign Intelligence Surveillance Act (FISA). But according to the ACLU, “the law meant to ‘update’ FISA instead gutted the original law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to our communications without a warrant.”
The ACLU lawsuit was filed on the same day the FAA was signed into law.
Critics have asserted that the Administration's warrantless spying program is a violation of the Fourth Amendment to the United States Constitution against warrantless search and a criminal violation of FISA. The Fourth Amendment to the U.S. Constitution prohibits searches and seizures without a court order and probable cause.
Until Congress enacted the FAA, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized order from the FISA court. The new law gave the court established by FISA an extremely limited role in overseeing the government’s surveillance activities.
The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."
This is not the first time Congressional action has impacted FISA. The USA Patriot Act, passed in 2001 and re-authorized in 2006, amended FISA to make it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.
Several provisions of the Patriot Act are due to expire at the end of this year, and Congress is currently considering changes to these provisions.
The Foreign Intelligence Surveillance Act (FISA) was introduced in 1977 by Senator Edward M. Kennedy of Massachusetts and signed into law by President Jimmy Carter in 1978.
The act resulted from extensive investigations by Senate Committees into the legality of domestic intelligence activities. These investigations were led separately by Sam Ervin and Frank Church in 1978 as a response to President Richard Nixon’s use of federal resources to spy on political and activist groups, which violates the Fourth Amendment to the U.S. Constitution.
The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed surveillance, without court order, within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.
The Act returned to public prominence in December 2005 following publication by The New York Times of an article that described a program of warrantless domestic wiretapping ordered by the Bush administration and carried out by the National Security Agency (NSA) since at least 2002.
Monday, December 21, 2009
The Recession's Tiny Upside
By William Fisher
The global recession has brought pain to many, but good news for at least one group: Opponents of the death penalty in the U.S.
According to a new report by the Death Penalty Information Center (DPIC), “As states were forced to cut essential services this year, many leaders concluded that the death penalty was a wasteful government program that should be considered for repeal. Policymakers found it hard to justify laying off teachers and police officers while maintaining a capital punishment system that is never or seldom used.”
Nevertheless, executions in the U.S. rose in 2009 compared to last year. The DPIC attributes the increase largely to “the lifting of the de facto moratorium on executions during 2008 while the Supreme Court considered the constitutionality of lethal injection.” The high court ruled that death by lethal injection did not constitute “cruel and unusual punishment,” which is banned by the U.S. Constitution.
“The rise in executions in 2009 was expected as states were backlogged with cases from the nationwide moratorium. The country continues to move away from the death penalty, as evidenced by the declining rate of death sentences and the movement in several states to repeal it,” said Richard Dieter, the report’s author and DPIC’s executive director.
There were 52 executions this year, with no more scheduled, and 37 in 2008. The number of executions this year was 47 percent less than ten years ago. Eighty-seven percent of executions this year were carried out in the south and over half of those were in Texas.
The country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976, according to the DPIC report. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years, as the high costs and lack of measurable benefits associated with this punishment troubled lawmakers, the report said.
“The annual number of death sentences in the U.S. has dropped for seven straight years and is 60% less than in the 1990s,” said Dieter. “In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping. This entire decade has been marked by a declining use of the death penalty." There were 106 death sentences in 2009 compared with a high of 328 in 1994.
The decline in death sentences was particularly noticeable in Texas and Virginia, the two leading states in carrying out executions. During the 1990s, Texas averaged 34 death sentences per year and Virginia averaged 6. This year, Texas had 9 death sentences and Virginia had 1.
New Mexico became the 15th state to abolish the death penalty as Governor Richardson called the alternative of life in prison without parole “a strong punishment” and observed that the cost of the death penalty was “a valid reason [for repeal] in this era of austerity and tight budgets.” The Connecticut legislature voted to end the death penalty before the governor vetoed the bill. Legislation to abolish capital punishment passed in one house of the legislature in Colorado and Montana and came close to passage in Maryland. This trend is expected to continue as the economic crisis persists, the report predicted.
Nine men who were sentenced to death were exonerated in 2009, the second highest number of exonerations since the death penalty was reinstated. The total number of exonerations since 1973 is now 139. The public has become skeptical about the government’s ability to avoid mistakes and get the death penalty right. The DPIC says those sentiments translate into an increasing reluctance to hand down death sentences on the part of courts and juries.
Many of the exonerations have been attributed to the development of more reliable DNA testing. Since the first DNA exoneration took place in 1989, there have been 248 post-conviction DNA exonerations in 34 states within the United States.
The most recent came just last week, when James Bain was released from custody after 35 years spent in jail in Florida for a rape he did not commit.
He was freed on DNA evidence that was researched and worked on by the Innocence Project of Florida, part of a nationwide network of volunteer lawyers and law students.
In a related development, on December 15 the United Nations High Commissioner for Human Rights marked the 20th anniversary of an international death penalty treaty by calling for the universal abolition of capital punishment.
Navi Pillay, the top UN human rights official, urged all states to adopt the Optional Protocol to the International Covenant on Civil and Political Rights. The protocol, which bars the death penalty, was introduced in 1989.
To date, 140 countries no longer carry out the death penalty, and 72 countries have ratified the Optional Protocol on ending the death penalty.
Also this year, a nationwide poll of police chiefs showed that the death penalty is at the bottom of priorities among those with experience in law enforcement. The chiefs did not believe the death penalty acted as a deterrent, and they rated it as one of the most inefficient uses of taxpayer money in fighting crime. Challenges to the death penalty came from all quarters, including former Texas Governor Mark White and conservative strategist Richard Viguerie, who expressed doubts about the reliability of this governmental program.
The U.S. ranks fifth in the world in the number of executions carried out annually. China is first, with at least 5000; Iran is second with 346; Saudi Arabia is third with 102; and North Korea is fourth with 63.
Dieter told IPS that of the 56 countries within the Organization for Security and Cooperation in Europe (OSCE), the world's largest regional security organization, only the U.S. and Belarus retain an active death penalty. The Russian Federation and Tajikistan retain the death penalty but are not carrying out executions, he said.
The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The Center was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue.
The global recession has brought pain to many, but good news for at least one group: Opponents of the death penalty in the U.S.
According to a new report by the Death Penalty Information Center (DPIC), “As states were forced to cut essential services this year, many leaders concluded that the death penalty was a wasteful government program that should be considered for repeal. Policymakers found it hard to justify laying off teachers and police officers while maintaining a capital punishment system that is never or seldom used.”
