By William Fisher
As the leader of Bahrain’s human rights movement hovers between life and death amidst a 67-day hunger strike against government autocracy, the lieutenants of this tiny country’s self-appointed king are doubling down on their pitch that the oil-rich monarchy the ideal place for Formula One Racing despite more than a year of violent unrest.
That unrest, which led to widespread arrests, torture, and more than 60 deaths, led to the cancellation of the Bahrain Grand Prix in 2011. The issue now is whether the 2012 race will ever happen. It is expected to bring $300 million into the country.
But while the race promoters and the government – and their PR machines – are trumpeting the thrills and fun of Formula One Racing, Bahrain’s human rights community, and some of the Grand Prix drivers, have taken an opposite view.
They charge that Bahrain remains a serial violator of human rights despite promises of reform and shouldn’t be hosting high-profile sporting events.
This week, David Rosenberg of The Media Line reported:
“A flurry of reports and petitions and other measures are on the way this week in a last-ditch effort to block the Formula One race scheduled for April 20-22. But Bahrain’s rulers are ahead so far: The Federation Internationale de L’Automobile (FIA), the governing body of motor sports, broke its silence in the matter and on Friday gave the go-ahead for the race to proceed on schedule.
“There is a lot more at stake than being first past the checkered flag. The chronic unrest and the government crackdown has put Bahrain into the crosshairs of the global human rights movement and weighed heavily on the economy. Staging a successful race would signal that the country’s problems are behind it and, according to the race’s local organizers, will pump almost $300 million into the economy and create the equivalent of 400 full-time jobs.”
But the Arab-Spring uprising of Bahrain’s Shiite majority against their Sunni monarch is still in full swing, despite reports to the contrary in the state-owned press. On Friday, the group organizing the race said in a statement that it should go ahead as scheduled.
But on the same day, Media Line reported that a 14-year-old boy was shot in the chest and another youth was in critical condition after being beaten during clashes between police and mourners. They were attending the funeral of a man shot during anti-government protests two weeks earlier.
Last week an explosion injured at least seven policemen in Ekar, south of the capital of Manama, a place where security forces and protesters frequently clash. In response, last Wednesday, mobs with iron rods and sticks ransacked a supermarket belonging to a major Shiite-owned business group.
Nabeel Rajab, president of the Bahrain Center for Human Rights, said the authorities were cracking down on opposition protestors ahead of the race, staging arrests and attacking demonstrators that he alleged was intended to ensure they were still convalescing by the time the Grad Prix begins, April 20.
He said peaceful and legal protests are planned during the race even as he held out hope that the last minute campaign would convince the race organizers to cancel.
“They have put profits and their interests before human rights. The situation [in Bahrain] has worsened. The number of people who were killed from the beginning of the year till now is more than people killed last year,” Rajab told The Media Line. If the race goes as planned, it will earn an image as the ‘a sport of dictators’,” he added.
The International Rehabilitation Council for Torture Victims (IRCT) reported over the weekend on the condition of Abdulhadi Abdulla Al-Khawaja, whose hunger strike reached its 67th day. The report advised the Bahraini authorities and Alkhawaja’s legal representative that Al-Khawaja is at risk of death if the hunger strike continues for any extended period. The government should also restate a commitment to ethical health care for Mr. Abdulhadi Abdulla Al-Khawaja while he is refusing food, including a commitment not to force feed him.
It said that, despite the ill-treatment to which Abdulhadi Abdulla Al-Khawaja has been subjected and the effects of prolonged food refusal, he should be able to recover from his period of fasting if he agrees to take food voluntarily very soon. On the other hand, he could suffer a serious downturn in health if he continues to refuse food, with death being imminent after more than nine weeks of hunger strike.
The government should also express a willingness to address the grievances of the prisoner since these are the core issues driving the hunger strike, the report said.
The Bahraini leaders will lose no time in telling the press that they have gone to extraordinary lengths to show that they embrace reform and wish a dialogue with protestors. The King even took the unheard-of step of appointing a task force headed by a distinguished Egyptian judge to investigate the entire uprising and recommend ways of restoring peace.
The judge reported directly to the King, saying he had found evidence of people being tortured in detention, security police firing tear gas and live rounds at peaceful protesters, and some 4,000 protestors being dismissed from their jobs, losing their university places, and being arrested and jailed. Those arrested and imprisoned include the heads of the teacher’s and nurse’s unions and many of the country’s prominent physicians.
Numerous non-governmental observers have reported that, while there seem to be a profusion of meetings being scheduled, virtual nothing in the way of reforms is becoming tangible.
One of Al-Khawaja’s daughter’s, Zainab, has been in and out of prison over the past year. She has been an active participant in peaceful demonstrations. The country’s Shia majority has been demonstrating against what they consider to be the government’s discrimination against them in securing top jobs, better housing, and bank credit.
Bahrain enjoys strategic prominence in the Gulf, as it is the headquarters of the US Fifth Fleet.
The pressure on Bahrain has grown intense and appears poised to continue. Shortly before the Grand Prix, Amnesty International will publish a report
documenting “patterns of human rights violations” and providing testimonies of “victims of human rights violations who are still awaiting justice.” Amnesty says hundreds of protesters are still in prison after being tried unfairly in military courts, dozens for life. The government’s promise to reinstate all those who have been dismissed from work or university for participating in protests is yet to be fulfilled, it said.
Meanwhile, Reporters without Borders is launching an on-line petition condemning Bahrain’s “appallingly repressive policies.”
Physicians for Human Rights, meanwhile, has been pressing for release of al-Khawaja, the hunger-striker, who has been sentenced to life in prison.
Joe Stork, the deputy Middle East director of Human Rights Watch, said he thought the FIA organizers should think twice.
“This seems to be a terrible climate in which to hold what is supposed to be a competitive, festive sporting event. In the circumstances, I don't know who is going to be having any fun,” Stork said.
Meanwhile, the government’s US and UK-based PR firms continued to make their pitch. At home, local organizers have been sending the official race mascot to schools around the country to gin up enthusiasm for the race.
But overseas media have also shown considerable interest in the story. Media Line reported that McLaren team drivers Lewis Hamilton and Jenson Button walked out of Friday’s press conference when a reporter began question with, “Sixty people have died in 12 months…” A press handler stepped in before the report could ask the questions and announced, “They’ve got to go…” ushering them out of the room. The team is 40%-owned by Bahrain’s sovereign wealth fund.
The ambivalence of the drivers is exemplified by sports commentator Damon Hill, the 1996 Formula One champion. In early April, he told the British newspaper, The Guardian, he had misgivings about the race. “It would be a bad state of affairs, and bad for Formula One, to be seen to be enforcing martial law in order to hold the race. That is not what this sport hould be about.”
But a day after the FIA decision he changed his mind.
“All the arguments have been made for and against. Human rights organizations have had their cases heard. No one is under any illusions about the situation. But the less vocal majority of Bahrainis also have a right to get on with their lives and we also have a responsibility to our F1 fans in the region,” Hill said a statement issued by a Bahrain International Circuit, the local Formula One sponsor.
At least 35 people died during protests in February-March 2011, including five security officers. More than 4,000 people, among them teachers, students, nurses and people working for the local Formula One sponsor, were dismissed from their jobs or university for taking part in the anti-government protests.
Last year, the Gulf Cooperation Council (GCC) ordered a force led by Saudi Arabia to travel the short causeway between Saudi Arabia and Bahrain to quell the disturbances.
Sunday, April 15, 2012
Wednesday, April 11, 2012
How the ’War On Drugs’ Hijacks What May Be Young People’s Last Chance to Save Their Future.
By William Fisher
Acknowledging that he had just imposed an “unjust sentence” on a low-level drug dealer, a Federal Judge is charging that he had no choice because US Attorney General Eric Holder has failed to make good on his promise to change the rules.
The unjust sentence – five years in prison – was meted out by Federal District Court Judge John Gleeson to Jamel Dossie, a young, small-time, street-level drug dealer’s assistant.
In his sentencing report, the judge has taken a relatively rare action: He has singled out AG Holder, by name, for failure to make the “relatively modest” changes needed to ensure that sentences will be given to those intended by Congress, and not simply regarded as another victory by federal prosecutors.
Judge Gleeson notes that Dossie was sentenced under a law designed for leaders or managers of drug businesses, adding, “No one could reasonably characterize him as a leader or manager of anything, let alone of a drug business. Like many young men in our community, he was in the drug business because he is a drug user.”
Dossie thus became a victim of Congress’s “war on drugs.” For many headline-hungry members of Congress, the drug war is a gift that keeps on giving. Being seen to be “tough on crime” generates press releases, floor statements, and media interviews.
It was to fight that war that Congress, in 1986, passed the Anti-Drug Abuse Act, (ADAA), which first established mandatory minimum sentences and enhanced maximum sentences for drug-related offenses. From that point forward, judges were largely stripped of their discretion to modify sentences to fit the crime and the criminal. Though the law contains some cases in which Judges can take account of mitigating circumstances, they were largely mandated to follow the rules established by Congress. For example:
The ADAA’s five-year minimum sentence, with a maximum enlarged from 20 to 40 years (the “5-to-40 sentence enhancement” or the “five-year mandatory minimum”), was specifically intended for the managers of drug enterprises, while the Act’s ten-year minimum sentence with life as the maximum (the “ten-to-life sentence enhancement” or the “ten-year mandatory minimum”) was intended for the organizers and leaders.
Dossie was neither, Judge Gleeson said.
He explained that if he did not have to impose this mandatory minimum, Dossie would be sentenced under sentencing Guidelines that are advisory, not mandatory. Dossie’s Guidelines range was 57-71 months, Judge Gleeson said he would have imposed a lower sentence, as he believes that range would be “too severe for a low-level addict selling drugs on the street.” But the prosecutor’s decision to use his discretion to apply the mandatory minimum to the case tied Judge Gleeson’s hands.
Two Bad Breaks
“But Dossie caught two bad breaks,” Judge Gleeson wrote.” First, as the prosecutor pointed out at his sentencing, two of his four crack sales happened to exceed the threshold quantity of 28 grams that can trigger the five-year mandatory minimum. They only barely exceeded it – sales three and four put Dossie in mandatory minimum territory by only 1.6 and 5.5 grams, respectively – but just as baseball is a game of inches, our drug-offense mandatory minimum provisions create a deadly serious game of grams. The conspiracy charge to which Dossie pled guilty also aggregates all 88.1 grams, rendering him eligible for the mandatory minimum on that basis as well.”
Judge Gleeson says, “This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. They make opaque what [the original anti-drug law] was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” – to borrow a phrase from Attorney General Eric H. Holder, Jr. – because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.”
But Judge Gleeson adds that “there is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by instructing Department of Justice prosecutors to cite the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role, citing the five-year mandatory minimum only when the government intends to prove a managerial role, and withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.”
The Judge called on the Attorney General to implement such a policy. “It is a modest request,” he said. “It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair.”
This kind of reform “would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one,” the judge said, adding:
“Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.”
Judge Gleeson, who was appointed to the Bench by President Bill Clinton, said Congress made a mistake in mandating severe sentences to punish specified roles in drug-trafficking offenses. The sentencing regimen was “triggered not by role but by drug type and quantity instead. If it wanted the statute to serve its explicitly stated purpose, Congress should have said that an offense gets the 5-to-40 sentence enhancement when the defendant is proved to be a manager of a drug business.” But no such proof is necessary; the statute uses quantity as a proxy for conduct.
