Kidnapped in Macedonia, Tortured in Afghanistan, and Dumped in Albania: The Forgotten Case of Khaled Ed-Masri

By William Fisher

To the pitifully few who have followed him over the years, Khaled El-Masri is the man who arguably holds the world’s record of unsuccessful attempts to get his “day in court.” He has knocked on courtroom doors all over the US and some overseas venues as well, and has each time been rebuffed.

This Wednesday he will try one more time. He will pursue Justice in the Grand Chamber of the European Court, which will hold a hearing on May 16, 2012. At the last hearing of this case, Macedonia entered an unbroken series of denials – no, it did not collude with the CIA to kidnap El-Masri from Germany. No, it did not seize his passport and force him to spend a month in a Macedonian hotel, interrogated without a lawyer, without contact with his family, and without the foggiest idea of why he was being held.

What El-Masri is seeking from the Macedonians is a fullblown investigation into his kidnapping and abuse. And while he is waiting, there are grim signs that El-Masri, the human being, is continuing his descent into chaos and confusion.

But even Macedonia’s denials – whether true or not – don’t begin to paint even a remotely accurate picture of what has happened to this Lebanese-born German citizen. To understand how he has come to where he has come to, it’s necessary to go back in history to a time when the never-ending black clouds began to gather over El-Masri’s head.

Rewind to 2004:

The Open Society Justice Initiative, (OSJI), which is El-Masri’s counsel for the Macedonia case, charges that the Macedonians stopped him at the border, confiscated his passport and other papers, and held him without charge for 23 days, accusing him of being a member of Al-Qaida.

They then drove him to the capitol’s Skopje airport and handed him to a CIA rendition team who flew El-Masri to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained for four
months. The government of Macedonia denies any involvement in his abduction.

Every attempt at justice has failed. El-Masri seeks an investigation to discover the truth.

The following is based on notes prepared by The Open Society Justice Initiative.

On December 31, 2003, Khaled El-Masri traveled from his home in Ulm, Germany, to Skopje in Macedonia, by bus. When he reached the border, Macedonian law enforcement officials confiscated his passport and detained him for several hours.

He was then transferred by armed officers in plainclothes to the Skopski Merak hotel in Skopje, where he was detained for 23 days, guarded at all hours by rotating shifts of armed Macedonian officers. The curtains were closed day and night, and he was not permitted to leave the room. He was interrogated repeatedly, and told to admit that he was a member of Al Qaeda.

His frequent requests to see a lawyer, translator, or German consular official, or to contact his wife, were denied. When he once moved toward the door and attempted to leave, three of his captors pointed pistols at his head and threatened to shoot him. He went on hunger strike to protest his innocence.

On January 23, 2004, seven or eight Macedonian men entered the hotel room, handcuffed and blindfolded El-Masri and placed him in a car. He was driven to Skopje airport. He was removed from the vehicle, still handcuffed and blindfolded, and was led to a building. Inside, he was told that he would be medically examined. Instead, he was beaten severely from all sides with fists and what felt like a thick stick.

His clothes were sliced from his body with scissors or a knife, leaving him in his underwear. He was told to remove his underwear and he refused. He was beaten again, and his underwear was forcibly removed. He heard the sound of photographs being taken. He was thrown to the floor. His hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus.

El-Masri was pulled from the floor and dragged to a corner of the room. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a diaper. He was then dressed in a dark blue short-sleeved tracksuit and placed in a belt, which was connected to chains that attached to his wrists and ankles. The men put earmuffs and eye pads on him, blindfolded him, and hooded him.

El-Masri was then marched to a waiting aircraft, with the shackles cutting into his ankles. Once inside, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. He felt an injection in his shoulder, and became lightheaded. He felt a second injection that rendered him nearly unconscious.

The men dressed in black clothing and ski masks were members of a United States Central Intelligence Agency (CIA) “black renditions” team, who were operating under the U.S. “extraordinary rendition” program.

Flight records show that on January 23, 2004, a Boeing 737 business jet owned by a U.S.-based corporation, Premier Executive Transportation Services, Inc., operated by another U.S.-based corporation, Aero Contractors Limited, and registered by the U.S. Federal Aviation Administration as aircraft N313P, flew El-Masri from Macedonia via Baghdad to Afghanistan.

