By William Fisher
Privacy advocates today called on the Transportation Security Administration (TSA) to end its controversial new initiative of whole-body scans and enhanced pat-downs of airline passengers, calling the program “dangerous to health, ineffective and unconstitutional.”
Led by consumer advocate Ralph Nader, a group of organizations held a telephonic news conference to insist that the “strip-search” program be suspended and turned over the Congress to investigate.
Nader said, “the machines are ineffective, the pat-downs are too invasive, and the use of radioactive technology poses health risks.” Congress should look into these issues, he said.
Nader cited testimony from a number of physicians who agreed that radioactivity “could cause skin problems” and might pose a public health threat to passengers.
Nader said there is also the issue of how protective these TSA initiatives are. He pointed out that “passengers and crew of 17,000 business jets are not screened at all.”
He added: “The TSA has no strategy. This new program is a commercially driven, knee jerk reaction to the shoe bomber and the underpants bomber. The program should be ended and turned over to Congress.”
Additionally, he said, “What concerns us is the TSA’s secrecy – their obscurantist approach to government...not responding to members of congress, the press or the public.”
In San Diego yesterday, an airline ticket-holder declined to use the electronic body scanner and opted for a pat-down instead. The TSA inspector then explained the intimate anatomic details of the pat-down, at which point the would0-be passenger threatened to sue of the TSA official touched his private parts. He was denied access to the aircraft and threatened with arrest and a civil fine.
Another conference participant, Chip Pitts, a lecturer in law at Stanford University law school, talked about the ineffectiveness of the body scanning technology.
“Despite the secret, corrupt, and deceptive claims under which these machines have been sold by DHS, TSA, and their contract manufacturers, the body scanners don’t detect the sorts of plastic explosives that were their main justification. They’re easily evaded by real terrorists even as they render everyone else a suspect, increasingly relegating the innocent to an unacceptable choice of a radiation scan, or a groping pat-down, or not flying at all.”
“Adopted with utter disregard for a host of laws including the Administrative Procedure Act, the Privacy Act, and other specific statutes, these machines not only reverse the presumption of innocence, but violate the Fourth Amendment and other core provisions of the Bill of Rights, including by placing discriminatory burdens and risks on vulnerable groups and individuals such as religious minorities, children, pregnant women, airport crews, and frequent travelers,” he added.
“They’re thus of a piece with other discredited post-9/11 programs like ‘Total Information Awareness’, ‘Secure Flight,’ and the massive warrantless surveillance and ongoing data mining programs, representing a misplaced techno-utopianism that’s utterly ineffective in achieving the promised objectives -- but quite effective in crushing our deepest values and true security, “ he said.
Other groups participating in the conference included the Electronic Privacy Information Center (EPIC), Flyers' Rights. Org, We Won’t Fly. org., and the Libertarian Party.
Kate Hanni of Flyers' Rights.org., which claims to have 30,000 members, asked, “Are we getting ahead of terrorists or merely reacting to recent events?”.
Mark Hinkle of the Libertarian Party, said “Everyone who cares about civil liberties should be outraged. The Obama administration shows no respect for the constitution. It believes there is no limit on government power.”
We won't fly.org is promoting a national opt-out day, Nov. 24, to encourage people to protest the TSA program by not flying. Nov. 24 comes at the start of busiest travel season of the year.
EPIC has filed a lawsuit to suspend the body scanner program, calling it "unlawful, invasive, and ineffective." Opposition to the program is growing. The Libertarian Party, the American Pilots Association, Airline CEOs, flyers rights organizations, religious groups, and others are calling for an end to invasive searches at airports. A National Opt-Out Day is scheduled for November 24.
Libertarian Party Chair Mark Hinkle said today, "The TSA should end the strip-search machine program immediately. We've reached a point where our government has no qualms about humiliating us." Hinkle expressed support for the EPIC lawsuit aimed at suspending the body scanner program. Hinkle further said, "We encourage Americans to call their newly-elected members of Congress and tell them that they don't want this expensive, worthless, intrusive, unconstitutional program."
The EPIC lawsuit challenges the unilateral decision of the TSA to make body scanners the primary screening technique in U.S. airports. Three frequent air travelers are joining EPIC in the lawsuit: security expert Bruce Schneier, human rights activist Chip Pitts, and the Council on American-Islamic Relations legal counsel Nadhira Al-Khalili.
The Petitioners have brought claims under the Administrative Procedure Act, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Fourth Amendment. The Petitioners are seeking the suspension of the body scanner program.
In its brief, EPIC argues that the Department of Homeland Security "has initiated the most sweeping, the most invasive, and the most unaccountable suspicionless search of American travelers in history." EPIC further argues that the Transportation Security Administration "must comply with relevant law, and it must not be permitted to engage in such a fundamental change in agency practice without providing the public the opportunity to express its views."
Thursday, November 18, 2010
Sunday, November 14, 2010
Egypt: What Price Stability?
By William Fisher
The Egyptian government’s crackdown on political opponents continued unabated in advance of parliamentary elections November 28, even as Secretary of State Hillary Clinton hailed the “partnership” between the two countries as “a cornerstone of stability and security in the Middle East and beyond.”
In the latest example of a widespread campaign of media repression, Kareem Nabil, an Egyptian blogger who completed a four-year prison term, was still being detained and beaten at the State Security Intelligence (SSI) headquarters in Alexandria by security officers, according to the New York-based Committee to Protect Journalists (CPJ) and the Arabic Network for Human Rights Information.
Nabil had been released from Burj al-Arab Prison on 6 November. He was subsequently re-arrested by security officers in Alexandria without charges.
A student at Cairo's state-run religious university, Al-Azhar, Nabil was convicted in 2006 by an Alexandria court of insulting Islam and President Hosni Mubarak, who he called a dictator.
Nabil’s re-arrest was seen by human rights activists as, in the words of an unnamed opposition figure, “another nail in the coffin of Egyptian democracy.” The government’s efforts to stifle opposition to the ruling National Democratic Party (NDP) have included firing an influential newspaper editor, revoking the licenses of TV channels, arresting bloggers, changing the rules governing political slogans, and fabricating infractions to disqualify opposition candidates from running.
As the government’s campaign continued, the U.S. Secretary of State hosted a visit by Egypt’s foreign minister, Aboul Gheit, and Egypt’s Intelligence chief, Omar Suleiman. Gheit confirmed that he and Mrs. Clinton did not discuss the forthcoming election.
The administration of U.S. President Barack Obama has come under increasing criticism from both conservatives and liberals for not being forceful enough in speaking out publicly regarding the parliamentary election and the presidential election, which is to follow.
Conservatives – and neoconservatives -- are urging Obama to reinstate the “democracy-building” programs implemented by the George W. Bush administration, Obama’s predecessor. But they appear to be far more concerned about Egypt’s continuing role as “mediator” in the Israeli-Palestinian peace negotiations.
Liberals are pushing for more unequivocal rhetoric from the White House comdemning the renewal of Egypt’s 30-year-old “emergency” laws and the widely-reported harrassment of opposition political institutions and individuals.
The country’s 82-year-old leader since 1981, Hosni Mubarak, promised the U.S. he would repeal the emergency laws, which give Egypt’s security services the unfettered right to arrest and detain people without due process or judicial review.
The Obama administration has been most outspoken regarding the emergency laws, whose renewal it regards as a broken promise. It has also publicly condemned the June murder of blogger Khaled Saeed, who was dragged out of an Internet café and beaten to death on the street. He had recently posted a video online exposing police corruption.
Human rights advocates charge that the government has kidnapped bloggers and Internet activists, tortured them, and then imprisoned them until the bruises on their bodies have disappeared so there is no evidence of abuse.
One of those advocates, Hossam Bahgat, has told IPS that democracy-building programs can only be effective if they are “inside-out” – adopted by indigenous people who live and work in a country or a community, and not superimposed on them.
Bahgat, who heads a not-for-profit organization known The Egyptian Initiative for Personal Rights (EIPR), was in New York to receive an award from Human Rights Watch (HRW) celebrating the “valor of individuals who put their lives on the line to protect the dignity and rights of others.”
HRW said Baghat is “a leading voice against the prosecution and harassment of individuals based on their religious beliefs or private sexual conduct. He has played a prominent role in exposing the government's failure to prosecute sectarian violence against Coptic Christians.”