“So if an offense happens to involve a drug type and quantity that triggers an enhancement, every defendant involved in that crime, whatever his or her actual role, can be treated as a leader or manager at the option of the United States Attorney.”
But “Drug quantity is a poor proxy for culpability generally and for a defendant’s role in a drug business in particular,” Judge Gleeson declares. For example, a low-level member of a drug gang could be ordered by a “king pin” to sell a high quantity of drugs.
However, he adds, “Congress’s mistake of equating drug quantity with a defendant’s role in the offense need not continue to have the devastating consequences on display in this case. If DOJ invokes the harsh sentence enhancements only in cases in which the defendants have supervisory roles – always fewer than 10% of federal drug cases – such unintended and unjust results can be avoided in the future.”
But “in deploying the mandatory minimum penalties, DOJ has disregarded their purpose. It has turned a law that sought to impose enhanced penalties on a select few into a sentencing regime that imposes them on a great many, producing unfairly harsh consequences that Congress did not intend.”
The DOJ uses mandatory minimum sentences “without regard to their purpose,” the Judge notes. He says that in fiscal year (“FY”) 2011, over 74% of crack defendants faced a mandatory minimum, yet only 5.4% of them occupied an aggravating role of leader or manager of a drug business.”
“Thus, the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties. The ‘safety valve’” provision that was supposed to save minor defendants from the two-by-four that a mandatory minimum becomes on sentencing day has too many conditions to be effective.”
“Even though more than 94% of crack defendants have no leadership or managerial role, fewer than 10% of such defendants qualify for the safety valve.”
Dossie’s sole function was to ferry money to the supplier and crack to the informant on four occasions for a total gain to himself of $140, the judge said.
Despite the harsh Guidelines range, Dossie would have had access to justice if he had not been charged with the five-year mandatory minimum enacted for drug business managers, the Judge noted.
Second Bad Break
Dossie’s second bad break occurred when the government chose to cite the mandatory minimum provision in the indictment. If it hadn’t, I would have been permitted, indeed obligated, to consider, among others, the facts that (1) Dossie had a very minor role in the offense; (2) the drugs he helped to sell weren’t his, and he got hardly any money for his involvement; (3) Dossie got off to a very rocky start in life – there’s no surer sign of a dysfunctional childhood than a family court judge ordering a 16-year-old out of his home and into a residential drug treatment program; (4) Dossie’s criminal record and unsuccessful drug treatment suggest strongly that his legal problems all arose from a drug problem he developed as a child; (5) Dossie is from a very supportive family – his family made all of his court appearances – which could very well have provided the support he needs to get and remain drug-free; and (6) Dossie is genuinely remorseful.
Judge Gleeson says, “I would have considered all of these factors in sentencing Dossie, and there is no way I would have sentenced him to a prison term within the severe advisory range. I might even have given him the chance to enter our Court’s Pretrial Opportunity Program, which would have given Dossie the chance to both conquer his substance abuse problem and avoid prison altogether.”
(The Pretrial Opportunity Program is designed for nonviolent defendants with documented substance abuse problems. Participating defendants have their sentences postponed to engage in drug treatment that involves monthly meetings with the sentencing judge and the Chief Magistrate Judge of the district. The program relies on drug court methodologies that have been proven successful in many state criminal justice systems. If the defendant successfully completes the program by, inter alia, staying drug-free for at least one year, the post-arrest rehabilitation is considered by the sentencing judge.)
“Instead, we had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy, and no judging. The defense lawyer stated the obvious: The five-year mandatory minimum was more than necessary to properly punish Dossie. The prosecutor agreed that the mandatory minimum of five years should be the sentence. So that was the sentence. The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time,” the Judge said.
He declared that, “When I observed at Dossie’s sentencing that the five-year mandatory minimum was being used by the government to overly punish a defendant for whom it was not intended, the prosecutor assured me that there were “other factors” that justified the mandatory five-year penalty. Specifically, the colloquy went as follows:
The Court: He’s not a kingpin or a manager, he’s a street-level dealer, and one would think that if a 60-month sentence were appropriate you’d talk the judge into it rather than bind the judge into it. I think it’s an inappropriate exercise of discretion given the purpose of these laws.
The Prosecutor: Well, I think in terms of the exercise of discretion, I don’t think that the only question from the office’s perspective is what the quantity involved is. I think there are a lot of other factors and information that go into it. And because we’re not relying on any of that at sentencing I wouldn’t necessarily belabor it, but I think there are other factors that go into a charging decision and I can represent to the Court that there are besides just mere quantity.
The Judge says the Dossie case reveals how mandatory-minimum provisions create the ultimate opaque sentencing regime: “No explanation is required for why Dossie must do five years, none of the ‘factors’” that went into the selection of that sentence was offered, and appellate review is impossible.”
He explains that “When I pressed the government further, the prosecutor reluctantly implied that the decision to charge Dossie with the mandatory minimum might have related to “information that. . . link[s] him to a gang.” I agree that if Dossie were dealing drugs as his way of participating in a gang, that would be a relevant, aggravating sentencing consideration. I think any judge would want to know facts like what sort of gang it was, what Dossie’s alleged link to it was, how long any such link lasted, and how Dossie’s actions as a middleman in street-level drug deals were related to the gang. But in this respect as well, Dossie’s case places in clear relief the insidious consequences of mandatory sentencing provisions.”
He concludes, “If not for the mandatory minimum, Dossie would have had the opportunity to contest the government’s suggestion that his offense was gang-related, and the government would have had the obligation to prove it.” In Dossie’s case, the government’s unreviewable decision to invoke the mandatory sentencing provision made the actual facts irrelevant. Dossie might have denied a gang affiliation or that any such affiliation had anything to do with his offense. The government might not have been able to prove its suggestion that Dossie was linked to a gang. Dossie, for all we know, might even have been able to affirmatively disprove the link. But because a mandatory minimum was involved and everyone agreed that Dossie should not be sentenced above that minimum, none of these facts mattered. The government simply dictated a five-year sentence without even having to allege, let alone prove, the aggravating fact that it implied warranted the sentence.”
Mandatory Injustice
“There is no fairness in a system that allows [this] to happen,” Judge Gleeson wrote. “I am mindful of the fact that federal prosecutors find significant value in the way that charging mandatory minimum sentences helps them solicit the cooperation of defendants,” he wrote.
As a former Republican member of Congress testified last year before a subcommittee of the House Committee on Appropriations, drug courts are proven solutions – from both the fiscal and public-safety perspectives – to the problems created by substance abusers committing crimes. Drug courts and other alternatives to incarceration reduce substance abuse and crime more effectively and much less expensively than incarceration, probation, or treatment programs not involving judicial participation.
“But the benefits of drug treatment and drug courts as alternatives to incarceration for nonviolent offenders are unavailable when DOJ itself mandates incarceration by invoking mandatory minimum sentences. Those provisions continue to be routinely invoked by DOJ against nonviolent, low-level offenders, even though it is crystal clear that Congress did not intend them to be used against such defendants. The result: Judges are removed from the sentencing process, along with transparency, appellate review, and, most importantly, justice.”
For these routine crimes, “Young men like Jamel Dossie end up losing out on what may be their last chance to save their future,” according to AG Holder.
A number of well-respected legal experts were consulted in researching this article. One of them was Brian Foley, currently a Professor of Law at Florida Coastal School of Law. This is his take on mandatory minimum sentencing:
“Mandatory minimums tie judges’ hands and turn sentencing into a robotic, mechanical act. There is no mercy – there is not even any thinking – when a judge is required to impose a mandatory minimum. These sentences are created by legislators far away from the people the laws affect, legislators influenced by beliefs that prison is the only solution to crime,” Foley said. “And these mandatory minimums get harsher and harsher. Not because we have more crime, but because of what has been called a ‘ratchet effect’: Each legislative session has to be tougher on crime than the previous session,” Foley said.
As a result, we have arrived at the “runaway legislature” that the Framers dreaded, as described by the United States Supreme Court 100 years ago: “With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they might, what more potent instrument of cruelty could be put into the hands of power?”
Careful inquiry in many cases would show that incarceration is unnecessary and cruel, Foley asserts. “So would a little mercy – a word we don’t hear anymore in the context of our so-called justice system,” he said.
Acknowledging that he had just imposed an “unjust sentence” on a low-level drug dealer, a Federal Judge is charging that he had no choice because US Attorney General Eric Holder has failed to make good on his promise to change the rules.
The unjust sentence – five years in prison – was meted out by Federal District Court Judge John Gleeson to Jamel Dossie, a young, small-time, street-level drug dealer’s assistant.
In his sentencing report, the judge has taken a relatively rare action: He has singled out AG Holder, by name, for failure to make the “relatively modest” changes needed to ensure that sentences will be given to those intended by Congress, and not simply regarded as another victory by federal prosecutors.
Judge Gleeson notes that Dossie was sentenced under a law designed for leaders or managers of drug businesses, adding, “No one could reasonably characterize him as a leader or manager of anything, let alone of a drug business. Like many young men in our community, he was in the drug business because he is a drug user.”
Dossie thus became a victim of Congress’s “war on drugs.” For many headline-hungry members of Congress, the drug war is a gift that keeps on giving. Being seen to be “tough on crime” generates press releases, floor statements, and media interviews.
It was to fight that war that Congress, in 1986, passed the Anti-Drug Abuse Act, (ADAA), which first established mandatory minimum sentences and enhanced maximum sentences for drug-related offenses. From that point forward, judges were largely stripped of their discretion to modify sentences to fit the crime and the criminal. Though the law contains some cases in which Judges can take account of mitigating circumstances, they were largely mandated to follow the rules established by Congress. For example:
The ADAA’s five-year minimum sentence, with a maximum enlarged from 20 to 40 years (the “5-to-40 sentence enhancement” or the “five-year mandatory minimum”), was specifically intended for the managers of drug enterprises, while the Act’s ten-year minimum sentence with life as the maximum (the “ten-to-life sentence enhancement” or the “ten-year mandatory minimum”) was intended for the organizers and leaders.
Dossie was neither, Judge Gleeson said.
He explained that if he did not have to impose this mandatory minimum, Dossie would be sentenced under sentencing Guidelines that are advisory, not mandatory. Dossie’s Guidelines range was 57-71 months, Judge Gleeson said he would have imposed a lower sentence, as he believes that range would be “too severe for a low-level addict selling drugs on the street.” But the prosecutor’s decision to use his discretion to apply the mandatory minimum to the case tied Judge Gleeson’s hands.
Two Bad Breaks
“But Dossie caught two bad breaks,” Judge Gleeson wrote.” First, as the prosecutor pointed out at his sentencing, two of his four crack sales happened to exceed the threshold quantity of 28 grams that can trigger the five-year mandatory minimum. They only barely exceeded it – sales three and four put Dossie in mandatory minimum territory by only 1.6 and 5.5 grams, respectively – but just as baseball is a game of inches, our drug-offense mandatory minimum provisions create a deadly serious game of grams. The conspiracy charge to which Dossie pled guilty also aggregates all 88.1 grams, rendering him eligible for the mandatory minimum on that basis as well.”
