By William Fisher
Pressure is mounting on the U.S. Government to investigate reports that inmates from the notorious prison at Bagram Air Base in Afghanistan have been moved to a second separate facility – known as the Tor Jail, which translates as "black jail" – where they say they were held in isolation in cold cells with a light on day and night and deprived of sleep by U.S. military personnel.
These reports have been confirmed by The International Committee of the Red Cross (ICRC) which said that since August 2009 US authorities have been notifying it of names of detained people in a separate structure at Bagram.
Nine former prisoners have reported the abuses to the British Broadcasting Corporation (BBC). The men told “consistent” stories of being held in a separate building and suffering multiple abuses, the BBC said.
Vice Admiral Robert Harward, in charge of US detentions in Afghanistan, denied the existence of such a facility or abuses. He told the BBC that the main prison, now called the Detention Facility in Parwan, is the only detention facility on the base. However, he said the military would look into the abuse allegations.
The International Committee of the Red Cross (ICRC) said that "The ICRC is being notified by the US authorities of detained people within 14 days of their arrest," a Red Cross spokesman said. "This has been routine practice since August 2009 and is a development welcomed by the ICRC."
Leading advocacy groups are increasing pressure on the Obama Administration to investigate the BBC reports.
Physicians for Human Rights (PHR) said the alleged techniques “regardless of which administration employs them, constitute torture.”
Frank Donaghue, president of PHR, said, “The Obama administration must make good on its earlier statement that it would not use torture by fully investigating these allegations. Until it explicitly repudiates the use of these techniques, its commitment to human rights will remain in question.”
The organization said it is not yet clear under what authority, if any, the abusive techniques allegedly used at Bagram were approved, but it is possible that officials were relying on Appendix M of the 2006 Army Field Manual on Human Intelligence Collector Operations (AFM).
That appendix authorizes the use of two of the tactics -- sleep deprivation and isolation --allegedly being applied to detainees. The use of temperature manipulation is prohibited by the AFM. Since the release of the current AFM in September 2006, PHR has urged the military to rescind Appendix M.
“As long as Appendix M remains in effect, there is an asterisk next to the Obama administration’s claim that it does not authorize torture,” said John Bradshaw, PHR’s Washington Director.
He said, “Appendix M’s approval of sleep manipulation and isolation is a green light for the abuse of the health and human rights of detainees in US custody. The abuses allowed under Appendix M—and any others still practiced—must come to an end.”
Another advocacy group, Human Rights First (HRF), has also called on the U.S. government to answer the BBC’s allegations. In a letter to Vice-Admiral Harward, the organization pressed for answers to the allegations of abuse. It noted that to date “the U.S. government has consistently failed to respond to these serious accusations.”
"In addition to being reprehensible, abuse of prisoners in Afghanistan would also directly undermine U.S. strategic interests there, which depend upon the support and cooperation of the Afghan people and their government," said HRF’s Daphne Eviatar. "But beyond that, these latest reports, if true, suggest that the U.S. may also be in violation of its legal obligations to treat detainees humanely."
"We urge the government to investigate all allegations of abuse and to make the findings of such allegations public. Only by openly investigating and punishing such abuses will the United States be able to win the trust of the Afghan population, as well as American support for U.S. efforts in Afghanistan," Eviatar said.
This is not the first time that such abuse allegations have surfaced. In November 2009, the Washington Post reported that teenagers arrested by U.S. authorities and held at the Bagram air base had similarly charged that they'd been beaten, sexually humiliated, deprived of sleep and held in isolation. At least two prisoners have died at Bagram since its opening.
In October 2008, HRF, in its “Blueprint for the Next Administration: How to End Torture and Cruel Treatment,” called on the incoming Obama administration to close secret prisons and end the practice of holding "ghost prisoners."
In a January 22, 2009 Executive Order, President Obama revoked the CIA's detention authority and required that the ICRC be given access to all armed conflict detainees, as required by international law. It remains unclear, however, how long after an arrest the ICRC is being permitted to meet with the detainees, and if they are being given access to all U.S.-run detention sites in Afghanistan.
In April 2009, In response to an ACLU Freedom of Information Act lawsuit seeking the disclosure of documents related to the detention and treatment of prisoners at Bagram, the Defense Department released for the first time a list containing the names of 645 prisoners who were detained at Bagram. other vital information, including their citizenship, how long they had been held, in what country they were captured and the circumstances of their capture, was redacted.
Human rights advocates have a mixed record in their attempts to persuade the courts to grant customary due-process rights to Bagram detainees. In one of the earlier cases, involving four Bagram prisoners, Judge John D. Bates ruled that three of them - two Yemenis and one Tunisian - had the right to petition U.S. courts for their release.
But he also ruled that because the fourth prisoner, Haji Wazir, was a citizen of Afghanistan rather than a Yemeni or a Tunisian, granting him legal rights might upset the relationship between the US and Afghanistan. Judge Bates dismissed Wazir's petition.
Wednesday, May 12, 2010
W’s “Charity Policy” Reversed
By William Fisher
In a major decision overturning a Bush-era policy – which has been followed by the administration of President Barack Obama -- a federal court has ruled that it is unconstitutional for the U.S. Treasury Department to freeze a charity's assets – effectively putting it out of business with virtually no due process.
That’s what happened in 2006 to an Ohio-based charity called Kind Hearts for Charitable Humanitarian Development, Inc. The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze KindHearts' assets without a warrant, notice or a hearing, based simply on the assertion that OFAC was investigating whether the charity should be designated as a "specially designated global terrorist" (SDGT).
Federal District Judge James G. Carr ruled Monday that in the future the administration must obtain a warrant based on probable cause before seizing an organization's assets. In KindHearts' case, the court held that the government must remedy its failure to get a warrant in this case by demonstrating that it had probable cause at the time it froze KindHearts' assets.
Judge Carr also ruled that OFAC violated the U.S. Constitution’s Fifth Amendment's guarantee of due process by failing to provide KindHearts notice of the charges against it or a meaningful opportunity to respond. He held that OFAC must remedy these failures by declassifying or adequately summarizing the classified evidence against KindHearts or by allowing KindHearts' counsel to view the classified evidence pursuant to security clearances and a protective order.
In order to comply with the Constitution, the judge ruled, Congress must fix the law to require a warrant be obtained based upon probable cause before taking such action. The court also found that the Treasury Department's failure to give the charity notice of the basis for freezing its assets violated the Constitution by preventing the charity from being able to meaningfully respond to the freeze.
The ruling reverses a policy developed by the Administration of President George W. Bush in the wake of the terrorist attacks of September 11, 2001.
The ruling came in a lawsuit filed in November 2008 by the American Civil Liberties Union, the ACLU of Ohio, and several civil rights attorneys.
KindHearts was never been found to have engaged in any wrongdoing and has never been designated an SDGT. But as a result of the freeze pending investigation, it would be a crime for anyone to do any business with KindHearts. The charity also had no access to its own property.
Co- counsel in the case was David Cole, a professor at Georgetown University law school and one of the country’s preeminent constitutional lawyers. He told IPS, "The process for freezing charities' assets has been defective from the outset. No charity has yet been afforded notice of the charges against it, and the entire process has been shrouded in secrecy.”
Cole sounded this hopeful note: “With this decision, we may be moving toward fairness, at last, for those targeted by OFAC. If due process means anything, it must mean that the government has to tell you what their charges and evidence are before shutting you down and freezing all your assets."
He added, "For years, the government has insulated its terrorist-designation decisions from any meaningful review by denying the frozen charities even the most basic constitutional requirements of due process," said Georgetown Law Professor David Cole, co-counsel for KindHearts. "Yesterday's decision confirms that such freezes are unconstitutional by requiring the government to provide KindHearts what it has been denied all along – a fair chance to clear its name."
KindHearts' founders established the charity in 2002 – after the government shut down a number of other charities – with the express purpose of providing humanitarian aid both abroad and in the U.S. in full compliance with the law. OFAC froze KindHearts' assets despite the charity’s efforts to implement OFAC policies and even to seek its guidance. The government’s action was based simply on the assertion that the charity was "under investigation." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, again without providing it with a reason or meaningful opportunity to defend itself.
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review. In August 2009, the court ruled for the first time that the government cannot freeze an organization’s assets without obtaining a warrant based upon probable cause. The court also held that the government violated KindHearts' right to due process by freezing its assets without providing it adequate notice of the basis for the freeze or a meaningful opportunity to defend itself.
President Barack Obama conceded in his Cairo speech soon after taking office that U.S. rules on charitable giving “have made it harder for Muslims to fulfill their religious obligation.”
Since then, civil rights advocates have been pressing the president to turn his words into action. For example, the Muslim Public Affairs Council (MPAC) has joined other nonprofit organizations in urging Obama to follow up on his commitment to work with Muslim Americans to revise charitable giving rules.
In a letter to the president, the organizations outlined a set of principles for new rules governing charitable giving and operations, and said government policy “must address systemic problems.”
The government, it said, should “provide clear standards for permissible charitable and development activity that are consistent with long-standing norms for humanitarian operations,” such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief.
It must provide a fair opportunity for charities accused of supporting terrorism to defend themselves; protect charitable assets from indefinite freezing and allow these resources to further the charitable mission donors intended to support; and withdraw the Treasury Department's Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-based Charities.”
For Muslims, charitable giving is a religiously-mandated obligation known as “zakat.”
In a major decision overturning a Bush-era policy – which has been followed by the administration of President Barack Obama -- a federal court has ruled that it is unconstitutional for the U.S. Treasury Department to freeze a charity's assets – effectively putting it out of business with virtually no due process.