The same plane has been identified as being involved in other rendition flights. El-Masri was detained in conditions that were inhuman and

degrading, beaten by armed guards, subjected to violent and prolonged interrogations, force-fed following a 27-day hunger strike, and denied medical treatment. He was never charged, brought before a judge, granted access to German government representatives, or allowed to communicate with his family or anyone else in the outside world. He lost some thirty kilograms while in detention.

On May 28, 2004, El-Masri’s belongings were returned to him, including his passport, and he was flown on board a CIA-chartered Gulfstream aircraft with the tail number N982RK to a military airbase in Albania called Berat-Kuçova Aerodrome. On arrival he was driven in a car for several hours and then let out and told not to look back.

Almost immediately he was arrested by the Albanian authorities and driven to Mother Theresa Airport near Tirana where he was put on a commercial flight to Frankfurt. When he arrived at his home in Ulm, Germany, he learned that his wife and children had relocated to Lebanon, not having heard from him for more than four months.

Following a complaint from El-Masri, prosecutors in Munich opened an investigation into his allegations in June 2004. During the investigation, German officials verified from eyewitnesses that El-Masri did indeed travel to Macedonia by bus at the end of 2003, and that he had been detained shortly after entering that country.

Prosecutors also confirmed from stamps in his passport that he entered Macedonia on December 31, 2003, and exited on January 23, 2004. They conducted scientific tests of his hair that proved that he had spent time in a South Asian country and had been deprived of food for an extended period.

On December 6, 2005, German Chancellor Angela Merkel stated after meeting with U.S. Secretary of State Condolezza Rice that the United States had accepted that it had made an “error” in Mr. El-Masri’s case. On January 31, 2007, the German Prosecutor filed indictments against thirteen CIA agents for their alleged involvement in the rendition.

At about this time, other ominous signs began to appear to suggest that the US was working at the highest levels of the German Government to ensure that the prosecutions against the 13 CIA agents never went forward.

And, at the same time, news items began to appear in the local German press regarding El-Masri’s alleged criminal activities. CIA sources and others close to the prosecution, who requested that their names not be published, are said to have instigated a smear campaign against El-Masri. One of the consistent accusations was an El-Masri was a Muslim fundamentalist and a senior member of a terrorist group.

“That's bogus,” says Scott Horton, counter-terrorism expert who writes for Harper’s Magazine. He explains, “Though the ‘good El-Masri’ has been involved in petty crime and has been diagnosed by court-appointed shrinks as having sociopath tendencies, the shrinks also believe that much of this psychopathology is attributable to his being held in abusive confinement by the CIA. This has been reported in the German press.”

And, given his ordeal, how could it not be so?

El-Masri was convicted of arson against a warehouse in his hometown and sentenced to two years probation because he had no criminal record. Later he was charged with a rage-filled physical assault that injured Mayor Gerald Nuremberg, the mayor of New-Ulm, Germany. The court found that while El-Masri’s rage could not be solely attributed to his CIA ordeal, that adventure did have a profound impact on his behavior.

Before his Macedonian adventure, El-Masri sold used cars and also worked as a green grocer. Now he was in prison, unable to live a normal life. His family had left him. El-Masri was coming unglued; he was falling apart at the seams.

Moreover, a set of WikiLeaks disclosures of confidential documents has caused an uproar in Europe by showing that U.S. officials pressured Germany and Spain to derail criminal investigations of Americans.

The more than 2,500 State Department cables that the anti-secrecy group has provided to news organizations since November include accounts of three cases that shed new light on U.S. responses to allegations of wrongdoing by its agents abroad:

-- The El-Masri case itself; after German prosecutors issued arrest warrants for 13 CIA agents allegedly involved in el-Masri's abduction, a February 2007 cable quoted the deputy U.S. chief of mission in Berlin as advising a German diplomat to "weigh carefully at every step of the way the implications for relations with the U.S." if the agents were prosecuted; the German government withdrew the warrants five months later.

-- The case of four Spanish residents who said they were tortured by U.S. interrogators at Guantanamo Bay before being released without charges and returned to Spain.

-- A Spanish judge announced a criminal investigation in January 2009 into whether six lawyers in President George W. Bush's administration had approved torture. They included former Attorney General Alberto Gonzales and John Yoo, the UC Berkeley law professor whose memos as a Justice Department attorney authorized the near-drowning technique called waterboarding.