Nevertheless, executions in the U.S. rose in 2009 compared to last year. The DPIC attributes the increase largely to “the lifting of the de facto moratorium on executions during 2008 while the Supreme Court considered the constitutionality of lethal injection.” The high court ruled that death by lethal injection did not constitute “cruel and unusual punishment,” which is banned by the U.S. Constitution.
“The rise in executions in 2009 was expected as states were backlogged with cases from the nationwide moratorium. The country continues to move away from the death penalty, as evidenced by the declining rate of death sentences and the movement in several states to repeal it,” said Richard Dieter, the report’s author and DPIC’s executive director.
There were 52 executions this year, with no more scheduled, and 37 in 2008. The number of executions this year was 47 percent less than ten years ago. Eighty-seven percent of executions this year were carried out in the south and over half of those were in Texas.
The country is expected to finish 2009 with the fewest death sentences since the U.S. Supreme Court reinstated the death penalty in 1976, according to the DPIC report. Eleven states considered abolishing the death penalty this year, a significant increase in legislative activity from previous years, as the high costs and lack of measurable benefits associated with this punishment troubled lawmakers, the report said.
“The annual number of death sentences in the U.S. has dropped for seven straight years and is 60% less than in the 1990s,” said Dieter. “In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping. This entire decade has been marked by a declining use of the death penalty." There were 106 death sentences in 2009 compared with a high of 328 in 1994.
The decline in death sentences was particularly noticeable in Texas and Virginia, the two leading states in carrying out executions. During the 1990s, Texas averaged 34 death sentences per year and Virginia averaged 6. This year, Texas had 9 death sentences and Virginia had 1.
New Mexico became the 15th state to abolish the death penalty as Governor Richardson called the alternative of life in prison without parole “a strong punishment” and observed that the cost of the death penalty was “a valid reason [for repeal] in this era of austerity and tight budgets.” The Connecticut legislature voted to end the death penalty before the governor vetoed the bill. Legislation to abolish capital punishment passed in one house of the legislature in Colorado and Montana and came close to passage in Maryland. This trend is expected to continue as the economic crisis persists, the report predicted.
Nine men who were sentenced to death were exonerated in 2009, the second highest number of exonerations since the death penalty was reinstated. The total number of exonerations since 1973 is now 139. The public has become skeptical about the government’s ability to avoid mistakes and get the death penalty right. The DPIC says those sentiments translate into an increasing reluctance to hand down death sentences on the part of courts and juries.
Many of the exonerations have been attributed to the development of more reliable DNA testing. Since the first DNA exoneration took place in 1989, there have been 248 post-conviction DNA exonerations in 34 states within the United States.
The most recent came just last week, when James Bain was released from custody after 35 years spent in jail in Florida for a rape he did not commit.
He was freed on DNA evidence that was researched and worked on by the Innocence Project of Florida, part of a nationwide network of volunteer lawyers and law students.
In a related development, on December 15 the United Nations High Commissioner for Human Rights marked the 20th anniversary of an international death penalty treaty by calling for the universal abolition of capital punishment.
Navi Pillay, the top UN human rights official, urged all states to adopt the Optional Protocol to the International Covenant on Civil and Political Rights. The protocol, which bars the death penalty, was introduced in 1989.
To date, 140 countries no longer carry out the death penalty, and 72 countries have ratified the Optional Protocol on ending the death penalty.
Also this year, a nationwide poll of police chiefs showed that the death penalty is at the bottom of priorities among those with experience in law enforcement. The chiefs did not believe the death penalty acted as a deterrent, and they rated it as one of the most inefficient uses of taxpayer money in fighting crime. Challenges to the death penalty came from all quarters, including former Texas Governor Mark White and conservative strategist Richard Viguerie, who expressed doubts about the reliability of this governmental program.
The U.S. ranks fifth in the world in the number of executions carried out annually. China is first, with at least 5000; Iran is second with 346; Saudi Arabia is third with 102; and North Korea is fourth with 63.
Dieter told IPS that of the 56 countries within the Organization for Security and Cooperation in Europe (OSCE), the world's largest regional security organization, only the U.S. and Belarus retain an active death penalty. The Russian Federation and Tajikistan retain the death penalty but are not carrying out executions, he said.
The Death Penalty Information Center is a non-profit organization serving the media and the public with analysis and information on issues concerning capital punishment. The Center was founded in 1990 and prepares in-depth reports, issues press releases, conducts briefings for journalists, and serves as a resource to those working on this issue.
Wednesday, December 16, 2009
FROM GITMO TO ILLINOIS
By William Fisher
Human and civil rights advocates and members of the Republican Party found unusual common ground yesterday. Both registered strong objections to the announcement that the Obama administration would be transferring detainees from Guantánamo to a maximum security prison in Illinois.
But their reasons were starkly different.
The Weekly Standard, a conservative political publication and a reliable barometer of GOP sentiment, wrote, “In announcing this decision, there still remains no explication of how closing Guantanamo makes America safer. Quite to the contrary, unnecessarily importing al Qaeda terrorists into the United States 1) gives them more legal protections, including Constitutional rights, than they have now at Guantanamo, 2) increases the chances they may be released into the country, and 3) in exchange for these significant costs, does not appease the Democratic base, and certainly will not appease al Qaeda.”
Human and civil rights leaders, on the other hand, worried not about security concerns, but rather about the impact of Guantanamo transfers on the U.S. justice system.
Typical of the views of this group was Michael Ratner, president of the Center for Constitutional Rights, an organization that has mobilized dozens of pro-bono lawyers to defend Guantanamo prisoners. He told IPS, “Closing Gitmo physically is not closing it, if the practices underlying Gitmo remain. Pres Obama is rewrapping Gitmo, but a new wrapper can’t make it constitutional. Preventive Detention is still preventive detention in Illinois; military commissions are still military commissions in Illinois; and holding people even though the courts or the government have exonerated them is still a barbaric practice whether at Gitmo or in Illinois.”
Ratner asked rhetorically: “Can Obama really think he can fool all of the people all of the time?”
A similar view was expressed by Brian J. Foley, Visiting Associate Professor at the Boston University School of Law. He told IPS, “A change in location doesn't end the problem, which is this: imprisoning human beings based on little or no evidence or unreliable evidence that they have done anything wrong or are otherwise a danger. This is a shell game fueled by fear and cowardice. This sweeping power grab by our government endangers all of our human rights and civil liberties."