That’s what happened in 2006 to an Ohio-based charity called Kind Hearts for Charitable Humanitarian Development, Inc. The U.S. Treasury Department's Office of Foreign Assets Control (OFAC) froze KindHearts' assets without a warrant, notice or a hearing, based simply on the assertion that OFAC was investigating whether the charity should be designated as a "specially designated global terrorist" (SDGT).
Federal District Judge James G. Carr ruled Monday that in the future the administration must obtain a warrant based on probable cause before seizing an organization's assets. In KindHearts' case, the court held that the government must remedy its failure to get a warrant in this case by demonstrating that it had probable cause at the time it froze KindHearts' assets.
Judge Carr also ruled that OFAC violated the U.S. Constitution’s Fifth Amendment's guarantee of due process by failing to provide KindHearts notice of the charges against it or a meaningful opportunity to respond. He held that OFAC must remedy these failures by declassifying or adequately summarizing the classified evidence against KindHearts or by allowing KindHearts' counsel to view the classified evidence pursuant to security clearances and a protective order.
In order to comply with the Constitution, the judge ruled, Congress must fix the law to require a warrant be obtained based upon probable cause before taking such action. The court also found that the Treasury Department's failure to give the charity notice of the basis for freezing its assets violated the Constitution by preventing the charity from being able to meaningfully respond to the freeze.
The ruling reverses a policy developed by the Administration of President George W. Bush in the wake of the terrorist attacks of September 11, 2001.
The ruling came in a lawsuit filed in November 2008 by the American Civil Liberties Union, the ACLU of Ohio, and several civil rights attorneys.
KindHearts was never been found to have engaged in any wrongdoing and has never been designated an SDGT. But as a result of the freeze pending investigation, it would be a crime for anyone to do any business with KindHearts. The charity also had no access to its own property.
Co- counsel in the case was David Cole, a professor at Georgetown University law school and one of the country’s preeminent constitutional lawyers. He told IPS, "The process for freezing charities' assets has been defective from the outset. No charity has yet been afforded notice of the charges against it, and the entire process has been shrouded in secrecy.”
Cole sounded this hopeful note: “With this decision, we may be moving toward fairness, at last, for those targeted by OFAC. If due process means anything, it must mean that the government has to tell you what their charges and evidence are before shutting you down and freezing all your assets."
He added, "For years, the government has insulated its terrorist-designation decisions from any meaningful review by denying the frozen charities even the most basic constitutional requirements of due process," said Georgetown Law Professor David Cole, co-counsel for KindHearts. "Yesterday's decision confirms that such freezes are unconstitutional by requiring the government to provide KindHearts what it has been denied all along – a fair chance to clear its name."
KindHearts' founders established the charity in 2002 – after the government shut down a number of other charities – with the express purpose of providing humanitarian aid both abroad and in the U.S. in full compliance with the law. OFAC froze KindHearts' assets despite the charity’s efforts to implement OFAC policies and even to seek its guidance. The government’s action was based simply on the assertion that the charity was "under investigation." OFAC then threatened to designate KindHearts as a "specially designated global terrorist" (SDGT) based on classified evidence, again without providing it with a reason or meaningful opportunity to defend itself.
In October 2008, a federal judge granted the ACLU's request for an emergency order blocking the government from designating KindHearts as an SDGT without further judicial review. In August 2009, the court ruled for the first time that the government cannot freeze an organization’s assets without obtaining a warrant based upon probable cause. The court also held that the government violated KindHearts' right to due process by freezing its assets without providing it adequate notice of the basis for the freeze or a meaningful opportunity to defend itself.
President Barack Obama conceded in his Cairo speech soon after taking office that U.S. rules on charitable giving “have made it harder for Muslims to fulfill their religious obligation.”
Since then, civil rights advocates have been pressing the president to turn his words into action. For example, the Muslim Public Affairs Council (MPAC) has joined other nonprofit organizations in urging Obama to follow up on his commitment to work with Muslim Americans to revise charitable giving rules.
In a letter to the president, the organizations outlined a set of principles for new rules governing charitable giving and operations, and said government policy “must address systemic problems.”
The government, it said, should “provide clear standards for permissible charitable and development activity that are consistent with long-standing norms for humanitarian operations,” such as the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations (NGOs) in Disaster Relief.
It must provide a fair opportunity for charities accused of supporting terrorism to defend themselves; protect charitable assets from indefinite freezing and allow these resources to further the charitable mission donors intended to support; and withdraw the Treasury Department's Anti-Terrorist Financing Guidelines: Voluntary Best Practices for U.S.-based Charities.”
For Muslims, charitable giving is a religiously-mandated obligation known as “zakat.”
Monday, May 10, 2010
KAGAN: WILL SHE OR WON’T SHE?
By William Fisher
The question of whether Supreme Court nominee Elena Kagan will move the Court to the right or the left continued today to be among the main points of contention among legal scholars.
Kagan, currently the first woman to serve as U.S. Solicitor General, would be the third woman to sit on the high court at the same time. She would also be the second Jewish justice, the other being Ruth Bader Ginsberg.
Since long before President Obama nominated her to the highest court in the country, one school of observers has been saying that Kagan has the intellectual fire-power to persuade Justice Kennedy to join the "liberal" wing of the court on more occasions, while another group believes that, based on her record, her appointment is more likely to move the court to the right.
At one end of this spectrum of opinion stand the views of Prof. Frances Boyle, the left-of-center firebrand legal scholar from the University of Illinois Law School.
Boyle told IPS, "As dean of the Harvard Law School, Kagan hired Bush's outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about 'how proud' she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.”
Boyle added that, "During the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration's bogus category of 'enemy combatant,' whose implementation has been a war crime in its own right.”
In her current job as U.S. Solicitor General, Boyle says, “Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court. “
Taking an equally strong stand is Marjorie Cohn, immediate past president of the progressive National Lawyers Guild and a professor at Thomas Jefferson School of Law. Cohn’s recent article, entitled, "Kagan Will Move Supreme Court to the Right," states: "Unfortunately, President Barack Obama has continued to assert many of Bush's executive policies in his 'war on terror.' ... During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield. While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent."
Bruce Fein, a prominent conservative who served in the Department of Justice during the Reagan Presidency and a fierce defender of civil rights, believes Kagan’s past actions offer solid portents of what she may do on the bench.
He told IPS, “Kagan demonstrated in her equivocation over excluding DOD from campus recruiting because of don’t ask, don’t tell that her philosophical sound track is that discretion is the better part of valor. She has no deep convictions about constitutional interpretation ala Scalia.”
But, he added, “She has defended outlandish positions of the Obama administration in the US Supreme Court, for example, an attorney would be guilty of material assistance to a foreign terrorist organization by filing an amicus curiae brief on its behalf, or defending Obama’s authority to continue detention of Guantanamo detainees after they have prevailed in habeas corpus proceedings disproving that they were ‘enemy combatants’. She has been more a loyalist to the President than a strict defender of the Constitution. Her confirmation would move the High Court to the right. “
Another view is being expressed by Scott Horton, a constitutional lawyer and a frequently-quoted contributing editor to Harper’s magazine. He told IPS, “First, as to the premise that Kagan would belong to the ‘liberal’ wing of the Court: Her scholarship is relatively limited in scope, but it would hardly lead to the judgment that she's a liberal. Her positions are generally centrist.”
He added, “In particular, as contrasted with John Paul Stevens, she is not a civil libertarian by any stretch of the imagination, least of all on national security issues, where she would more likely please Bill Kristol than Glenn Greenwald.”
Horton notes that on the issue of presidential power, “She seems to embrace and support an executive who wields tremendous, and growing power. Her work on ‘Presidential Administration,’ for instance, shows that she appreciates and uses the concept of the Unitary Executive at least to some extent.”
“On national security matters,” Horton contends, “she has staked out positions that are clearly far to the right of Stevens. I think she could wind up surprising many observers after she's on the court, but I incline to view her as a centrist Democrat, probably not far away from Sonia Sotomayor, and certainly to the right of Stevens, so her appointment moves the Court to the right generally.
Kagan’s views on presidential power also disturb the Center for Constitutional Rights, (CCR), a legal advocacy group that has defended dozens of Guantanamo Bay prisoners.
In a statement, CCR executive durector Vince Warren said, “At the Center for Constitutional Rights, we have fought at the forefront to hold back presidential overreach and the dangerous growth of executive power, particularly as it concerns torture, detention, surveillance and racial profiling, areas where the government has flouted the law most blatantly over the last decade. I am sad to say that Solicitor General Elena Kagan’s record indicates a troubling support for expanding presidential powers, something we must be vigilant about at this time.”
Yet another perspective comes from Morris Davis, Former Chief Prosecutor for the Guantanamo Bay Military Commissions. He told IPS, “The distinctly American truth" is that if you don't have a law degree from Harvard, Yale, or Columbia you don't have the ‘right education’ to attain the ‘God-given potential’ to be a Supreme Court justice.
He said Harvard, Yale, and Columbia “are three of the 199 law schools accredited by the American Bar Association -- about 1.5 percent of the total -- and produce about 3 percent of law school graduates annually, yet graduates of the three most elite Ivy League law schools will fill 100 percent of the nine seats on the U.S. Supreme Court.”
Republican critics, gearing up for a possible confirmation fight this Summer, are already preparing the ground by noting that confirming a Solicitor General is a lot different than confirming a Supreme Court Justice – a lifetime appointment.
The opposition will likely raise a number of other issues in Kagan’s past. For example, in 2003, while serving as Dean of the Harvard Law School, Ms. Kagan spoke out against the Defense Department's "don't ask, don't tell" policy. She wrote, "I abhor the military's discriminatory recruitment policy," a policy she called "a profound wrong -- a moral injustice of the first order."
The limits on Presidential power are certain to be a major area of debate during her conformation hearings.
Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law, told IPS, “A main inquiry is what are the nominee's views of the proper role of the executive in the so-called war on terror. Does the nominee support the power grab of the last administration - a power grab that, unfortunately but perhaps not surprisingly, the current administration seems to favor? The problem is that many legislators seem to have drunk the kool aid that the way to deal with the threat of terrorism - a threat that is likely over-rated - is to wage war and crack down on our civil liberties. So, legislators are unlikely to probe deeply about such matters at confirmation hearings.”
Yet another skeptical view is voiced by Tina Foster, head of the Alliance for Justice, which is providing legal assistance for prisoners at Bagram Air Base ion Afghanistan.
She told IPS, “Ms. Kagan is listed as the primary drafter of the brief in opposition to our Bagram cases. Since she drafted the legal argument for Obama's defense of indefinite detention of all future war on terror detainees, it's hard to imagine her disagreeing with her own argument if appointed to the Supreme Court. I'd assume she would recuse herself if a case she worked on below was pending before her in the Supreme Court.
Kagan’s confirmation hearings before the Senate Judiciary Committee will likely take place this summer, according to Committee chairman Sen. Patrick Leahy, a Vermont Democrat.
The question of whether Supreme Court nominee Elena Kagan will move the Court to the right or the left continued today to be among the main points of contention among legal scholars.
Kagan, currently the first woman to serve as U.S. Solicitor General, would be the third woman to sit on the high court at the same time. She would also be the second Jewish justice, the other being Ruth Bader Ginsberg.
Since long before President Obama nominated her to the highest court in the country, one school of observers has been saying that Kagan has the intellectual fire-power to persuade Justice Kennedy to join the "liberal" wing of the court on more occasions, while another group believes that, based on her record, her appointment is more likely to move the court to the right.
At one end of this spectrum of opinion stand the views of Prof. Frances Boyle, the left-of-center firebrand legal scholar from the University of Illinois Law School.
Boyle told IPS, "As dean of the Harvard Law School, Kagan hired Bush's outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about 'how proud' she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.”
Boyle added that, "During the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration's bogus category of 'enemy combatant,' whose implementation has been a war crime in its own right.”
In her current job as U.S. Solicitor General, Boyle says, “Kagan is quarterbacking the continuation of the Bush administration's illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court. “
Taking an equally strong stand is Marjorie Cohn, immediate past president of the progressive National Lawyers Guild and a professor at Thomas Jefferson School of Law. Cohn’s recent article, entitled, "Kagan Will Move Supreme Court to the Right," states: "Unfortunately, President Barack Obama has continued to assert many of Bush's executive policies in his 'war on terror.' ... During her confirmation hearing for solicitor general, Kagan agreed with Senator Lindsey Graham that the president can hold suspected terrorists indefinitely during wartime, and the entire world is a battlefield. While Bush was shredding the Constitution with his unprecedented assertions of executive power, law professors throughout the country voiced strong objections. Kagan remained silent."
Bruce Fein, a prominent conservative who served in the Department of Justice during the Reagan Presidency and a fierce defender of civil rights, believes Kagan’s past actions offer solid portents of what she may do on the bench.
He told IPS, “Kagan demonstrated in her equivocation over excluding DOD from campus recruiting because of don’t ask, don’t tell that her philosophical sound track is that discretion is the better part of valor. She has no deep convictions about constitutional interpretation ala Scalia.”
But, he added, “She has defended outlandish positions of the Obama administration in the US Supreme Court, for example, an attorney would be guilty of material assistance to a foreign terrorist organization by filing an amicus curiae brief on its behalf, or defending Obama’s authority to continue detention of Guantanamo detainees after they have prevailed in habeas corpus proceedings disproving that they were ‘enemy combatants’. She has been more a loyalist to the President than a strict defender of the Constitution. Her confirmation would move the High Court to the right. “
Another view is being expressed by Scott Horton, a constitutional lawyer and a frequently-quoted contributing editor to Harper’s magazine. He told IPS, “First, as to the premise that Kagan would belong to the ‘liberal’ wing of the Court: Her scholarship is relatively limited in scope, but it would hardly lead to the judgment that she's a liberal. Her positions are generally centrist.”
He added, “In particular, as contrasted with John Paul Stevens, she is not a civil libertarian by any stretch of the imagination, least of all on national security issues, where she would more likely please Bill Kristol than Glenn Greenwald.”
Horton notes that on the issue of presidential power, “She seems to embrace and support an executive who wields tremendous, and growing power. Her work on ‘Presidential Administration,’ for instance, shows that she appreciates and uses the concept of the Unitary Executive at least to some extent.”
“On national security matters,” Horton contends, “she has staked out positions that are clearly far to the right of Stevens. I think she could wind up surprising many observers after she's on the court, but I incline to view her as a centrist Democrat, probably not far away from Sonia Sotomayor, and certainly to the right of Stevens, so her appointment moves the Court to the right generally.
Kagan’s views on presidential power also disturb the Center for Constitutional Rights, (CCR), a legal advocacy group that has defended dozens of Guantanamo Bay prisoners.
In a statement, CCR executive durector Vince Warren said, “At the Center for Constitutional Rights, we have fought at the forefront to hold back presidential overreach and the dangerous growth of executive power, particularly as it concerns torture, detention, surveillance and racial profiling, areas where the government has flouted the law most blatantly over the last decade. I am sad to say that Solicitor General Elena Kagan’s record indicates a troubling support for expanding presidential powers, something we must be vigilant about at this time.”
Yet another perspective comes from Morris Davis, Former Chief Prosecutor for the Guantanamo Bay Military Commissions. He told IPS, “The distinctly American truth" is that if you don't have a law degree from Harvard, Yale, or Columbia you don't have the ‘right education’ to attain the ‘God-given potential’ to be a Supreme Court justice.
He said Harvard, Yale, and Columbia “are three of the 199 law schools accredited by the American Bar Association -- about 1.5 percent of the total -- and produce about 3 percent of law school graduates annually, yet graduates of the three most elite Ivy League law schools will fill 100 percent of the nine seats on the U.S. Supreme Court.”
Republican critics, gearing up for a possible confirmation fight this Summer, are already preparing the ground by noting that confirming a Solicitor General is a lot different than confirming a Supreme Court Justice – a lifetime appointment.
The opposition will likely raise a number of other issues in Kagan’s past. For example, in 2003, while serving as Dean of the Harvard Law School, Ms. Kagan spoke out against the Defense Department's "don't ask, don't tell" policy. She wrote, "I abhor the military's discriminatory recruitment policy," a policy she called "a profound wrong -- a moral injustice of the first order."
The limits on Presidential power are certain to be a major area of debate during her conformation hearings.
Brian J. Foley, Visiting Associate Professor of Law at Boston University School of Law, told IPS, “A main inquiry is what are the nominee's views of the proper role of the executive in the so-called war on terror. Does the nominee support the power grab of the last administration - a power grab that, unfortunately but perhaps not surprisingly, the current administration seems to favor? The problem is that many legislators seem to have drunk the kool aid that the way to deal with the threat of terrorism - a threat that is likely over-rated - is to wage war and crack down on our civil liberties. So, legislators are unlikely to probe deeply about such matters at confirmation hearings.”
Yet another skeptical view is voiced by Tina Foster, head of the Alliance for Justice, which is providing legal assistance for prisoners at Bagram Air Base ion Afghanistan.
She told IPS, “Ms. Kagan is listed as the primary drafter of the brief in opposition to our Bagram cases. Since she drafted the legal argument for Obama's defense of indefinite detention of all future war on terror detainees, it's hard to imagine her disagreeing with her own argument if appointed to the Supreme Court. I'd assume she would recuse herself if a case she worked on below was pending before her in the Supreme Court.
Kagan’s confirmation hearings before the Senate Judiciary Committee will likely take place this summer, according to Committee chairman Sen. Patrick Leahy, a Vermont Democrat.
Sunday, May 09, 2010
Is “Think” Just an Old Bumper Sticker?
By William Fisher
Have you noticed that there seems to be a very high correlation between angry citizens in Arizona who favor a major seal-the-border surge to cut off entry for illegal immigrants, and the Tea Partiers who continue to grab the headlines by shouting at the government to get smaller and stay out of our lives?
But there’s also a major contradiction, to wit: Which small government does the Tea Party have in mind to hire and train the thousands of additional border guards and deploy all the new technology it will take to “seal” the border? Who’s gonna pay for all that?
Oh, those costs will be covered by “prudent fiscal management.” In Washington-speak, that means eliminating existing programs.
Well, OK, which ones? Social Security? Medicare? Support for our troops? Health care for our returning veterans? FEMA help during the next disaster?
I have never seen or heard of any example of a credible U.S. government budget claiming to be able to run the country without these programs.
What I hear are old canards like abolishing the Department of Education. Or cutting taxes and doing away with the IRS. Or vaporizing the National Endowment for the Arts. Or privatizing Social Security and Medicare – because the private sector has done such a splendid job of leading our economy off a cliff.
What I hear are empty generalities, like those written by one Carla Howell of the Center For Small Government. She says, “When government gets too big, it won’t go away on its own. We must carve out pieces of it that don’t belong, that cost too much, or that do more harm then good. We must remove them the same way we get rid of a fallen tree: One piece at a time.”
And which are the pieces she says are bloating federal spending?
Requiring everyone to buy medical insurance (whether they want it or not);
Handing out taxpayer “cash for clunkers;”
Bailing out banks, auto companies, state governments, mortgage holders – and just about anyone who wants to be on the dole, or stay on the dole;
Handing out stimulus checks;
Driving up taxpayer liabilities and debt;
Building another overpriced, unnecessary school or library;
Raising the sales tax, property taxes, “sin” taxes, and meals and hotel taxes.