-- WikiLeaks cables from April and May 2009 said Spanish officials were being warned about the case by diplomats from the Obama administration and by a visiting U.S. senator, Mel Martinez, R-Fla., who allegedly told Spain's foreign minister that the prosecution would have "an enormous impact on the bilateral relationship." The Miami Herald has reported that Martinez was carrying that message for the Obama administration.

The documents also quoted U.S. diplomats as urging Spain to transfer the case from Judge Baltasar Garzón, known for far-reaching investigations of suspected international law violations and for criticism of U.S. policies.

The cables described Garzón as a "publicity-loving" jurist with an "anti-American streak" and said Spain's chief prosecutor was trying to remove him.

Spain's government has since suspended Garzón for allegedly exceeding his authority in another case.

The Parliamentary Assembly of the Council of Europe (PACE) and the European Parliament have undertaken inquiries into the collaboration of European governments with the CIA “extraordinary renditions” program. Their inquiries corroborated the details of El-Masri’s rendition in its entirety, including his secret detention and interrogation in Macedonia and Afghanistan.

In the United States, the American Civil Liberties Union (ACLU) sued the director of the CIA, unknown CIA agents and several corporations seeking compensation and declaratory relief for violations of El-Masri’s rights. The US courts dismissed the complaint on the basis of the “state secrets privilege” on the ground that “the very subject of the litigation is itself a state secret.” The U.S. Supreme Court declined to accept jurisdiction.

Those cases came to be known as Jeppesen DataPlan, a company that 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 state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information that might endanger national security. Most legal scholars believe that when the privilege is invoked, it applies only to a suspect piece of evidence, and not to the entire evidence introduced.

United States v. Reynolds, which involved World War Two military secrets, was the first case that saw formal recognition of the privilege. It proved an embarrassment to the government as it vindicated the position taken by the plaintiffs.

In April 2009, the 9th Circuit Court of Appeals reversed the district court dismissal of the case, ruling that the government cannot invoke the state secrets privilege to dismiss the entire suit, rather, the privilege can only be invoked with respect to specific evidence. The case is remanded back to district court. This was the first and only near-victory achieved by the plaintiffs – but it didn’t stand very long.

By December 2010, the ACLU filed a cert petition, asking the U.S. Supreme Court to review the lower court's decision dismissing the lawsuit. In May 2011, the Supreme Court denied the request to hear the lawsuit.

Following a claim of "state secrets privilege", the court rarely conducts an in- camera examination of the evidence to evaluate whether there is sufficient cause to support the use of this doctrine. This results in court rulings in which even the judge has not verified the veracity of the assertion. The privileged material is completely removed from the litigation, and the court must determine how the unavailability of the privileged information affects the case.

In April 2008, the ACLU filed a complaint against the United States with the Inter-American Commission on Human Rights. This action is still pending.

In Spain, prosecutors have investigated the operations of the CIA rendition team that rendered El-Masri, whose itinerary included a stop in Palma de Mallorca before proceeding to pick him up in Skopje. In May 2010, a Spanish prosecutor asked a judge to issue international arrest warrants against members of the rendition team.

The government of Macedonia has been asked numerous times to explain what happened to El-Masri: by the German prosecutors, Spanish prosecutors, the PACE inquiry, and the European Parliament inquiry.

On October 6, 2008, El-Masri filed a formal request with the Office of the Skopje Prosecutor to carry out a criminal investigation of his illegal detention and abduction and to bring criminal proceedings against those responsible. The request alleged that unnamed personnel of the Macedonian Ministry of the Interior were responsible for the unauthorized deprivation of his liberty and for the crime of torture or other cruel, inhuman, or degrading treatment or punishment. The prosecutor took no action until the statutory time limit for commencing a criminal case expired in early 2009.

On January 24, 2009, El-Masri filed a civil lawsuit for damages against the Macedonian Ministry of Interior in relation to his unlawful abduction and ill treatment by MoI personnel in January 2004. The civil case is still pending at the Basic Court Skopje II.

The civil proceedings, however, are not capable of providing effective remedies for the violation of El-Masri’s rights under the European Convention on Human Rights.