Judge Gleeson says, “This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. They make opaque what [the original anti-drug law] was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” – to borrow a phrase from Attorney General Eric H. Holder, Jr. – because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.”
But Judge Gleeson adds that “there is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it. He can do so by instructing Department of Justice prosecutors to cite the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role, citing the five-year mandatory minimum only when the government intends to prove a managerial role, and withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.”
The Judge called on the Attorney General to implement such a policy. “It is a modest request,” he said. “It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted. By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair.”
This kind of reform “would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one,” the judge said, adding:
“Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.”
Judge Gleeson, who was appointed to the Bench by President Bill Clinton, said Congress made a mistake in mandating severe sentences to punish specified roles in drug-trafficking offenses. The sentencing regimen was “triggered not by role but by drug type and quantity instead. If it wanted the statute to serve its explicitly stated purpose, Congress should have said that an offense gets the 5-to-40 sentence enhancement when the defendant is proved to be a manager of a drug business.” But no such proof is necessary; the statute uses quantity as a proxy for conduct.
“So if an offense happens to involve a drug type and quantity that triggers an enhancement, every defendant involved in that crime, whatever his or her actual role, can be treated as a leader or manager at the option of the United States Attorney.”
But “Drug quantity is a poor proxy for culpability generally and for a defendant’s role in a drug business in particular,” Judge Gleeson declares. For example, a low-level member of a drug gang could be ordered by a “king pin” to sell a high quantity of drugs.
However, he adds, “Congress’s mistake of equating drug quantity with a defendant’s role in the offense need not continue to have the devastating consequences on display in this case. If DOJ invokes the harsh sentence enhancements only in cases in which the defendants have supervisory roles – always fewer than 10% of federal drug cases – such unintended and unjust results can be avoided in the future.”
But “in deploying the mandatory minimum penalties, DOJ has disregarded their purpose. It has turned a law that sought to impose enhanced penalties on a select few into a sentencing regime that imposes them on a great many, producing unfairly harsh consequences that Congress did not intend.”
The DOJ uses mandatory minimum sentences “without regard to their purpose,” the Judge notes. He says that in fiscal year (“FY”) 2011, over 74% of crack defendants faced a mandatory minimum, yet only 5.4% of them occupied an aggravating role of leader or manager of a drug business.”
“Thus, the overwhelming majority of crack defendants who feel the pain of mandatory prison terms are not the criminals Congress had in mind in creating those penalties. The ‘safety valve’” provision that was supposed to save minor defendants from the two-by-four that a mandatory minimum becomes on sentencing day has too many conditions to be effective.”
“Even though more than 94% of crack defendants have no leadership or managerial role, fewer than 10% of such defendants qualify for the safety valve.”
Dossie’s sole function was to ferry money to the supplier and crack to the informant on four occasions for a total gain to himself of $140, the judge said.
Despite the harsh Guidelines range, Dossie would have had access to justice if he had not been charged with the five-year mandatory minimum enacted for drug business managers, the Judge noted.
Second Bad Break
Dossie’s second bad break occurred when the government chose to cite the mandatory minimum provision in the indictment. If it hadn’t, I would have been permitted, indeed obligated, to consider, among others, the facts that (1) Dossie had a very minor role in the offense; (2) the drugs he helped to sell weren’t his, and he got hardly any money for his involvement; (3) Dossie got off to a very rocky start in life – there’s no surer sign of a dysfunctional childhood than a family court judge ordering a 16-year-old out of his home and into a residential drug treatment program; (4) Dossie’s criminal record and unsuccessful drug treatment suggest strongly that his legal problems all arose from a drug problem he developed as a child; (5) Dossie is from a very supportive family – his family made all of his court appearances – which could very well have provided the support he needs to get and remain drug-free; and (6) Dossie is genuinely remorseful.
Judge Gleeson says, “I would have considered all of these factors in sentencing Dossie, and there is no way I would have sentenced him to a prison term within the severe advisory range. I might even have given him the chance to enter our Court’s Pretrial Opportunity Program, which would have given Dossie the chance to both conquer his substance abuse problem and avoid prison altogether.”
(The Pretrial Opportunity Program is designed for nonviolent defendants with documented substance abuse problems. Participating defendants have their sentences postponed to engage in drug treatment that involves monthly meetings with the sentencing judge and the Chief Magistrate Judge of the district. The program relies on drug court methodologies that have been proven successful in many state criminal justice systems. If the defendant successfully completes the program by, inter alia, staying drug-free for at least one year, the post-arrest rehabilitation is considered by the sentencing judge.)
“Instead, we had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy, and no judging. The defense lawyer stated the obvious: The five-year mandatory minimum was more than necessary to properly punish Dossie. The prosecutor agreed that the mandatory minimum of five years should be the sentence. So that was the sentence. The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time,” the Judge said.
He declared that, “When I observed at Dossie’s sentencing that the five-year mandatory minimum was being used by the government to overly punish a defendant for whom it was not intended, the prosecutor assured me that there were “other factors” that justified the mandatory five-year penalty. Specifically, the colloquy went as follows:
The Court: He’s not a kingpin or a manager, he’s a street-level dealer, and one would think that if a 60-month sentence were appropriate you’d talk the judge into it rather than bind the judge into it. I think it’s an inappropriate exercise of discretion given the purpose of these laws.
The Prosecutor: Well, I think in terms of the exercise of discretion, I don’t think that the only question from the office’s perspective is what the quantity involved is. I think there are a lot of other factors and information that go into it. And because we’re not relying on any of that at sentencing I wouldn’t necessarily belabor it, but I think there are other factors that go into a charging decision and I can represent to the Court that there are besides just mere quantity.
The Judge says the Dossie case reveals how mandatory-minimum provisions create the ultimate opaque sentencing regime: “No explanation is required for why Dossie must do five years, none of the ‘factors’” that went into the selection of that sentence was offered, and appellate review is impossible.”
He explains that “When I pressed the government further, the prosecutor reluctantly implied that the decision to charge Dossie with the mandatory minimum might have related to “information that. . . link[s] him to a gang.” I agree that if Dossie were dealing drugs as his way of participating in a gang, that would be a relevant, aggravating sentencing consideration. I think any judge would want to know facts like what sort of gang it was, what Dossie’s alleged link to it was, how long any such link lasted, and how Dossie’s actions as a middleman in street-level drug deals were related to the gang. But in this respect as well, Dossie’s case places in clear relief the insidious consequences of mandatory sentencing provisions.”
He concludes, “If not for the mandatory minimum, Dossie would have had the opportunity to contest the government’s suggestion that his offense was gang-related, and the government would have had the obligation to prove it.” In Dossie’s case, the government’s unreviewable decision to invoke the mandatory sentencing provision made the actual facts irrelevant. Dossie might have denied a gang affiliation or that any such affiliation had anything to do with his offense. The government might not have been able to prove its suggestion that Dossie was linked to a gang. Dossie, for all we know, might even have been able to affirmatively disprove the link. But because a mandatory minimum was involved and everyone agreed that Dossie should not be sentenced above that minimum, none of these facts mattered. The government simply dictated a five-year sentence without even having to allege, let alone prove, the aggravating fact that it implied warranted the sentence.”
Mandatory Injustice
“There is no fairness in a system that allows [this] to happen,” Judge Gleeson wrote. “I am mindful of the fact that federal prosecutors find significant value in the way that charging mandatory minimum sentences helps them solicit the cooperation of defendants,” he wrote.
As a former Republican member of Congress testified last year before a subcommittee of the House Committee on Appropriations, drug courts are proven solutions – from both the fiscal and public-safety perspectives – to the problems created by substance abusers committing crimes. Drug courts and other alternatives to incarceration reduce substance abuse and crime more effectively and much less expensively than incarceration, probation, or treatment programs not involving judicial participation.
“But the benefits of drug treatment and drug courts as alternatives to incarceration for nonviolent offenders are unavailable when DOJ itself mandates incarceration by invoking mandatory minimum sentences. Those provisions continue to be routinely invoked by DOJ against nonviolent, low-level offenders, even though it is crystal clear that Congress did not intend them to be used against such defendants. The result: Judges are removed from the sentencing process, along with transparency, appellate review, and, most importantly, justice.”
For these routine crimes, “Young men like Jamel Dossie end up losing out on what may be their last chance to save their future,” according to AG Holder.
A number of well-respected legal experts were consulted in researching this article. One of them was Brian Foley, currently a Professor of Law at Florida Coastal School of Law. This is his take on mandatory minimum sentencing:
“Mandatory minimums tie judges’ hands and turn sentencing into a robotic, mechanical act. There is no mercy – there is not even any thinking – when a judge is required to impose a mandatory minimum. These sentences are created by legislators far away from the people the laws affect, legislators influenced by beliefs that prison is the only solution to crime,” Foley said. “And these mandatory minimums get harsher and harsher. Not because we have more crime, but because of what has been called a ‘ratchet effect’: Each legislative session has to be tougher on crime than the previous session,” Foley said.
As a result, we have arrived at the “runaway legislature” that the Framers dreaded, as described by the United States Supreme Court 100 years ago: “With power in a legislature great, if not unlimited, to give criminal character to the actions of men, with power unlimited to fix terms of imprisonment with what accompaniments they might, what more potent instrument of cruelty could be put into the hands of power?”
Careful inquiry in many cases would show that incarceration is unnecessary and cruel, Foley asserts. “So would a little mercy – a word we don’t hear anymore in the context of our so-called justice system,” he said.
Ozzie: Open Mouth, Insert Foot?
By William Fisher
So is there a difference between the US government officials calling former Egyptian President Hosni Mubarak a loyal ally and praising him for maintaining stability among his neighbors, and Ozzie Guillen, who has been suspended for five games by his new team, The Florida Marlins, for telling TIME magazine that he admired and respected Cuba’s Fidel Castro?
Well, yes and no.
Yes, there’s a difference because Guillen was hired specifically to strengthen the Marlins’ fan base, which is overwhelmingly Cuban-American. On the day after, Ozzie was back-pedaling as fast as he could go, blaming his imperfect skills at translating his native Spanish into English.
And, to be blunt about it, the Marlins’ ownership had to be well prepared for Guillen’s outbursts. The Columbian-born manager has made the loud mouth his “brand” for years. Part of the fun of watching a White Sox game was keeping an eye on Ozzie to see when he would boil over. And he usually didn’t disappoint, though his rants have been about baseball, not politics.
But on the other hand, Ozzie is an American citizen and is entitled to all our First Amendment protections. By Day Two, the furious initial public outcry – “Fire Him” – seemed to morph into slightly more balanced comments, with many news readers pointing out that Ozzie has a First Amendment right to say anything he wants, about anyone of his choosing, anywhere he wants to say it, no matter how wise or stupid.
Does anyone remember when superstar Albert Puhols and Cardinals’ Manager Tony LaRussa ran off to Washington DC to attend a rally being staged by that squeaky-clean. totally apolitical vaudeville act named Glenn Beck.
Where was the outcry from the Cardinals? From the fans? From anyone? Except for the few Democrats who live in Missouri, there was none. LaRussa told the Cards that he and Pujols are attending only after receiving assurances that the event would not be a thinly disguised political rally. When was the last Glenn Beck bash that wasn’t political? While liberal critics portrayed the three-hour event as a platform for the conservative Tea Party movement, the Cards didn’t seem worried at all, perhaps expressing their intuitive right-wing Republican proclivities.