So where in this laundry list are any proposals to even so much as tweak the spending of our Defense Department. This year, DOD will spend $ 685.1 billion – a figure that’s doubled over the past decade. And Pentagon-watchers will tell you unequivocally that at least a third of that is total waste. That waste comes to a very large chunk of cash. And Bob Gates seems to be the only person around who’s concerned.
There is no doubt that our government is chockablock with programs that don’t work, with inefficiencies that drive up costs, with expensive “carve-outs” for this or that favored industry or company, and with thousands of “earmarks” that move stealthily through the system and have the enormous benefit of keeping their sponsors in office for another term.
Of course there’s a need for the kind of fiscal soundness commission that Senate Republicans proposed and than voted against. Where were all those dedicated small government devotees when the votes were cast? On the wrong side of history.
Fact is that our country is undergoing a huge demographic and cultural change, and change is scary to a lot of folks who need someone to blame and find Government a convenient scapegoat. That’s the wave being ridden today by crazy-as-a-fox demagogues like Sarah Palen and Glenn Beck.
Fact is it’s a lot easier to just rant at Big Government than to actually try to do something about it. Because doing something about it requires thoughtfulness, patience, deep knowledge of how government works, compromise, political will, and creativity.
I suggest these are not the attributes that spring to mind when you think of the Tea Partiers.
Have you noticed that there seems to be a very high correlation between angry citizens in Arizona who favor a major seal-the-border surge to cut off entry for illegal immigrants, and the Tea Partiers who continue to grab the headlines by shouting at the government to get smaller and stay out of our lives?
But there’s also a major contradiction, to wit: Which small government does the Tea Party have in mind to hire and train the thousands of additional border guards and deploy all the new technology it will take to “seal” the border? Who’s gonna pay for all that?
Oh, those costs will be covered by “prudent fiscal management.” In Washington-speak, that means eliminating existing programs.
Well, OK, which ones? Social Security? Medicare? Support for our troops? Health care for our returning veterans? FEMA help during the next disaster?
I have never seen or heard of any example of a credible U.S. government budget claiming to be able to run the country without these programs.
What I hear are old canards like abolishing the Department of Education. Or cutting taxes and doing away with the IRS. Or vaporizing the National Endowment for the Arts. Or privatizing Social Security and Medicare – because the private sector has done such a splendid job of leading our economy off a cliff.
What I hear are empty generalities, like those written by one Carla Howell of the Center For Small Government. She says, “When government gets too big, it won’t go away on its own. We must carve out pieces of it that don’t belong, that cost too much, or that do more harm then good. We must remove them the same way we get rid of a fallen tree: One piece at a time.”
And which are the pieces she says are bloating federal spending?
Requiring everyone to buy medical insurance (whether they want it or not);
Handing out taxpayer “cash for clunkers;”
Bailing out banks, auto companies, state governments, mortgage holders – and just about anyone who wants to be on the dole, or stay on the dole;
Handing out stimulus checks;
Driving up taxpayer liabilities and debt;
Building another overpriced, unnecessary school or library;
Raising the sales tax, property taxes, “sin” taxes, and meals and hotel taxes.
So where in this laundry list are any proposals to even so much as tweak the spending of our Defense Department. This year, DOD will spend $ 685.1 billion – a figure that’s doubled over the past decade. And Pentagon-watchers will tell you unequivocally that at least a third of that is total waste. That waste comes to a very large chunk of cash. And Bob Gates seems to be the only person around who’s concerned.
There is no doubt that our government is chockablock with programs that don’t work, with inefficiencies that drive up costs, with expensive “carve-outs” for this or that favored industry or company, and with thousands of “earmarks” that move stealthily through the system and have the enormous benefit of keeping their sponsors in office for another term.
Of course there’s a need for the kind of fiscal soundness commission that Senate Republicans proposed and than voted against. Where were all those dedicated small government devotees when the votes were cast? On the wrong side of history.
Fact is that our country is undergoing a huge demographic and cultural change, and change is scary to a lot of folks who need someone to blame and find Government a convenient scapegoat. That’s the wave being ridden today by crazy-as-a-fox demagogues like Sarah Palen and Glenn Beck.
Fact is it’s a lot easier to just rant at Big Government than to actually try to do something about it. Because doing something about it requires thoughtfulness, patience, deep knowledge of how government works, compromise, political will, and creativity.
I suggest these are not the attributes that spring to mind when you think of the Tea Partiers.
Wednesday, May 05, 2010
To Reverse SCOTUS
By William Fisher
This week will see the introduction of legislation in both houses of Congress designed to blunt the impacts of the recent Supreme Court decision that held that corporations are people and thus have the right to spend unlimited amounts of money on political campaigns for or against any candidate.
The DISCLOSE Act will be introduced by two powerful Democratic lawmakers, Rep. Chris Van Hollen of Maryland, and Sen. Charles Schumer of New York.
Disclose stands for "Democracy is Strengthened by Casting Light on Spending in Elections.”
According to the National Law Journal, the proposed law will require the head of a corporation, union, or not-for-profit organization to say he or she "approves this message" in any campaign ad and the top contributor to "stand by" the ad; require any covered organization to disclose within 24 hours to the Federal Election Commission (FEC) not just its campaign-related activity, but also transfers of money to other groups that then can be used for campaign-related activity.
It will also require covered organizations to disclose their donors; prohibit corporations controlled by foreign entities or foreign nationals from spending in U.S. elections; mandate disclosure by corporations, unions, and other groups to their shareholders and members in their annual and periodic reports; prohibit federal government contractors with a contract worth more than $50,000 from spending money on elections; and ban coordination between a candidate and outside groups on ads that reference a candidate and then run in the time period beginning 90 days before a primary and ending with the general election.
Firms that received government bailout money would be barred from spending on political ads.
The U.S. Chamber of Commerce has attacked the proposed legislation, calling it "nothing more than a thinly veiled attempt to hijack the political playing field to his advantage on the eve of mid-term elections."
The Chamber said it was "no secret" that Van Hollen's campaign committee was facing "significant losses" in the House. "We will fight any and all attempts to muzzle and/or demonize independent voices from the election discussion," said Chamber President Thomas Donohue.
A Van Hollen spokesman told The National Law Journal, "It's not really surprising that powerful special interests based in Washington would be throwing temper tantrums over efforts to curb their influence and increase transparency so the American people know who is spending money on our elections."
The conservative Center for Competitive Politics said, “It's clear that the real intent and purpose of the bill is to harass and intimidate those who might criticize members of Congress into silence during the midterm elections and beyond.”
Van Hollen, who also serves as Democratic Congressional Campaign Committee chairman, said he has received Republican support for the legislation from one Republican, Rep. Mike Castle of Delaware. No Republicans have as yet signed on to Sen. Chuck Schumer's version.
The new rules would also apply to labor unions and other organizations purchasing campaign ads and mailers.
The White House reportedly played an "active role" in working with Capitol Hill regarding the Congressional response to the court’s decision. Both Republicans and Democrats have expressed varying degrees of disapproval of the court’s ruling.
The Supreme Court's ruling on Citizens United v. FEC overturned two decades of precedents that prohibited corporate and union expenditures in political campaigns.
Democrats generally believe that the Supreme Court's ruling amounts to “a takeover of our democracy and elections by powerful special interests.” They contend that it “allows big money interests to spend tens of millions of dollars on elections, which will undoubtedly drown out the voices of average Americans.”
As with the issue of comprehensive immigration reform, the position taken on the Disclose Act by Sen. John McCain will be closely watched. The Arizona senator, who is generally regarded as the father of campaign finance reform, is currently locked in a potentially game-changing challenge from the right wing of his state’s Republican Party. Pressure from the right has caused McCain to endorse Arizona’s new anti-immigration law, abandoning his former position in favor of immigration reform.
This week will see the introduction of legislation in both houses of Congress designed to blunt the impacts of the recent Supreme Court decision that held that corporations are people and thus have the right to spend unlimited amounts of money on political campaigns for or against any candidate.
The DISCLOSE Act will be introduced by two powerful Democratic lawmakers, Rep. Chris Van Hollen of Maryland, and Sen. Charles Schumer of New York.
Disclose stands for "Democracy is Strengthened by Casting Light on Spending in Elections.”
According to the National Law Journal, the proposed law will require the head of a corporation, union, or not-for-profit organization to say he or she "approves this message" in any campaign ad and the top contributor to "stand by" the ad; require any covered organization to disclose within 24 hours to the Federal Election Commission (FEC) not just its campaign-related activity, but also transfers of money to other groups that then can be used for campaign-related activity.
It will also require covered organizations to disclose their donors; prohibit corporations controlled by foreign entities or foreign nationals from spending in U.S. elections; mandate disclosure by corporations, unions, and other groups to their shareholders and members in their annual and periodic reports; prohibit federal government contractors with a contract worth more than $50,000 from spending money on elections; and ban coordination between a candidate and outside groups on ads that reference a candidate and then run in the time period beginning 90 days before a primary and ending with the general election.
Firms that received government bailout money would be barred from spending on political ads.
The U.S. Chamber of Commerce has attacked the proposed legislation, calling it "nothing more than a thinly veiled attempt to hijack the political playing field to his advantage on the eve of mid-term elections."
The Chamber said it was "no secret" that Van Hollen's campaign committee was facing "significant losses" in the House. "We will fight any and all attempts to muzzle and/or demonize independent voices from the election discussion," said Chamber President Thomas Donohue.
A Van Hollen spokesman told The National Law Journal, "It's not really surprising that powerful special interests based in Washington would be throwing temper tantrums over efforts to curb their influence and increase transparency so the American people know who is spending money on our elections."
