Tortured Punished, Torturer Cleared: The Story of Ahmed Abu-Ali.

The article below originally appeared in the pages of Prism Magazine.


By William Fisher

The year is 2003. In Saudi Arabia, the semester at the university American-born Ahmed Abu-Ali is attending in Medina is coming to an end. It’s exam time. Soon, he’ll be on a jet headed for his family’s home in Falls Church, Virginia.

But 23-year-old Abu-Ali never makes it to the airport. Or anywhere close. Instead he is arrested by Saudi security services “for questioning,” and imprisoned. And that’s where he would stay for the next twenty months. With no lawyer and no charge against him.

And where, Abu-Ali charges, he was routinely tortured, including the occasion when a “confession” was squeezed from him under extreme duress. It was a “confession” of a conspiracy to organize an Al Qaeda cell in the US, and to use guns or a suicide mission to kill the president of the United States.

At the same time, Abu-Ali’s parents, naturalized US citizens living in Northern Virginia, find themselves crazed by the frustration of effectively having their son “disappeared” – a victim of extraordinary rendition in plain sight -- and being unable to get a coherent story from either the Saudis, who are holding him, or the US, which they strongly suspect is apparently managing his incarceration.

Finally, in August 2004, after the FBI executed a search warrant on their home, Abu-Ali’s parents’ frustration reached a boiling point. They filed a habeas corpus lawsuit in the U.S. District Court of the District of Columbia, seeking a legal justification of Abu-Ali’s detention, and his ultimate release.

The legal team for the habeas action included high-profile constitutional rights scholar, Georgetown University law professor David Cole and other prominent civil rights lawyers, including Morton Sklar.

The government’s position had been that Abu-Ali was too dangerous to be brought to the US. But then it dropped its legal IED. It flew Abu-Ali to the United States. This mooted Judge Bates’s question, as lawyer Cassel put it, “whether the government could proceed upon secret evidence to block his return.”

Now that he was back in the States, it was a stretch to deny that the Abu-Ali’s Saudi detention was not with U.S. consent - indeed, according to attorney David Cole, his return was arguably facilitated at the U.S.'s behest.
It was only Judge Bates's interest in Abu Ali's case that changed the government's mind.

Judge Bates was concerned about the potentially indefinite imprisonment of a U.S. citizen, with the U.S.'s consent, in a foreign prison where due process is ignored and torture is common.

He had reason to be suspicious. Saudi Arabia’s human rights record had long been a disaster. It is generally acknowledged to be the most orthodox and repressive of the Arab regimes in the Middle East. It retains that role, even after the so-called Arab Awakening and the grisly situation in Syria.

The State Department Country Reports on Human Rights Practices for 2003 says Saudi Arabian security forces "tortured detainees" and that "torture and abuse were used to obtain confessions from prisoners." The report also cites " … credible reports that security forces continued to torture and abuse detainees and prisoners, arbitrarily arrest and detain persons, and hold them in incommunicado detention."

But now that Abu Ali was physically in the US, the government had to charge him with something – presumably that would reassure the public that the government was waging the “war on terror” relentlessly and successfully.

Abu-Ali was arraigned on February 22. The Government used Abu-Ali’s Saudi-prison confession, with an FBI agent testifying at the hearing on the bail motion, that Ali had confessed to Saudi officials that “he associated with persons involved with al-Qaeda, received things of value from them, and talked with one or more of them about how to assassinate President Bush, whether by car bomb or shooting.”

The government’s charge of conspiracy also seemed questionable. When the indictment was made available to the public, it raised an even larger question about the entire prosecution. Nowhere in the indictment is Abu-Ali tied to any terrorist event or action. Legal experts asked, “If his only transgression was conversation – speech -- what is the crime? Where’s the beef?”
Plainly, there was not enough evidentiary support for a charge of conspiracy to assassinate President Bush. Conspiracy normally requires an agreement, and an overt act in furtherance of the agreement. Nothing in the indictment suggests that Abu-Ali either agreed to attempt to assassinate Bush, or took any action as a step to doing so.

So, instead, the indictment simply charges Abu-Ali with having "associated" with alleged terrorists. Specifically, it claims that he talked about wanting to kill Bush with these persons, and that he received money from one or more of them -- for what purpose, it is unclear. Abu-Ali’s lawyers also argued that if their client had confessed at all, the confession was obtained under extreme duress – torture – and would have been inadmissible in court.

Justice Department attorneys said US courts lacked jurisdiction over cases involving US citizens in foreign custody. District Judge John D. Bates rejected the notion that "when the United States acts against citizens abroad it can do so free of the Bill of Rights." He ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu-Ali's arrest and detention.

The government’s “position is as striking as it is sweeping," the judge said. He warned that its behavior would allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even "to deliver American citizens to foreign governments to obtain information through the use of torture."
The indictment was later amended to add charges of conspiracy to assassinate the president, conspiracy to hijack aircraft, and conspiracy to destroy aircraft. The indictment alleged that Abu-Ali had joined a terrorist cell in Medina, led by senior al-Qaeda members Ali Al-Faqasi and Zubayr Al-Rimi, and that among the plots they were developing were a plan to assassinate the President of the United States, and a plan to mount 9/11-style attacks using planes transiting through the US.