Baghat’s organization recently won a case against the Interior Ministry on behalf of Egypt's Baha'i citizens, a minority facing frequent violence and discrimination. Egyptians may now obtain official documents without revealing their religious convictions, or being forced to identify themselves as Muslims, Christians, or Jews.
Baghat’s group recently launched an advocacy campaign to combat sectarianism in Egypt. The organization said the campaign is a joint movement and “an appeal for collective action to eliminate sectarianism and strengthen the values of equal citizenship and shared existence in our common nation without religious or faith-based discrimination.”
“While the movement is being launched by the Egyptian Initiative for Personal Rights as part of our ongoing efforts to defend equality and freedom of religion and belief, we realize that it cannot be successful if it remains ours alone," Bahgat said.
"We firmly believe that this campaign will not meet with success unless it becomes a voice for Egyptians who believe that we are all in this together and those united by a common fear for our future due to rising social divisions, sectarian tension and a mindset that divides the country into an ‘us’ and a ‘them,’ he said, adding:
“At the same time, we believe many people are hopeful about the possibility of ending sectarianism and working together to build a country that upholds all citizens’ right to equality and dignity.”
The Mubarak regime has been criticized for many years for what opponents call a nationwide campaign of persecution and discrimination against the Egyptian Coptic church. Copts are Christians who make up about five per cent of the Egyptian population.
Baghat told IPS the EIPR campaign involves the production, screening and distribution of media materials and short public service announcements on the dangers of sectarianism. These are available for viewing on the group’s YouTube page.
There is also be a blog on which one can join the campaign, as well as a Facebook page to allow supporters to keep up with the news, express their opinions, take part in the debate, and facilitate citizen reporting of sectarian incidents.
From a U.S. perspective, despite the “cumbaya” diplomacy on display during the Egyptian foreign minister’s visit to the U.S. State Department, Egypt is likely to continue to be the target of both liberal and conservative scorn.
But neither end of the political spectrum believes Washington has the clout to influence the upcoming elections. And Egyptian voters are both powerless and uninformed.
As one prominent activist, Bahey el-din Hassan, director of the Cairo Institute for Human Rights Studies, wrote recently, “The outcome of the elections has already been determined -- all that remains is the official announcement of the results after 28 November, in favor of the ruling National Democratic Party.”
The Egyptian government’s crackdown on political opponents continued unabated in advance of parliamentary elections November 28, even as Secretary of State Hillary Clinton hailed the “partnership” between the two countries as “a cornerstone of stability and security in the Middle East and beyond.”
In the latest example of a widespread campaign of media repression, Kareem Nabil, an Egyptian blogger who completed a four-year prison term, was still being detained and beaten at the State Security Intelligence (SSI) headquarters in Alexandria by security officers, according to the New York-based Committee to Protect Journalists (CPJ) and the Arabic Network for Human Rights Information.
Nabil had been released from Burj al-Arab Prison on 6 November. He was subsequently re-arrested by security officers in Alexandria without charges.
A student at Cairo's state-run religious university, Al-Azhar, Nabil was convicted in 2006 by an Alexandria court of insulting Islam and President Hosni Mubarak, who he called a dictator.
Nabil’s re-arrest was seen by human rights activists as, in the words of an unnamed opposition figure, “another nail in the coffin of Egyptian democracy.” The government’s efforts to stifle opposition to the ruling National Democratic Party (NDP) have included firing an influential newspaper editor, revoking the licenses of TV channels, arresting bloggers, changing the rules governing political slogans, and fabricating infractions to disqualify opposition candidates from running.
As the government’s campaign continued, the U.S. Secretary of State hosted a visit by Egypt’s foreign minister, Aboul Gheit, and Egypt’s Intelligence chief, Omar Suleiman. Gheit confirmed that he and Mrs. Clinton did not discuss the forthcoming election.
The administration of U.S. President Barack Obama has come under increasing criticism from both conservatives and liberals for not being forceful enough in speaking out publicly regarding the parliamentary election and the presidential election, which is to follow.
Conservatives – and neoconservatives -- are urging Obama to reinstate the “democracy-building” programs implemented by the George W. Bush administration, Obama’s predecessor. But they appear to be far more concerned about Egypt’s continuing role as “mediator” in the Israeli-Palestinian peace negotiations.
Liberals are pushing for more unequivocal rhetoric from the White House comdemning the renewal of Egypt’s 30-year-old “emergency” laws and the widely-reported harrassment of opposition political institutions and individuals.
The country’s 82-year-old leader since 1981, Hosni Mubarak, promised the U.S. he would repeal the emergency laws, which give Egypt’s security services the unfettered right to arrest and detain people without due process or judicial review.
The Obama administration has been most outspoken regarding the emergency laws, whose renewal it regards as a broken promise. It has also publicly condemned the June murder of blogger Khaled Saeed, who was dragged out of an Internet café and beaten to death on the street. He had recently posted a video online exposing police corruption.
Human rights advocates charge that the government has kidnapped bloggers and Internet activists, tortured them, and then imprisoned them until the bruises on their bodies have disappeared so there is no evidence of abuse.
One of those advocates, Hossam Bahgat, has told IPS that democracy-building programs can only be effective if they are “inside-out” – adopted by indigenous people who live and work in a country or a community, and not superimposed on them.
Bahgat, who heads a not-for-profit organization known The Egyptian Initiative for Personal Rights (EIPR), was in New York to receive an award from Human Rights Watch (HRW) celebrating the “valor of individuals who put their lives on the line to protect the dignity and rights of others.”
HRW said Baghat is “a leading voice against the prosecution and harassment of individuals based on their religious beliefs or private sexual conduct. He has played a prominent role in exposing the government's failure to prosecute sectarian violence against Coptic Christians.”
Baghat’s organization recently won a case against the Interior Ministry on behalf of Egypt's Baha'i citizens, a minority facing frequent violence and discrimination. Egyptians may now obtain official documents without revealing their religious convictions, or being forced to identify themselves as Muslims, Christians, or Jews.
Baghat’s group recently launched an advocacy campaign to combat sectarianism in Egypt. The organization said the campaign is a joint movement and “an appeal for collective action to eliminate sectarianism and strengthen the values of equal citizenship and shared existence in our common nation without religious or faith-based discrimination.”
“While the movement is being launched by the Egyptian Initiative for Personal Rights as part of our ongoing efforts to defend equality and freedom of religion and belief, we realize that it cannot be successful if it remains ours alone," Bahgat said.
"We firmly believe that this campaign will not meet with success unless it becomes a voice for Egyptians who believe that we are all in this together and those united by a common fear for our future due to rising social divisions, sectarian tension and a mindset that divides the country into an ‘us’ and a ‘them,’ he said, adding:
“At the same time, we believe many people are hopeful about the possibility of ending sectarianism and working together to build a country that upholds all citizens’ right to equality and dignity.”
The Mubarak regime has been criticized for many years for what opponents call a nationwide campaign of persecution and discrimination against the Egyptian Coptic church. Copts are Christians who make up about five per cent of the Egyptian population.
Baghat told IPS the EIPR campaign involves the production, screening and distribution of media materials and short public service announcements on the dangers of sectarianism. These are available for viewing on the group’s YouTube page.
There is also be a blog on which one can join the campaign, as well as a Facebook page to allow supporters to keep up with the news, express their opinions, take part in the debate, and facilitate citizen reporting of sectarian incidents.
From a U.S. perspective, despite the “cumbaya” diplomacy on display during the Egyptian foreign minister’s visit to the U.S. State Department, Egypt is likely to continue to be the target of both liberal and conservative scorn.
But neither end of the political spectrum believes Washington has the clout to influence the upcoming elections. And Egyptian voters are both powerless and uninformed.
As one prominent activist, Bahey el-din Hassan, director of the Cairo Institute for Human Rights Studies, wrote recently, “The outcome of the elections has already been determined -- all that remains is the official announcement of the results after 28 November, in favor of the ruling National Democratic Party.”
Thursday, November 11, 2010
Bush: Vacation at the Prado?
By William Fisher
After a three-year investigation, President Barack Obama’s mantra – “it's important to look forward and not backwards” – appears to have trumped the rule of law as a special prosecutor declined to pursue criminal charges against the Central Intelligence Agency operatives involved in the destruction of video recordings of interrogations of “war on terror” suspects.