The conservative Center for Competitive Politics said, “It's clear that the real intent and purpose of the bill is to harass and intimidate those who might criticize members of Congress into silence during the midterm elections and beyond.”
Van Hollen, who also serves as Democratic Congressional Campaign Committee chairman, said he has received Republican support for the legislation from one Republican, Rep. Mike Castle of Delaware. No Republicans have as yet signed on to Sen. Chuck Schumer's version.
The new rules would also apply to labor unions and other organizations purchasing campaign ads and mailers.
The White House reportedly played an "active role" in working with Capitol Hill regarding the Congressional response to the court’s decision. Both Republicans and Democrats have expressed varying degrees of disapproval of the court’s ruling.
The Supreme Court's ruling on Citizens United v. FEC overturned two decades of precedents that prohibited corporate and union expenditures in political campaigns.
Democrats generally believe that the Supreme Court's ruling amounts to “a takeover of our democracy and elections by powerful special interests.” They contend that it “allows big money interests to spend tens of millions of dollars on elections, which will undoubtedly drown out the voices of average Americans.”
As with the issue of comprehensive immigration reform, the position taken on the Disclose Act by Sen. John McCain will be closely watched. The Arizona senator, who is generally regarded as the father of campaign finance reform, is currently locked in a potentially game-changing challenge from the right wing of his state’s Republican Party. Pressure from the right has caused McCain to endorse Arizona’s new anti-immigration law, abandoning his former position in favor of immigration reform.
Immigration Reform this Year? Don’t Bet the Farm!
Analysis by William Fisher
Advocates for comprehensive immigration reform are working against time to transform the groundswell of popular support into concrete legislation that Congress can pass this year.
But a wide variety of political and ideological forces have mobilized to ensure that that doesn’t happen.
The outcry surrounding the repressive law passed by Arizona’s legislators and signed by the state’s Republican governor has probably given immigration reformers a gift no amount of money could buy. It has mobilized the entire pro-immigration community and triggered a large, visible, highly vocal, and well-publicized backlash that some polling suggests is beginning to turn some fence-sitters into advocates.
It was this backlash that accelerated efforts by a group of powerful Democratic senators to unveil the outlines of an immigration policy designed to protect US borders while also dealing with the estimated 10-11 million immigrants who are in the country illegally.
A draft version of a comprehensive immigration reform (CIR) bill summary was made public last week. It was championed by Democratic Senator Harry Reid of Nevada – the Senate Majority Leader -- and his deputy, Senator Dick Durbin of Illinois, along with Sens. Chuck Schumer of New York, Patrick Leahy of Vermont, Dianne Feinstein of California, and Bob Menendez of New Jersey.
But no sooner did their outline go public than it became the subject of criticism – and not from the usual suspects. Harsh words came from the Left, the American Civil Liberties Union (ACLU), which said it had “serious reservations” about parts of the bill summary that raise “serious civil liberties concerns. “
Specifically, the ACLU is opposed to a provision that would create a biometric national ID card.
“If the biometric national ID card provision of the draft bill becomes law, every worker in America would have to be fingerprinted and a new federal bureaucracy – one that could cost hundreds of billions of dollars – would have to be created to issue cards.”
The draft bill also provides for continuation of the much-criticized Immigration and Customs Enforcement (ICE) 287(g) program that utilizes local police and sheriff’s departments to enforce immigration law in partnership with the federal government.
Earlier this month the Department of Homeland Security Office of Inspector General (OIG) issued a scathing report on the 287(g) program, saying it lacked direction and was poorly managed. Many local law enforcement authorities have also opposed the program, charging that it diverts scarce personnel resources into activities for which they are not properly trained.
The draft CIR bill summary also describes some immigration detention reforms including a provision that would grant “heightened” detention authority to the government in certain circumstances.
“The Senate CIR summary raises many red flags about encroachments on due process and privacy,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office.
The raw partisan politics of the immigration issue raises further questions about whether it can be a legislative winner this year. Thus far, there has been next to zero support from Republicans. While it is known that a number of prominent Republican lawmakers favor of a robust legislative package, many Republicans are facing primary challenges from their Right, causing some of them to remain silent or support measures they might normally find unacceptable.
For example, Senator John McCain, Republican of Arizona, had long been one of the Senate’s champions of comprehensive immigration reform. But facing an uphill battle for his party’s renomination for another six-year term. McCain has endorsed the Arizona legislation which has caused much of the current ruckus. His Arizona colleague, Republican Sen. John Kyl, has also endorsed the Arizona legislation.
Both contend that Arizona was forced to enact the new law because of the failure of the Federal government to meet it obligations to keep its citizens safe. At week’s end, there was also talk of Texas, another border state, adopting an Arizona-type bill.
Another Republican Senator, Lindsey Graham of South Carolina, has been working closely with the White House on getting Republican support for immigration legislation. But he has objected to it being considered before the equally controversial climate change issue.
On the other hand, the Senate’s Democratic leader, Harry Reid of Nevada, has promised that state’s huge Latino population that he would champion immigration reform this year. Reid is locked in a fierce primary battle with a strong opponent on the Right, and is trailing in the polls.
However, last week Reid told reporters that the climate change bill would probably come before immigration because that legislation had already been drafted.
Even President Barrack Obama is cautious about the prospects for immigration reform this year. He has said it was vital that Congress address the immigration issue before more states adopt Arizona-like laws.
He said that Congress might not have the stomach for another tough battle coming on the heels of the health care debate, and in the face of other battles over climate and financial industry regulatory reforms.
Obama concedes he will need backing from some Republicans, who would not normally be disposed to offering it in a difficult election year.
The new Arizona law gives police the authority to detain people they suspect are illegal immigrants. The White House has been outspoken in its criticism of the Arizona bill as a possible infringement of civil rights. Homeland Security Secretary Janet Napolitano testified to Congress last week that the Department of Justice is planning to review the Arizona law for issues of constitutionality.
Obama said, “I understand the frustrations of the border states,” but said that is why the country needed a comprehensive immigration overhaul.
Meanwhile, on May Day, May 1st, interest groups representing a broad coalition of like-minded immigration advocates participated in dozens of marches, rallies and vigils in major and minor towns across the country. Cities like San Francisco, Los Angeles, Chicago, Dallas, Ann Arbor and Milwaukee held massive events.
In Arizona, more than 25,000 people gathered in a rally-turned-vigil to sing, dance, chant and pray against the new state law, which they described as “anti-American."
On May 1st, in Washington, DC, 35 immigration advocates, including Rep. Luis Gutierrez, were arrested in an act of civil disobedience. They sat on the sidewalk in front of the White House wearing tee shirts that said “Arrest Me Not My Family” and “We are ALL Arizona.”
Carolyn B. Lamm, president of the American Bar Association, said in a statement, “The recently signed immigration law in Arizona runs contrary to the fundamental tenets of our Constitution relative to equal protection and due process. This draconian, and likely unconstitutional, law threatens to reverse nearly 50 years of civil rights advancements in our nation. It is, quite simply put, a law based on prejudice and fear, one whose purpose is to be divisive.”
As Washington’s long, hot Summer approaches, the pro- and anti- armies of advocates, lobbyists, analysts and publicists face one another across the National Mall. Even most Veteran Congress-watchers say this contest is still too close to call.
Advocates for comprehensive immigration reform are working against time to transform the groundswell of popular support into concrete legislation that Congress can pass this year.
But a wide variety of political and ideological forces have mobilized to ensure that that doesn’t happen.
The outcry surrounding the repressive law passed by Arizona’s legislators and signed by the state’s Republican governor has probably given immigration reformers a gift no amount of money could buy. It has mobilized the entire pro-immigration community and triggered a large, visible, highly vocal, and well-publicized backlash that some polling suggests is beginning to turn some fence-sitters into advocates.
It was this backlash that accelerated efforts by a group of powerful Democratic senators to unveil the outlines of an immigration policy designed to protect US borders while also dealing with the estimated 10-11 million immigrants who are in the country illegally.
A draft version of a comprehensive immigration reform (CIR) bill summary was made public last week. It was championed by Democratic Senator Harry Reid of Nevada – the Senate Majority Leader -- and his deputy, Senator Dick Durbin of Illinois, along with Sens. Chuck Schumer of New York, Patrick Leahy of Vermont, Dianne Feinstein of California, and Bob Menendez of New Jersey.
But no sooner did their outline go public than it became the subject of criticism – and not from the usual suspects. Harsh words came from the Left, the American Civil Liberties Union (ACLU), which said it had “serious reservations” about parts of the bill summary that raise “serious civil liberties concerns. “
Specifically, the ACLU is opposed to a provision that would create a biometric national ID card.
“If the biometric national ID card provision of the draft bill becomes law, every worker in America would have to be fingerprinted and a new federal bureaucracy – one that could cost hundreds of billions of dollars – would have to be created to issue cards.”
The draft bill also provides for continuation of the much-criticized Immigration and Customs Enforcement (ICE) 287(g) program that utilizes local police and sheriff’s departments to enforce immigration law in partnership with the federal government.
Earlier this month the Department of Homeland Security Office of Inspector General (OIG) issued a scathing report on the 287(g) program, saying it lacked direction and was poorly managed. Many local law enforcement authorities have also opposed the program, charging that it diverts scarce personnel resources into activities for which they are not properly trained.
The draft CIR bill summary also describes some immigration detention reforms including a provision that would grant “heightened” detention authority to the government in certain circumstances.
“The Senate CIR summary raises many red flags about encroachments on due process and privacy,” said Laura W. Murphy, Director of the ACLU Washington Legislative Office.