An even more condemnatory note was sounded by Francis A. Boyle, a professor at the University of Illinois Law School. He told IPS, “Obama's "Gitmo on the Mississippi" simply represents the importation of the illegal Gitmo Kangaroo Court System into the United States and thus the needless and unprincipled perversion of our Article III federal court system founded by the United States Constitution in 1787, together with America's Bill of Rights.”
He added, “Britain, which does not have a Constitution and a Bill of Rights and against which America fought a Revolution, set up a similar ‘preventive detention’ system over a generation ago in order to deal with alleged terrorists in Northern Ireland. Known as the infamous Diplock Courts, their perversions of justice were routinely documented and condemned by every human rights organization and court to have examined them.”
“It is the height of tragic irony for a teacher of U.S. Constitutional Law to have these new Obama Courts go down into the annals of jurisprudential infamy along with the Diplock Courts,” he said.
The American Civil Liberties Union, the nation’s largest human rights group, agreed. Anthony D. Romero, the ACLU’s executive director, said, “The creation of a 'Gitmo North' in Illinois is hardly a meaningful step forward. Shutting down Guantánamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.”
He said, "Alarmingly, all indications are that the administration plans to continue its predecessor's policy of indefinite detention without charge or trial for some detainees, with only a change of location. Such a policy is completely at odds with our democratic commitment to due process and human rights whether it's occurring in Cuba or in Illinois. In fact, while the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proven guilty and the right to confront one's accusers.”
A somewhat more hopeful view was expressed by Chip Pitts, president of the Bill of Rights Defense Committee, and a lecturer at Stanford University law school. He told IPS “Notwithstanding the political opposition’s fake grandstanding about supposed enhanced threats, this move to a civilian rather than a military facility is a welcome symbolic and practical step toward closing Guantanamo. It affirms that the United States is not afraid to deal with accused terrorists on its own soil, and sends a vital message of distance from Bush administration illegalities”.
He added, “Whether intended to do so or not, it could also represent a first, tentative step toward treating accused al Qaeda members like the common criminals they are instead of holy warriors locked in battle with a superpower. Now the administration needs to match that courage with equal courage in submitting all of the accused to the rigors of the US justice system and avoiding recourse to indefinite detention or kangaroo military courts of the sort our country has always condemned. Finally affording these prisoners (over) due process of law would be one of the most effective means of counterterrorism imaginable.”
The Weekly Standard summed up its presentation of the Republican viewpoint with this passage: “Voluntarily bringing al Qaeda terrorists into the United States is a fantastically bad idea for multiple reasons, as it clearly fails any cost/benefit analysis. The tremendous costs of this decision include increasing the chances al Qaeda terrorists may be released into the United States, and providing them more legal protections than they currently have at Guantanamo.”
But Congressional Republicans have not been alone in expressing fear of “terrorists being set free on the streets of our neighborhoods.” Democrats, especially those from Conservative districts or those who are facing tight election races in 2010, have been equally outspoken in opposition to the President’s plans. Earlier this year, Congress voted to deny the President any funds for transporting Guantanamo detainees to the U.S. – even for trial – without permission from Congress following a 45-day waiting period.
Under President Obama’s plan, GITMO detainees would be transferred to The Thomson Correctional Center, a maximum security prison located just outside of Thomson, Illinois. Built in 2001, it is owned by the State of Illinois, from which the Federal Government will have to buy it. The Federal Bureau of Prisons will erect a more robust perimeter fence to increase security. The portion of the prison that will be used to house Guantanamo detainees will be operated by the Department of Defense (DOD), while the rest of the prison, which can hold 1,600 men, will be operated by the Bureau of Prisons, part of the Department of Justice. The DOD’s Military Tribunals would presumably be held there.
Illinois officials, including the governor and the state's two senators, have welcomed the move because it will create several thousand new jobs in Illinois, where the unemployment rate is currently at approximately 11 per cent. One of the state’s senators, Richard Durbin – the number two Democrat in the Senate – estimated that about 100 prisoners would be transferred to Thompson.
Human and civil rights advocates and members of the Republican Party found unusual common ground yesterday. Both registered strong objections to the announcement that the Obama administration would be transferring detainees from Guantánamo to a maximum security prison in Illinois.
But their reasons were starkly different.
The Weekly Standard, a conservative political publication and a reliable barometer of GOP sentiment, wrote, “In announcing this decision, there still remains no explication of how closing Guantanamo makes America safer. Quite to the contrary, unnecessarily importing al Qaeda terrorists into the United States 1) gives them more legal protections, including Constitutional rights, than they have now at Guantanamo, 2) increases the chances they may be released into the country, and 3) in exchange for these significant costs, does not appease the Democratic base, and certainly will not appease al Qaeda.”
Human and civil rights leaders, on the other hand, worried not about security concerns, but rather about the impact of Guantanamo transfers on the U.S. justice system.
Typical of the views of this group was Michael Ratner, president of the Center for Constitutional Rights, an organization that has mobilized dozens of pro-bono lawyers to defend Guantanamo prisoners. He told IPS, “Closing Gitmo physically is not closing it, if the practices underlying Gitmo remain. Pres Obama is rewrapping Gitmo, but a new wrapper can’t make it constitutional. Preventive Detention is still preventive detention in Illinois; military commissions are still military commissions in Illinois; and holding people even though the courts or the government have exonerated them is still a barbaric practice whether at Gitmo or in Illinois.”
Ratner asked rhetorically: “Can Obama really think he can fool all of the people all of the time?”
A similar view was expressed by Brian J. Foley, Visiting Associate Professor at the Boston University School of Law. He told IPS, “A change in location doesn't end the problem, which is this: imprisoning human beings based on little or no evidence or unreliable evidence that they have done anything wrong or are otherwise a danger. This is a shell game fueled by fear and cowardice. This sweeping power grab by our government endangers all of our human rights and civil liberties."
An even more condemnatory note was sounded by Francis A. Boyle, a professor at the University of Illinois Law School. He told IPS, “Obama's "Gitmo on the Mississippi" simply represents the importation of the illegal Gitmo Kangaroo Court System into the United States and thus the needless and unprincipled perversion of our Article III federal court system founded by the United States Constitution in 1787, together with America's Bill of Rights.”