Pretrial hearings began in the fall of 2005. The government's evidence was focused on the confession Abu-Ali had allegedly made while in Saudi custody. Abu-Ali challenged the admissibility of the confession, claiming: (1) it was involuntary due to alleged torture he had suffered at the hands of the Saudis; and (2) he should have been given certain constitutional protections (including Miranda warnings), because the interrogations were a joint venture between the FBI and Saudi authorities, rather than a purely Saudi interrogation, which would not have been subject to the same scrutiny under the U.S. Constitution.

After an extended pre-trial suppression hearing, in which Abu-Ali himself testified, Judge Gerald Bruce Lee, who presided over the case, ruled that Abu-Ali's confession to Saudi agents was admissible.

Abu-Ali testified that on the first day, his interrogators asked him whether he knew specific people and whether he knew about bombings in Riyadh. At one point, his blindfold was taken off. Abu-Ali said he then saw the bruised face of a man through a window in the door to the room. The man was asked if he knew Abu-Ali, and he shook his head no, then was taken away.

Abu-Ali testified he was not fed this day. He says the Saudis hit him, slapped him, punched him in the stomach, and pulled his beard, ears, and hair. He was not allowed to use the bathroom, even when he asked to wash up for prayers. The next day, the Saudis continued hitting him. At one point, he was taken from the chair in which he was sitting, and his handcuffs were handcuffed to a chain or other handcuffs in the floor, leaving him with his knees to his chest on the ground, hunched over with his head on his fists, and his feet shackled. Then someone began to strike him on the back and to yell, “confess!”

Abu-Ali said it was “very painful” and that it was the “first time I felt extreme pain.” Eventually, Abu-Ali told them he would cooperate. The beating stopped, and he was taken back to his cell.

The jury trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Abu-Ali was sentenced to 30 years in prison for his crime.

On appeal, the United States Court of Appeals for the Fourth Circuit upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines which call for life in prison. Judge Lee re-sentenced Abu-Ali to life in prison.

In the “Supermax” prison in Florence Colorado, Abu-Ali is held in solitary confinement under “Special Administrative Measures” (SAMs).

“My brother has spent the past five years in solitary confinement, under 23-hour lockdown, in a 7x12 cell. He has one recreational hour in which he must get strip-searched if he wishes to leave his cell. He gets one unscheduled telephone call a month to his family, and receives the newspaper by the time news becomes history. If I send him a letter wishing him a happy birthday, he gets it 60 days later. When I visit him, once a year, I speak to him from behind a glass window. He is literally in a dungeon, over 20 meters beneath the ground,” says Mariam Abu-Ali, one of the prisoner’s sisters.

In August 2008, he requested permission to receive two books by Barack Obama, Dreams from My Father and The Audacity of Hope. Under SAMs, permission was denied by prison authorities on the grounds that the books contained material "potentially detrimental to national security."

Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter resulting in perpetual isolation, a form of torture under international law.

Created in 1996, SAMs were imposed for a maximum of four months when a prisoner was deemed violent. Now, SAMs can be designated by the Attorney General for up to a year, and renewed continually thereafter “resulting in perpetual isolation, a form of torture under international law. The SAMs limit certain “privileges,” including, but not limited to, correspondence, visits, media interviews and telephone use,” Mariam Abu-Ali adds.

The financial and emotional impact of Abu-Ali’s trial and conviction on his family is different but no less painful. Prism discussed these issues with Mariam Abu-Ali, who is now 23, graduated from Georgetown, studying government and Arabic. She works for a not-for-profit that promotes Muslim values.

“We are not a family with a lot of money, so we were forced to ask for financial support from the community,” she told us.
“But there is so much Islamophobia in the country, and so much fear among American Muslims, that we weren’t able to tap into institutional resources such as Muslim American organizations or even mosques.”
She explained: “By and large most of those who gave money did so as individuals and did so secretly. Muslim organizations always came up with reasons they couldn’t support us.”

“Most people have no idea what it means financially when the government charges you with a crime. You need the best lawyers you can get, and lawyers are not cheap. Once the trial is over, if there is a conviction, you have to deal with prison visits. One of the truly draconian regulations at the Supermax is that there can only be two family visits a year. Each trip per person costs at least $2000. Once the prison authorities cancelled a family visit. Another time, we couldn’t scrape up the money,” she said, adding:

“Regardless of [inmates’] innocence or guilt, it is their right to be treated humanely. If we believe in the inherent dignity of each human being, then we should be outraged by these abuses. Unfortunately, abuse here in the United States rarely receives media attention.”

But the heart of the court’s pushback against the government came in Judge Bates’s eloquent memorandum written during the habeas hearing, before any criminal trial was contemplated. Judge Bates was a George W. Bush nominee to the court.

At one point, Judge Bates asked whether the government could identify “any case in which . . . even the legal theory for dismissal is not known to the other side?’ The government could not.”

He added: “Abu-Ali has been subjected to torture while in the Saudi prison. The United States does not offer any facts in rebuttal.”

He continued, “Abu-Ali was not captured on a battlefield or in a zone of hostilities -- rather, he was arrested in a university classroom while taking an exam.”