The raw partisan politics of the immigration issue raises further questions about whether it can be a legislative winner this year. Thus far, there has been next to zero support from Republicans. While it is known that a number of prominent Republican lawmakers favor of a robust legislative package, many Republicans are facing primary challenges from their Right, causing some of them to remain silent or support measures they might normally find unacceptable.
For example, Senator John McCain, Republican of Arizona, had long been one of the Senate’s champions of comprehensive immigration reform. But facing an uphill battle for his party’s renomination for another six-year term. McCain has endorsed the Arizona legislation which has caused much of the current ruckus. His Arizona colleague, Republican Sen. John Kyl, has also endorsed the Arizona legislation.
Both contend that Arizona was forced to enact the new law because of the failure of the Federal government to meet it obligations to keep its citizens safe. At week’s end, there was also talk of Texas, another border state, adopting an Arizona-type bill.
Another Republican Senator, Lindsey Graham of South Carolina, has been working closely with the White House on getting Republican support for immigration legislation. But he has objected to it being considered before the equally controversial climate change issue.
On the other hand, the Senate’s Democratic leader, Harry Reid of Nevada, has promised that state’s huge Latino population that he would champion immigration reform this year. Reid is locked in a fierce primary battle with a strong opponent on the Right, and is trailing in the polls.
However, last week Reid told reporters that the climate change bill would probably come before immigration because that legislation had already been drafted.
Even President Barrack Obama is cautious about the prospects for immigration reform this year. He has said it was vital that Congress address the immigration issue before more states adopt Arizona-like laws.
He said that Congress might not have the stomach for another tough battle coming on the heels of the health care debate, and in the face of other battles over climate and financial industry regulatory reforms.
Obama concedes he will need backing from some Republicans, who would not normally be disposed to offering it in a difficult election year.
The new Arizona law gives police the authority to detain people they suspect are illegal immigrants. The White House has been outspoken in its criticism of the Arizona bill as a possible infringement of civil rights. Homeland Security Secretary Janet Napolitano testified to Congress last week that the Department of Justice is planning to review the Arizona law for issues of constitutionality.
Obama said, “I understand the frustrations of the border states,” but said that is why the country needed a comprehensive immigration overhaul.
Meanwhile, on May Day, May 1st, interest groups representing a broad coalition of like-minded immigration advocates participated in dozens of marches, rallies and vigils in major and minor towns across the country. Cities like San Francisco, Los Angeles, Chicago, Dallas, Ann Arbor and Milwaukee held massive events.
In Arizona, more than 25,000 people gathered in a rally-turned-vigil to sing, dance, chant and pray against the new state law, which they described as “anti-American."
On May 1st, in Washington, DC, 35 immigration advocates, including Rep. Luis Gutierrez, were arrested in an act of civil disobedience. They sat on the sidewalk in front of the White House wearing tee shirts that said “Arrest Me Not My Family” and “We are ALL Arizona.”
Carolyn B. Lamm, president of the American Bar Association, said in a statement, “The recently signed immigration law in Arizona runs contrary to the fundamental tenets of our Constitution relative to equal protection and due process. This draconian, and likely unconstitutional, law threatens to reverse nearly 50 years of civil rights advancements in our nation. It is, quite simply put, a law based on prejudice and fear, one whose purpose is to be divisive.”
As Washington’s long, hot Summer approaches, the pro- and anti- armies of advocates, lobbyists, analysts and publicists face one another across the National Mall. Even most Veteran Congress-watchers say this contest is still too close to call.
Sunday, May 02, 2010
Hashmi: Finally, A Trial!
This article was published in Truthout.org on the day before Hashmi's trial. At the time it was not known whether the judge would grant to government motion for an anonymous jury. It obviously was also unknown that Hasmi would enter a guilty plea at the 11th hour.
By William Fisher
Tomorrow, April 28th, should be a big day for Syed Fahad Hashmi. After close to three years in solitary confinement in a Federal detention center in New York City, the 29-year-old Queens-born American citizen will finally get his day in court.
He will be charged with conspiracy to provide material support to Al Qaeda.
If he is convicted, he could die behind bars.
The road Hashmi has traveled to get where he is has been, to say the least, tortuous and, some have said, Kafkaesque. And it doesn’t appear to be getting any less bizarre as the trial date nears.
Last week, the Department of Justice lawyers asked the court to grant its motion for an anonymous jury, they say, to protect the jurors, the audience in the courtroom, the prosecutors and defense counsel, the judge, and the criminal justice process.
The motion asks that the jurors not be required to disclose their names, addresses or places of employment, that they be kept together at all times under the watchful eyes of the U.S. Marshal Service.
The government lawyers tell the court that anonymous juries have been used in three terror-related cases in this same court, including the conviction of lawyer Lynn Stewart for passing a message from her terror-suspect client to his colleagues.
If Judge Loretta Preska grants the motion, jury selection would proceed under a process known as voir dire, referring to giving a true verdict.
UPDATE: The Judge granted the government’s motion.
FURTHER UPDATE: Hashmi has agreed to plead guilty to a lesser charge.
The voir dire process in the U.S. is controversial. The amount of privacy that the potential jurors are afforded when asked questioned raises the issue of the definition of "impartial jury". Some question whether the intensive questioning of potential jurors looks not just for inherent bias but for a potential to be emotionally swayed. Proponents argue that this method gives both sides more confidence in the verdict.
But one of Hashmi’s most ardent defenders – Dr. Jeanne Theoharis, Hashmi’s teacher at Brooklyn College – terms the government’s action “egregious.”
“There's so many ways this is egregious -- not the least of which is that
it speaks to how the US Attorney's office views Muslims in the
audience and countenances racist speculation,” she says,
Theoharis cites the U.S. Attorney, who writes, “It is likely that the jurors
will see in the gallery of the courtroom a significant number of the
defendant’s supporters, naturally leading to juror speculation that at
least some of these spectators might share the defendant’s violent
radical Islamic leanings.”
But Theoharis says there are no demonstrations planned for the first day of trial. “The plan is to pack the courtroom with a possible press
conference with human rights groups on the courthouse steps or in the
park across the street for the first day, “ she explains, adding:
“This is just about ratcheting up the fear of the jurors. (Hashmi’s lawyers) will obviously contest the government's motion saying that in a democracy people are allowed to come and watch court. But of course the judge is very sympathetic to the government and will likely agree to do so.”
Clearly, she says, “this is proof that our organizing is getting to them--but
also that, in this climate, they will try to use that to increase the fear (and secrecy) of the jury. They are using this activism -- and people exercising
their right to watch the process -- to make the jury scared and gain a
conviction.”
Theoharis is not without allies in her support of Hashmi. In response to the government’s anonymous jury motion, the Center for Constitutional Rights (CCR) said, “The case against Fahad Hashmi in itself raises many red flags related to the violation of his rights, prosecutorial overreach under the material support statute, and the unduly punitive and restrictive special administrative measures under which he has been kept without trial for nearly three years.”
CCR said “The government’s call for the jurors at his trial…to be anonymous and kept under extra security because of the attention and political activism these issues have drawn to the case is a clear attempt to influence the jury by creating a sense of fear for their safety and to paint Mr. Hashmi as already guilty.”
“The government is manipulating the fact that many individuals and human rights organizations are supporting Mr. Hashmi and raising important criticisms of his treatment in detention in order to gain a conviction. This is deplorable,“ the group said.
Why has this case been so hotly contested for so many years?
To answer that question, readers need to understand Hashmi’s story. Here is it:
Hashmi grew up in Queens, one of the boroughs of New York City. After receiving an undergraduate degree from Brooklyn College, Hashmi moved to London to study for a master’s degree. According to prosecutors, a friend of his, Junaid Babar, stayed at Hashmi’s London apartment for two weeks and stored luggage containing raincoats, ponchos, and waterproof socks in the apartment.
The government says Babar later delivered these items to the third-ranking member of Al Qaeda in Pakistan.
By the time a Grand Jury charged Hashmi with "conspiracy to provide material support or resources to a foreign terrorist organization," the socks, ponchos, and raincoats had become "military gear."
The government also charges that Hashmi let Babar use his cell phone "to call other conspirators." Hashmi says he had no idea whom Babar was calling. Hashmi has denied that he was part of conspiracies to help Al Qaeda, or that he ever gave support to anybody to pass on materials to the terrorist group.
He was initially arrested in London in 2006 as he prepared to board a flight to Pakistan and then extradited to the U.S. He has been held in New York since the Memorial Day weekend, 2007.
In the Metropolitan Detention Center in New York, Hashmi, a Muslim, is not allowed to pray with others of his faith. He is on a 23-hour solitary-confinement lockdown and 24-hour surveillance including when he showers and goes to the bathroom. He was not allowed family visits for months. Now, he can see one person for an hour and a half, every other week. Visits are through a thick glass. No touching or hugging is permissible or possible.
Hashmi is permitted to write one letter a week to a single member of his family, but cannot use more than three pieces of paper per letter. Within his own cell, he is restricted in his movements and he is not allowed to talk to guards or other inmates.
Hashmi is forbidden any contact -- directly or through his attorneys -- with the news media. He can read newspapers, but only those portions approved by his jailers -- and not until 30 days after publication. He is forbidden to listen to news radio stations or to watch television news channels.
He is also under 24-hour electronic monitoring inside and outside his cell.
He is allowed one hour of recreation every day -- which is periodically denied. He is not given fresh air but must exercise alone inside a cage.
One of Hashmi's Brooklyn College professors, Jeanne Theoharis, who has attended the hearings in his case, told us that Hashmi's "mental health appears to be deteriorating."
His attorneys are concerned that his extreme isolation "will cause lasting psychological, emotional, and physical damage" to their client.