I would just as soon not hear baseball players or other sports figures talk about politics – but that’s because I tend not to like their politics. But if that’s what they want to do, I wish them Godspeed.
The 1.2 million Cuban Americans who live in Marlins’ territory have long ago become comfortable with the idea that their tiny constituency in effect controls US foreign policy 90 miles from our shores. The Marlins simply released a statement of their own in response to Guillen's comments in the magazine: “There is nothing to respect about Fidel Castro.
“He is a brutal dictator who has caused unthinkable pain for more than 50 years. We live in a community filled with victims of this dictatorship, and the people in Cuba continue to suffer today.”
But I hope that players and managers – Ozzie most of all – understand that baseball is a business. If the athletes intend to speak out on public policy issues, I would hope that they would think carefully about what they want to communicate, be kind and diplomatic, and temper their rants with a healthy dose of respect for the Cuban Americans who are Ozzie’s ultimate employers. Those of us who love baseball want to see Ozzie managing the Marlins.
Maybe today’s Miami Herald had it just about right. It said this morning, “Ozzie Guillen made a mistake – about as big a mistake as you can make in Miami. Now it is time for Miami to be bigger than that mistake. It is time to accept his apology as sincere and move on.”
So is there a difference between the US government officials calling former Egyptian President Hosni Mubarak a loyal ally and praising him for maintaining stability among his neighbors, and Ozzie Guillen, who has been suspended for five games by his new team, The Florida Marlins, for telling TIME magazine that he admired and respected Cuba’s Fidel Castro?
Well, yes and no.
Yes, there’s a difference because Guillen was hired specifically to strengthen the Marlins’ fan base, which is overwhelmingly Cuban-American. On the day after, Ozzie was back-pedaling as fast as he could go, blaming his imperfect skills at translating his native Spanish into English.
And, to be blunt about it, the Marlins’ ownership had to be well prepared for Guillen’s outbursts. The Columbian-born manager has made the loud mouth his “brand” for years. Part of the fun of watching a White Sox game was keeping an eye on Ozzie to see when he would boil over. And he usually didn’t disappoint, though his rants have been about baseball, not politics.
But on the other hand, Ozzie is an American citizen and is entitled to all our First Amendment protections. By Day Two, the furious initial public outcry – “Fire Him” – seemed to morph into slightly more balanced comments, with many news readers pointing out that Ozzie has a First Amendment right to say anything he wants, about anyone of his choosing, anywhere he wants to say it, no matter how wise or stupid.
Does anyone remember when superstar Albert Puhols and Cardinals’ Manager Tony LaRussa ran off to Washington DC to attend a rally being staged by that squeaky-clean. totally apolitical vaudeville act named Glenn Beck.
Where was the outcry from the Cardinals? From the fans? From anyone? Except for the few Democrats who live in Missouri, there was none. LaRussa told the Cards that he and Pujols are attending only after receiving assurances that the event would not be a thinly disguised political rally. When was the last Glenn Beck bash that wasn’t political? While liberal critics portrayed the three-hour event as a platform for the conservative Tea Party movement, the Cards didn’t seem worried at all, perhaps expressing their intuitive right-wing Republican proclivities.
I would just as soon not hear baseball players or other sports figures talk about politics – but that’s because I tend not to like their politics. But if that’s what they want to do, I wish them Godspeed.
The 1.2 million Cuban Americans who live in Marlins’ territory have long ago become comfortable with the idea that their tiny constituency in effect controls US foreign policy 90 miles from our shores. The Marlins simply released a statement of their own in response to Guillen's comments in the magazine: “There is nothing to respect about Fidel Castro.
“He is a brutal dictator who has caused unthinkable pain for more than 50 years. We live in a community filled with victims of this dictatorship, and the people in Cuba continue to suffer today.”
But I hope that players and managers – Ozzie most of all – understand that baseball is a business. If the athletes intend to speak out on public policy issues, I would hope that they would think carefully about what they want to communicate, be kind and diplomatic, and temper their rants with a healthy dose of respect for the Cuban Americans who are Ozzie’s ultimate employers. Those of us who love baseball want to see Ozzie managing the Marlins.
Maybe today’s Miami Herald had it just about right. It said this morning, “Ozzie Guillen made a mistake – about as big a mistake as you can make in Miami. Now it is time for Miami to be bigger than that mistake. It is time to accept his apology as sincere and move on.”
Wednesday, April 04, 2012
Amnesty Urges Halt in Immigration Enforcement; Calls for I.G. Inspection
By William Fisher
Amnesty International USA is calling on the Obama Administration to suspend and review all immigration enforcement programs to halt what it describes as “a pattern of human rights violations.”
In a new report, “In Hostile Terrain: Human Rights Violations in Immigration Enforcement in the U.S. Southwest,” the organization highlights “systemic failures of federal, state and local authorities to enforce immigration laws” equitably and without racial and ethnic profiling. The Report is based on an intensive study of conditions in Arizona and Texas.
Communities living along the U.S.-Mexico border, particularly Latinos, individuals perceived to be of Latino origin and Indigenous communities, are disproportionately affected by a range of immigration control measures, resulting in a pattern of human rights violations, Amnesty reports.
Among the many findings, the report illustrates that “The United States is failing in its obligations to respect immigrants' right to life, ensure access to justice for immigrant survivors of crime, particularly women and children, and recognize the border crossing rights of indigenous communities.”
The Report charges that, according to the U.S. government, “there are approximately 14,500-17,500 people trafficked into the United States each year for labor or sexual exploitation. However, it says, “Barriers caused by breakdowns in the system that identify immigrant survivors of trafficking leave many without any relief from immigration detention and deportation. Of the 5,000 T-visas available annually to survivors of human trafficking, statistics show that only six percent are actually utilized.”
A woman named Carolina is a case in point. Carolina is a Honduran native who was brought to the United States after being repeatedly sold for sex, beaten and drugged, was held for six months in detention in Pearsall, Texas, after immigration agents found her in the trunk of a car crossing the U.S.-Mexico border. While detained, Carolina was denied certification as a trafficking victim because she had originally wanted to come to the United States voluntarily before she was sold into sexual slavery and trafficked into the country.
It was only after a review of her case in February 2011, more than two years after she was discovered in a car trunk, that Carolina's trafficking victim visa was approved, allowing her to remain in the United States and become eligible for mental health and support services. "Now, I can finally begin to heal," Carolina said following her release from detention.
"The culture around immigration in the United States has created a perfect storm — survivors of trafficking and other crimes like domestic violence are increasingly seen as criminals rather than as victims,” said attorney Justin Mazzola, Amnesty International researcher and lead author of the report.
He added, “At the same time, fewer people are willing to report such crimes, as they feel it may expose them to immigration enforcement. In addition, many feel that police will be unable or unwilling to help.”
Immigration control measures increasingly jeopardize individuals' right to life when crossing the border. U.S. policies intentionally reroute migrants from traditional entry points to the most hostile terrain in the Southwest United States, including crossings over vast deserts, rivers and high mountains in searing heat. From 1998 to 2008, as many as 5,287 migrants died while attempting to cross the U.S.-Mexico border.
The report finds that indigenous communities are left particularly vulnerable to discrimination and other abuses stemming from immigration enforcement. Indigenous peoples, whose traditional territories and cultural communities span the U.S.-Mexico border and necessitate frequent crossings, are often intimidated and harassed by border officials for speaking little Spanish or English and holding only tribal identification documents.
Furthermore, federal immigration programs that engage state and local police in enforcing immigration laws place Latino communities, Indigenous communities and communities of color along the border at risk of discriminatory profiling.
To correct that specific problem, AI is calling on US Customs and Border Protection to work with Tribal Authorities to develop programs to and facilitate the use of Indigenous/ Tribal passports, identity papers and immigration documents for travel across borders, specifically for Tribes in the southwestern border area.
The DHS should ensure that qualifications for these documents are not so burdensome as to create a barrier for Indigenous people to qualify, the report says.
“Because monitoring and oversight of these immigration programs is vastly inadequate, those responsible for human rights abuses are rarely held to account. As a result, such practices, including targeting individuals based on their perceived ethnicity, have become commonplace and entrenched, fostering a culture of impunity that perpetuates discriminatory profiling,” Mazzola said.
The recent proliferation of state laws that target immigrants place them at further risk of discrimination and impedes their right to access education and essential health care services,” he added.
Among its recommendations, in addition to suspending immigration enforcement programs pending a review by the Inspector General, Amnesty is urging the U.S. government to pass legislation that guarantees equitable access to justice and protection for survivors of crime’ respect and facilitate the use of indigenous identity papers and immigration documents for travel across borders; and to ensure, as a matter of priority, that its border policies and practices do not have the direct or indirect effect of leading to the deaths of migrants.
Harassment and racial profiling are everyday inconveniences – and worse – for people in the border region. For example, in April 2011, a person we’ll call Alfred – a US citizen of Dominican descent, went to assist three of his father’s employees who had been involved in a car accident. The Texas State Trooper responded to the accident and was already at the scene when Alfredo arrived. Alfredo described to Amnesty International how the trooper continually delayed completing the accident report: “I thought it was a typical accident but it took longer... I asked the Trooper how long we would have to stay and he said, ‘just a little more’ and never said why.”
After about three hours, four sheriff’s deputies arrived and surrounded Alfredo and the rest of the group with their vehicles. Minutes later an unmarked silver pick-up truck pulled up and a man got out who was dressed in khaki – Immigration and Customs Enforcement (ICE) agents often wear khaki uniforms.
According to Alfredo, “He was very disrespectful. He asked, ‘How are you in the United States?’ and said, ‘Sit down or I’ll hit you’ to everyone. Initially he didn’t believe that I was a US citizen. When he found out that I was, he just said, ‘I’m sorry’ and identified himself as an ICE officer by showing me his badge… He tried to intimidate everyone. He made comments that we were all illegal. He treated us worse than animals.”
The Report is particularly critical of two of the more controversial immigration enforcement programs currently being implemented: The Secure Communities Program and an older one known as 287(g).
Under the 287(g) program, the Department of Homeland Security (DHS) in effect deputizes local law enforcement officers to act as proxies for DHS officers in enforcing immigration laws. The Govermment see 287(g) as a force multiplier. In 2008, the Colorado state 287(g) unit alone made 777 immigration arrests. In that same year the entire ICE investigations office based in Denver, which covers all of Colorado and several other states, made a total of 1,594 arrests. In Maricopa County, Ariz., the local ICE detention and removal manager supervises five ICE deportation agents, who are supplemented by 64 additional locally paid county jail 287(g) officers who also identify and process criminal aliens.
But many police and sheriff’s departments strongly oppose the program because they say the training is inadequate for one of the most complex legal disciplines, and that both the training and the operation of the program suck scarce resources away from their main mission, which is maintaining the peace.
The second controvsersial program is known as Secure Communities, or SECOM. This program facilitatives local law officers to routinely enter into a DHS database the particulars of persons arrested locally so that their immigration status can be verified.
SECOM was designed to aprehend undocuented immigrants who had committed serious criminal act. But the most recent analyses indicate that a large proportion of those caught up in this dragnet were guilty of small traffic violations – for example, a bropken trail light – or equally petty crimes such as minor shoplifting.