He added, “Britain, which does not have a Constitution and a Bill of Rights and against which America fought a Revolution, set up a similar ‘preventive detention’ system over a generation ago in order to deal with alleged terrorists in Northern Ireland. Known as the infamous Diplock Courts, their perversions of justice were routinely documented and condemned by every human rights organization and court to have examined them.”
“It is the height of tragic irony for a teacher of U.S. Constitutional Law to have these new Obama Courts go down into the annals of jurisprudential infamy along with the Diplock Courts,” he said.
The American Civil Liberties Union, the nation’s largest human rights group, agreed. Anthony D. Romero, the ACLU’s executive director, said, “The creation of a 'Gitmo North' in Illinois is hardly a meaningful step forward. Shutting down Guantánamo will be nothing more than a symbolic gesture if we continue its lawless policies onshore.”
He said, "Alarmingly, all indications are that the administration plans to continue its predecessor's policy of indefinite detention without charge or trial for some detainees, with only a change of location. Such a policy is completely at odds with our democratic commitment to due process and human rights whether it's occurring in Cuba or in Illinois. In fact, while the Obama administration inherited the Guantánamo debacle, this current move is its own affirmative adoption of those policies. It is unimaginable that the Obama administration is using the same justification as the Bush administration used to undercut centuries of legal jurisprudence and the principle of innocent until proven guilty and the right to confront one's accusers.”
A somewhat more hopeful view was expressed by Chip Pitts, president of the Bill of Rights Defense Committee, and a lecturer at Stanford University law school. He told IPS “Notwithstanding the political opposition’s fake grandstanding about supposed enhanced threats, this move to a civilian rather than a military facility is a welcome symbolic and practical step toward closing Guantanamo. It affirms that the United States is not afraid to deal with accused terrorists on its own soil, and sends a vital message of distance from Bush administration illegalities”.
He added, “Whether intended to do so or not, it could also represent a first, tentative step toward treating accused al Qaeda members like the common criminals they are instead of holy warriors locked in battle with a superpower. Now the administration needs to match that courage with equal courage in submitting all of the accused to the rigors of the US justice system and avoiding recourse to indefinite detention or kangaroo military courts of the sort our country has always condemned. Finally affording these prisoners (over) due process of law would be one of the most effective means of counterterrorism imaginable.”
The Weekly Standard summed up its presentation of the Republican viewpoint with this passage: “Voluntarily bringing al Qaeda terrorists into the United States is a fantastically bad idea for multiple reasons, as it clearly fails any cost/benefit analysis. The tremendous costs of this decision include increasing the chances al Qaeda terrorists may be released into the United States, and providing them more legal protections than they currently have at Guantanamo.”
But Congressional Republicans have not been alone in expressing fear of “terrorists being set free on the streets of our neighborhoods.” Democrats, especially those from Conservative districts or those who are facing tight election races in 2010, have been equally outspoken in opposition to the President’s plans. Earlier this year, Congress voted to deny the President any funds for transporting Guantanamo detainees to the U.S. – even for trial – without permission from Congress following a 45-day waiting period.
Under President Obama’s plan, GITMO detainees would be transferred to The Thomson Correctional Center, a maximum security prison located just outside of Thomson, Illinois. Built in 2001, it is owned by the State of Illinois, from which the Federal Government will have to buy it. The Federal Bureau of Prisons will erect a more robust perimeter fence to increase security. The portion of the prison that will be used to house Guantanamo detainees will be operated by the Department of Defense (DOD), while the rest of the prison, which can hold 1,600 men, will be operated by the Bureau of Prisons, part of the Department of Justice. The DOD’s Military Tribunals would presumably be held there.
Illinois officials, including the governor and the state's two senators, have welcomed the move because it will create several thousand new jobs in Illinois, where the unemployment rate is currently at approximately 11 per cent. One of the state’s senators, Richard Durbin – the number two Democrat in the Senate – estimated that about 100 prisoners would be transferred to Thompson.
Tuesday, December 15, 2009
Rummy Won’t Be Doing Time
By William Fisher
In the wake of the U.S. Supreme Court’s refusal yesterday to review a lower court’s dismissal of a case brought by four British former Guantanamo prisoners against former Defense Secretary Donald Rumsfeld, the detainees’ lawyers charged today that America’s highest court evidently believes that “torture and religious humiliation are permissible tools for a government to use.”
The U.S. Circuit Court of Appeals in Washington, D.C., had ruled that government officials were immune from suit because at that time it was unclear whether abusing prisoners at Guantanamo was illegal.
Channeling their predecessors in the Bush Administration, Obama Department of Justice lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.
The Obama administration had asked the court not to hear the case. By agreeing, the Court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act -- a statute that applies by its terms to all “persons” -- did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.
The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”
Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.
The circuit court ruled that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."
That opinion was written by Judge Karen Lecraft Henderson, who was appointed to the federal circuit court by President Ronald Reagan in 1986 and to the Appeals Court in 1990 by President George H.W. Bush.
The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004 with no charges ever having been filed against them.
Eric Lewis, lead attorney for the detainees, said, “It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not.”
He said, “Future prospective torturers can now draw comfort from this decision. The lower court found that torture is all in a days’ work for the Secretary of Defense and senior generals. That violates the President’s stated policy, our treaty obligations and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss.”
Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, told IPS, “In many ways the opinion the Supreme Court left standing today is worse when one gets past the bottom line – no accountability for torture and religious abuse – and digs into the legal reasoning. One set of claims are dismissed because torture is said to be a foreseeable consequence of military detention. (How will the parents of our troops captured in future foreign wars react to that?)”
“Another set of claims are dismissed because Guantanamo detainees are not ‘persons’ within the scope of the Religious Freedom Restoration Act (an argument that was too close to Dred Scott v. Sanford for one of the judges on the court of appeals to swallow). And the rest are dismissed on the premise that, somehow, federal officials responsible for planning and implementing torture and religious abuse might have looked to the caselaw on the subject and decided it wasn’t clear that the detainees had the right to not be strapped in medieval stress positions, or that it was OK to throw their Korans into a toilet bucket,” he said.