The human rights community and many legal scholars from both ends of the political spectrum are up in arms about the decision. And they were further angered by the remarks made by former president George W. Bush during television and radio interviews promoting his new memoir, “Decision Points.”
For example, Bush admitted to Matt Lauer of NBC’s “Today” program that he authorized the use of waterboarding on two CIA prisoners. He said further that the technique was legal and that he would make the same decision again.
Lauer then asked him, “Why is waterboarding legal, in your opinion?”
Bush responded: “Because the lawyer said it was legal. He said it did not fall within the anti-torture act. I’m not a lawyer. But you gotta trust the judgment of the people around you, and I do.”
Michael Ratner, President of the Center for Constitutional Rights, spoke to IPS with a hint of despair. He said, “The failure of DOJ to bring criminal charges against the CIA officials who destroyed the tapes of the waterboarding of detainees is another awful decision insuring that the torture conspirators including President Bush will not be held accountable for their crimes -- at least not by the Obama administration.”
“Coming on the heels of Bush's proud confession that he ordered water boarding, we now have a country without a shred of human rights credibility. If the U.S. can torture with impunity, why can't every country?”
“Obama says we need to look forward; sadly, we are looking forward to a future of torture. One hope remains: international justice against the torture conspirators that is currently being pursued in the Spanish courts by the Center for Constitutional Rights and others. If I were former President Bush, my next vacation would not be a visit to the Prado.”
In the opinion of Chris Anders, a senior attorney with the American Civil Liberties Union (ACLU), “I find Bush’s remarks about waterboarding [in the Lauer interview] more important than the narrow issue of the destroyed CIA tapes. That’s because he confessed to war crimes.”
He added, “Everything in our legal history makes waterboarding a crime. Bush said he authorized it. What he should know about the rule of law is that no one is above it. Yet Bush doesn’t seem in the least concerned about the consequences of what he is confessing to.”
Criticism of both the special prosecutor’s decision and of Bush’s remarks appeared to come from both the left and the right of the political spectrum.
A well-known conservative lawyer, Bruce Fein, who was a senior attorney in the Department of Justice (DOJ) under President Ronald Reagan, told IPS, “Obama decided against prosecution for the same reason he has desisted from prosecuting former President Bush and former VP Cheney despite confessing to authorizing waterboarding: political inconvenience or popular opinion.”
Professor Jordan J. Paust of the Law Center at the University of Houston, author of “Beyond the Law The Bush Administration's Unlawful Responses in the ‘War’ on Terror,” charges that Bush’s remarks were “in apparent violation of a court order and does not bode well for the rule of law or the need to end impunity for international crimes.”
“Clearly, former President Bush has admitted that he had a ‘program’ of secret detention (which is forced disappearance of persons, a war crime, and a crime against humanity over which there is universal jurisdiction and a universal responsibility to either initiate prosecution or to extradite) and ‘tough’ interrogation, which included waterboarding (which 29 U.S. cases and 7 U.S. Dep’t of State Country Reports on Human Rights records of other states affirm is “torture” – and if it is not “torture,” it is “cruel” and inhumane, which are also violations of the Convention Against Torture, human rights law, and war crimes under treaty-based and customary international law) among other tactics that are illegal and implicate universal jurisdiction and responsibility,” he charged.
Jonathan Hafetz, a professor at Seton Hall University law school, believes that “The U.S. government’s failure to hold accountable those responsible for the torture and other gross human rights constitutes one the of darkest legacies of our era.”
He told IPS, “The problem with President Obama’s approach is that it is not enough only to ‘look forward and not backward’. Non-action can itself serve as tacit approval for past abuses -- or at least that is how it can be interpreted.”
“The recent comments by Mr. Bush about his knowledge and approval of waterboarding, makes the need for accountability more, not less, important,” he said.
Chip Pitts, a Lecturer in Law at Stanford University Law School, is focused on what he calls the “complicity” between the Bush and Obama administrations.
He told IPS, “The crisis of accountability in America is starkly highlighted by the former president’s public confession of recourse to torture and war crimes. But that should not detract attention from the complicity of the current administration, which has resorted to secrecy and backroom deals that blatantly ignore laws (like the Convention Against Torture, in this case) and the administration’s duty to “faithfully execute the laws.”
In doing so, he added, “the administration cynically capitulates to the entrenched special interests that want nothing more than to remain “above the law” by continuing with unaccountable and profitable
business-as-usual.”
Robert S. Bennett, attorney for the former C.I.A. agent who ordered the tapes destroyed, said in an interview with the New York Times that he was pleased that the Justice Department “did the right thing.”
Leon E. Panetta, the C.I.A. director, said in a statement that the C.I.A. was “pleased with the decision” not to bring charges against agency officers involved in destroying the tapes, and that the agency would continue to cooperate with other aspects of the Justice Department’s investigation.
After a three-year investigation, President Barack Obama’s mantra – “it's important to look forward and not backwards” – appears to have trumped the rule of law as a special prosecutor declined to pursue criminal charges against the Central Intelligence Agency operatives involved in the destruction of video recordings of interrogations of “war on terror” suspects.
The human rights community and many legal scholars from both ends of the political spectrum are up in arms about the decision. And they were further angered by the remarks made by former president George W. Bush during television and radio interviews promoting his new memoir, “Decision Points.”
For example, Bush admitted to Matt Lauer of NBC’s “Today” program that he authorized the use of waterboarding on two CIA prisoners. He said further that the technique was legal and that he would make the same decision again.
Lauer then asked him, “Why is waterboarding legal, in your opinion?”
Bush responded: “Because the lawyer said it was legal. He said it did not fall within the anti-torture act. I’m not a lawyer. But you gotta trust the judgment of the people around you, and I do.”
Michael Ratner, President of the Center for Constitutional Rights, spoke to IPS with a hint of despair. He said, “The failure of DOJ to bring criminal charges against the CIA officials who destroyed the tapes of the waterboarding of detainees is another awful decision insuring that the torture conspirators including President Bush will not be held accountable for their crimes -- at least not by the Obama administration.”
“Coming on the heels of Bush's proud confession that he ordered water boarding, we now have a country without a shred of human rights credibility. If the U.S. can torture with impunity, why can't every country?”
“Obama says we need to look forward; sadly, we are looking forward to a future of torture. One hope remains: international justice against the torture conspirators that is currently being pursued in the Spanish courts by the Center for Constitutional Rights and others. If I were former President Bush, my next vacation would not be a visit to the Prado.”
In the opinion of Chris Anders, a senior attorney with the American Civil Liberties Union (ACLU), “I find Bush’s remarks about waterboarding [in the Lauer interview] more important than the narrow issue of the destroyed CIA tapes. That’s because he confessed to war crimes.”
He added, “Everything in our legal history makes waterboarding a crime. Bush said he authorized it. What he should know about the rule of law is that no one is above it. Yet Bush doesn’t seem in the least concerned about the consequences of what he is confessing to.”
Criticism of both the special prosecutor’s decision and of Bush’s remarks appeared to come from both the left and the right of the political spectrum.
A well-known conservative lawyer, Bruce Fein, who was a senior attorney in the Department of Justice (DOJ) under President Ronald Reagan, told IPS, “Obama decided against prosecution for the same reason he has desisted from prosecuting former President Bush and former VP Cheney despite confessing to authorizing waterboarding: political inconvenience or popular opinion.”
Professor Jordan J. Paust of the Law Center at the University of Houston, author of “Beyond the Law The Bush Administration's Unlawful Responses in the ‘War’ on Terror,” charges that Bush’s remarks were “in apparent violation of a court order and does not bode well for the rule of law or the need to end impunity for international crimes.”
“Clearly, former President Bush has admitted that he had a ‘program’ of secret detention (which is forced disappearance of persons, a war crime, and a crime against humanity over which there is universal jurisdiction and a universal responsibility to either initiate prosecution or to extradite) and ‘tough’ interrogation, which included waterboarding (which 29 U.S. cases and 7 U.S. Dep’t of State Country Reports on Human Rights records of other states affirm is “torture” – and if it is not “torture,” it is “cruel” and inhumane, which are also violations of the Convention Against Torture, human rights law, and war crimes under treaty-based and customary international law) among other tactics that are illegal and implicate universal jurisdiction and responsibility,” he charged.
Jonathan Hafetz, a professor at Seton Hall University law school, believes that “The U.S. government’s failure to hold accountable those responsible for the torture and other gross human rights constitutes one the of darkest legacies of our era.”