“Such principles, however, have never been read to extinguish the fundamental due process rights of a citizen of the United States to freedom from arbitrary detention at the will of the executive, and to access to the courts through the Great Writ of habeas corpus to challenge the legality of that detention.”

“The present posture of this case requires this Court to accept petitioner's well-supported allegations, to which the United States has not responded.”

Whether or not to allow the “confession” into the trial as evidence became moot when Ali was charged by the US with providing material support for a terrorist organization and conspiracy to kill President Bush.

With that, Judge Brady dismissed the Abu-Ali family’s habeas suit, and Ahmed’s trial on the government’s new criminal charges began the next day. The new judge was Gerald Bruce Lee, a Bill Clinton appointee.

The criminal trial took place in November 2005. On November 22, 2005, after deliberating for two and a half days, the jury returned a unanimous guilty verdict on all counts. On March 29, 2006, Ali was sentenced to 30 years in prison for his crime. While prosecutors had pushed for a life sentence, Judge Lee explained that the (relatively) light sentence was handed down because Abu Ali's actions "did not result in one single actual victim.”

One legal court-watcher was overheard to comment, “With this fear of terror and terrorists, a prosecutor could indict a ham sandwich, without the ham”

Abu-Ali appealed, only to get more bad news. The United States Court of Appeals for the Fourth Circuit not only upheld the conviction but overturned the sentence on the grounds that the prior Court had deviated from federal sentencing guidelines, which call for life in prison. Judge Lee then re-sentenced Abu-Ali to life in prison.

There are a number of take-aways from the Ali case. One is the complete and pathetic impotence of anyone who finds himself trapped between two sovereign but cooperating states. A second is the emotional and financial catastrophe for the family of the detained or convicted that begins well before a prosecutor is able to produce an indictment. A third corruption of due process occurs when either side indicts un-named conspirators, or introduces them as witnesses in court, without revealing their identity or the content of their testimony.

Finally, the Abu-Ali case may well represent a new twist in that quaint term, “extraordinary rendition.” Abu-Ali was a young man who was diverted from returning to his home in the US, and was instead snatched out of a college classroom during an exam and “rendered” to prison in a country not his home where inmates have a history of being mistreated. That is one of the classic definitions of “extraordinary rendition.”

Moreover, other hallmarks of “extraordinary rendition” also appear to be present: “disappearance,” lack of due process, intermittent or non-existent consular services, and absence of legal counsel.

The only difference here is that most of the parties to this “disappearance” knew exactly where Abu-Ali was most of the time. Those who didn’t know had the greatest need to know: The Abu-Ali family, who would make the arrangements for legal representation and try to ensure civilized treatment for their kin.

Prism discussed this issue with Mariam Abu-Ali.

She told us, “He wasn't buried in a secret CIA black hole prison, but we were not aware of his detention until the FBI raided our home a week later, and after that we had no access to him at all for over a month. So at this time we were not even sure if he was dead or alive.”

She added, “The US government also denied any involvement in his detention, so we did not know of the joint interrogations until much later/ post our lawsuit.”
The US Government lied to Abu-Ali and his family. His trial made clear that the case against him was being executed by the FBI and Saudi Security jointly. But anyone who has a government knows that governments lie. They lie legitimately to protect state secrets or illegitimately to cover-up their previous lies or other embarrassing incidents.

It’s too late to reverse what’s already done. Barring some legal miracle, Abu-Ali will spend the rest of his life in prison under what most experts agree is a cruel case of over-sentencing triggered by the Federal Guidelines the government fashioned to help judges to be judges.

The best that can be done now is for Abu-Ali to seek relief from the unnecessary and uncivilized regimen called SAMs – a regimen that in effect condemns the inmate to a life in solitary confinement. And what we know beyond doubt is the impact of isolation – on inmate health and life itself.

In a month or so, Abu-Ali will be back in Court asking the Justice Department to end the SAMs imposed on Abu-Ali. Let us hope the government lawyers still remember that Justice is half their name.

‘War on Terror’ Making USA a Police State

The following article originally appeared in the pages of Prism Magazine.

By William Fisher

There are people like Mitt Romney who say things like fear makes us stronger. They reason that, if we are motivated by fear, say, of the “war on terrorism,” fear may be the emotion that gets us galvanized, but if the result is the strongest military in the world, no one will attack us. Millions of Americans believe this.

But there are many other points of view. Prof. David Cole of the Georgetown Law School reminds us of one of them: Historically, fear has caused the US to restrict civil liberties and abuse human rights during wartime.
It is now more than a decade since the tragic attacks of September 11, 2001. There are many who contend that the dangerous erosion of our freedoms began that awful day and have only accelerated since then.

George W. Bush’s Attorney General, John Ashcroft, began the “war on terrorism” by having the FBI and local law enforcement round up hundreds of “Middle-Eastern-looking” men (many of them not Muslims but Sikhs) and jailing them without charges or access to lawyers or families.

From that point forward, the downward spiral of repression has gathered speed. The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.

On October 26, 2001, President George W. Bush signed the Patriot Act into law. For many Americans – those who are politically aware and politically active – life has never been the same since. America was on its way to becoming a quasi-police state. The Surveillance State!