He added, “The way the case was defended is in some ways emblematic of the Obama administration’s waffling on national security issues. On the one hand they recognize that torture is reprehensible, doesn’t work, and is universally condemned; on the other they don’t want to prosecute people who ordered, facilitated, or carried it out, and are actively seeking to eliminate other mechanisms for accountability like this case – anything that might lead to a court saying crimes were committed and innocent people were brutally abused. In their briefing in this case, they stopped short of arguing that it should be the law that Guantanamo detainees have no constitutional rights, but were more than happy to point several cases they claim decided as much.”
He said they are “willing to use opinions they think work in their favor even where they are unwilling to defend those decisions on principle.” He described this as “an amalgam of the worst features of the last two presidents.”
The Dred Scott case referred to by CCR lawyer Kadidal was a decision by the United States Supreme Court in 1857. It ruled that people of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not protected by the Constitution and could never be citizens of the United States.
The four former detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith –filed their case in 2004 seeking damages from former Secretary of Defense Donald Rumsfeld and senior American military officers for violations of their constitutional rights and of the Religious Freedom Restoration Act, which prohibits infringement of religion by the U.S. government against any person.
Their claims were dismissed in 2008 by the Court of Appeals for the District of Columbia Circuit when that court held that detainees have no rights under the Constitution and do not count as “persons” for purposes of the Religious Freedom Restoration Act.
Last year, the Supreme Court granted the men’s first petition, vacated the Court of Appeals decision and ordered the D.C. Circuit to reconsider its ruling in light of the Supreme Court’s historic decision in Boumediene v. Bush, which held that Guantánamo is de facto U.S. territory and that detainees have a Constitutional right to habeas corpus.
On remand, the D.C. Circuit reiterated its view that the Constitution does not prohibit torture of detainees at Guantánamo and that detainees still are not “persons” protected from religious abuse. Finally, the Court of Appeals held that, in any event, the government officials involved are immune from liability because the right not to be tortured was not clearly established.
A second petition filed with the Court in August 2009 pointed out that the Court of Appeals decision stands in conflict with all of the Supreme Court’s recent precedent on Guantánamo and attacked the notion that the prohibitions against torture and religious abuse were not clearly established in 2002 when the petitioners were imprisoned.
In the wake of the U.S. Supreme Court’s refusal yesterday to review a lower court’s dismissal of a case brought by four British former Guantanamo prisoners against former Defense Secretary Donald Rumsfeld, the detainees’ lawyers charged today that America’s highest court evidently believes that “torture and religious humiliation are permissible tools for a government to use.”
The U.S. Circuit Court of Appeals in Washington, D.C., had ruled that government officials were immune from suit because at that time it was unclear whether abusing prisoners at Guantanamo was illegal.
Channeling their predecessors in the Bush Administration, Obama Department of Justice lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.
The Obama administration had asked the court not to hear the case. By agreeing, the Court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act -- a statute that applies by its terms to all “persons” -- did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.
The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.”
Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any Constitutional rights.
The circuit court ruled that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."
That opinion was written by Judge Karen Lecraft Henderson, who was appointed to the federal circuit court by President Ronald Reagan in 1986 and to the Appeals Court in 1990 by President George H.W. Bush.
The British detainees spent more than two years in Guantanamo and were repatriated to the U.K. in 2004 with no charges ever having been filed against them.
Eric Lewis, lead attorney for the detainees, said, “It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not.”
He said, “Future prospective torturers can now draw comfort from this decision. The lower court found that torture is all in a days’ work for the Secretary of Defense and senior generals. That violates the President’s stated policy, our treaty obligations and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss.”
Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, told IPS, “In many ways the opinion the Supreme Court left standing today is worse when one gets past the bottom line – no accountability for torture and religious abuse – and digs into the legal reasoning. One set of claims are dismissed because torture is said to be a foreseeable consequence of military detention. (How will the parents of our troops captured in future foreign wars react to that?)”
“Another set of claims are dismissed because Guantanamo detainees are not ‘persons’ within the scope of the Religious Freedom Restoration Act (an argument that was too close to Dred Scott v. Sanford for one of the judges on the court of appeals to swallow). And the rest are dismissed on the premise that, somehow, federal officials responsible for planning and implementing torture and religious abuse might have looked to the caselaw on the subject and decided it wasn’t clear that the detainees had the right to not be strapped in medieval stress positions, or that it was OK to throw their Korans into a toilet bucket,” he said.
He added, “The way the case was defended is in some ways emblematic of the Obama administration’s waffling on national security issues. On the one hand they recognize that torture is reprehensible, doesn’t work, and is universally condemned; on the other they don’t want to prosecute people who ordered, facilitated, or carried it out, and are actively seeking to eliminate other mechanisms for accountability like this case – anything that might lead to a court saying crimes were committed and innocent people were brutally abused. In their briefing in this case, they stopped short of arguing that it should be the law that Guantanamo detainees have no constitutional rights, but were more than happy to point several cases they claim decided as much.”
He said they are “willing to use opinions they think work in their favor even where they are unwilling to defend those decisions on principle.” He described this as “an amalgam of the worst features of the last two presidents.”
The Dred Scott case referred to by CCR lawyer Kadidal was a decision by the United States Supreme Court in 1857. It ruled that people of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not protected by the Constitution and could never be citizens of the United States.
The four former detainees – Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed, and Jamal Al-Harith –filed their case in 2004 seeking damages from former Secretary of Defense Donald Rumsfeld and senior American military officers for violations of their constitutional rights and of the Religious Freedom Restoration Act, which prohibits infringement of religion by the U.S. government against any person.
Their claims were dismissed in 2008 by the Court of Appeals for the District of Columbia Circuit when that court held that detainees have no rights under the Constitution and do not count as “persons” for purposes of the Religious Freedom Restoration Act.
Last year, the Supreme Court granted the men’s first petition, vacated the Court of Appeals decision and ordered the D.C. Circuit to reconsider its ruling in light of the Supreme Court’s historic decision in Boumediene v. Bush, which held that Guantánamo is de facto U.S. territory and that detainees have a Constitutional right to habeas corpus.
On remand, the D.C. Circuit reiterated its view that the Constitution does not prohibit torture of detainees at Guantánamo and that detainees still are not “persons” protected from religious abuse. Finally, the Court of Appeals held that, in any event, the government officials involved are immune from liability because the right not to be tortured was not clearly established.
A second petition filed with the Court in August 2009 pointed out that the Court of Appeals decision stands in conflict with all of the Supreme Court’s recent precedent on Guantánamo and attacked the notion that the prohibitions against torture and religious abuse were not clearly established in 2002 when the petitioners were imprisoned.