He told IPS, “The problem with President Obama’s approach is that it is not enough only to ‘look forward and not backward’. Non-action can itself serve as tacit approval for past abuses -- or at least that is how it can be interpreted.”
“The recent comments by Mr. Bush about his knowledge and approval of waterboarding, makes the need for accountability more, not less, important,” he said.
Chip Pitts, a Lecturer in Law at Stanford University Law School, is focused on what he calls the “complicity” between the Bush and Obama administrations.
He told IPS, “The crisis of accountability in America is starkly highlighted by the former president’s public confession of recourse to torture and war crimes. But that should not detract attention from the complicity of the current administration, which has resorted to secrecy and backroom deals that blatantly ignore laws (like the Convention Against Torture, in this case) and the administration’s duty to “faithfully execute the laws.”
In doing so, he added, “the administration cynically capitulates to the entrenched special interests that want nothing more than to remain “above the law” by continuing with unaccountable and profitable
business-as-usual.”
Robert S. Bennett, attorney for the former C.I.A. agent who ordered the tapes destroyed, said in an interview with the New York Times that he was pleased that the Justice Department “did the right thing.”
Leon E. Panetta, the C.I.A. director, said in a statement that the C.I.A. was “pleased with the decision” not to bring charges against agency officers involved in destroying the tapes, and that the agency would continue to cooperate with other aspects of the Justice Department’s investigation.
Give Us Your Tired, etc., etc., etc.
By William Fisher
One year after the U.S. Department of Homeland Security (DHS) announced plans for a wide-reaching overhaul of America’s long-mismanaged immigration detention system, human rights and immigration advocacy organizations are charging that the U.S. government has yet to make significant progress toward the underlying goal of detention reform – a true shift from a penal to a civil approach to immigration detention.
One such group, Human Rights First (HRF), is taking aim at a particularly sensitive aspect of the detention debacle: the plight of refugees seeking asylum.
Annie Sovcik, Advocacy Counsel for HRF’s Refugee Protection Program, told IPS, “Of the approximately 400,000 immigrants held in U.S. immigration detention annually, a few thousand are refugees -- individuals who have fled persecution for political, religious and other reasons and are seeking protection in the United States.”
“Upon arrival, these refugees are shackled and transported to immigration detention centers where they are held in jail-like conditions and where they may remain isolated for months without adequate due process safeguards as their claims for asylum protection are adjudicated,” she charges.
Sovcik says this practice “undermines commitments the United States has made to protect refugees, violates obligations the United States has assumed under international law, and creates a barrier for refugees to access a fair asylum adjudication process.”
The Department of Homeland Security has pledged to reform the immigration detention system and move away from a jail-like system to one that is more civil in nature. HRF and other organizations welcomed this announcement in 2009 and also encouraged DHS to commit to reform its practices related to how decisions of who to detain or release are made.
But, Sovcik asserts, “Since the August 2009 announcement, while DHS has slowly worked on fulfilling its promise, 33,400 immigrants are held everyday in facilities that officials at the highest levels recognize is chronically flawed but have remained essentially unchanged.”
She added, “It is time for DHS to move toward implementing real improvements in the detention system and truly make the shift away from facilities modeled on the penal system. Everyday these reforms are delayed, more people continue to suffer.”
The DHS commitment to shift the immigration detention model from one based on correctional standards toward a civil model of detention was welcomed by most in the immigration community. They agreed that detained asylum seekers and other detained immigrants should not be held in prison-like conditions. “The purpose of immigration detention is limited to ensuring that detainees show up for their hearings and comply with removal orders. Immigration detention should not be punitive," said HRF’s Ruthie Epstein.
HRF’s Annie Sovcik said, "ICE should require changes to be implemented at existing facilities by the end of 2010."
The U.S. immigration detention system holds up to 33,400 detainees -- including asylum seekers -- every day. These detainees are currently held in a sprawling network of approximately 250 facilities (down from 341 a year ago) across the country. Some of these facilities are operated by Immigration & Customs Enforcement (ICE), the enforcement arm of DHS; others are run by private corrections companies or county jail systems.
Last year, DHS acknowledged that its detention beds were located in facilities "largely designed for penal, not civil, detention." Key among its 2009 reform plans was a commitment to shift to a non-penal, or "civil," model of immigration detention.
DHS's announcement in 2009 came on the heels of two government reports that had concluded that the U.S. immigration system was inappropriately modeled on correctional systems. One was from Dr. Dora Schriro, former Director of the Arizona and Missouri state corrections systems and currently Commissioner of Correction for New York City, and the other from the bipartisan U.S. Commission on International Religious Freedom.
HRF’s recommendations for new civil standards and changes to existing facilities include:
Allow asylum seekers and other immigrant detainees to wear civilian clothing rather than prison jumpsuits; contact visits with family and friends in all facilities; true outdoor recreation space, and expanded access throughout the day; and increased freedom of movement within secure facilities.
Stop detaining asylum seekers and other immigrants in penal facilities, and create nationwide alternatives to detention.
DHS should work with the Department of Justice (DOJ) to provide all detained asylum seekers with access to custody hearings so that the need for their continued detention can be assessed by an immigration court.
Another serious glitch in the asylum-seeking process is the application deadline imposed by Congress. A new study has revealed that one in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and thus miss the 12-month deadline imposed by Congress, according to a study of the Board of Immigration Appeals' (BIA) asylum decisions.
"The one-year deadline results in the denial of asylum, a basic human rights protection, because of a technicality," said Mary Meg McCarthy, executive director of the Heartland Alliance's National Immigrant Justice Center.
"The BIA is making a bad law worse by arbitrarily denying exceptions to the deadline and putting the lives of men, women, and children at risk," she added.
The study's conclusions are detailed in a new report, “The One-Year Asylum Deadline and the BIA: No Protection, No Process.” The report was prepared by Heartland Alliance's National Immigration Justice Center's National Asylum Partnership on Sexual Minorities; Human Rights First; and Penn State University’s Law Center for Immigrants' Rights. The report is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers.
In addition to the 20 per cent of asylum cases denied because of filing after the deadline, in 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline.
And of the 662 filing deadline denials, the BIA did not recognize any exceptions to the filing deadline. When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time. By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.
One year after the U.S. Department of Homeland Security (DHS) announced plans for a wide-reaching overhaul of America’s long-mismanaged immigration detention system, human rights and immigration advocacy organizations are charging that the U.S. government has yet to make significant progress toward the underlying goal of detention reform – a true shift from a penal to a civil approach to immigration detention.
One such group, Human Rights First (HRF), is taking aim at a particularly sensitive aspect of the detention debacle: the plight of refugees seeking asylum.
Annie Sovcik, Advocacy Counsel for HRF’s Refugee Protection Program, told IPS, “Of the approximately 400,000 immigrants held in U.S. immigration detention annually, a few thousand are refugees -- individuals who have fled persecution for political, religious and other reasons and are seeking protection in the United States.”
“Upon arrival, these refugees are shackled and transported to immigration detention centers where they are held in jail-like conditions and where they may remain isolated for months without adequate due process safeguards as their claims for asylum protection are adjudicated,” she charges.
Sovcik says this practice “undermines commitments the United States has made to protect refugees, violates obligations the United States has assumed under international law, and creates a barrier for refugees to access a fair asylum adjudication process.”
The Department of Homeland Security has pledged to reform the immigration detention system and move away from a jail-like system to one that is more civil in nature. HRF and other organizations welcomed this announcement in 2009 and also encouraged DHS to commit to reform its practices related to how decisions of who to detain or release are made.
But, Sovcik asserts, “Since the August 2009 announcement, while DHS has slowly worked on fulfilling its promise, 33,400 immigrants are held everyday in facilities that officials at the highest levels recognize is chronically flawed but have remained essentially unchanged.”
She added, “It is time for DHS to move toward implementing real improvements in the detention system and truly make the shift away from facilities modeled on the penal system. Everyday these reforms are delayed, more people continue to suffer.”
The DHS commitment to shift the immigration detention model from one based on correctional standards toward a civil model of detention was welcomed by most in the immigration community. They agreed that detained asylum seekers and other detained immigrants should not be held in prison-like conditions. “The purpose of immigration detention is limited to ensuring that detainees show up for their hearings and comply with removal orders. Immigration detention should not be punitive," said HRF’s Ruthie Epstein.