Open Society Justice Initiative assisted Macedonian lawyer Filip Medarski to litigate the case through the Macedonian courts, and is acting as co-counsel before the European Court of Human Rights in a case that was filed in September 2009 on El-Masri’s behalf.

In October 2010, the European Court communicated the case to the Government of Macedonia. In January 2012, the case was referred to the Grand Chamber of the European Court, which will hold a hearing on May 16, 2012.

The government of Macedonia is responsible for illegally detaining El-Masri for 23 days in the Skopski Merak hotel, without charge and without bringing him before a Judge, in violation of Article 5 ECHR (liberty and security).

Macedonian government agents stood by and did nothing while El-Masri was ill-treated by the CIA rendition team in a process that was designed to break his spirit, in violation of Article 3 (torture and inhuman or degrading treatment). In addition, Macedonia knew that by handing El-Masri to the CIA he would be flown to Kabul where there was a real risk that he would be detained without trial and in conditions that were inhuman, in further violation of Article 3 (torture) and in violation of Article 5 ECHR (liberty and security).

The Open Society Justice Initiative charges that “there has never been a proper investigation into how El-Masri was detained in Skopje and then handed over to the CIA, in violation of the requirement to undertake an investigation into violations of Article 3 ECHR (torture).”

Despite many attempts, it continues, “El-Masri has been unable to get a criminal court in Macedonia to hear his case, in violation of Article 13 ECHR (right to remedy).”

The Open Society adds that “Macedonia is hiding its role as one of the European governments that were secretly helping the CIA rendition program. El-Masri and society as a whole have a right to know the truth.”

People familiar with the case believe that El-Masri is close to his psychological breaking point. He is said to still have hope that he will be exonerated and his tormentors will be held to account, but that hope is fading fast.

Followers of the El-Masri debacle have been heard to speculate about what the US reaction would be if Iran, rather than Germany or Macedonia, was playing the puppet master in this geo-kabuki theater.

Well, maybe they have a point. How long would it be before the neocons
were demanding drone strikes at the Iranian Supreme Court?



This article originally appeared in Prism Magazine

Justice Delayed? Justice Cancelled?

By William Fisher

The time is late Autumn 2006. A middle-aged African American inmate sits in the jail cell in Arizona he has occupied for 24 years.

He has little reason to hope he’ll ever see the outside of this prison again – except for one possibly monumental new development – the perfection of a new approach to DNA testing that was not available at the time of his conviction.

He has requested the DNA tests and has heard rumors that such advanced testing is being done in his case – but he’s heard all the jailhouse rumors before and tends to minimize their value.

According to the Innocence Project, On June 22, 1981, Catherine Schilling, a 21-year-old Georgetown University student, was found raped and murdered in Rock Creek Park in Washington, D.C. She was nude and had been shot five times in the head.

The Project reports that on July 20, 1981, Gates, 30, “was arrested for failing to appear in court on an unrelated case. Gates, who had been arrested six times for robbery and assault between 1980 and 1981, gave up a hair sample as part of a processing procedure.”

It’s what was done and said about hair samples and other forensics in the years ahead that would reveal enough lying and corruption to blow the lid off the so-called state of the art FBI Laboratory and force it to forfeit its reputation as the gold standard among forensic crime labs.

The Innocence Project reports that Gates was charged with the rape and murder after a police informant, Gerald Mack Smith, claimed that he and Gates were drinking in the park when Gates said he wanted to rob the victim, but when she resisted, he killed her.”

The Project added, “Smith later picked out Gates’ photo. He was paid $50 for the initial tip and $250 for picking out the photograph. In all, Smith would be paid $1,300 for his help on the case.”

Trial records and memoranda to this reporter from trial observers at Gates’ trial in 1982, reveal that key testimony came from FBI forensic analyst Michael Malone who said that Gates’ pubic hairs were “microscopically indistinguishable” from hairs found on the victim’s body.

On September 16, 1982, Gates was convicted. He was sentenced to 20 years to life in prison.

In 1997, a scathing internal review of the FBI laboratory was conducted by the DOJ Inspector General, who found that Malone and other analysts made false reports on cases across the country and performed inaccurate laboratory tests.