For millions of other Americans – the uninformed, the uncaring, the ignorant – life-as-usual was often tinged with fear and anger at the inhumanity of the World Trade Center attacks. That fear and anger were fed by our government. It assured that our officials would get everything they demanded in the way of material and human and financial resources to vanquish this new enemy.

Or as linguistics professor George Lakoff puts it, “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”

September 11 and the USA patriot Act began a process that would strip American democratic values to the bare bone, threatening to leave only the shell of a once-great nation.

Many with this point of view believe it will be generations before these basic American values will be restored, if ever.
Scott Horton, lawyer-journalist who writes for Harper’s.com, told Prism, “ Participation in discussions and decision-making about vital national-security issues is a fundamental part of any democracy. Indeed, if the people don't have the right to some say about decisions to go to war or make peace, then no matter what it proclaims their country isn't really much of a democracy.”

He added, “Since 9/11, all aspects of national-security decision making have been progressively enshrouded in secrecy and the public's right to know about them and have some say about what is done have been radically reduced. The extremes this process has reached became clear last spring, when the president committed U.S. forces to extended hostilities in Libya with no public discussion, no Oval Office speech announcing he was doing it, and no consultation with or approval from Congress.”

He concluded, “It established war-making as a unique presidential prerogative--the president would consult his shadowy top-secret-clearance holding national security experts, but no one else really had anything to say about it. This is the most fundamental loss of civil liberties we have seen in the last several decades; it is a subversion of the very essence of our democracy.”

Bruce Fein, one of the country’s outstanding Conservative attorneys and a member of the Reagan Administration, is particularly alarmed about the Obama Administration’s claim to be able to use unmanned drones and other methods to kill America’s enemies, including US citizens, and its support of indefinite detention without charge or trial of allies of Al Qaeda.
He told Prism,”The right to life has been extinguished by President Obama’s unilateral and limitless power to assassinate any person he says is a national security threat. The right to liberty has been extinguished by the President’s NDAA authority to detain for life without accusation or trial any person he decrees is substantially aiding an associated force of Al Qaeda. These time honored rights tracing back to Article 39 of the Magna Charta of 1215 will be restored only when the political culture embraces liberty rather than domination, control, and a futile quest for a risk-free existence as the nation’s signature.”

A similar sentiment was voiced by Prof. Jonathan Hafetz of Seton Hall law school. “One of the most basic freedoms that we have lost since 9/11 is the principle that no person should be imprisoned on suspicion of wrongdoing without being charged and provided a fair trial. The continued practice of indefinite detention and the use of military commissions rather than federal courts to try terrorism suspects has undermined a proud tradition dating back more than 200 years and undermined respect for the rule of law. It was an unnecessary step and one that will come back to haunt us,” he told Prism.

Kevin Johnson, dean of the law school at the University of California, Davis, worries about another by-product of fear: immigration.

He told Prism, “I believe that the post-September 11 ‘war on terror’ had a serious impact on the civil rights of immigrants and certain groups of U.S. citizens. Initially, the U.S. government imposed immigration and other restrictions on Arab and Muslim non-citizens. The concern with ‘terrorism’ morphed into a call for tighter enforcement of the U.S./Mexico border, even though there have been no documented efforts by terrorists to come into the country through the southern border.”

He continued: “The result has been greatly increased border enforcement efforts, record levels of detentions, and record levels of removals of non-citizens from the United States. For fiscal year 2010, the Obama administration deported nearly 400,000 non-citizens, with well over 99% having nothing whatsoever to do with terrorism. Many of them were guilty of relatively minor crimes but were picked up by local police and turned over the federal authorities under programs like Secure Communities. Families have been torn apart as non-citizen parents have been deported and U.S. citizen children have remained in the country (or effectively deported with their parents).”
He adds, “The ‘war on terror’ in transforming the public view of immigration has made comprehensive immigration reform extremely difficult for Congress to pass, which has had negative impacts on Latino and Asian immigrants and their families in the United States.”

Another perspective is offered by Colonel Morris D. Davis, a faculty member at the Howard University School of Law, US Air Force officer and lawyer who was appointed to serve as the third Chief Prosecutor in the Guantanamo military commissions. He resigned from that position and retired from active duty in October 2008.

Col. Davis told Prism, “A real challenge would be to name a liberty that has not been diminished. Think back to before September 11, 2001: extrajudicial assassination of U.S. citizens by order of the President, warrantless wiretapping, indefinite detention without charge or trial, impunity for torture, the use of state secrets and qualified immunity to block an aggrieved party from his or her day in court, a government groping before you can board an airplane, profiling people and infiltrating groups because of religious beliefs; those types of things were unimaginable…or at least they were in America.”

He added, “We went from being the “land of the free and home of the brave” to a nation of the constrained and the cowardly.”

Prof. Peter Shane of the Ohio State and Harvard law schools, put it this way: "What seems to me to have been lost -- or at least severely compromised -- since 9/11 is a sense that government actors who violate civil liberties in the alleged name of national security ought to be held to account. In the wake of FBI and CIA abuses during the Vietnam Era, we had the Church Committee investigation, which not only created a clear historical record of those abuses, but also laid the groundwork for what became the Foreign Intelligence Surveillance Act.”