HRF’s Annie Sovcik said, "ICE should require changes to be implemented at existing facilities by the end of 2010."
The U.S. immigration detention system holds up to 33,400 detainees -- including asylum seekers -- every day. These detainees are currently held in a sprawling network of approximately 250 facilities (down from 341 a year ago) across the country. Some of these facilities are operated by Immigration & Customs Enforcement (ICE), the enforcement arm of DHS; others are run by private corrections companies or county jail systems.
Last year, DHS acknowledged that its detention beds were located in facilities "largely designed for penal, not civil, detention." Key among its 2009 reform plans was a commitment to shift to a non-penal, or "civil," model of immigration detention.
DHS's announcement in 2009 came on the heels of two government reports that had concluded that the U.S. immigration system was inappropriately modeled on correctional systems. One was from Dr. Dora Schriro, former Director of the Arizona and Missouri state corrections systems and currently Commissioner of Correction for New York City, and the other from the bipartisan U.S. Commission on International Religious Freedom.
HRF’s recommendations for new civil standards and changes to existing facilities include:
Allow asylum seekers and other immigrant detainees to wear civilian clothing rather than prison jumpsuits; contact visits with family and friends in all facilities; true outdoor recreation space, and expanded access throughout the day; and increased freedom of movement within secure facilities.
Stop detaining asylum seekers and other immigrants in penal facilities, and create nationwide alternatives to detention.
DHS should work with the Department of Justice (DOJ) to provide all detained asylum seekers with access to custody hearings so that the need for their continued detention can be assessed by an immigration court.
Another serious glitch in the asylum-seeking process is the application deadline imposed by Congress. A new study has revealed that one in five refugees seeking protection in the United States is denied asylum because they do not apply within one year of their arrival and thus miss the 12-month deadline imposed by Congress, according to a study of the Board of Immigration Appeals' (BIA) asylum decisions.
"The one-year deadline results in the denial of asylum, a basic human rights protection, because of a technicality," said Mary Meg McCarthy, executive director of the Heartland Alliance's National Immigrant Justice Center.
"The BIA is making a bad law worse by arbitrarily denying exceptions to the deadline and putting the lives of men, women, and children at risk," she added.
The study's conclusions are detailed in a new report, “The One-Year Asylum Deadline and the BIA: No Protection, No Process.” The report was prepared by Heartland Alliance's National Immigration Justice Center's National Asylum Partnership on Sexual Minorities; Human Rights First; and Penn State University’s Law Center for Immigrants' Rights. The report is the first to examine how the asylum deadline is handled by the BIA, the highest level of administrative appeal available to asylum seekers.
In addition to the 20 per cent of asylum cases denied because of filing after the deadline, in 46 percent of the 662 filing deadline denials, the BIA did not provide any reason for the denial of the asylum application other than that it was submitted after the filing deadline.
And of the 662 filing deadline denials, the BIA did not recognize any exceptions to the filing deadline. When an immigration judge granted an exception to the one-year deadline, the BIA affirmed that decision 75 percent of the time. By contrast, when an immigration judge denied asylum based on the one-year deadline, the BIA affirmed the decision 96 percent of the time.
Wednesday, November 10, 2010
The ICE-ing on Obama’s Immigration Cake
By William Fisher
Programs that “place local law enforcement agencies at the front lines of immigration enforcement” are preventing U.S. immigration agencies from reaching their objectives by turning over to them aliens with no criminal history or those who have committed minor or non-violent crimes and setting them on a course toward unnecessary and unlawful deportation.
This is one of main findings in a new study by the Immigration Policy Center, the policy arm of the American Immigration Council, presented in a new report, “ICE’s Enforcement Priorities and ther Factors that Undermine Them,” by Dr. Michele Waslin, IPC Senior Policy Analyst.
She told IPS, “As long as ICE continues to outsource the identification and arrest of immigrants to LEAs and communities intent on ridding their jurisdiction of undocumented immigrants, ICE will find it extremely difficult to truly focus on serious criminals.”
“By partnering with state and local police agencies, ICE has put non-ICE personnel at the front lines of immigration enforcement,” the report says.
It adds that ICE will always be limited in terms of the authority it can express over its state and local partners. “Because, under this model, LEAs are responsible for channeling immigrants from the criminal justice system into the federal immigration enforcement system, and because LEAs have their own local interests and priorities, it is very likely that non-priority immigrants will continue to be subject to immigration enforcement actions.”
Other organizations are equally critical of the Department of Homeland Security (DHS), of which ICE is a major unit. Human Rights First (HRF), a major legal advocacy group, says that “one year after the U.S. Department of Homeland Security (DHS) announced plans for a wide-reaching overhaul of the long-mismanaged immigration detention system”, HRF is concerned that the U.S. government “has yet to make significant progress toward the underlying goal of detention reform – a true shift from a penal to a civil approach to immigration detention.”
The IPC report notes that, “In recent years, ICE has grown more and more dependent on the 287(g) program and the expanding Secure Communities program, which are partnerships with state and local police agencies to identify immigrants for deportation. ICE has, in effect, outsourced the identification of immigrants for enforcement actions to local police agencies and jails.
However, the report says that “programs such as Secure Communities and 287(g) undermine ICE’s priorities because they are designed in such a way that leads to the deportation of immigrants with minor criminal offenses or no criminal history at all.”
It warns that “these new partnerships take the initial identification and arrest outside of ICE’s control, (and) exacerbate the potential for profiling and pretextual arrests, which in turn take the focus off of serious criminals and lead to the arrest of large numbers of people for minor offenses.”
“Other factors at the state and local level also remove ICE from the decision-making process at the critical early stages. Laws such as Arizona’s SB1070 attempt to impose enforcement priorities on ICE and determine where and how ICE should use its limited resources, regardless of ICE’s own stated objectives,” the report observes.
At an October 6, 2010, press conference, Secretary of Homeland Security Janet Napolitano announced that the Department of Homeland Security (DHS) had removed more than 392,000 individuals in Fiscal Year (FY) 2010, and presented other “record-breaking immigration enforcement statistics achieved under the Obama administration.”
In addition to record-breaking overall numbers, Napolitano also announced the “unprecedented numbers of convicted criminal alien removals” in FY 2010. Of the 392,000 removals in FY 2010, more than 195,000 were classified as “convicted criminal aliens,” which was 81,000 more criminal removals than in FY 2008.
But the issue raised in this report goes to the question of whether deportees are the people originally envisaged – people whose violent behaviour poses a danger to their fellow deportees as well as society in general – or others guilty of minor offenses such as driving and parking violations.
ICE says budget realities make it impossible to remove everyone who is in the country illegally or who is otherwise deportable, and has released a series of memos designed to prioritize the “worst of the worst.” Overall, this prioritization represents an effort to bring order to the increasingly complex world of immigration enforcement.
Partnerships between ICE and state and local law-enforcement agencies are not necessarily helping ICE to reach its strategic objectives and these LEAs are generating the most concern over enforcement priorities. Over the past several years, these partnerships have been greatly expanded, and ever greater numbers of LEAs are serving as “force multipliers” for DHS.
The two programs most closely associated with immigration enforcement are the 287(g) program and the Secure Communities program. The stated objective of both of these programs is to target dangerous criminals and persons who pose a threat to the community. ICE credits these programs with the increase in deportations of “criminal aliens” over the past year.
Programs such as 287(g) and Secure Communities merge the federal immigration enforcement system with state criminal justice systems. But in many cases, local police arrest noncitizens who pose no threat to public safety for relatively minor crimes, such as driving without a license or shoplifting. In other cases, immigrants are merely charged with crimes for which they are never convicted.
Through the partnerships between ICE and local police, immigrants are channeled into the immigration enforcement system, regardless of their guilt or innocence or the severity of the crime with which they are charged. These immigrants then face lengthy detention, few due-process protections, and deportation.
The data from ICE does in fact show an increase in the percentage of deportations of “criminal aliens” or “convicted criminal aliens.” However, a closer look at the numbers reveals that many of those “criminals” have committed low-level offenses or misdemeanors, and many noncriminals continue to be deported.
One of the report’s main recommendation is for legalization, which it says would be an enormous step” toward true prioritization. “A pool of more than 11 million persons subject to deportation is not a good starting place. Legalizing undocumented immigrants who do not pose a threat to public safety or national security, would allow DHS to focus its limited enforcement resources on unauthorized and legal immigrants with serious criminal convictions.”