In January 2002, the U.S. Justice Department sent a letter to prosecutors in the case, informing them that Malone’s lab report was not supported by his notes and advising them to determine whether the defense should be notified. The defense was not notified.

In 2007, Gates sought DNA testing again. Two years later, the request was granted and the tests, conducted on a sample of biological evidence found at the District of Columbia medical examiner’s office, eliminated him as the killer and rapist.

So a grievous miscarriage of justice was arguably corrected, albeit far too late. Nonetheless, it was a bittersweet moment for Gates, who was released on December 15, 2009 – after 27 years in prison.

On December 18, 2009, the charges were dismissed. Gates was given $75 and a bus ticket to Ohio.

But the joy for the system was short-lived. The reason is that hundreds, perhaps thousands, of people had possibly been unlawfully tried and sentenced partly based on the junk science that applies to all forensics, with the exception of DNA. In Gates’s case, the analysis of his single hair was the only physical evidence introduced in court, and thus probably heavily responsible for his conviction.

In the many other trials that took place across the country before, during and after the Gates case, the approach to forensics had not changed. Forensic “scientists” were still intent on stretching a flimsy spandex shield over a mountain of unscientific interpretation.

The use of unscientific evidence to obtain convictions was not limited to Malone, according to Dr. Frederic Whitehurst, considered to be the premiere whistle-blower in this whole sordid episode.

It was Whitehurst and his colleagues, lawyer David Colapinto, and the staff at the National Whistleblowers’ Center, who kept this story alive. Dr. Whitehurst originally exposed forensic flaws that may have led to many wrongful convictions, as reported in last week’s Washington Post front-page story. For years, Dr. Whitehurst has urged the Justice Department to act on systemic flaws that he witnessed while serving as the top explosives expert in the FBI Crime Lab. The NWC and Whitehurst assisted the Washington Post in its investigation into the Justice Department's failure.

In response to the widespread outrage and condemnation of the FBI lab and Dr. Whitehurst's original whistleblower disclosures, the Justice Department formed a Task Force to review thousands of cases impacted by Dr. Whitehurst's allegations and to determine if any individuals were wrongly convicted.

Although the Justice Department and FBI pledged to correct their mistakes, documents obtained by the NWC through the Freedom of Information Act (FOIA) suggest a government attempt to suppress embarrassing mistakes at the expense of innocent defendants, lawyer Colapinto said.

As reported by the Washington Post, convicted defendants were left uninformed of serious flaws in the forensic evidence presented in their cases long after the Justice Department had confirmed that serious problems existed, according to Colapinto.

When he left the FBI Crime Lab in 1998 after 16 years of service, Dr. Whitehurst vowed to continue his work to find all the defendants harmed by the FBI's misconduct. It was then he established the NWC's Forensic Justice Project.

Whitehurst said, “The (Washington ) Post came to us after the Washington DC Public Defender Sandra Levick proved Gates innocent with DNA evidence. It was only after I got out of the FBI that I started researching the Malone cases. I have a tremendous file that the Post also has that will show you the over 1800 files we have identified where Malone was involved.”

Sandra Levick found out about Gates as a result of a DOJ disclosure made to Gates' prior attorney that DOJ was looking at Gates' case as a result of the 1997 DOJ Inspector General report on FBI Lab practices and alleged misconduct raised by Whitehurst. DOJ never provided any further notification to the prior attorney about what happened. The judge appointed the Public Defender Service and the case was assigned to Levick.

Whitehurst adds, “The (then) Inspector General, Michael Bromwich, has publicly spoken in anger that nothing was done beyond the IG report about Malone. There are potentially thousands and thousands of victims of this subjective practice.”

However, the DOJ put together a Task Force, presumably to follow up on the IG investigation into the FBI Lab practices and to investigate and identify the other inmates convicted based on inaccurate forensic evidence. That Task Force convened for eight years (between 1996-2004) and the consensus among knowledgeable observers is that is achieved zero.

The Task Force first said it would fully examine all the cases that might have been infected by false evidence. Then they came up with about 250 cases, and announced they would only do paper reviews of the cases, not going back to examining evidence. They sent these paper assessments to the prosecutors of the respective cases, leaving it at the prosecutors’ discretion as to whether to share the information with defense counsel.

As Gates’s lawyers were never notified, hundreds of other defense lawyers were passed over as well.