These people are being rounded up, separated from their families, and incarcerated in immigration detention facilities, where they will wait for periods sometimes exceeding a year, for an immigration judge to decide whether to deport them, grant them asuylum in the US, or dispose of their case in some other way.
The immigration authorities have been severely criticized for operating detention facilities that are jail-like, not suitable for families, unhygiencic in terms of food and the availability of medical treatment, and frequently the scene of sexual harassment.
Many of these detention centers are operated by private for-profit prison corporations.
The Obama Administration has urged Immigration and Customs Enforcement to show more “descretion” in deciding who shall be held and who it is safe to grant bail. Since then, inflow into the detention centers has slowed marginally, but observers point out that President Obama has deported more people that all other US presidents combined.
DHS Secretary Janet Napolitano and her deputy in charge of Immigration and Customs Enforcement (ICE), John T. Morton, have made numerous pledges to undertake a major reorganization of the nation’s immigration programs, but thus far there is little to show for it in the way of tangible action.
Mazzola seemed to agree that the often inappropriate words and actions of ICE officers may be a cultural throwback to the pre-DHS days when a notorious and much-feared agency known as the Immigration and Naturalization Authority (INS) became the most secret prison system in the US. Author Mark Dow’s riveting book on the subject is titled “American Gulag.”
Amnesty International USA is calling on the Obama Administration to suspend and review all immigration enforcement programs to halt what it describes as “a pattern of human rights violations.”
In a new report, “In Hostile Terrain: Human Rights Violations in Immigration Enforcement in the U.S. Southwest,” the organization highlights “systemic failures of federal, state and local authorities to enforce immigration laws” equitably and without racial and ethnic profiling. The Report is based on an intensive study of conditions in Arizona and Texas.
Communities living along the U.S.-Mexico border, particularly Latinos, individuals perceived to be of Latino origin and Indigenous communities, are disproportionately affected by a range of immigration control measures, resulting in a pattern of human rights violations, Amnesty reports.
Among the many findings, the report illustrates that “The United States is failing in its obligations to respect immigrants' right to life, ensure access to justice for immigrant survivors of crime, particularly women and children, and recognize the border crossing rights of indigenous communities.”
The Report charges that, according to the U.S. government, “there are approximately 14,500-17,500 people trafficked into the United States each year for labor or sexual exploitation. However, it says, “Barriers caused by breakdowns in the system that identify immigrant survivors of trafficking leave many without any relief from immigration detention and deportation. Of the 5,000 T-visas available annually to survivors of human trafficking, statistics show that only six percent are actually utilized.”
A woman named Carolina is a case in point. Carolina is a Honduran native who was brought to the United States after being repeatedly sold for sex, beaten and drugged, was held for six months in detention in Pearsall, Texas, after immigration agents found her in the trunk of a car crossing the U.S.-Mexico border. While detained, Carolina was denied certification as a trafficking victim because she had originally wanted to come to the United States voluntarily before she was sold into sexual slavery and trafficked into the country.
It was only after a review of her case in February 2011, more than two years after she was discovered in a car trunk, that Carolina's trafficking victim visa was approved, allowing her to remain in the United States and become eligible for mental health and support services. "Now, I can finally begin to heal," Carolina said following her release from detention.
"The culture around immigration in the United States has created a perfect storm — survivors of trafficking and other crimes like domestic violence are increasingly seen as criminals rather than as victims,” said attorney Justin Mazzola, Amnesty International researcher and lead author of the report.
He added, “At the same time, fewer people are willing to report such crimes, as they feel it may expose them to immigration enforcement. In addition, many feel that police will be unable or unwilling to help.”
Immigration control measures increasingly jeopardize individuals' right to life when crossing the border. U.S. policies intentionally reroute migrants from traditional entry points to the most hostile terrain in the Southwest United States, including crossings over vast deserts, rivers and high mountains in searing heat. From 1998 to 2008, as many as 5,287 migrants died while attempting to cross the U.S.-Mexico border.
The report finds that indigenous communities are left particularly vulnerable to discrimination and other abuses stemming from immigration enforcement. Indigenous peoples, whose traditional territories and cultural communities span the U.S.-Mexico border and necessitate frequent crossings, are often intimidated and harassed by border officials for speaking little Spanish or English and holding only tribal identification documents.
Furthermore, federal immigration programs that engage state and local police in enforcing immigration laws place Latino communities, Indigenous communities and communities of color along the border at risk of discriminatory profiling.
To correct that specific problem, AI is calling on US Customs and Border Protection to work with Tribal Authorities to develop programs to and facilitate the use of Indigenous/ Tribal passports, identity papers and immigration documents for travel across borders, specifically for Tribes in the southwestern border area.
The DHS should ensure that qualifications for these documents are not so burdensome as to create a barrier for Indigenous people to qualify, the report says.
“Because monitoring and oversight of these immigration programs is vastly inadequate, those responsible for human rights abuses are rarely held to account. As a result, such practices, including targeting individuals based on their perceived ethnicity, have become commonplace and entrenched, fostering a culture of impunity that perpetuates discriminatory profiling,” Mazzola said.
The recent proliferation of state laws that target immigrants place them at further risk of discrimination and impedes their right to access education and essential health care services,” he added.
Among its recommendations, in addition to suspending immigration enforcement programs pending a review by the Inspector General, Amnesty is urging the U.S. government to pass legislation that guarantees equitable access to justice and protection for survivors of crime’ respect and facilitate the use of indigenous identity papers and immigration documents for travel across borders; and to ensure, as a matter of priority, that its border policies and practices do not have the direct or indirect effect of leading to the deaths of migrants.
Harassment and racial profiling are everyday inconveniences – and worse – for people in the border region. For example, in April 2011, a person we’ll call Alfred – a US citizen of Dominican descent, went to assist three of his father’s employees who had been involved in a car accident. The Texas State Trooper responded to the accident and was already at the scene when Alfredo arrived. Alfredo described to Amnesty International how the trooper continually delayed completing the accident report: “I thought it was a typical accident but it took longer... I asked the Trooper how long we would have to stay and he said, ‘just a little more’ and never said why.”
After about three hours, four sheriff’s deputies arrived and surrounded Alfredo and the rest of the group with their vehicles. Minutes later an unmarked silver pick-up truck pulled up and a man got out who was dressed in khaki – Immigration and Customs Enforcement (ICE) agents often wear khaki uniforms.
According to Alfredo, “He was very disrespectful. He asked, ‘How are you in the United States?’ and said, ‘Sit down or I’ll hit you’ to everyone. Initially he didn’t believe that I was a US citizen. When he found out that I was, he just said, ‘I’m sorry’ and identified himself as an ICE officer by showing me his badge… He tried to intimidate everyone. He made comments that we were all illegal. He treated us worse than animals.”
The Report is particularly critical of two of the more controversial immigration enforcement programs currently being implemented: The Secure Communities Program and an older one known as 287(g).
Under the 287(g) program, the Department of Homeland Security (DHS) in effect deputizes local law enforcement officers to act as proxies for DHS officers in enforcing immigration laws. The Govermment see 287(g) as a force multiplier. In 2008, the Colorado state 287(g) unit alone made 777 immigration arrests. In that same year the entire ICE investigations office based in Denver, which covers all of Colorado and several other states, made a total of 1,594 arrests. In Maricopa County, Ariz., the local ICE detention and removal manager supervises five ICE deportation agents, who are supplemented by 64 additional locally paid county jail 287(g) officers who also identify and process criminal aliens.
But many police and sheriff’s departments strongly oppose the program because they say the training is inadequate for one of the most complex legal disciplines, and that both the training and the operation of the program suck scarce resources away from their main mission, which is maintaining the peace.
The second controvsersial program is known as Secure Communities, or SECOM. This program facilitatives local law officers to routinely enter into a DHS database the particulars of persons arrested locally so that their immigration status can be verified.
SECOM was designed to aprehend undocuented immigrants who had committed serious criminal act. But the most recent analyses indicate that a large proportion of those caught up in this dragnet were guilty of small traffic violations – for example, a bropken trail light – or equally petty crimes such as minor shoplifting.
These people are being rounded up, separated from their families, and incarcerated in immigration detention facilities, where they will wait for periods sometimes exceeding a year, for an immigration judge to decide whether to deport them, grant them asuylum in the US, or dispose of their case in some other way.
The immigration authorities have been severely criticized for operating detention facilities that are jail-like, not suitable for families, unhygiencic in terms of food and the availability of medical treatment, and frequently the scene of sexual harassment.
Many of these detention centers are operated by private for-profit prison corporations.
The Obama Administration has urged Immigration and Customs Enforcement to show more “descretion” in deciding who shall be held and who it is safe to grant bail. Since then, inflow into the detention centers has slowed marginally, but observers point out that President Obama has deported more people that all other US presidents combined.
DHS Secretary Janet Napolitano and her deputy in charge of Immigration and Customs Enforcement (ICE), John T. Morton, have made numerous pledges to undertake a major reorganization of the nation’s immigration programs, but thus far there is little to show for it in the way of tangible action.
Mazzola seemed to agree that the often inappropriate words and actions of ICE officers may be a cultural throwback to the pre-DHS days when a notorious and much-feared agency known as the Immigration and Naturalization Authority (INS) became the most secret prison system in the US. Author Mark Dow’s riveting book on the subject is titled “American Gulag.”
Sunday, April 01, 2012
Texas Prosecutors Go Rogue – And Get Away With It!
By William Fisher
John Thompson spent 18 years in prison — 14 of them on death row — for crimes he did not commit. But as he was facing his seventh execution date, a private investigator hired by his lawyers discovered that scientific evidence of his innocence had been knowingly concealed by the New Orleans District Attorney’s office.
Thompson was eventually exonerated. He sued the prosecutors’ office, and won. A jury awarded him $14 million, one million for each year on death row. When Louisiana appealed, the case went to the U.S. Supreme Court. In the spring of 2011, in a controversial 5-4 decision, the Court ruled that the prosecutor’s office could not be held liable.
With Connick v. Thompson, the U.S. Supreme Court thus took away one of the only remaining means for the wrongfully convicted to hold prosecutors accountable for willful misconduct. The Prosecutorial Oversight Coalition charges that, “Although all other professionals, from doctors to airline pilots to clergy, can be held liable for their negligence, the Supreme Court has effectively given district attorney offices legal immunity for the actions of their assistants, even when an office is deliberately indifferent to its responsibility to disclose exculpatory evidence.”
That decision simply strengthens the case being made by The Innocence Project and its colleagues: The Coalition says Texas prosecutors stand an excellent chance of getting away with prosecutorial misconduct that can send innocent men and women to prison for long sentences – and even to death row – according to new legal research.
Researchers found that, from 2004 to 2008, courts ruled that prosecutors committed error in 91 cases. Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.” In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction. From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.
The research was released in Austin by the Prosecutorial Oversight Coalition. It illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas. The Austin event marks the second stop on a national tour organized by the coalition, which includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas.
The Coalition includes the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.
“No one is disputing that prosecutors have tremendous responsibility, and the vast majority do a good job under difficult circumstances. But now that the Supreme Court has given prosecutors almost complete immunity for their actions, we need to develop systems of accountability for dealing with those prosecutors who violate their ethical obligations,” said Jennifer Laurin, Assistant Professor at the University of Texas law school.