Sunday, December 13, 2009
MIDEAST HUMAN RIGHTS DETERIORATED IN 2009
By William Fisher
Human rights abuses in Arab countries have increased throughout the Middle East and North Africa during 2009, according to the Annual Report of the Cairo Institute for Human Rights Studies.
The report, entitled “Bastion of Impunity, Mirage of Reform,” reviews “deteriorating” human rights developments during 2009 in 12 Arab countries: Egypt, Tunisia, Algeria, Morocco, Sudan, Lebanon, Syria, Palestine, Iraq, Saudi Arabia, Bahrain, and Yemen.
In a separate chapter, the report addresses what it calls the “limited progress” made to advance women’s rights and gender equality. It says that Arab governments “use the issue of women’s rights to burnish their image before the international community while simultaneously evading democratic and human rights reform measures required to ensure dignity and equality for all of their citizens.”
The report says that while Iraq is still the largest arena of violence and civilian deaths, “the country witnessed a relative improvement in some areas, though these gains remain fragile.” It added that “the death toll has dropped and threats against journalists are less frequent. In addition, some of the major warring factions have indicated they are prepared to renounce violence and engage in the political process.”
In Egypt, as the state of emergency approaches the end of its third decade, the Report charges that “the broad immunity given to the security apparatus has resulted in the killing of dozens of undocumented migrants, the use of lethal force in the pursuit of criminal suspects, and routine torture.”
It also observes that “other signs of deterioration were visible in 2009: the emergency law was applied broadly to repress freedom of expression, including detaining or abducting bloggers. Moreover, the Egyptian police state is increasingly acquiring certain theocratic features, which have reduced some religious freedoms, and have lead to an unprecedented expansion of sectarian violence within the country.”
In its blatant contempt for justice, the report says, the Sudanese regime is “the exemplar for impunity and the lack of accountability.” The Bashir regime “is hunting down anyone in the country who openly rejects impunity for war crimes, imprisoning and torturing them and shutting down rights organizations.” Meanwhile “the government’s policy of collective punishment against the population of Darfur continues.”
The report says that the deterioration in Yemeni affairs “may presage the collapse of what remains of the central state structure due to policies that give priority to the monopolization of power and wealth, corruption that runs rampant, and a regime that continues to deal with opponents using solely military and security means.”
In Lebanon, the report says, the threat of civil war that loomed last year has receded, but “the country still suffers from an entrenched two-tier power structure in which Hizbullah’s superior military capabilities give the opposition an effective veto.” As a result, the report says, “the state’s constitutional institutions have been paralyzed.”
In Tunisia, the report finds that “the authoritarian police state continued its unrestrained attacks on political activists, journalists, human rights defenders, trade unionists, and others involved in social protest.” At the same time, it notes, “the political stage was prepared for the reelection of President Ben Ali through the introduction of constitutional amendments that disqualified any serious contenders.
In Algeria, the report says, “the emergency law, the Charter for Peace and National Reconciliation, and the application of counterterrorism measures entrenched policies of impunity, grave police abuses, and the undermining of accountability and freedom of expression. Constitutional amendments paved the way for the installment of President Bouteflika as president for life amid elections that were contested on many levels, despite the lack of real political competition.”
Morocco, the report concludes, has seen “a tangible erosion of the human rights gains achieved by Moroccans over the last decade. A fact most clearly seen in the failure if the government to adopt a set of institutional reforms within the security and judicial sectors intended to prevent impunity for crimes.”
The report finds that, as Syria enters its 47th year of emergency law, it continues to be distinguished by “its readiness to destroy all manner of political opposition, even the most limited manifestations of independent expression.” It notes that the Kurdish minority “was kept in check by institutionalized discrimination, and human rights defenders were targets for successive attacks.” The report says the president of the Sawasiyah human rights organization was arrested and tried, and his attorney, the former chair of the Syrian Human Rights Association, was referred to a military tribunal. “The offices of the Syrian Center for Media and Freedom of Expression were shut down, and Syrian prisons still hold dozens of prisoners of conscience and democracy advocates,” the report charges.
In Bahrain, the report says, the “systematic discrimination against the Shiite majority was accompanied by more repression of freedom of expression and peaceful assembly. Human rights defenders increasingly became targets for arrest, trial, and smear campaigns. Some human rights defenders were even subjected by government agents to threats and intimidation while in Europe.”
In Saudi Arabia, the report notes that the Monarch’s speeches urging religious tolerance and interfaith dialogue abroad have not been applied inside the Kingdom, where “the religious police continue to clamp down on personal freedom.” The organization says “repression of religious freedoms is endemic, and the Shiite minority continues to face systematic discrimination.” Counterterrorism policies were used to justify long-term arbitrary detention, and political activists advocating reform were tortured. These policies also undermined judicial standards, as witnessed by the prosecution of hundreds of people in semi-secret trials over the last year, the report says.
In tandem with these abuses and “lack of accountability for such crimes” within Arab countries, the report notes that “various Arab governments and members of the Organization of the Islamic Conference have been working in concert within UN institutions to undermine international mechanisms and standards for the protection of human rights.
“On this level, Arab governments have sought to undercut provisions that bring governments to account or seriously assess and monitor human rights. This is most clearly illustrated by the broad attack on independent UN human rights experts and NGOs working within the UN, as well as attempts to legalize international restrictions on freedom of expression through the pretext of prohibiting ‘defamation of religions’,” the report says.
The report also condemns what it terms “the grave and ongoing Israeli violations of Palestinian rights, particularly the collective punishment of Palestinians in the Gaza Strip through the ongoing blockade and the brutal invasion of Gaza at the beginning of 2009 which resulted in the killing of more than 1,400 Palestinians, 83 percent of them civilians not taking part in hostilities.”
It notes that “The plight of the Palestinian people has been exacerbated by the Fatah-Hamas conflict, which has turned universal rights and liberties into favors granted on the basis of political affiliation. Both parties have committed grave abuses against their opponents, including arbitrary detention, lethal torture, and extrajudicial killings.”
The report is also critical of the Arab League and its summit forums for offering ongoing support for the Bashir regime in Sudan despite charges of war crimes, and members of the organization used the principle of national sovereignty as a pretext to remain silent about or even collaborate on grave violations in several Arab states. The report says, “Little hope should be invested in the Arab League as a protector of human rights regionally.”