That kind of damage has been thoroughly documented by major medical and psychiatric institutions and organizations. To learn more about damage caused by isolation, Truthout consulted Jeffrey Kaye, a prominent psychologist who is among those mental health professionals who have carefully studied the subject. This is what he told us:
“Solitary confinement and isolation are among the cruelest punishments that can be inflicted on a human being. It attacks the nervous system, as well as the core humanity of the individual. It is a pernicious form of sensory and social deprivation, which has cytotoxic effects upon the brain.
“One study out of the University of Chicago in 2007 showed that essential enzymes in the brain that regulate the GABA neurotransmitter that helps modulate stress and anxiety is reduced by half under conditions of isolation. The result is the person is unable to cope with fears, aggression, and loneliness.
“Even the CIA, in their 1983 Latin American torture manuals, called ‘a powerful stressor’, and explained its purpose as producing a psychological regression in the victim.
“People in long-term isolation, like Mr. Hashmi, can suffer from depression, panic attacks, hallucinations, and have great difficulty adjusting to a normal social life after incarceration.
“Isolation was the preferred form of torture used by the KGB and the East European Stalinist governments. It is one of the worst forms of psychological torture that can be inflicted on a human being, who is a social creature, and needs the stimulation of social contact to survive.
“When inflicted by people over whom the victim feels he has no control, or in an atmosphere of fear, control, and dominance, the effects of isolation are worsened tremendously. Most people can stand only a few months of such treatment before they break down, much less the years Mr. Hashmi has endured.”
Prof. Theoharis, an associate professor of political science at the City University of New York's Brooklyn College, was instrumental in organizing a campaign to draw attention to the civil liberties and human rights concerns in Hashmi's case. She enlisted more than 550 signatories to petition the Justice Department protesting the conditions of Hashmi's confinement and undermining his right to a fair trial. Among them were Henry Louis Gates Jr. and Duncan Kennedy of Harvard; Seyla Benhabib of Yale; and Eric Foner and Saskia Sassen of Columbia.
A number of prominent authors and journalists have written articles in Hashmi’s support. They include Nat Hentoff, Aziz Huq, Chris Hedges, Amy Goodman, and Prof. Theoharis. A website is dedicated to Hashmi’s case – (http://freefahad.com/).
Hashmi has no criminal record and no history of committing acts of violence. In court in January 2009, Hashmi's lawyers called the restrictions on Hashmi too severe and asked a federal judge to lift some of them, perhaps allowing Hashmi to have a cellmate or to exercise in fresh air. But the judge denied a motion to consider the psychological impact of solitary confinement and ease the conditions of his detention.
Hashmi's friend Babar has pleaded guilty to five counts of material support of Al Qaeda and has agreed to serve as a government witness in terrorism trials in Britain, Canada, and at Hashmi's trial. The Justice Department says Babar is the "centerpiece" of its case against Hashmi. In return, under a plea bargain, Babar will likely get a reduced sentence.
If Hashmi is convicted, he could be facing up to 70 years behind bars.
We asked Prof. Theoharis how she remembered Hashmi when he was one of her students? “He was a student of mine in 2002. He took the senior capstone seminar in political science with me -- that year, the course I taught was on post-civil rights racial politics, which focused on civil rights from the 1960s to the present. It is a small course where students are required to do a research paper. He did his on the treatment of Muslim groups in the United States post-9/11 and — ironically or perhaps not — described the violations of civil liberties that Muslim groups of various political positions were facing. Now that paper he did with me is being lived out in lower Manhattan -- and it is his rights that have been violated.”
People who remember Hashmi as a student in Brooklyn think of him as a person who enjoyed debating political issues. He was militant but never violent, they say.
Theoharis encouraged Hashmi to seek a Masters degree in the UK. She wrote a letter of recommendation for his applications to graduate school. “He came to see me about his desire to go to graduate school which made sense, given his scholarly interests. Also, as part of a class assignment for another course where students had to interview someone who had the job that they wanted, he came and talked with me about being a professor.”
“But next I heard about him, he'd been arrested and we were being instructed by Brooklyn College not to have any comment to the media.”
Theoharis says she has not seen him – “except for brief eye contact at his pre-trial court hearings” since he left for England. His mental health appears to have declined considerably, Theoharis says. “He appears less focused and more jittery. He used to pay attention to everything happening in court, constantly talking to his lawyer and for the brief moments entering and leaving court, making eye contact and smiling at people in the audience. He seems much more withdrawn (sometimes just keeping his head down the whole time), which certainly corresponds to the research on prolonged solitary confinement which documents this kind of degradation of people's mental health.”
Theoharis says Hashmi’s lawyers put up a solid defense against the imposition of the SAMs. She says, “His defense has challenged the SAMs on multiple occasions – including introducing medical and scholarly evidence of the damage that prolonged solitary confinement has on a person. The judge was unconcerned and ruled against every defense motion seeking to address the SAMs. She has refused even to make modest changes. She has determined the SAMs to be ‘administrative and not punitive’ and thus constitutional. Judges -- and particularly this judge, Loretta Preska, seem to be allowing the government wide latitude in imposing these inhumane measures.”
Judge Preska has cited possible dangers to prison guards after an August, 2008 incident where one guard said Hashmi was "shadowboxing" and practicing martial arts.
Hashmi's lawyer had argued the boxing incident was not properly investigated, and in court papers said Hashmi was not informed of his Miranda rights when the statements were taken.
Judge Preska was nominated by President George H. W. Bush in 1992, to a seat on the United States District Court for the Southern District of New York. She was confirmed by the Senate in August 1992.
“The SAMS are legalized torture,” Theoharis says.
“The level of isolation and sensory deprivation are dehumanizing. They go against international standards and have been shown in medical and scholarly research to have severe impact on a person's mental health and stability. And they severely impact the ability of a person to participate effectively in his or her own defense.”
She adds, “We have begun to have a public conversation in this country about torture but we have not addressed this crucial aspect of it happening right here in the federal system and, in Hashmi's case, right here in New York City. While there has been public attention to the use of torture and intelligence gathering, we have missed the use of torture to gain convictions —as a way to demonstrate the success of law enforcement and federal prosecution in the War on Terror.”
Prof. Theoharis does not believe Hashmi can get a fair trial. “His right to a fair trial has already been severely compromised by the SAMs, and the use of ‘classified’ evidence. We are hoping to salvage justice in his case. But three years of solitary confinement and severe isolation have made a fair trial impossible.”
Now, I have no idea about Hashmi's guilt or innocence. That's not what this is about. It's about getting our Department of Justice to dial back the Bush years and return to a tradition of humane treatment -- even for prisoners. It’s about the credibility of testimony from a convicted felon facing 70 years in prison. And it’s about the ‘material support’ laws, which lawyers say rely far too heavily on McCarthy-era guilt-by-association.
By William Fisher
Tomorrow, April 28th, should be a big day for Syed Fahad Hashmi. After close to three years in solitary confinement in a Federal detention center in New York City, the 29-year-old Queens-born American citizen will finally get his day in court.
He will be charged with conspiracy to provide material support to Al Qaeda.
If he is convicted, he could die behind bars.
The road Hashmi has traveled to get where he is has been, to say the least, tortuous and, some have said, Kafkaesque. And it doesn’t appear to be getting any less bizarre as the trial date nears.
Last week, the Department of Justice lawyers asked the court to grant its motion for an anonymous jury, they say, to protect the jurors, the audience in the courtroom, the prosecutors and defense counsel, the judge, and the criminal justice process.
The motion asks that the jurors not be required to disclose their names, addresses or places of employment, that they be kept together at all times under the watchful eyes of the U.S. Marshal Service.
The government lawyers tell the court that anonymous juries have been used in three terror-related cases in this same court, including the conviction of lawyer Lynn Stewart for passing a message from her terror-suspect client to his colleagues.
If Judge Loretta Preska grants the motion, jury selection would proceed under a process known as voir dire, referring to giving a true verdict.
UPDATE: The Judge granted the government’s motion.
FURTHER UPDATE: Hashmi has agreed to plead guilty to a lesser charge.
The voir dire process in the U.S. is controversial. The amount of privacy that the potential jurors are afforded when asked questioned raises the issue of the definition of "impartial jury". Some question whether the intensive questioning of potential jurors looks not just for inherent bias but for a potential to be emotionally swayed. Proponents argue that this method gives both sides more confidence in the verdict.
But one of Hashmi’s most ardent defenders – Dr. Jeanne Theoharis, Hashmi’s teacher at Brooklyn College – terms the government’s action “egregious.”
“There's so many ways this is egregious -- not the least of which is that
it speaks to how the US Attorney's office views Muslims in the
audience and countenances racist speculation,” she says,
Theoharis cites the U.S. Attorney, who writes, “It is likely that the jurors
will see in the gallery of the courtroom a significant number of the
defendant’s supporters, naturally leading to juror speculation that at
least some of these spectators might share the defendant’s violent
radical Islamic leanings.”
But Theoharis says there are no demonstrations planned for the first day of trial. “The plan is to pack the courtroom with a possible press
conference with human rights groups on the courthouse steps or in the
park across the street for the first day, “ she explains, adding:
“This is just about ratcheting up the fear of the jurors. (Hashmi’s lawyers) will obviously contest the government's motion saying that in a democracy people are allowed to come and watch court. But of course the judge is very sympathetic to the government and will likely agree to do so.”
Clearly, she says, “this is proof that our organizing is getting to them--but
also that, in this climate, they will try to use that to increase the fear (and secrecy) of the jury. They are using this activism -- and people exercising
their right to watch the process -- to make the jury scared and gain a
conviction.”
Theoharis is not without allies in her support of Hashmi. In response to the government’s anonymous jury motion, the Center for Constitutional Rights (CCR) said, “The case against Fahad Hashmi in itself raises many red flags related to the violation of his rights, prosecutorial overreach under the material support statute, and the unduly punitive and restrictive special administrative measures under which he has been kept without trial for nearly three years.”