The Texas research was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.
California’s results were similar to those of Texas, buttressing the Innocence Project’s belief that rogue prosecutors represent a national problem.
For the Texas research, the group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.
Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction. (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed. Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 8 of the cases, resulting in of the reversals. Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).
“As best we can determine, most prosecutors’ offices don’t even have clear internal systems for preventing and reviewing misconduct. But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct,” said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.
“We don’t accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors,” he added.
The Prosecutorial Oversight coalition notes that this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal.
The Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.
“Most prosecutorial misconduct is not intentional, but we know from John Thompson’s and Michael Morton’s cases that when it happens, the consequences can be devastating,” said Cookie Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative.
Morton was wrongfully convicted of murdering his wife and spent nearly 25 years in prison before his release in October. Among the suppressed evidence was a police transcript of the victim’s mother saying that the Mortons’ three-year-old son, who witnessed the murder, told her that his father was not at home at the time; a report from a neighbor observing someone outside the Mortons’ house before the murder; and a report on the recovery of the victim’s Visa card, which a woman had attempted to use fraudulently at a store in San Antonio two days after her murder.
Texas Supreme Court Justice Wallace Jefferson has ordered a court of inquiry to investigate possible prosecutorial misconduct by former Williamson County prosecutor Ken Anderson in his prosecution of Michael Morton. The Innocence Project, which represented Morton, discovered that evidence of Morton’s innocence was withheld from the defense at his original trial in 1987 and called for the court of inquiry to review the prosecution’s conduct in the case.
“What’s clear from this data is that we’re not doing nearly enough to document the scope of the problem and the disciplinary systems as they currently exist are vastly inadequate,” Ridolfi said.
In the Connick decision, an ideologically divided Supreme Court stripped a $14 million award from a wrongfully convicted man who had spent 14 years on death row and successfully sued New Orleans prosecutors for misconduct. Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence.
Where is the citizen outrage? It doesn’t yet exist as a consistent source of pressure. In many cases, complaints have to be made to the very people who are the subjects of the complaints. State and Federal lawmakers don’t find that the subject generates interest or press releases. And the mainstream media has generally ignored the issue, except when the subject has a high profile and is likely to attract readers and viewers.
One such case involved the alleged corruption of former Alaska Senator Ted Stevens. Stevens, who died in a 2010 plane crash, was convicted in 2008. But the Department of Justice revealed that its own lawyers unlawfully withheld exculpatory evidence from the defense.
The mistakes made by prosecutors handling the Stevens trial not only cost the government the case – the report based on its investigation cost taxpayers close to a million dollars. It concluded that prosecutors had engaged in serious misconduct.
But with seemingly ever-increasing numbers of well-publicized exonerations of people who were wrongfully imprisoned, coupled with the national scandals surrounding trials such as the Stevens case, ordinary citizens may be coming to understand the tremendous power that prosecutors wield, the frequency with which they abuse that power, and the virtually uniform lack of both the tools and the will to make them accountable.
John Thompson spent 18 years in prison — 14 of them on death row — for crimes he did not commit. But as he was facing his seventh execution date, a private investigator hired by his lawyers discovered that scientific evidence of his innocence had been knowingly concealed by the New Orleans District Attorney’s office.
Thompson was eventually exonerated. He sued the prosecutors’ office, and won. A jury awarded him $14 million, one million for each year on death row. When Louisiana appealed, the case went to the U.S. Supreme Court. In the spring of 2011, in a controversial 5-4 decision, the Court ruled that the prosecutor’s office could not be held liable.
With Connick v. Thompson, the U.S. Supreme Court thus took away one of the only remaining means for the wrongfully convicted to hold prosecutors accountable for willful misconduct. The Prosecutorial Oversight Coalition charges that, “Although all other professionals, from doctors to airline pilots to clergy, can be held liable for their negligence, the Supreme Court has effectively given district attorney offices legal immunity for the actions of their assistants, even when an office is deliberately indifferent to its responsibility to disclose exculpatory evidence.”
That decision simply strengthens the case being made by The Innocence Project and its colleagues: The Coalition says Texas prosecutors stand an excellent chance of getting away with prosecutorial misconduct that can send innocent men and women to prison for long sentences – and even to death row – according to new legal research.
Researchers found that, from 2004 to 2008, courts ruled that prosecutors committed error in 91 cases. Of these, the courts upheld the conviction in 72 of the cases, finding that the error was “harmless.” In 19 of the cases, the court ruled that the error was “harmful” and reversed the conviction. From 2004 until November 2011, only one prosecutor was publicly disciplined by the Texas Bar Association, and this was from a case that arose before 2004.
The research was released in Austin by the Prosecutorial Oversight Coalition. It illustrates the lack of accountability and transparency for prosecutorial misconduct in Texas. The Austin event marks the second stop on a national tour organized by the coalition, which includes the death row exoneree John Thompson, who was stripped of $14 million in civil damages for prosecutorial misconduct by the U.S. Supreme Court in Connick v. Texas.
The Coalition includes the Innocence Project; the Veritas Initiative, Northern California Innocence Project’s prosecutorial accountability program; the Innocence Project of New Orleans; Voices of Innocence; and local partners, the Texas Center for Actual Innocence; and the Actual Innocence Clinic at the University of Texas School of Law.
“No one is disputing that prosecutors have tremendous responsibility, and the vast majority do a good job under difficult circumstances. But now that the Supreme Court has given prosecutors almost complete immunity for their actions, we need to develop systems of accountability for dealing with those prosecutors who violate their ethical obligations,” said Jennifer Laurin, Assistant Professor at the University of Texas law school.
The Texas research was conducted by the Veritas Initiative, which issued a groundbreaking report on prosecutorial misconduct in California last year.
California’s results were similar to those of Texas, buttressing the Innocence Project’s belief that rogue prosecutors represent a national problem.
For the Texas research, the group reviewed all of the published trial and appellate court decisions addressing allegations of prosecutorial misconduct between 2004-2008. To see what, if any, consequences prosecutors face for their misconduct, Veritas looked at Texas’ public attorney disciplinary records from 2004 to November 2011.
Of the 91 cases where error was found, improper argument and improper examination were the leading types of error found by the courts, but these errors rarely resulted in the court reversing the conviction. (Of the 36 instances of improper argument, only 3 were reversed. Similarly, of 35 instances of improper examination, only 3 were reversed. Courts were more likely to reverse in cases where prosecutors failed to turn over “Brady” material (information that pointed to the defendant’s innocence), which occurred in 8 of the cases, resulting in of the reversals. Misconduct was found most often in murder cases (28 % of the cases) and sex crimes (24% of the cases).
“As best we can determine, most prosecutors’ offices don’t even have clear internal systems for preventing and reviewing misconduct. But perhaps even more alarming is that bar oversight entities tend not to act in the wake of even serious acts of misconduct,” said Stephen Saloom, Policy Director of the Innocence Project, which is affiliated with Cardozo School of Law.
“We don’t accept this lack of accountability and oversight for any other government entity where life and liberty are at stake, and there’s no reason we should do so for prosecutors,” he added.
The Prosecutorial Oversight coalition notes that this review doesn’t begin to fully illustrate the scope of the problem. Almost all of the errors identified were of cases where defendants went to trial (only 3% of Texas criminal cases according to 2010 data) and had access to an attorney who raised the error on appeal.
The Courts declined to directly address the issue in many of the cases where the issue was raised. Additionally, many opinions are not in writing and many aren’t published. Furthermore, the distinction between harmful and harmless is problematic because it doesn’t illustrate how serious the misconduct was, merely that the court determined that it wouldn’t have affected the ultimate outcome of the trial.
“Most prosecutorial misconduct is not intentional, but we know from John Thompson’s and Michael Morton’s cases that when it happens, the consequences can be devastating,” said Cookie Ridolfi, professor at Santa Clara University School of Law and Executive Director of the Northern California Innocence Project and the Veritas Initiative.
Morton was wrongfully convicted of murdering his wife and spent nearly 25 years in prison before his release in October. Among the suppressed evidence was a police transcript of the victim’s mother saying that the Mortons’ three-year-old son, who witnessed the murder, told her that his father was not at home at the time; a report from a neighbor observing someone outside the Mortons’ house before the murder; and a report on the recovery of the victim’s Visa card, which a woman had attempted to use fraudulently at a store in San Antonio two days after her murder.
Texas Supreme Court Justice Wallace Jefferson has ordered a court of inquiry to investigate possible prosecutorial misconduct by former Williamson County prosecutor Ken Anderson in his prosecution of Michael Morton. The Innocence Project, which represented Morton, discovered that evidence of Morton’s innocence was withheld from the defense at his original trial in 1987 and called for the court of inquiry to review the prosecution’s conduct in the case.
“What’s clear from this data is that we’re not doing nearly enough to document the scope of the problem and the disciplinary systems as they currently exist are vastly inadequate,” Ridolfi said.
In the Connick decision, an ideologically divided Supreme Court stripped a $14 million award from a wrongfully convicted man who had spent 14 years on death row and successfully sued New Orleans prosecutors for misconduct. Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence.
Where is the citizen outrage? It doesn’t yet exist as a consistent source of pressure. In many cases, complaints have to be made to the very people who are the subjects of the complaints. State and Federal lawmakers don’t find that the subject generates interest or press releases. And the mainstream media has generally ignored the issue, except when the subject has a high profile and is likely to attract readers and viewers.
One such case involved the alleged corruption of former Alaska Senator Ted Stevens. Stevens, who died in a 2010 plane crash, was convicted in 2008. But the Department of Justice revealed that its own lawyers unlawfully withheld exculpatory evidence from the defense.
The mistakes made by prosecutors handling the Stevens trial not only cost the government the case – the report based on its investigation cost taxpayers close to a million dollars. It concluded that prosecutors had engaged in serious misconduct.
But with seemingly ever-increasing numbers of well-publicized exonerations of people who were wrongfully imprisoned, coupled with the national scandals surrounding trials such as the Stevens case, ordinary citizens may be coming to understand the tremendous power that prosecutors wield, the frequency with which they abuse that power, and the virtually uniform lack of both the tools and the will to make them accountable.
Friday, March 30, 2012
COINTELPRO REDUX
By William Fisher
For those old enough to remember, reports of the latest FBI snooping must have brought back bitter memories of a now-hated program known as COINTELPRO.
COINTELPRO is the FBI acronym for a series of covert programs culminating in the 1970s directed against US domestic groups. In these programs, the Bureau went beyond the collection of intelligence to secret action defined to "disrupt" and "neutralize" target groups and individuals. The techniques were adopted wholesale from wartime counterintelligence, and ranged from the trivial (mailing reprints of Reader's Digest articles to college administrators) to the degrading (sending anonymous poison-pen letters intended to break up marriages) and the dangerous (encouraging gang warfare and falsely labeling members of a violent group as police informers).
Today, reports of the latest FBI snooping programs create déjà vu all over again. According to Freedom of Information Act (FOIA) documents obtained by the American Civil Liberties Union, the San Francisco FBI conducted a years-long Mosque Outreach program that collected and illegally stored intelligence about American Muslims’ First Amendment-protected religious beliefs and practices.