Human rights abuses in Arab countries have increased throughout the Middle East and North Africa during 2009, according to the Annual Report of the Cairo Institute for Human Rights Studies.
The report, entitled “Bastion of Impunity, Mirage of Reform,” reviews “deteriorating” human rights developments during 2009 in 12 Arab countries: Egypt, Tunisia, Algeria, Morocco, Sudan, Lebanon, Syria, Palestine, Iraq, Saudi Arabia, Bahrain, and Yemen.
In a separate chapter, the report addresses what it calls the “limited progress” made to advance women’s rights and gender equality. It says that Arab governments “use the issue of women’s rights to burnish their image before the international community while simultaneously evading democratic and human rights reform measures required to ensure dignity and equality for all of their citizens.”
The report says that while Iraq is still the largest arena of violence and civilian deaths, “the country witnessed a relative improvement in some areas, though these gains remain fragile.” It added that “the death toll has dropped and threats against journalists are less frequent. In addition, some of the major warring factions have indicated they are prepared to renounce violence and engage in the political process.”
In Egypt, as the state of emergency approaches the end of its third decade, the Report charges that “the broad immunity given to the security apparatus has resulted in the killing of dozens of undocumented migrants, the use of lethal force in the pursuit of criminal suspects, and routine torture.”
It also observes that “other signs of deterioration were visible in 2009: the emergency law was applied broadly to repress freedom of expression, including detaining or abducting bloggers. Moreover, the Egyptian police state is increasingly acquiring certain theocratic features, which have reduced some religious freedoms, and have lead to an unprecedented expansion of sectarian violence within the country.”
In its blatant contempt for justice, the report says, the Sudanese regime is “the exemplar for impunity and the lack of accountability.” The Bashir regime “is hunting down anyone in the country who openly rejects impunity for war crimes, imprisoning and torturing them and shutting down rights organizations.” Meanwhile “the government’s policy of collective punishment against the population of Darfur continues.”
The report says that the deterioration in Yemeni affairs “may presage the collapse of what remains of the central state structure due to policies that give priority to the monopolization of power and wealth, corruption that runs rampant, and a regime that continues to deal with opponents using solely military and security means.”
In Lebanon, the report says, the threat of civil war that loomed last year has receded, but “the country still suffers from an entrenched two-tier power structure in which Hizbullah’s superior military capabilities give the opposition an effective veto.” As a result, the report says, “the state’s constitutional institutions have been paralyzed.”
In Tunisia, the report finds that “the authoritarian police state continued its unrestrained attacks on political activists, journalists, human rights defenders, trade unionists, and others involved in social protest.” At the same time, it notes, “the political stage was prepared for the reelection of President Ben Ali through the introduction of constitutional amendments that disqualified any serious contenders.
In Algeria, the report says, “the emergency law, the Charter for Peace and National Reconciliation, and the application of counterterrorism measures entrenched policies of impunity, grave police abuses, and the undermining of accountability and freedom of expression. Constitutional amendments paved the way for the installment of President Bouteflika as president for life amid elections that were contested on many levels, despite the lack of real political competition.”
Morocco, the report concludes, has seen “a tangible erosion of the human rights gains achieved by Moroccans over the last decade. A fact most clearly seen in the failure if the government to adopt a set of institutional reforms within the security and judicial sectors intended to prevent impunity for crimes.”
The report finds that, as Syria enters its 47th year of emergency law, it continues to be distinguished by “its readiness to destroy all manner of political opposition, even the most limited manifestations of independent expression.” It notes that the Kurdish minority “was kept in check by institutionalized discrimination, and human rights defenders were targets for successive attacks.” The report says the president of the Sawasiyah human rights organization was arrested and tried, and his attorney, the former chair of the Syrian Human Rights Association, was referred to a military tribunal. “The offices of the Syrian Center for Media and Freedom of Expression were shut down, and Syrian prisons still hold dozens of prisoners of conscience and democracy advocates,” the report charges.
In Bahrain, the report says, the “systematic discrimination against the Shiite majority was accompanied by more repression of freedom of expression and peaceful assembly. Human rights defenders increasingly became targets for arrest, trial, and smear campaigns. Some human rights defenders were even subjected by government agents to threats and intimidation while in Europe.”
In Saudi Arabia, the report notes that the Monarch’s speeches urging religious tolerance and interfaith dialogue abroad have not been applied inside the Kingdom, where “the religious police continue to clamp down on personal freedom.” The organization says “repression of religious freedoms is endemic, and the Shiite minority continues to face systematic discrimination.” Counterterrorism policies were used to justify long-term arbitrary detention, and political activists advocating reform were tortured. These policies also undermined judicial standards, as witnessed by the prosecution of hundreds of people in semi-secret trials over the last year, the report says.
In tandem with these abuses and “lack of accountability for such crimes” within Arab countries, the report notes that “various Arab governments and members of the Organization of the Islamic Conference have been working in concert within UN institutions to undermine international mechanisms and standards for the protection of human rights.
“On this level, Arab governments have sought to undercut provisions that bring governments to account or seriously assess and monitor human rights. This is most clearly illustrated by the broad attack on independent UN human rights experts and NGOs working within the UN, as well as attempts to legalize international restrictions on freedom of expression through the pretext of prohibiting ‘defamation of religions’,” the report says.
The report also condemns what it terms “the grave and ongoing Israeli violations of Palestinian rights, particularly the collective punishment of Palestinians in the Gaza Strip through the ongoing blockade and the brutal invasion of Gaza at the beginning of 2009 which resulted in the killing of more than 1,400 Palestinians, 83 percent of them civilians not taking part in hostilities.”
It notes that “The plight of the Palestinian people has been exacerbated by the Fatah-Hamas conflict, which has turned universal rights and liberties into favors granted on the basis of political affiliation. Both parties have committed grave abuses against their opponents, including arbitrary detention, lethal torture, and extrajudicial killings.”
The report is also critical of the Arab League and its summit forums for offering ongoing support for the Bashir regime in Sudan despite charges of war crimes, and members of the organization used the principle of national sovereignty as a pretext to remain silent about or even collaborate on grave violations in several Arab states. The report says, “Little hope should be invested in the Arab League as a protector of human rights regionally.”
Good News 2009
By William Fisher
OK, OK. I know. It’s time for my annual good news column.
It’s a deal I made with a friend to make up for all the depressing news stories I had to write this year.