CCR said “The government’s call for the jurors at his trial…to be anonymous and kept under extra security because of the attention and political activism these issues have drawn to the case is a clear attempt to influence the jury by creating a sense of fear for their safety and to paint Mr. Hashmi as already guilty.”
“The government is manipulating the fact that many individuals and human rights organizations are supporting Mr. Hashmi and raising important criticisms of his treatment in detention in order to gain a conviction. This is deplorable,“ the group said.
Why has this case been so hotly contested for so many years?
To answer that question, readers need to understand Hashmi’s story. Here is it:
Hashmi grew up in Queens, one of the boroughs of New York City. After receiving an undergraduate degree from Brooklyn College, Hashmi moved to London to study for a master’s degree. According to prosecutors, a friend of his, Junaid Babar, stayed at Hashmi’s London apartment for two weeks and stored luggage containing raincoats, ponchos, and waterproof socks in the apartment.
The government says Babar later delivered these items to the third-ranking member of Al Qaeda in Pakistan.
By the time a Grand Jury charged Hashmi with "conspiracy to provide material support or resources to a foreign terrorist organization," the socks, ponchos, and raincoats had become "military gear."
The government also charges that Hashmi let Babar use his cell phone "to call other conspirators." Hashmi says he had no idea whom Babar was calling. Hashmi has denied that he was part of conspiracies to help Al Qaeda, or that he ever gave support to anybody to pass on materials to the terrorist group.
He was initially arrested in London in 2006 as he prepared to board a flight to Pakistan and then extradited to the U.S. He has been held in New York since the Memorial Day weekend, 2007.
In the Metropolitan Detention Center in New York, Hashmi, a Muslim, is not allowed to pray with others of his faith. He is on a 23-hour solitary-confinement lockdown and 24-hour surveillance including when he showers and goes to the bathroom. He was not allowed family visits for months. Now, he can see one person for an hour and a half, every other week. Visits are through a thick glass. No touching or hugging is permissible or possible.
Hashmi is permitted to write one letter a week to a single member of his family, but cannot use more than three pieces of paper per letter. Within his own cell, he is restricted in his movements and he is not allowed to talk to guards or other inmates.
Hashmi is forbidden any contact -- directly or through his attorneys -- with the news media. He can read newspapers, but only those portions approved by his jailers -- and not until 30 days after publication. He is forbidden to listen to news radio stations or to watch television news channels.
He is also under 24-hour electronic monitoring inside and outside his cell.
He is allowed one hour of recreation every day -- which is periodically denied. He is not given fresh air but must exercise alone inside a cage.
One of Hashmi's Brooklyn College professors, Jeanne Theoharis, who has attended the hearings in his case, told us that Hashmi's "mental health appears to be deteriorating."
His attorneys are concerned that his extreme isolation "will cause lasting psychological, emotional, and physical damage" to their client.
That kind of damage has been thoroughly documented by major medical and psychiatric institutions and organizations. To learn more about damage caused by isolation, Truthout consulted Jeffrey Kaye, a prominent psychologist who is among those mental health professionals who have carefully studied the subject. This is what he told us:
“Solitary confinement and isolation are among the cruelest punishments that can be inflicted on a human being. It attacks the nervous system, as well as the core humanity of the individual. It is a pernicious form of sensory and social deprivation, which has cytotoxic effects upon the brain.
“One study out of the University of Chicago in 2007 showed that essential enzymes in the brain that regulate the GABA neurotransmitter that helps modulate stress and anxiety is reduced by half under conditions of isolation. The result is the person is unable to cope with fears, aggression, and loneliness.
“Even the CIA, in their 1983 Latin American torture manuals, called ‘a powerful stressor’, and explained its purpose as producing a psychological regression in the victim.
“People in long-term isolation, like Mr. Hashmi, can suffer from depression, panic attacks, hallucinations, and have great difficulty adjusting to a normal social life after incarceration.
“Isolation was the preferred form of torture used by the KGB and the East European Stalinist governments. It is one of the worst forms of psychological torture that can be inflicted on a human being, who is a social creature, and needs the stimulation of social contact to survive.
“When inflicted by people over whom the victim feels he has no control, or in an atmosphere of fear, control, and dominance, the effects of isolation are worsened tremendously. Most people can stand only a few months of such treatment before they break down, much less the years Mr. Hashmi has endured.”
Prof. Theoharis, an associate professor of political science at the City University of New York's Brooklyn College, was instrumental in organizing a campaign to draw attention to the civil liberties and human rights concerns in Hashmi's case. She enlisted more than 550 signatories to petition the Justice Department protesting the conditions of Hashmi's confinement and undermining his right to a fair trial. Among them were Henry Louis Gates Jr. and Duncan Kennedy of Harvard; Seyla Benhabib of Yale; and Eric Foner and Saskia Sassen of Columbia.
A number of prominent authors and journalists have written articles in Hashmi’s support. They include Nat Hentoff, Aziz Huq, Chris Hedges, Amy Goodman, and Prof. Theoharis. A website is dedicated to Hashmi’s case – (http://freefahad.com/).
Hashmi has no criminal record and no history of committing acts of violence. In court in January 2009, Hashmi's lawyers called the restrictions on Hashmi too severe and asked a federal judge to lift some of them, perhaps allowing Hashmi to have a cellmate or to exercise in fresh air. But the judge denied a motion to consider the psychological impact of solitary confinement and ease the conditions of his detention.
Hashmi's friend Babar has pleaded guilty to five counts of material support of Al Qaeda and has agreed to serve as a government witness in terrorism trials in Britain, Canada, and at Hashmi's trial. The Justice Department says Babar is the "centerpiece" of its case against Hashmi. In return, under a plea bargain, Babar will likely get a reduced sentence.
If Hashmi is convicted, he could be facing up to 70 years behind bars.
We asked Prof. Theoharis how she remembered Hashmi when he was one of her students? “He was a student of mine in 2002. He took the senior capstone seminar in political science with me -- that year, the course I taught was on post-civil rights racial politics, which focused on civil rights from the 1960s to the present. It is a small course where students are required to do a research paper. He did his on the treatment of Muslim groups in the United States post-9/11 and — ironically or perhaps not — described the violations of civil liberties that Muslim groups of various political positions were facing. Now that paper he did with me is being lived out in lower Manhattan -- and it is his rights that have been violated.”
People who remember Hashmi as a student in Brooklyn think of him as a person who enjoyed debating political issues. He was militant but never violent, they say.
Theoharis encouraged Hashmi to seek a Masters degree in the UK. She wrote a letter of recommendation for his applications to graduate school. “He came to see me about his desire to go to graduate school which made sense, given his scholarly interests. Also, as part of a class assignment for another course where students had to interview someone who had the job that they wanted, he came and talked with me about being a professor.”
“But next I heard about him, he'd been arrested and we were being instructed by Brooklyn College not to have any comment to the media.”
Theoharis says she has not seen him – “except for brief eye contact at his pre-trial court hearings” since he left for England. His mental health appears to have declined considerably, Theoharis says. “He appears less focused and more jittery. He used to pay attention to everything happening in court, constantly talking to his lawyer and for the brief moments entering and leaving court, making eye contact and smiling at people in the audience. He seems much more withdrawn (sometimes just keeping his head down the whole time), which certainly corresponds to the research on prolonged solitary confinement which documents this kind of degradation of people's mental health.”
Theoharis says Hashmi’s lawyers put up a solid defense against the imposition of the SAMs. She says, “His defense has challenged the SAMs on multiple occasions – including introducing medical and scholarly evidence of the damage that prolonged solitary confinement has on a person. The judge was unconcerned and ruled against every defense motion seeking to address the SAMs. She has refused even to make modest changes. She has determined the SAMs to be ‘administrative and not punitive’ and thus constitutional. Judges -- and particularly this judge, Loretta Preska, seem to be allowing the government wide latitude in imposing these inhumane measures.”
Judge Preska has cited possible dangers to prison guards after an August, 2008 incident where one guard said Hashmi was "shadowboxing" and practicing martial arts.
Hashmi's lawyer had argued the boxing incident was not properly investigated, and in court papers said Hashmi was not informed of his Miranda rights when the statements were taken.
Judge Preska was nominated by President George H. W. Bush in 1992, to a seat on the United States District Court for the Southern District of New York. She was confirmed by the Senate in August 1992.
“The SAMS are legalized torture,” Theoharis says.
“The level of isolation and sensory deprivation are dehumanizing. They go against international standards and have been shown in medical and scholarly research to have severe impact on a person's mental health and stability. And they severely impact the ability of a person to participate effectively in his or her own defense.”
She adds, “We have begun to have a public conversation in this country about torture but we have not addressed this crucial aspect of it happening right here in the federal system and, in Hashmi's case, right here in New York City. While there has been public attention to the use of torture and intelligence gathering, we have missed the use of torture to gain convictions —as a way to demonstrate the success of law enforcement and federal prosecution in the War on Terror.”
Prof. Theoharis does not believe Hashmi can get a fair trial. “His right to a fair trial has already been severely compromised by the SAMs, and the use of ‘classified’ evidence. We are hoping to salvage justice in his case. But three years of solitary confinement and severe isolation have made a fair trial impossible.”
Now, I have no idea about Hashmi's guilt or innocence. That's not what this is about. It's about getting our Department of Justice to dial back the Bush years and return to a tradition of humane treatment -- even for prisoners. It’s about the credibility of testimony from a convicted felon facing 70 years in prison. And it’s about the ‘material support’ laws, which lawyers say rely far too heavily on McCarthy-era guilt-by-association.
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