He concluded: "In the wake of the Bush Administration's seeming disregard for law, we have had no equivalent effort. As a result, we, as Americans, can hardly have an intelligent, democratic debate about whether and how our civil liberties have been compromised and what to do about it. It is our national complacency in the absence of accountability that I find most troubling."

Among the most comprehensive worry-lists comes from Chip Pitts, former head of Amnesty USA and currently a lecturer at Stanford and Oxford.

He spoke to Prism from South Korea. “I believe it’s clear that in response to the increasingly common global issues of growing inequality, persistent poverty, shrinking economic opportunity, evaporating job security, and corrupt money in politics used to buy power, governments around the world have taken exactly the opposite approaches of what they should have.”

He continued: “Instead of listening to and responding to the legitimate tragically taken the opportunity to diminish meaningful rights to peaceful dissent and protest (including by ridiculous “free speech zones” that completely neuter protest and by threats of arrest or imprisonment even for non-violent actions). I’ve now seen this in a number of countries around the world, including here in South Korea as well as the US and in Europe, applied against diverse movements such as Occupy, Los Indignatos, the Russian dissidents, the remnants of the Arab Spring, and now the Canadian students and their allies.”

Sounding a note of caution, he said, “Everyone should be extremely disturbed by this growing tendency of governments, following the US lead, to casually change laws to allow repression, to import weapons from theaters of war abroad for use by police departments and ‘joint task forces at home, and generally to kill or chill dissent by threats and use of force, arrest, application of the ‘terrorist label, and now even indefinite detention and assassination without due process of law.”

Pitts asks, “What will it take to reverse the losses? An even more effective, democratic, cross-coalition, grassroots US and global people’s ‘movement of movements’, powered by privacy and rights-respecting new media social networks which allow individuals and groups to support each other and come together to creatively use the framework of the Universal Declaration of Human Rights to strategize, take common action, and peacefully deploy both classic and new techniques of non-violence that attract ever-greater numbers to the cause of a more sustainable and just, rights-based economy and politics.”

“The movement will be driven mainly by the 99%, but will also include current members of the 1% who prefer peaceful evolution to violent revolution. It will either dramatically transform or more likely sidestep the existing establishment parties, and connect people from diverse countries and perspectives globally who are ready for change – and see the urgent need for change before we have another financial crisis and even more repressive cycles of chaos and repression.”

There are also virtually endless lawsuits by groups who charge the corruption of their rights of citizenship. One of them is Muslim Advocates, which filed an unprecedented lawsuit against the New York Police Department challenging its policy of targeting innocent American Muslims for surveillance based on their faith. It is the first lawsuit by victims of the NYPD's discriminatory spying program.

As documented by the Associated Press, American Muslims were targeted in New York City, as well as in towns, mosques, businesses, and college campuses throughout the northeast, including New Jersey. Records show that the NYPD took copious notes on the details of American Muslims’ daily lives. Examples of the NYPD spying program include photographing an elementary school for girls, eavesdropping on grocery store patrons, and photographing attendees of Friday prayers as well as their license plates.
Author Nick Meyer addressed yet another related issue. He wrote:

“The attorney-client privilege assuring confidentiality between the two parties is one of the most cherished rights of the American law system, but according to internationally recognized lawyer, author and professor Francis A. Boyle of the University of Illinois-Champaign law school, government agents violated that privilege in a jarring summer 2004 visit.

Speaking to The Arab American News, Boyle confirmed to Meyer that he was visited by two agents from a joint FBI-CIA anti-terrorist fusion center located about a 90-minute drive away in Springfield, Ill. in his office in Champaign, who attempted to persuade him to become an informant on his Arab American and American Muslim clients.

Meyer writes that Boyle repeatedly refused their requests to violate his clients' constitutional rights, only to find himself placed on the U.S. Government's terrorist watch list.

Boyle told Prism there are several no-fly lists and he was on all of them. He said he was told he would stay on the watch list forever until the agencies that "put me on there took me off."

The USA PATRIOT ACT was printed at 3:00am for a vote that took place at 11:00am that same morning. With the passage of this act, the U.S. federal government was given the ability to wiretap, conduct electronic surveillance, pry into private medical records, and to access financial records such as bank and credit card statements. They were even given the power to look into public library records.

On October 26, 2001: President George W. Bush signed the Patriot Act into law.

In the early days after the attacks, we were constantly reminded that America is not only the land of the free, but also the home of the brave. On the evening of attacks, President Bush addressed the nation, and stated, “Our country is strong. Terrorist acts can shake the foundation of our biggest buildings, but they cannot touch the foundation of America.”

Which caused the American Civil Liberties Union (ACLU) to remark: “We could not have imagined that in the decade to follow, our country would engage in policies that directly defied American values and undermined our Constitution. We lost our way when, instead of addressing the challenge of terrorism consistent with our values, our government chose the path of torture and targeted killing, of Guantánamo and military commissions, of warrantless government spying and the entrenchment of a national surveillance state, all of which now define the post-9/11-era. That is not who we are, or who we want to be.”

Ten years later, our nation still faces the challenge of acting, not out of fear, but out of courage and confidence.