This was no easy task. Aside from the end of the Bush era, and the election of Barack Obama, there wasn’t all that much good news to be had. But perseverance paid off: My discovery of a fitting subject came during a session of the U.S. Senate on C-SPAN, that exciting channel sponsored by the cable industry.
Amidst the hollow echo of a totally empty Senate chamber (did you know the C-SPAN cameras are only allowed to focus on whoever is speaking, and never allowed to pan the whole chamber, full of empty seats?) stood a Republican senator, voice quivering, arms flailing, face reddening, railing against our National Security Enemy Number One, the American Civil Liberties Union.
Now, what was this legislative grandstander getting so apoplectic about? The ACLU’s activities in coordinating defense teams for detainees at Guantanamo.
But why he should have been surprised – or acting surprised – is a mystery. The ACLU has been doing this kind of unpopular stuff for almost a century.
Let’s go all the way back to World War I. Then, the National Civil Liberties Bureau, the ACLU’s predecessor, defended the First Amendment rights of antiwar dissidents in the face of massive government repression. The administration of President Woodrow Wilson (winner of the Nobel Peace Prize!) banned anti-war literature from the mails and prosecuted individuals for merely expressing opposition to the war, or criticizing the President. Just like some Third World dictatorship!
People were convicted and sentenced to ten-year prison terms for allegedly interfering with the draft, even though they had said nothing about the draft itself.
These prosecutions were initially upheld by the U.S. Supreme Court. But later the Court affirmed the principle that the First Amendment protects the right to criticize the government – even during wartime.
A generation later, the ACLU was the only national organization to challenge the government's World War Two evacuation and internment of the Japanese-Americans while organizations of every political stripe, fearful of alienating the government, pretended not to notice.
Today all of us except the truly delusional acknowledge that this was one of the darkest chapters in American civil rights history.
Then, just a few years after the war, in 1949, an ex-Catholic priest named Arthur Terminiello delivered a racist and anti-Semitic speech to the Christian Veterans of America. The Chicago Police Department was present, but was unable to completely maintain order. Terminiello was charged with violating Chicago's breach of peace ordinance and fined a hundred dollars.
Terminiello appealed and the ACLU successfully defended him before the U.S. Supreme Court. The case, known as Terminiello v. Chicago, established the legal precedent for the ACLU's successful defense of the civil rights demonstrators in the 1960s and '70s.
Many other unsavory characters have been defended by the ACLU. Like the Neo-Nazis who claimed the right to march in Skokie, Illinois, in 1979. At the time, the ACLU’s Executive Director was Aryeh Neier, whose relatives had died in Hitler's concentration camps during World War II. Neier said: "Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened."
I wish the folks we send to Congress to represent us knew more American history – or chose to remember it. But, after ACORN, there is arguably no easier target for a rabble-rousing, demagogic lawmaker than the ACLU.
And these icons of good governance lose no opportunity to go the floor of the House and Senate to inveigh against it.
But they might be well advised to remember that the ACLU is an outfit to which they might one day find themselves having to reach out to defend their First Amendment rights to speak their mind – including the right to say stupid things.
OK, OK. I know. It’s time for my annual good news column.
It’s a deal I made with a friend to make up for all the depressing news stories I had to write this year.
This was no easy task. Aside from the end of the Bush era, and the election of Barack Obama, there wasn’t all that much good news to be had. But perseverance paid off: My discovery of a fitting subject came during a session of the U.S. Senate on C-SPAN, that exciting channel sponsored by the cable industry.
Amidst the hollow echo of a totally empty Senate chamber (did you know the C-SPAN cameras are only allowed to focus on whoever is speaking, and never allowed to pan the whole chamber, full of empty seats?) stood a Republican senator, voice quivering, arms flailing, face reddening, railing against our National Security Enemy Number One, the American Civil Liberties Union.
Now, what was this legislative grandstander getting so apoplectic about? The ACLU’s activities in coordinating defense teams for detainees at Guantanamo.
But why he should have been surprised – or acting surprised – is a mystery. The ACLU has been doing this kind of unpopular stuff for almost a century.
Let’s go all the way back to World War I. Then, the National Civil Liberties Bureau, the ACLU’s predecessor, defended the First Amendment rights of antiwar dissidents in the face of massive government repression. The administration of President Woodrow Wilson (winner of the Nobel Peace Prize!) banned anti-war literature from the mails and prosecuted individuals for merely expressing opposition to the war, or criticizing the President. Just like some Third World dictatorship!
People were convicted and sentenced to ten-year prison terms for allegedly interfering with the draft, even though they had said nothing about the draft itself.
These prosecutions were initially upheld by the U.S. Supreme Court. But later the Court affirmed the principle that the First Amendment protects the right to criticize the government – even during wartime.
A generation later, the ACLU was the only national organization to challenge the government's World War Two evacuation and internment of the Japanese-Americans while organizations of every political stripe, fearful of alienating the government, pretended not to notice.
Today all of us except the truly delusional acknowledge that this was one of the darkest chapters in American civil rights history.
Then, just a few years after the war, in 1949, an ex-Catholic priest named Arthur Terminiello delivered a racist and anti-Semitic speech to the Christian Veterans of America. The Chicago Police Department was present, but was unable to completely maintain order. Terminiello was charged with violating Chicago's breach of peace ordinance and fined a hundred dollars.
Terminiello appealed and the ACLU successfully defended him before the U.S. Supreme Court. The case, known as Terminiello v. Chicago, established the legal precedent for the ACLU's successful defense of the civil rights demonstrators in the 1960s and '70s.
Many other unsavory characters have been defended by the ACLU. Like the Neo-Nazis who claimed the right to march in Skokie, Illinois, in 1979. At the time, the ACLU’s Executive Director was Aryeh Neier, whose relatives had died in Hitler's concentration camps during World War II. Neier said: "Keeping a few Nazis off the streets of Skokie will serve Jews poorly if it means that the freedoms to speak, publish or assemble any place in the United States are thereby weakened."
I wish the folks we send to Congress to represent us knew more American history – or chose to remember it. But, after ACORN, there is arguably no easier target for a rabble-rousing, demagogic lawmaker than the ACLU.
And these icons of good governance lose no opportunity to go the floor of the House and Senate to inveigh against it.
But they might be well advised to remember that the ACLU is an outfit to which they might one day find themselves having to reach out to defend their First Amendment rights to speak their mind – including the right to say stupid things.
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