The Task Force also consistently ignored instructions from presiding judges to send their reports up the food chain to their superiors.

Now Sandra Levick is writing to the D.C. judges requesting the assignment of a judge to sit for whatever remaining cases there are. She wrote:

“The investigation that the United States has thus far conducted (at least insofar as is known to undersigned counsel) has not been adequate to the task. It has been too narrow in scope, too one-sided in execution, and the results have been too slow in coming. Moreover, as more fully set forth in our letter of April 14, 2010 - to which the government has never responded – the investigation and its initial results lack transparency and an opportunity for meaningful adversarial or judicial oversight.”

“First, the government's investigation remains incomplete even by its own narrow terms. The United States reported on March 12, 2010, that there were "more than one hundred additional names.”

“Second, the United States has not responded to our request for a broader investigation to include all cases where the prosecution relied on FBI microscopic analysis of hair or fiber without DNA testing to obtain a conviction. As is more fully set forth in our letter of April 14, 2010, hair or fiber microscopy has been proven too lacking in a scientific basis and too unreliable to support the kind of testimony that was used to convict Mr. Gates and, it is feared, many others. This is so whether or not the individual examiner's integrity has been called into question as was Mr. Malone's.”

“Third, the United States has not responded to our request for a more transparent investigation and a greater opportunity for adversarial testing and judicial oversight. As is discussed at length in our April 14, 2010, letter, the United States risks repeating the failures of the DOJ Task Force and the United States Attorney's Office to apprise Mr. Gates of the results of the OIG Report by yet again resorting to a secret inquiry with respect to others who may have been affected.”

The court ordered DOJ to turn over its review of Gates case to Levick. DOJ never had transmitted the report to the prior attorney even though it had been completed many years before as part of he review of lab cases resulting from Whitehurst's allegations about the lab.

As it turned out, DOJ had conducted a paper review of Malone's work in the Gates case, but the review was not conclusive and no trial transcripts existed. Levick then asked the court for an order to locate the original hair evidence in Gates case for DNA testing. When the sample was later found the DNA test ruled out Gates thus contradicting Malone's testimony that the hair evidence matched Gates. As a result, the court released Gates in late 2009.

that “Malone's misconduct in cases was known in the FBI dating back to the 1980s and the knowledge that Malone was testifying falsely in many cases became more widespread as a result of Dr. Whitehurst’s whistle blowing and the subsequent IG investigation. DOJ was certainly on notice of the magnitude of the problem by the mid-1990s.”

Of the inmates and former inmates who were convicted with unlawful evidence, it is safe to say that no one knows precisely how many there are or where they are. Nor does the government appear to have any plan to identify them and provide new trials or rehearings. Some doubtless died in prison. Others have been paroled. But whistleblowers believe the bulk of prisoners continue to be prisoners.

And they vow to keep up the pressure until justice is done.

The FBI laboratory has once again assumed a position of credibility, largely based on DNA, the only scientific tool anywhere in the forensics lab. It is now located in a state-of-the art complex at Quantico Virginia.

But for those who pay attention when our government fails, the thousands of unlawfully convicted prisoners remain as a grim legacy caused by lies and corruption and faux science that will haunt the lab forever.

Steven Aftergood, editor of the Government Secrecy Report for the Federation of American Scientists, summed up the situation this way:

"It’s an astonishing, scandalous story. What we have is a systemic failure. It’s not just the FBI lab itself that failed, which it did, egregiously. So did the Justice Department, by withholding its knowledge of the matter from those who could have acted on it. So did congressional oversight, and so did the courts, by failing to demand and deliver accountability. The price was paid by those who were wrongfully convicted."

He added: "I would like to see some congressional involvement in charting a path forward, which should include providing remedies for past errors and developing new mechanisms for preventing future errors."

Arizona’s Next Step: Guns in the Library!

By William Fisher
Arizona is apparently eager to double down on its reputation for having the nation’s loosest gun control laws. Awaiting the signature of Republican Gov. Jan Brewer is a bill that would allow firearms in public buildings such as libraries and swimming pools.

The legislation was introduced by a Republican legislature in the wake of the shooting of former U.S. Rep. Kathy Giffords last January. Jared Lee Loughner has been charged with the shooting, which left six people dead, including a Federal Judge and a nine year-old child.