To quote the ACLU again, “The way forward lies in decisively turning our backs on the policies and practices that violate our greatest strength: our Constitution and the commitment it embodies to the rule of law. It is that strength which is the best rejoinder our nation has to violence and to those who advocate it. Liberty and security do not compete in a zero-sum game; our freedoms are the very foundation of our strength and security. Consistent application of the law is what ensures that practices don't change simply because of a change in the White House.”

This does not suggest that we should simply let terrorists – foreign or home-grown – run amok in our country. These miscreants must be caught and held to account. But a smarter stragegy rather than our current kitchen sink approach might enjoy a more substantial level of success.

Our choice is not between safety and freedom; in fact it is our fundamental values that are the very foundation of our strength and security.

Quoting George Lakoff again: “The word terror activates your fear. The war on terror is not about stopping you from being afraid, it's about making you afraid.”

Never Ending Prosecution andVendetta::The Kafkaesque Story of Sami Al-Arian

By William Fisher

In a nationwide press conference in 2003, George W. Bush’s attorney general, the born-again John Ashcroft, trumpeted the arrest of Dr. Sami al-Arian, who he described as “the most dangerous man in the world.”

In announcing the 120-page indictment, Ashcroft charged that al-Arian and his three co-defendants played “a substantial role in international terrorism…They finance … and assist acts of terror. Our message to them is clear: We make no distinction between those who carry out terrorist attacks, and those who knowingly finance, manage, or supervise terrorist organizations.” He charged that al-Arian had been actively funding terrorist attacks in Israel as the US leader of Palestinian Islamic Jihad.

All that was nine years ago. Nine years. And, in one form or another, Dr. al-Arian has pretty much been incarcerated ever since.

Incarcerated not in some tinpot dictatorship, but in the United States of America. The same America that prides itself on the fairness and integrity of its criminal justice system and the rule of law.

As Glenn Greenwald wrote in Salon: “Each time it appears that [al-Arian’s] plight will finally be over, the U.S. Government concocts a new process to ensure that he remains a prisoner.”

This is how it happened:

Rewind to the mid-1990s. That’s when the FBI began its decade-long surveillance of Dr. al-Arian. A Palestinian born in Kuwait, al-Arian was in the U.S.as a permanent resident. He was well-known in the Muslim Community throughout the United States, popular among his students at the University of South Florida (USF), where he was a tenured professor of computer engineering. At the same time, his reputation as a well-informed Palestinian was growing among members of Congress and advisors to President Clinton, who invited him to the White House.

Things began to turn sour for al-Arian after his university tried to fire him following his guest appearance on Bill O’Reilly’s show, The Factor, on Fox News. It was clear that USF was looking for a pretext to make the al-Arian story go away. The DOJ finally indicted al-Arian on Feb, 20, 2003, and accused him of backing organizations fronting for Palestinian Islamic Jihad – a 1997 State Department-designated “Foreign Terrorist Organization (FTO).”

It charged al-Arian with multiple counts of conspiracies to provide material support for this organization. The mountain of wiretaps, emails, speeches, lectures, and much more the FBI collected from Dr. al-Arian, would constitute the government’s case against him.

A week after al-Arian’s indictment, University of South Florida president Judy Genshaft fired him with the backing of then Governor Jeb Bush, and pressure from a vocal segment of the “Israel right or wrong” US foreign policy establishment.
despite the Constitutional guarantee of a speedy trial, the court case didn’t begin until 28 months later, during which al-Arian was held in solitary confinement.

And despite the Constitutional guarantee of a speedy trial, the court case didn’t begin until 28 months later, during which al-Arian was held in solitary confinement. He was locked in a small, windowless cell for 23 hours each day. So harsh were the conditions of his imprisonment that Amnesty International was compelled to write US prosecutors, “calling for a review of the pre-trial detention conditions…aspects of which it said appeared to be gratuitously punitive,’ ” and a breach of international standards.

The period leading up to the trial was marked by shrill and frequently inaccurate public accusations against al-Arian. Many of the more outrageous came from Fox News and from Steve Emerson, a self-styled “terrorism expert” best known for his off-the-wall predictions of impending terrorist attacks on the homeland. Emerson runs a not-for-profit outfit called The Investigative Project on Terrorism, and also has a for-profit company that does corporate and government consulting.

Among some of his more notorious claims, Emerson told a reporter shortly after the 1995 Oklahoma Citybombing that he believed the perpetrators were likely Islamic terrorists. The reporter, Tampa Tribune‘s Michael Fechter, wrote: “More and more, terrorism experts in the United States and elsewhere say Wednesday’s bombing inOklahoma City bears the characteristics of other deadly attacks linked to Islamic militants.” Fechter now works for Emerson’s Investigative Project.

The blogosphere was also alive with right-left battles over the al-Arian case. The mainstream print press appeared to be as clueless as usual in its coverage of legal proceedings. As it struggled to understand the legalese of the courtroom, it frequently elected to write about the easier-to-understand personal conflicts of the principals in the case, or turn to accessible but unreliable sources, such as Emerson. And as for cable news, including Fox, most coverage was reduced to minimally-informative sound bites.

But the tone of the press coverage, often quoting government officials, seemed to guarantee that the post-9/11 hysteria would frame the al-Arian trial as if the government had designed it.