The ACLU charges that FBI documents obtained through the Freedom of Information Act reveal that from 2004 through at least 2008, the San Francisco FBI conducted a “mosque outreach” program through which it compiled intelligence on American Muslim religious organizations and their leaders’ and congregants’ constitutionally-protected beliefs and activities, without any suspicion of wrongdoing. The ACLU previously disclosed that the FBI turned its “community outreach” programs into a secret and systematic domestic
intelligence-gathering initiative. Now, FBI documents obtained by the ACLU of Northern California, the Asian Law Caucus, and the San Francisco Bay Guardian show that the FBI used the similar guise of “mosque outreach” to gather intelligence on mosques and Muslim religious organizations.
The organization also claims the documents also show that the FBI categorized information about Muslims’ First Amendment-protected and other entirely innocuous activities, as well as mosque locations, as “positive intelligence” and disseminated it to agencies outside the FBI. As a result, the ACLU says, the agency “wrongly and unfairly cast a cloud of suspicion over innocent groups and individuals based on their religious beliefs and associations, and placed them at risk of greater law enforcement scrutiny as potential national security threats. None of the documents indicate that the FBI told individuals interviewed that their information and views were being collected as intelligence, and would be recorded and disseminated.”
The ACLU and human rights and civil liberties groups generally have taken the position that. “The FBI’s targeting of American Muslim religious organizations for secret intelligence gathering raises grave constitutional concerns because it is an affront to religious liberty and equal protection of the law. The bureau’s use of outreach meetings to gather intelligence also undermines the trust and mutual understanding necessary to effective law enforcement. Additionally, the FBI’s retention of information gathered through “mosque outreach” in its intelligence files violates federal Privacy Act prohibitions against the maintenance of records about individuals’ First Amendment-protected activity.”
The ACLU says the San Francisco FBI documents described above bear titles such as, “Mosque Outreach Liaison,” “Mosque Outreach Contacts,” or “Mosque Liaison Contacts.” Some of these documents indicate that the FBI begins its “outreach” with questions about possible hate crimes against the Muslim community, but none of the documents appear connected to a mosque protection effort initiated after 9/11 by the FBI Civil Rights Unit to guard against anti-Muslim hate crimes.
That effort operated under a “44” FBI case file number (see for example, this 2007 San Francisco FBI memorandum). In contrast, the file numbers on the “mosque outreach” documents were redacted, and many were classified “secret,” which indicates this effort was conducted under the FBI’s national security-related investigative and intelligence authorities. Although sometimes heavily redacted, all of the documents make clear that the FBI used its outreach meetings to document religious leaders’ and congregants’ identities, personalinformation (1 & 2), and religious views, practices (1 & 2), affiliations, and travel, as well as the physical locations and layouts of mosques.
Documentation obtained through FOIA has proved to be a treasure trove of information. But, sadly for those who enjoy spy-thrillers, their content is largely prosaic and teetering on boring. Here are but a few of many examples:
• The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
• The FBI met with members of the South Bay Islamic Association four times from 2004 to 2007. FBI agents documented as “positive intelligence” and disseminated outside the FBI an individual’s complaint of travel delays during the Hajj pilgrimage caused by the No Fly list, as well an individual’s conversation about the Hajj, “Islam in general,” Muslims’ safety in the U.S., and community fears regarding an FBI investigation of imams in Lodi, California. Two memoranda from 2006 and 2007 contain no descriptive information apart from the name and location of mosques contacted by the FBI, which the ACLU said might be appropriate to record in a normal community outreach context.
• Two 2008 FBI memoranda described contacts with representatives of the Bay Area Cultural Connections (BAYCC), which was formerly the Turkish Center Musalla. The first describes the history, mission, and activities of the BAYCC, the ethnicity of its members and its affiliation with another organization. The second memorandum indicates the FBI used a named meeting participant’s cell phone number to search LexisNexis and Department of Motor Vehicle records, and obtained and recorded detailed information about him, including his date of birth, social security number, address and home telephone number.
All the memoranda listed above were described as “positive intelligence” and disseminated outside the FBI. Some were classified as “secret.”
The ACLU says, “Almost every FBI memorandum described above was labeled ‘positive intelligence’, which means the information in it would be uploaded and retained in FBI intelligence files.
The ACLU points out that in its previous “Mapping the FBI” alerts, “we called on the FBI to stop using community outreach for intelligence purposes, to be honest with community organizations regarding what information is collected and retained during community meetings, and to purge all information collected improperly. The latest revelations make the need for these reforms even more urgent.”
“We also again call on the Department of Justice Inspector General to investigate Privacy Act violations within the FBI’s San Francisco Division, and to initiate a broader audit of FBI practices throughout the nation, to determine the scope of the problem and identify solutions. Finally, the Department of Justice must amend its 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies to ban profiling based on religion in all of its investigations,” the ACLU said.
In New York City, Muslim civil liberties organizations called for a federal investigation
and Senate hearings into a report the CIA was helping New York City police gather intelligence from mosques and minority neighborhoods. It was revealed that the mosques and neighborhoods under surveillance were not limited to New York City. Agents traveled to other jurisdictions, for example, New Jersey, without advance notice to law enforcement there.
One of the Muslim organizations, The Council on American-Islamic Relations (CAIR), says it suspects the joint CIA-police intelligence-gathering described in an Associated Press report violates the U.S. Constitution, the U.S. Privacy Act of 1974 and a presidential order banning the CIA from spying on Americans, CAIR attorney Gadeir Abbas said.
The AP report said undercover New York Police Department officers known as ``rakers'' were sent into minority neighborhoods to monitor bookstores, bars, cafes and nightclubs, and police used informants known as ``mosque crawlers'' to monitor sermons.
“The NYPD operates far outside its borders and targets ethnic communities in ways that would run afoul of civil liberties rules if practiced by the federal government,'' wrote the AP, which described the collaboration between the CIA and a U.S. police department as unprecedented. A police spokesman said ``we don't apologize'' for aggressive techniques developed since the Sept. 11, 2001 attacks. He said those techniques have helped thwart 13 plots on the city.
``It (the AP report) shows that we're doing all we reasonably can to stop terrorists from killing even more New Yorkers,'' NYPD Deputy Commissioner Paul Browne said in an email. ``We commit over a thousand officers to the fight every day to stop terrorists who've demonstrated an undiminished appetite to come back and kill more New Yorkers.''
For those old enough to remember, reports of the latest FBI snooping must have brought back bitter memories of a now-hated program known as COINTELPRO.
COINTELPRO is the FBI acronym for a series of covert programs culminating in the 1970s directed against US domestic groups. In these programs, the Bureau went beyond the collection of intelligence to secret action defined to "disrupt" and "neutralize" target groups and individuals. The techniques were adopted wholesale from wartime counterintelligence, and ranged from the trivial (mailing reprints of Reader's Digest articles to college administrators) to the degrading (sending anonymous poison-pen letters intended to break up marriages) and the dangerous (encouraging gang warfare and falsely labeling members of a violent group as police informers).
Today, reports of the latest FBI snooping programs create déjà vu all over again. According to Freedom of Information Act (FOIA) documents obtained by the American Civil Liberties Union, the San Francisco FBI conducted a years-long Mosque Outreach program that collected and illegally stored intelligence about American Muslims’ First Amendment-protected religious beliefs and practices.
The ACLU charges that FBI documents obtained through the Freedom of Information Act reveal that from 2004 through at least 2008, the San Francisco FBI conducted a “mosque outreach” program through which it compiled intelligence on American Muslim religious organizations and their leaders’ and congregants’ constitutionally-protected beliefs and activities, without any suspicion of wrongdoing. The ACLU previously disclosed that the FBI turned its “community outreach” programs into a secret and systematic domestic
intelligence-gathering initiative. Now, FBI documents obtained by the ACLU of Northern California, the Asian Law Caucus, and the San Francisco Bay Guardian show that the FBI used the similar guise of “mosque outreach” to gather intelligence on mosques and Muslim religious organizations.
The organization also claims the documents also show that the FBI categorized information about Muslims’ First Amendment-protected and other entirely innocuous activities, as well as mosque locations, as “positive intelligence” and disseminated it to agencies outside the FBI. As a result, the ACLU says, the agency “wrongly and unfairly cast a cloud of suspicion over innocent groups and individuals based on their religious beliefs and associations, and placed them at risk of greater law enforcement scrutiny as potential national security threats. None of the documents indicate that the FBI told individuals interviewed that their information and views were being collected as intelligence, and would be recorded and disseminated.”
The ACLU and human rights and civil liberties groups generally have taken the position that. “The FBI’s targeting of American Muslim religious organizations for secret intelligence gathering raises grave constitutional concerns because it is an affront to religious liberty and equal protection of the law. The bureau’s use of outreach meetings to gather intelligence also undermines the trust and mutual understanding necessary to effective law enforcement. Additionally, the FBI’s retention of information gathered through “mosque outreach” in its intelligence files violates federal Privacy Act prohibitions against the maintenance of records about individuals’ First Amendment-protected activity.”
The ACLU says the San Francisco FBI documents described above bear titles such as, “Mosque Outreach Liaison,” “Mosque Outreach Contacts,” or “Mosque Liaison Contacts.” Some of these documents indicate that the FBI begins its “outreach” with questions about possible hate crimes against the Muslim community, but none of the documents appear connected to a mosque protection effort initiated after 9/11 by the FBI Civil Rights Unit to guard against anti-Muslim hate crimes.
That effort operated under a “44” FBI case file number (see for example, this 2007 San Francisco FBI memorandum). In contrast, the file numbers on the “mosque outreach” documents were redacted, and many were classified “secret,” which indicates this effort was conducted under the FBI’s national security-related investigative and intelligence authorities. Although sometimes heavily redacted, all of the documents make clear that the FBI used its outreach meetings to document religious leaders’ and congregants’ identities, personalinformation (1 & 2), and religious views, practices (1 & 2), affiliations, and travel, as well as the physical locations and layouts of mosques.
Documentation obtained through FOIA has proved to be a treasure trove of information. But, sadly for those who enjoy spy-thrillers, their content is largely prosaic and teetering on boring. Here are but a few of many examples:
• The FBI visited the Seaside Mosque five times in 2005 for “mosque outreach,” and documented congregants’ innocuous discussions regarding frustrations over delays in airline travel, a property purchase of a new mosque, where men and women would pray at the new mosque, and even the sale of date fruits after services. It also documented the subject of a particular sermon, raising First Amendment concerns. Despite an apparent lack of information related to crime or terrorism, the FBI’s records of discussions with mosque leaders and congregants were all classified as “secret,” marked “positive intelligence,” and disseminated outside the FBI.
• The FBI met with members of the South Bay Islamic Association four times from 2004 to 2007. FBI agents documented as “positive intelligence” and disseminated outside the FBI an individual’s complaint of travel delays during the Hajj pilgrimage caused by the No Fly list, as well an individual’s conversation about the Hajj, “Islam in general,” Muslims’ safety in the U.S., and community fears regarding an FBI investigation of imams in Lodi, California. Two memoranda from 2006 and 2007 contain no descriptive information apart from the name and location of mosques contacted by the FBI, which the ACLU said might be appropriate to record in a normal community outreach context.