Programs that “place local law enforcement agencies at the front lines of immigration enforcement” are preventing U.S. immigration agencies from reaching their objectives by turning over to them aliens with no criminal history or those who have committed minor or non-violent crimes and setting them on a course toward unnecessary and unlawful deportation.
This is one of main findings in a new study by the Immigration Policy Center, the policy arm of the American Immigration Council, presented in a new report, “ICE’s Enforcement Priorities and ther Factors that Undermine Them,” by Dr. Michele Waslin, IPC Senior Policy Analyst.
She told IPS, “As long as ICE continues to outsource the identification and arrest of immigrants to LEAs and communities intent on ridding their jurisdiction of undocumented immigrants, ICE will find it extremely difficult to truly focus on serious criminals.”
“By partnering with state and local police agencies, ICE has put non-ICE personnel at the front lines of immigration enforcement,” the report says.
It adds that ICE will always be limited in terms of the authority it can express over its state and local partners. “Because, under this model, LEAs are responsible for channeling immigrants from the criminal justice system into the federal immigration enforcement system, and because LEAs have their own local interests and priorities, it is very likely that non-priority immigrants will continue to be subject to immigration enforcement actions.”
Other organizations are equally critical of the Department of Homeland Security (DHS), of which ICE is a major unit. Human Rights First (HRF), a major legal advocacy group, says that “one year after the U.S. Department of Homeland Security (DHS) announced plans for a wide-reaching overhaul of the long-mismanaged immigration detention system”, HRF is concerned that the U.S. government “has yet to make significant progress toward the underlying goal of detention reform – a true shift from a penal to a civil approach to immigration detention.”
The IPC report notes that, “In recent years, ICE has grown more and more dependent on the 287(g) program and the expanding Secure Communities program, which are partnerships with state and local police agencies to identify immigrants for deportation. ICE has, in effect, outsourced the identification of immigrants for enforcement actions to local police agencies and jails.
However, the report says that “programs such as Secure Communities and 287(g) undermine ICE’s priorities because they are designed in such a way that leads to the deportation of immigrants with minor criminal offenses or no criminal history at all.”
It warns that “these new partnerships take the initial identification and arrest outside of ICE’s control, (and) exacerbate the potential for profiling and pretextual arrests, which in turn take the focus off of serious criminals and lead to the arrest of large numbers of people for minor offenses.”
“Other factors at the state and local level also remove ICE from the decision-making process at the critical early stages. Laws such as Arizona’s SB1070 attempt to impose enforcement priorities on ICE and determine where and how ICE should use its limited resources, regardless of ICE’s own stated objectives,” the report observes.
At an October 6, 2010, press conference, Secretary of Homeland Security Janet Napolitano announced that the Department of Homeland Security (DHS) had removed more than 392,000 individuals in Fiscal Year (FY) 2010, and presented other “record-breaking immigration enforcement statistics achieved under the Obama administration.”
In addition to record-breaking overall numbers, Napolitano also announced the “unprecedented numbers of convicted criminal alien removals” in FY 2010. Of the 392,000 removals in FY 2010, more than 195,000 were classified as “convicted criminal aliens,” which was 81,000 more criminal removals than in FY 2008.
But the issue raised in this report goes to the question of whether deportees are the people originally envisaged – people whose violent behaviour poses a danger to their fellow deportees as well as society in general – or others guilty of minor offenses such as driving and parking violations.
ICE says budget realities make it impossible to remove everyone who is in the country illegally or who is otherwise deportable, and has released a series of memos designed to prioritize the “worst of the worst.” Overall, this prioritization represents an effort to bring order to the increasingly complex world of immigration enforcement.
Partnerships between ICE and state and local law-enforcement agencies are not necessarily helping ICE to reach its strategic objectives and these LEAs are generating the most concern over enforcement priorities. Over the past several years, these partnerships have been greatly expanded, and ever greater numbers of LEAs are serving as “force multipliers” for DHS.
The two programs most closely associated with immigration enforcement are the 287(g) program and the Secure Communities program. The stated objective of both of these programs is to target dangerous criminals and persons who pose a threat to the community. ICE credits these programs with the increase in deportations of “criminal aliens” over the past year.
Programs such as 287(g) and Secure Communities merge the federal immigration enforcement system with state criminal justice systems. But in many cases, local police arrest noncitizens who pose no threat to public safety for relatively minor crimes, such as driving without a license or shoplifting. In other cases, immigrants are merely charged with crimes for which they are never convicted.
Through the partnerships between ICE and local police, immigrants are channeled into the immigration enforcement system, regardless of their guilt or innocence or the severity of the crime with which they are charged. These immigrants then face lengthy detention, few due-process protections, and deportation.
The data from ICE does in fact show an increase in the percentage of deportations of “criminal aliens” or “convicted criminal aliens.” However, a closer look at the numbers reveals that many of those “criminals” have committed low-level offenses or misdemeanors, and many noncriminals continue to be deported.
One of the report’s main recommendation is for legalization, which it says would be an enormous step” toward true prioritization. “A pool of more than 11 million persons subject to deportation is not a good starting place. Legalizing undocumented immigrants who do not pose a threat to public safety or national security, would allow DHS to focus its limited enforcement resources on unauthorized and legal immigrants with serious criminal convictions.”
Tuesday, November 09, 2010
Where'd the Rule of Law Go?
By William Fisher
Lawyers for the administration of U.S. President Barack Obama told a federal judge yesterday that the government has authority to kill American citizens whom the executive branch has unilaterally determined pose a threat to national security.
That claim came in federal court in Washington, D.C., in response to a lawsuit brought by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR). The two human rights legal advocacy organizations contend that the administration's so-called “targeted killing authority” violates the Constitution and international law.
CCR attorney Pardiss Kebriae told IPS, "The full contours of the government's position would allow the executive unreviewable authority to target and kill any US citizen it deems a suspect of terrorism anywhere. As the government would have it, while non-citizens detained at Guantanamo Bay can challenge the deprivation of their liberty by the United States, a US citizen could not challenge an impending deprivation of his life by his own government."
"The Supreme Court has repeatedly rejected the government's claim to an unchecked system of global detention, and the district court should similarly reject the administration's claim here to an unchecked system of global targeted killing," she said.
The ACLU and the CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, Anwar Al-Aulaqi. The lawsuit asks the court to rule that, “outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety.”
Anwar Al-Aulaqi, who was born in Las Cruces, New Mexico, and has dual U.S. and Yemeni citizenship, is a firebrand extremist Imam, who has been accused by government officials and in the press of using his sermons and the Internet to recruit jihadists. He is thought to be in hiding in Yemen.
The lawsuit also asks the court to “order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.”
"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. "It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution."
The government filed a brief in the case in September, claiming that the executive's targeted killing authority is a "political question" that should not be subject to judicial review. The government also asserted the "state secrets" privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.
On August 30, 2010, the CCR and the ACLU filed suit on behalf of Dr. Nasser Al-Aulaqi against President Obama, Central Intelligence Agency (CIA) Director Leon Panetta, and Defense Secretary Robert Gates, challenging their decision to authorize the targeted killing of his son, in violation of the Constitution and international law.
Plaintiff’s lawyers argue that, while the government “can legitimately use lethal force against civilians in certain circumstances outside of a judicial process, the authority contemplated by senior Obama administration officials is far broader than what the Constitution and international law allow.”
Under international human rights law, they explain, “lethal force may be used in peacetime only when there is an imminent threat of deadly attack and when lethal force is a last resort. A program in which names are added to a list though a secret bureaucratic process and remain there for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.”
They add: “Moreover, targeting individuals for killing who are suspected of crimes but have not been convicted – without oversight, due process or disclosed standards for being placed on the kill list – also poses the risk that the government will erroneously target the wrong people. Since 9/11, the U.S. government has detained thousands men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable and release them.”
The DOJ declined to comment on the case.
This case is one of two related lawsuits brought by the ACLU and the CCR.
The second is against the U.S. Treasury Department (DOT) and its Office of Foreign Assets Control (OFAC) challenging the legality and constitutionality of the scheme that requires them to obtain a license in order to file a lawsuit concerning the government’s asserted authority to carry out targeted killings of individuals, including U.S. citizens, far from any battlefield.