Fox News Channel, NBC, Media General (specifically itsTampa newspaper) and the giant radio conglomerate, Clear Channel Communications (home of Rush Limbaugh’s broadcasts) shoulder an especially heavy burden for fanning the flames of post-9/11 hysteria.

As Eric Boehlert wrote in Salon, “In the wake of the Sept. 11 terrorist attacks, all four media giants, eagerly tapping into the country’s mood of vengeance and fear, latched onto the al-Arian story, fudging the facts and ignoring the most rudimentary tenets of journalism in their haste to better tell a sinister story about lurking Middle Eastern dangers here at home.”

In the wake of the Sept. 11 terrorist attacks, all four media giants, eagerly tapping into the country’s mood of vengeance and fear, latched onto the al-Arian story, fudging the facts and ignoring the most rudimentary tenets of journalism in their haste to better tell a sinister story about lurking Middle Eastern dangers here at home.

The impact of its battles with the US justice system on al-Arian’s family was profound. Leila al-Arian, one of three al-Arian daughters, told this reporter that “the adversity our family experienced brought us all much closer together. We had to depend on one another for emotional support.”

Leila, a journalist who lives in Washington, DC, said raising money for her father’s legal defense fund was probably the most stressful activity the family had to take on. “We knew just about nothing about raising money. Asking for financial help is a humbling experience.”

“What made it bearable – and successful – was the spirit and goodwill of so many people who offered to help. A woman in Tampa organized demonstrations in support of my father. A man in California, who had only a passing acquaintance with my father, became one of the national voices in his support. There were so many and many of them didn’t know us at all. They were just appalled by what was happening to my Dad,” she said.

Once al-Arian’s trial actually began, the prosecution called 80 witnesses, including more than 20 from Israel. Much of the government’s evidence presented to the jury during the six-month trial consisted of Dr. al-Arian’s speeches, lectures, articles, magazines, books he owned, and accounts of conferences he convened, rallies he attended, interviews he gave, and parts of hundreds of wiretapped phone calls from over a half million recorded.

When the defense’s turn came to present its case, it rested. It called not a single witness in its behalf. Its sole defense was that all of al-Arian’s written and spoken words were protected speech under the First Amendment.

After 13 days of deliberation, the jury found him innocent on eight of the charges, including the most serious, and hung on the rest, voting 10 to 2 to acquit.

After 13 days of deliberation, the jury found him innocent on eight of the charges, including the most serious, and hung on the rest, voting 10 to 2 to acquit. Two of Al Arian’s three co-defendants were acquitted completely.

The total collapse of the government’s case could only be seen as a devastating embarrassment for the Department of Justice (DOJ), which had spent an estimated $50-$80 million. Observers of the trial believe the DOJ won an expensive humiliation.

But the DOJ’s intent to re-try al-Arian led him to strike a secret plea bargain. He was desperate to avoid both the emotional and financial cost of a new trial to himself and his family. The essence of the plea deal was that al-Arian neither engaged in or had any knowledge of violent acts; that he would not be required to cooperate further with prosecutors; and that he would be released on time served and deported voluntarily to his country of choice.

In the meantime, al-Arian remained in custody pending sentencing and deportation. He expected to be freed on May 1, 2006. But the presiding judge changed the deal. He sentenced al-Arian to the maximum 57 months, gave him credit for time served, and ordered him held for the remaining 11 months, after which an April 2007 deportation would follow.

In October 2006, assistant prosecutor Gordon Kromberg violated the plea bargain terms by subpoenaing Al-Arian before a grand jury. His defense attorneys tried to block it by citing his “no-grand jury cooperation” promise. But prosecutors gutted the cooperation clause from the agreement, which was made during plea negotiations (when to prevent the DOJ from springing a perjury-obstruction trap). The defense’s motion was denied, and on November 16 Al-Arian again refused to testify and again was held in civil contempt.

A month later, the grand jury expired, a new one was convened, and al-Arian was again subpoenaed to testify. He continued to refuse, was held in contempt, and had his sentence increased by an additional year to April 7, 2008.

On March 3, 2008, Kromberg ordered al-Arian before still another March 19 grand jury, three weeks before his scheduled release and deportation. On the same day, al-Arian began his third hunger strike against the government’s continued harassment. For a man with diabetes, lack of food is life-threatening; he needs regular sustenance to avoid serious health problems. Al-Arian’s January through March, 2007 hunger strike had depleted a quarter of his body weight. His family says it gravely harmed him, and ended only at their urging.

Twenty days into his latest fast, and having lost 30 pounds, al-Arian was shuttled to various medical facilities. On March 18, he was returned to Warsaw, Virginia’s Northern Neck Regional jail ahead of his third grand jury appearance. Again, he refused to testify.

Because he refused to testify before a federal grand jury after the court held that he had no legal basis for refusing, in November 2006 he was held in civil contempt and imprisoned by a federal court judge in Virginia. He served 13 months on this charge until the court lifted its contempt order in December 2007. In June of 2008, at the behest of Kromberg, al-Arian was indicted on two counts of criminal contempt for not testifying.

In September 2008, al-Arian was released from detention on bond. He remains under house arrest as he awaits trial on criminal contempt charges

In September 2008, al-Arian was released from detention on bond. He remains under house arrest as he awaits trial on criminal contempt charges. For the first time in over five years, he was reunited with his family, but his ordeal continues. On this occasion alone, he has been waiting for his day in court for more than three years.