Rep. Giffords, who was shot in the head, continues to make an amazing recovery, but was nonetheless obliged to resign her Congressional seat.

Proponents of the bill say that allowing law-abiding citizens greater freedom to carry firearms will deter criminals. Deterrence is a consistent defense put out by the National Rifle Association (NRA) to justify its emasculation of gun control.

Maricopa County (Phoenix) Supervisor Mary Rose Wilcox told the local press, "I know people say with this law, it allows good guys to be armed, too, but to me that's crazy." She and others have also questioned the cost of implementing the new law.

The bill has an opt-out provision to allow cities and counties to opt out of the law, and keep firearms out of public buildings. But those opting out would be required to increase security at public buildings, including a metal detector, gun lockers, and two armed guards for each public entrance.

It is unclear that the bill’s sponsors have calculated the cost of implementing the measure. Officials have estimated that it would cost Maricopa County, which has 111 public buildings, $11 million for the new equipment and $20 million to add new guard staff.

Under current Arizona gun control law, it is illegal to carry a firearm on or near school grounds or within public buildings. The ban on guns near schools would remain unchanged.

In a related development, a disciplinary panel convened by the Arizona Supreme Court last week repeatedly found evidence of ethical misconduct -- even criminal acts -- that it said merited disbarment for Maricopa County Attorney Andrew Thomas and one of his former lieutenants, former Deputy County Attorney Lisa Aubuchon. The law license of former Deputy County Attorney Rachel Alexander was suspended for six months.

The attorneys had filed lawsuits accusing County officials of widespread corruption.

It is rare for the activities of an elected prosecutor to be subjected to such harsh scrutiny. Legal experts are hailing the case as a model for how to hold prosecutors accountable for misconduct.

"This case is one of those few cases where the disciplinary mechanism worked -- and worked in a dramatic and powerful way," said Bennett Gershman, a Pace University law professor and an expert on prosecutorial misconduct. "This is a huge victory for good-government people and people who believe that prosecutors should be accountable for misconduct."
The sanctions are to take effect May 10, but at least two of the three prosecutors are likely to appeal, according to their lawyers, and they can ask for the sanctions to be stayed until their appeals are heard. Disbarment would strip them of their ability to practice law in Arizona and could hinder their ability to practice in other states.
Only Thomas would not indicate Tuesday whether he would appeal, but he called his disbarment "a political witch hunt."
In yet another Arizona development, the Brady Campaign, which backs strong gun control measures, annually assigns up to a total of 100 points for each state's gun laws. Arizona received its lowest ranking this year.

The Brady report says Arizona earned a six the first two years of the rankings, but only a two last year. They lost two points this time around because there is no longer a requirement that people have a permit to carry a concealed weapon.

The number of points given varies by topic. The greater the public benefit the group perceives, the higher the points. There were 17 points possible for requiring background checks for all firearms, 7 points for requiring background checks at gun shows, 5 points for selling childproof locks with all handguns, and 2 points for not forcing employers to allow guns in their parking lots.

California received the highest ranking in the U.S. -- 80 points. Arizona earned zero
But firearm enthusiasts tend to turn the Brady scores on their heads, i.e. the losing states that Brady says have the weakest gun control laws are hailed as winners, while winning gun-control states like California are dubbed “the worst of the worst.”
In a related development, Amnesty International is accusing Arizona of violating international law by improperly using "cruel isolation" for non-violent or mentally ill inmates and depriving them of basic physical and mental health care.

In a report, the human rights organization said that of the more than 2,900 inmates being held in Arizona's maximum-security facilities, more than 2,000 are confined by themselves in windowless cells 22 to 24 hours a day. They suffer sensory deprivation with little access to natural light and receive no work, educational or rehabilitation programs, the group charged.

Amnesty said that Arizona's isolation system has led some inmates o commit suicide, caused depression and anxiety and worsened pre-existing mental illnesses.

The groups issued several recommendations for the Corrections Department and Gov. Jan Brewer. They include: Reducing the number of prisoners in isolation; improving conditions in the isolation units; removing prisoners with serious mental illness from the units; taking suicide-prevention measures; and barring children under 18 from being held in solitary confinement.

Bahrain Follows The Money

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.

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.

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.”

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.”