On July 16, 2010, however, the Secretary of the Treasury labeled Anwar al-Aulaqi a “specially designated global terrorist,” which makes it a crime for lawyers to provide representation for his benefit without first seeking a license from OFAC.
The CCR and the ACLU sought a license, but after the government’s failure to grant one despite the urgency created by an outstanding authorization for Al-Aulaqi’s death, the two groups brought suit challenging the legality and constitutionality of the licensing scheme as applied to the representation they seek to provide. CCR and the ACLU have not had contact with Anwar Al-Aulaqi.
The OFAC requirements generally make it illegal to provide any service, including legal representation, to or for the benefit of an individual designated as a terrorist. A lawyer who provides legal representation for the benefit of such a person without getting special permission is subject to criminal and civil penalties.
In their lawsuit, CCR and the ACLU charge that OFAC has exceeded its authority by subjecting uncompensated legal services to a licensing requirement, and that OFAC’s regulations violate the First Amendment, the Fifth Amendment, and the principle of separation of powers. The lawsuit asks the court to invalidate the regulations and to make clear that lawyers can provide representation for the benefit of designated individuals without first seeking the government’s consent.
The OFAC case is currently pending in the U.S. District Court for the District of Columbia.
Lawyers for the administration of U.S. President Barack Obama told a federal judge yesterday that the government has authority to kill American citizens whom the executive branch has unilaterally determined pose a threat to national security.
That claim came in federal court in Washington, D.C., in response to a lawsuit brought by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR). The two human rights legal advocacy organizations contend that the administration's so-called “targeted killing authority” violates the Constitution and international law.
CCR attorney Pardiss Kebriae told IPS, "The full contours of the government's position would allow the executive unreviewable authority to target and kill any US citizen it deems a suspect of terrorism anywhere. As the government would have it, while non-citizens detained at Guantanamo Bay can challenge the deprivation of their liberty by the United States, a US citizen could not challenge an impending deprivation of his life by his own government."
"The Supreme Court has repeatedly rejected the government's claim to an unchecked system of global detention, and the district court should similarly reject the administration's claim here to an unchecked system of global targeted killing," she said.
The ACLU and the CCR were retained by Nasser Al-Aulaqi to bring a lawsuit in connection with the government's decision to authorize the targeted killing of his son, Anwar Al-Aulaqi. The lawsuit asks the court to rule that, “outside the context of armed conflict, the government can carry out the targeted killing of an American citizen only as a last resort to address an imminent threat to life or physical safety.”
Anwar Al-Aulaqi, who was born in Las Cruces, New Mexico, and has dual U.S. and Yemeni citizenship, is a firebrand extremist Imam, who has been accused by government officials and in the press of using his sermons and the Internet to recruit jihadists. He is thought to be in hiding in Yemen.
The lawsuit also asks the court to “order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists.”
"If the Constitution means anything, it surely means that the president does not have unreviewable authority to summarily execute any American whom he concludes is an enemy of the state," said Jameel Jaffer, Deputy Legal Director of the ACLU, who presented arguments in the case. "It's the government's responsibility to protect the nation from terrorist attacks, but the courts have a crucial role to play in ensuring that counterterrorism policies are consistent with the Constitution."
The government filed a brief in the case in September, claiming that the executive's targeted killing authority is a "political question" that should not be subject to judicial review. The government also asserted the "state secrets" privilege, contending that the case should be dismissed to avoid the disclosure of sensitive information.
On August 30, 2010, the CCR and the ACLU filed suit on behalf of Dr. Nasser Al-Aulaqi against President Obama, Central Intelligence Agency (CIA) Director Leon Panetta, and Defense Secretary Robert Gates, challenging their decision to authorize the targeted killing of his son, in violation of the Constitution and international law.
Plaintiff’s lawyers argue that, while the government “can legitimately use lethal force against civilians in certain circumstances outside of a judicial process, the authority contemplated by senior Obama administration officials is far broader than what the Constitution and international law allow.”
Under international human rights law, they explain, “lethal force may be used in peacetime only when there is an imminent threat of deadly attack and when lethal force is a last resort. A program in which names are added to a list though a secret bureaucratic process and remain there for months at a time plainly goes beyond the use of lethal force as a last resort to address imminent threats, and accordingly goes beyond what the Constitution and international law permit.”
They add: “Moreover, targeting individuals for killing who are suspected of crimes but have not been convicted – without oversight, due process or disclosed standards for being placed on the kill list – also poses the risk that the government will erroneously target the wrong people. Since 9/11, the U.S. government has detained thousands men as terrorists, only for courts or the government itself to discover later that the evidence was wrong or unreliable and release them.”
The DOJ declined to comment on the case.
This case is one of two related lawsuits brought by the ACLU and the CCR.
The second is against the U.S. Treasury Department (DOT) and its Office of Foreign Assets Control (OFAC) challenging the legality and constitutionality of the scheme that requires them to obtain a license in order to file a lawsuit concerning the government’s asserted authority to carry out targeted killings of individuals, including U.S. citizens, far from any battlefield.
On July 16, 2010, however, the Secretary of the Treasury labeled Anwar al-Aulaqi a “specially designated global terrorist,” which makes it a crime for lawyers to provide representation for his benefit without first seeking a license from OFAC.
The CCR and the ACLU sought a license, but after the government’s failure to grant one despite the urgency created by an outstanding authorization for Al-Aulaqi’s death, the two groups brought suit challenging the legality and constitutionality of the licensing scheme as applied to the representation they seek to provide. CCR and the ACLU have not had contact with Anwar Al-Aulaqi.
The OFAC requirements generally make it illegal to provide any service, including legal representation, to or for the benefit of an individual designated as a terrorist. A lawyer who provides legal representation for the benefit of such a person without getting special permission is subject to criminal and civil penalties.
In their lawsuit, CCR and the ACLU charge that OFAC has exceeded its authority by subjecting uncompensated legal services to a licensing requirement, and that OFAC’s regulations violate the First Amendment, the Fifth Amendment, and the principle of separation of powers. The lawsuit asks the court to invalidate the regulations and to make clear that lawyers can provide representation for the benefit of designated individuals without first seeking the government’s consent.
The OFAC case is currently pending in the U.S. District Court for the District of Columbia.
Terror Challenges and Muslim-Americans
By William Fisher
A new report on the challenges posed in the U.S. by violent extremists has found that terrorism plots by non-Muslims greatly outnumber those attempted by Muslims and that Muslim-American communities helped foil close to a third of al Qaeda-related terror plots threatening America since 9/11/01.
The report comes from the Muslim Public Affairs Council (MPAC), a not-for-profit organization advocating for the civil rights of American Muslims. The report consists largely of MPAC’s "Post-9/11 Terrorism Incident Database." Reportedly the first of its kind by a Muslim-American organization, the Database tracks plots by Muslim and non-Muslim violent extremists against the United States.
The author of the report, Alejandro J. Beutel, MPAC researcher and government liaison, told IPS, “This report demonstrates the validity of two of our guiding principles.”
“The first of these is that the choice between our rights and liberties and national security is a false choice; we can have both. The second is that law enforcement will be much more successful if it treats the American Muslim community as partners, not as adversaries.”
He added, “Because of the baseless spying by the FBI on our mosques, we are very cautious about our engagement with the Bureau.”
Key findings in the report: There were 72 total plots by domestic non-Muslim perpetrators against the United States since 9/11/01. In comparison, there have been 37 total plots by domestic and international Muslim perpetrators since 9/11/01; there are at least five incidents of non-Muslim domestic extremists possessing or attempting to possess biological, chemical or radiological weapons. One of those occurred since Obama's election. No such cases involving Muslim violent extremists have been reported since 9/11/01; evidence clearly indicates a general rise in violent extremism across ideologies.
The report says that, using Obama's election as a base measurement, since November 4, 2008 there have been 39 terror plots by non-Muslim domestic extremists. By comparison, there have been 16 plots by Muslim domestic and international extremists. Each of these cases constitutes close to 50% of all violent extremism cases since 9/11/01.
The report also found “little evidence of a rise in ideological extremism. It concluded that those involved in 13 out of the 15 post-election plots (86.7%) were engaged in ideological extremism before the vote. Of the 15, 10 (66%) were engaged in ideological extremism since 2007.
It declares that Al-Qaeda does not appear to be making new ideological gains into the American Muslim community. Instead, the data is pointing toward greater numbers of longstanding ideological extremists turning to violence.