The Virginia grand jury that al-Arian has refused to appear before was investigating a Herndon, Va.-based think tank, the International Institute of Islamic Thought (IIIT), and its alleged terrorism financing and support networks.

The government claims IIIT gave money to a PIJ-related think tank in Tampa that al-Arian once ran. During the mid 1990s, this think tank employed several PIJ members, the government said, including Ramadan Abdullah Shallah, who left Tampa in 1995 for Syri at to assume leadership of PIJ. The PIJ affiliations of Shallah and others were acknowledged by al-Arian in his plea agreement.

At the time, his attorney, Professor Jonathan Turley, called the Justice Department’s ploy “a classic perjury trap used repeatedly by the government to punish those individuals who could not be convicted before an American jury.”

Obama’s prosecutors proved to be as ruthless as their predecessors. For example, DOJ asked the Court to deny a defense motion, filed 18 months earlier, to dismiss criminal contempt charges. Three previous DOJ motions were rejected.

This time, Holder prosecutors not only requested denying the defense’s dismissal motion, but asked Judge Brinkema to reverse her earlier decision letting al-Arian’s attorneys present evidence in case of trial.

In March 2009, she backed the defense’s request to file a motion to dismiss al-Arian’s charges, saying she’d rule later at further hearings, and expressing concern over government “bait and switch” tactics: “where Dr. al-Arian and his counsel were assured that, if he agreed to plead guilty (to one minor charge), he would not be subject to any further involvement with the DOJ beyond his deportation following the completion of his sentence.” Bush prosecutors reneged on the agreement and Obama’s lawyers followed suit. Judge Brinkema has never ruled on this request.

Al-Arian’s former appeals attorney, Professor Peter Erlinder, a former president of the National Lawyers Guild, said:

“The prosecution of Dr. Sami al-Arian was a blatant attempt to silence political speech and dissent in the aftermath of the 9/11 tragedy. The nature of the political persecution of this case has been demonstrated throughout all its aspects, not only during the trial and the never-ending right-wing media onslaught, but also after the stunning defeat of the government in 2005, and its ill-advised abuse of the grand jury system thereafter.”

Others who have followed the al-Arian case are equally critical. For example, Lawrence Davidson, professor of history at West Chester University in West Chester, Pennsylvania, told this reporter, “Bush thoroughly corrupted the Justice Department by stacking it with Christian Fundamentalists on the one hand and rabid Zionists on the other.”

He added, “The al-Arian case is a classical case of injustice and ideological corruption of the justice system. The judge (appointed by Bill Clinton) as well as the prosecutors should be disbarred. Everyone on the government side acted unethically, if not illegally.”

There is at least one further irony in the seemingly endless prosecution of Dr. al-Arian. Early in his trial, the judge ruled that information concerning the Israeli-Palestinian dispute could not be admitted as evidence. Yet that dispute is at the very center of the case and of al-Arian’s life. Were there no Israeli-Palestinian dispute, there would be no trial.

One wonders why al-Arian and not someone else? Glenn Greenwald gives a plausible explanation:

“In reality, al-Arian has been persecuted for one reason only: because he’s a Palestinian activist highly critical of the four-decade brutal Israeli occupation.”


This article originally appeared on the pages of the Prism Magazine website.

Who'll Have the Last Laugh?

By William Fisher

Andrew Rosenthal, the editor of the editorial pages for the New York Times, was practically ecstatic. He wrote: “Over the last several years, two private military contractors linked to prisoner abuse at Abu Ghraib have been pleading for the same treatment afforded to Pentagon execs. CACI and L-3 have asserted that their wartime activities are beyond the review of courts and have claimed “absolute official immunity” from litigation. But on Friday, the Court of Appeals for the Fourth Circuit ruled 11-3 that lawsuits against CACI and L-3 can proceed to a discovery phase.”

Likewise, Baher Azmy, legal director of the Center for Constitutional Rights, who helped argue the case on behalf of Abu Ghraib detainees, said it was finally “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court.” It might also shed some light on the Bush administration’s practice of outsourcing warfare in Iraq and Afghanistan to independent contractors.”

But will this case in fact provide “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court?”

Or will the Obama Administration, like the Bush lawyers before it, once again turn to the so-called “State Secrets Privilege” to get this case thrown out of court? Given its past performances, that would seem to be the logical culmination of this prosecution. Both the Bush and Obama legal teams have invoked “state secrets” on numerous occasions, proclaiming that revelation of any piece of the evidence in this case would subject the entire case to public scrutiny, thus revealing classified material whose disclosure would compromise U.S. national security.

As a result, we may find a human rights organization like the American Civil Liberties Union in the awkward position of defending contractors as they deny attempt to deny any public access to descriptions of activities the contractors will be desperate to suppress.

If the judiciary takes its customary position vis a vis the state secrets privilege, the contractors will have little to fear. Evidence needed to gain a conviction will likely never be heard in court because it is precisely the evidence that the government will contend compromises national security.

Meanwhile, legislative efforts to introduce changes into the state secrets law have come to a screeching halt, like just about everything in Congress at this time. There is unlikely to be any progress before the election.

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.