• Two 2008 FBI memoranda described contacts with representatives of the Bay Area Cultural Connections (BAYCC), which was formerly the Turkish Center Musalla. The first describes the history, mission, and activities of the BAYCC, the ethnicity of its members and its affiliation with another organization. The second memorandum indicates the FBI used a named meeting participant’s cell phone number to search LexisNexis and Department of Motor Vehicle records, and obtained and recorded detailed information about him, including his date of birth, social security number, address and home telephone number.
All the memoranda listed above were described as “positive intelligence” and disseminated outside the FBI. Some were classified as “secret.”
The ACLU says, “Almost every FBI memorandum described above was labeled ‘positive intelligence’, which means the information in it would be uploaded and retained in FBI intelligence files.
The ACLU points out that in its previous “Mapping the FBI” alerts, “we called on the FBI to stop using community outreach for intelligence purposes, to be honest with community organizations regarding what information is collected and retained during community meetings, and to purge all information collected improperly. The latest revelations make the need for these reforms even more urgent.”
“We also again call on the Department of Justice Inspector General to investigate Privacy Act violations within the FBI’s San Francisco Division, and to initiate a broader audit of FBI practices throughout the nation, to determine the scope of the problem and identify solutions. Finally, the Department of Justice must amend its 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies to ban profiling based on religion in all of its investigations,” the ACLU said.
In New York City, Muslim civil liberties organizations called for a federal investigation
and Senate hearings into a report the CIA was helping New York City police gather intelligence from mosques and minority neighborhoods. It was revealed that the mosques and neighborhoods under surveillance were not limited to New York City. Agents traveled to other jurisdictions, for example, New Jersey, without advance notice to law enforcement there.
One of the Muslim organizations, The Council on American-Islamic Relations (CAIR), says it suspects the joint CIA-police intelligence-gathering described in an Associated Press report violates the U.S. Constitution, the U.S. Privacy Act of 1974 and a presidential order banning the CIA from spying on Americans, CAIR attorney Gadeir Abbas said.
The AP report said undercover New York Police Department officers known as ``rakers'' were sent into minority neighborhoods to monitor bookstores, bars, cafes and nightclubs, and police used informants known as ``mosque crawlers'' to monitor sermons.
“The NYPD operates far outside its borders and targets ethnic communities in ways that would run afoul of civil liberties rules if practiced by the federal government,'' wrote the AP, which described the collaboration between the CIA and a U.S. police department as unprecedented. A police spokesman said ``we don't apologize'' for aggressive techniques developed since the Sept. 11, 2001 attacks. He said those techniques have helped thwart 13 plots on the city.
``It (the AP report) shows that we're doing all we reasonably can to stop terrorists from killing even more New Yorkers,'' NYPD Deputy Commissioner Paul Browne said in an email. ``We commit over a thousand officers to the fight every day to stop terrorists who've demonstrated an undiminished appetite to come back and kill more New Yorkers.''
Monday, March 26, 2012
Is This the Accountability We Were Promised?
By William Fisher
It would be a slam dunk.
If there were a Nobel Prize for Tenacity, I would nominate half a dozen organizations that, in the face of years of lost court cases and rapidly graying hair, continue to seek justice for some of the most egregious victims of the Bush/Obama “war on terror.”
These legal bulldogs keep getting their lawsuits bounced out of one federal court after another – and keep coming back for more. They have names like the American Civil Liberties Union, Human Rights First, Human Rights Watch, Amnesty USA, and literally hundreds of others.
Consider this: The despicable practice of “extraordinary rendition” began in the Clinton Administration, expanded during the eight years of George W. Bush, and remains alive and well under President Obama.
At its most fundamental level, extraordinary rendition means the CIA kidnaps people it believes are terrorism suspects and ships them off, drugged and blindfolded, to the CIA’S own secret prisons or those operated by allied countries who have long and well-documented histories of systematically torturing prisoners.
For years, small groups of people who have survived the waterboarding and the electric shocks and the sleep deprivation have, with the help of human rights organizations, filed lawsuits against the US government, seeking to hold top American policy-makers accountable for their years of pain.
And each time the survivors bring such an action, the courthouse doors are slammed in their faces. Typically, the government invokes what is known as the “State Secrets Privilege.” This once-little-used legal quirk holds that disclosure of any of the secret evidence would compromise national security.
Some lawmakers have been discussing in committees revisions to this statute since the beginning of the Obama Administration, but no one has taken any action despositive whatever.
Consequently, not a single victim of the “war on terror” has had the opportunity to tell his story in a court of law and not a single senior US official has been held accountable.
Who are these victims who keep banging on the courthouse doors?
Here are three of the most prominent:
Jeppesen DataPlan is a subsidiary of The Boeing Company, and specializes in flight planning and logistical support services for aircraft and crews, including those used by the CIA to transport victims to U.S.-run prisons or foreign intelligence agencies overseas, where they were subjected to harsh interrogation techniques and torture.
In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – sued Jeppesen for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process.
The judge rejected the ACLU’s claim that “abundant evidence” was already in the public domain, including a sworn affidavit by a former Jeppesen employee and flight records confirming Jeppesen’s involvement.
The ACLU appealed the case all the way to the Supreme Court, which declined to hear it.
He says he was then put in a diaper, a belt with chains to his wrists and ankles, earmuffs, eye pads, a blindfold and a hood. He was put into a plane, his legs and arms spread-eagled and secured to the floor. He was drugged and flown to Afghanistan, where he was held in solitary confinement for five months before being dropped off in a remote rural section of Albania.
He claims it was a CIA-leased aircraft that flew him to Afghanistan, and CIA agents who were responsible for his rendition to Afghanistan, where he. was beaten, drugged, and subjected to various other inhumane activity while in captivity.
After several months of confinement in squalid conditions, he was abandoned on a hill in Albania with no explanation. He was never charged with a crime.
El-Masri, who is represented by the American Civil Liberties Union (ACLU), sought an apology from then-Director of the CIA, George Tenet, and an apology and money damages from the CIA.
The lawsuit charges former CIA director George Tenet, other CIA officials and four U.S.-based aviation corporations with violations of US and universal human rights laws. It claims El-Masri was "victimized by the CIA's policy of 'extraordinary rendition'."
Maher Arar: A Canadian citizen born in Syria, Arar was passing through Kennedy International Airport in New York on his way home in 2002 when he was detained by Customs officials. He was suspected of being a terrorist.
Subsequently he was flown against his will, first, to Jordan, then to Syria, where he was jailed by Syrian intelligence. In the year following, he was tortured, forced to falsely confess to attending an al Qaeda training camp in Afghanistan, and then released after a year without ever being charged with anything.
With the help of the Center for Constitutional Rights and renowned Constitutional lawyer David Cole, Arar sued former Attorney General John Ashcroft, FBI Director Robert Mueller, and then Secretary of Homeland Security Tom Ridge, as well as numerous US immigration officials, challenging the rendition of a Canadian citizen to Syria, by the US government.
The suit charged the plaintiffs with violating Mr. Arar’s constitutional right to due process, his right to choose a country of removal other than one in which he would be tortured, as guaranteed under the Torture Victims Protection Act, and his rights under international law.
The suit charged that Mr. Arar’s Fifth Amendment due process rights were violated when he was confined without access to an attorney or the court system, both domestically before being rendered, and while detained by the Syrian government, whose actions were complicit with the U.S.
Additionally, the Attorney General and INS officials who carried out his deportation also likely violated his right to due process by recklessly subjecting him to torture at the hands of a foreign government that they had every reason to believe would carry out abusive interrogation.
Further, Mr. Arar filed a claim under the Torture Victims Protection Act, adopted by the U.S. Congress in 1992, which allows a victim of torture by an individual of a foreign government to bring suit against that actor in U.S. Court.
Mr. Arar’s claim under the Act against Ashcroft and the INS directors is based upon their complicity in bringing about the torture he suffered.
The case was filed in the United States District Court for the Southern District of New York. From there, it embarked on what is now a familiar journey – to nowhere. The Trial and Appeals Court dismissed the suit. Ultimately the Supreme Court denied Mr. Arar’s petition for certiorari to review the Second Circuit Court of Appeals' en banc decision dismissing his case, ending his case in U.S. courts.
But the Canadian Government took a very different approach. It convened a blue-ribbon panel to investigate the Arar incident. After a two-year probe, the Canadian government admitted it had made a serious mistake in the information it had supplied to the US on Arar. The head of the Canadian Royal Mounted Police was forced to resign, and Canada issues a formal apology to Arar and awarded him $10 million.
The US Government has steadfastly refused to even discuss the case, much less apologize. At a Congressional hearing soon after 9/11, then Secretary of State Condoleezza Rice acknowledged that the Arar case “wasn’t handled very well,” but came nowhere close to apologizing to anyone for anything.
Well, the human rights lawyers who bring these cases to court are, as one told me, “frustrated but ever-hopeful.”
It is that ever-hopeful quality that is now pressing ACLU lawyers to try yet another legal step. Denied their day in court by US Federal Judges, three Afghans and three Iraqis who say they were tortured while held by the American military at detention centers in Iraq and Afghanistan have filed a petition against the US with the Inter-American Commission on Human Rights (IAHCR).
The men were part of a group who in 2005 sued then-Defense Secretary Donald Rumsfeld and three senior military officials in federal court for torture and abuse. That case was summarily dismissed on immunity grounds before reaching the merits.
The current petition is equivalent to an international legal complaint. It asks the commission, which is an independent human rights body of the Organization of American States, to conduct a full investigation into the human rights violations and seeks an apology on behalf of the six men from the US government.
The ACLU claims that between 2003 and 2004, the men were detained in U.S.-run detention facilities in Afghanistan and Iraq, where they were subjected to torture and other cruel, inhuman and degrading treatment including severe and repeated beatings, cutting with knives, sexual humiliation and assault, mock executions and prolonged restraint in excruciating positions the petition charges. None of the men were ever charged with a crime.
“I think that I and the many others who suffered unfairly at the hands of the American government deserve justice,” said petitioner Ali Hussein, an Iraqi who was a 17-year-old high school student when he was detained and abused by American soldiers. “We want America to admit that what happened to us was wrong and should never be allowed to happen again to anyone anywhere.”
Hussein, who is now a law student, was shot in the neck and back before being arrested. He said that military personnel refused to provide him medical care for several hours, and when the bullets were eventually removed the procedure was done without anesthetic. He was then denied food, water and pain medication for almost two days after he was shot.
The petition states, “The US government’s own reports document that the torture and inhumane treatment that Petitioners were subjected to was not aberrational; on the contrary, it was widespread and systemic throughout the US-run detention facilities in the two countries. These same reports also document that the torture and inhumane treatment of detainees were the direct result of policies and practices promulgated and implemented at the highest levels of the US government.
The ACLU charged that “despite these reports and Petitioners’ and other detainees’ credible allegations of torture and inhumane treatment, the US government has failed to conduct any comprehensive criminal investigation, has not held accountable those responsible, and has not provided any form of redress to Petitioners and the many other victims and survivors of US torture and abuse.”
It added: “Since a remedy for these men has been denied in American courts, these six courageous men are seeking to hold the US government accountable on the world stage,” said Steven Watt, senior staff attorney with the ACLU Human Rights Program.
“No high-ranking government officials have yet been held to account for their actions, and this petition seeks to do just that and to ensure that the government respects basic human rights, including the right of everyone to be free from torture and inhumane treatment.”
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