The report asserts that Muslim communities have helped foil almost one out of every three Al Qaeda-related terror plots threatening America since 9/11/01. It says this highlights the importance of law enforcement partnering with citizens through community-oriented policing.
The report recommended that the government: Expand community-oriented policing initiatives; increase support for research on combating biased policing; expand investments in better human capital acquisitions; highlight citizen contributions to national security; and reform the fusion center process to increase coordination among law enforcement communities.
The report examined the challenges posed by violent extremists in two ways. The first was by examining the quantitative and qualitative nature of terrorism trials. Second, it looked at the number of actual and attempted attacks within the United States, including a comparative analysis of incidents involving Muslim and non-Muslim perpetrators.
The report appears amidst a resurgence of anti-Muslim sentiment in the U.S. Some of this has been triggered by the proposed building of an Islamic community center two blocks from “Ground Zero”, the site where the World Trade Centers once stood.
A number of individual and community groups, including some families of 9/11 victims, have blasted the Center idea as “a celebration of Islam.” Supporters see it as a vehicle for bringing diverse faiths closer together.
In communities throughout the U.S., there have been “copycat” campaigns to thwart mosque planning or construction.
The recent American midterm elections have also provided some candidates with platforms from which to verbally attack Muslims, including Muslim-Americans. These candidates have largely been Republicans and members of the Tea Party, on the extreme right wing of the political spectrum. While a few Democrats attempted to debunk the “all Muslims are terrorists” mantra, most remained silent.
Several recent unsuccessful terrorist plots have also contributed to heightened public anxiety – and the search for scapegoats. The so-called Times Square bomber was a home-grown terrorist who admitted attending training school in Pakistan; the “underwear bomber” who attempted to bring a passenger plane down over Detriot last Christmas day was a Nigerian believed to have been trained in Yemen. Both men are Muslims.
And the successful interception of two parcel bombs shipped as cargo from Yemen further raised the public’s level of apprehension that another terrorist attack was in the making.
The backlash takes a number of forms. For example, ordinary Muslims are experiencing renewed discrimination in the workplace. The New York Times reports that Muslim workers filed a record 803 such claims in the year ended Sept. 30, 2009. That was up 20 percent from the previous year and up nearly 60 percent from 2005, according to federal data.
The Times says the number of complaints filed since then will not be announced until January,” but Islamic groups say they have received a surge in complaints recently, suggesting that 2010’s figure will set another record.”
The federal Equal Employment Opportunity Commission has filed several lawsuits connected with anti-Muslim discrimination. It sued JBS Swift, a meatpacking company, on behalf of 160 Somali immigrants; it filed a case against Abercrombie & Fitch, the
clothing retailer, for refusing to hire a Muslim who wore a head scarf; and it sued a Four Points by Sheraton hotel in Phoenix, charging that an Iraqi immigrant was called a “camel jockey.”
Finally, MPAC and similar groups are angry and disappointed at the Federal Bureau of Investigation (FBI), which has acknowledged placing “agent provocateurs” inside mosques in attempts to root out terrorists, terrorist plots, and terrorist cells.
“We feel betrayed,” says Alejandro Beutel.
A new report on the challenges posed in the U.S. by violent extremists has found that terrorism plots by non-Muslims greatly outnumber those attempted by Muslims and that Muslim-American communities helped foil close to a third of al Qaeda-related terror plots threatening America since 9/11/01.
The report comes from the Muslim Public Affairs Council (MPAC), a not-for-profit organization advocating for the civil rights of American Muslims. The report consists largely of MPAC’s "Post-9/11 Terrorism Incident Database." Reportedly the first of its kind by a Muslim-American organization, the Database tracks plots by Muslim and non-Muslim violent extremists against the United States.
The author of the report, Alejandro J. Beutel, MPAC researcher and government liaison, told IPS, “This report demonstrates the validity of two of our guiding principles.”
“The first of these is that the choice between our rights and liberties and national security is a false choice; we can have both. The second is that law enforcement will be much more successful if it treats the American Muslim community as partners, not as adversaries.”
He added, “Because of the baseless spying by the FBI on our mosques, we are very cautious about our engagement with the Bureau.”
Key findings in the report: There were 72 total plots by domestic non-Muslim perpetrators against the United States since 9/11/01. In comparison, there have been 37 total plots by domestic and international Muslim perpetrators since 9/11/01; there are at least five incidents of non-Muslim domestic extremists possessing or attempting to possess biological, chemical or radiological weapons. One of those occurred since Obama's election. No such cases involving Muslim violent extremists have been reported since 9/11/01; evidence clearly indicates a general rise in violent extremism across ideologies.
The report says that, using Obama's election as a base measurement, since November 4, 2008 there have been 39 terror plots by non-Muslim domestic extremists. By comparison, there have been 16 plots by Muslim domestic and international extremists. Each of these cases constitutes close to 50% of all violent extremism cases since 9/11/01.
The report also found “little evidence of a rise in ideological extremism. It concluded that those involved in 13 out of the 15 post-election plots (86.7%) were engaged in ideological extremism before the vote. Of the 15, 10 (66%) were engaged in ideological extremism since 2007.
It declares that Al-Qaeda does not appear to be making new ideological gains into the American Muslim community. Instead, the data is pointing toward greater numbers of longstanding ideological extremists turning to violence.
The report asserts that Muslim communities have helped foil almost one out of every three Al Qaeda-related terror plots threatening America since 9/11/01. It says this highlights the importance of law enforcement partnering with citizens through community-oriented policing.
The report recommended that the government: Expand community-oriented policing initiatives; increase support for research on combating biased policing; expand investments in better human capital acquisitions; highlight citizen contributions to national security; and reform the fusion center process to increase coordination among law enforcement communities.
The report examined the challenges posed by violent extremists in two ways. The first was by examining the quantitative and qualitative nature of terrorism trials. Second, it looked at the number of actual and attempted attacks within the United States, including a comparative analysis of incidents involving Muslim and non-Muslim perpetrators.
The report appears amidst a resurgence of anti-Muslim sentiment in the U.S. Some of this has been triggered by the proposed building of an Islamic community center two blocks from “Ground Zero”, the site where the World Trade Centers once stood.
A number of individual and community groups, including some families of 9/11 victims, have blasted the Center idea as “a celebration of Islam.” Supporters see it as a vehicle for bringing diverse faiths closer together.
In communities throughout the U.S., there have been “copycat” campaigns to thwart mosque planning or construction.
The recent American midterm elections have also provided some candidates with platforms from which to verbally attack Muslims, including Muslim-Americans. These candidates have largely been Republicans and members of the Tea Party, on the extreme right wing of the political spectrum. While a few Democrats attempted to debunk the “all Muslims are terrorists” mantra, most remained silent.
Several recent unsuccessful terrorist plots have also contributed to heightened public anxiety – and the search for scapegoats. The so-called Times Square bomber was a home-grown terrorist who admitted attending training school in Pakistan; the “underwear bomber” who attempted to bring a passenger plane down over Detriot last Christmas day was a Nigerian believed to have been trained in Yemen. Both men are Muslims.
And the successful interception of two parcel bombs shipped as cargo from Yemen further raised the public’s level of apprehension that another terrorist attack was in the making.
The backlash takes a number of forms. For example, ordinary Muslims are experiencing renewed discrimination in the workplace. The New York Times reports that Muslim workers filed a record 803 such claims in the year ended Sept. 30, 2009. That was up 20 percent from the previous year and up nearly 60 percent from 2005, according to federal data.
The Times says the number of complaints filed since then will not be announced until January,” but Islamic groups say they have received a surge in complaints recently, suggesting that 2010’s figure will set another record.”
The federal Equal Employment Opportunity Commission has filed several lawsuits connected with anti-Muslim discrimination. It sued JBS Swift, a meatpacking company, on behalf of 160 Somali immigrants; it filed a case against Abercrombie & Fitch, the
clothing retailer, for refusing to hire a Muslim who wore a head scarf; and it sued a Four Points by Sheraton hotel in Phoenix, charging that an Iraqi immigrant was called a “camel jockey.”
Finally, MPAC and similar groups are angry and disappointed at the Federal Bureau of Investigation (FBI), which has acknowledged placing “agent provocateurs” inside mosques in attempts to root out terrorists, terrorist plots, and terrorist cells.
“We feel betrayed,” says Alejandro Beutel.
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